/\{ Petititioner througlr Ms.Mukta Gupta, Standing counsel Versus Respondents. through in person. * Horr'ble Mr.Justice Manmohan Sarin. Hon'ble Ms.Justice Rekha Sharma. [1) Whettrer reporters of local paper may be atrlowed to see the judgment? (c .-v/ [2] To be refqred to the reporter or not? ye, .-t , r3) Whether the judgment should be reporred /C/ flt tr in tl.e Digest ? 'rL''L*Lr' us rsPur -- -- r il i + Mannaohan Sarin. J 1. ' This is an application moved by the State seeking Cr1.L.P.87/2003 Page 1 of page 7 o/o + # State ! -\ $ Kishan Pal & alar. I n HIG}I COURT OF DELHI Date of decisi on: July 15il , ZOO5, Cr1.L.P.87 l2AOB & Cr1.M,67/2OOB Coranr : Digitally Signed By:AMULYA Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified leave tr'[e to appeal, against the judgment & order dated I7J, ^ Felruary, 2OO1, passed by the Additional Sessions Judge acquittin$ the responderrts of charges under Section 3a2/3o7 read with section 34 IPC Sving them ttre benefit of doubt. ; I It appears that application for leave to appeal had been prepared in Ju:le, 2OO1 and filed in July, 2OO1. The application is accorrlFanied by an application under Section 5 : of the Lirnitation Act being Cr1.M.61-/2OOg seeking condonation of delay of fifty days in initial institution and a deldy of one year, eleven months and 25 days in refiling the appeal. The appeal had been returned \$ith objections. 3. Learned. Standing counsel Ms.Mukta Gupta places rella,rrce on a judgment of ihe Division Bench of this court in State Vs, Suresh Kurrrar (Cr1.L.P.62|2OG?} & Other n connected appeals I I condoning the ca*ses appqals, has tal<en note appeals had remained I Crl.L.P-87/2003 wherein the Division Bench, while of enonnous delay in filing of the of extra ordinary situation where 250 pending in the office of the State Page? of page 7 counsel. The delay in institution which ranged from 174 days to 1O15 i a rea-soned judg:nent. A'-.. T Keeping the issue of condonation of delay apart, r*'e recluested the counsel to address us on urerit to show if "ny i case is made out for entertainmqet of ttre appeal othenvise respondents were present jn courL. The question arising for consideration in this Leave to appeal, is whether the accused Kishan Pal and his wife omvati pushed the decea,sed Ra:n Ji Lal and his udfe Bela, follorving the quarrel on the roof top, with the k:towledge and intention that pushing them rrould result in grievous injuries or death in the ordina:y course of nature or it r.va*s a case in a scuffle v'hilg grappling with each other, the deceased and his wife accidentally fell down rvith parapet wall Sving way? The learned Ad.ditional sessions Judge on appreciation of evidence and in his judgment held that prosecution had failed to prove the case beyond reasonable doubt and accordin$y acquitted I Crl.L.P.87/2003 i g 5. \1- 5=- \{ :) n as also delay in refiling, days was condoned, urilh Page 3 ofpage 7 ".rI 6 theur of the charges under Sections 3OZ /3OZ read rvith Section 34 IPC, givtng them the benefit of doubt. Learned counsel for the State Ms.Mukta Gupta subnrits that minor discrepancies and variances have been treated as contradictions, fatal to the prosecution's case. She subnrits that d.iscrepancies and varianees alone calnot make the prosecution's case doubtful, She subudts that quarrel and inctde'nt is adnritted. The factum of estranged relationship has I also, been proved on record. In these circumstances, tJ:e testimony of the rvife of the deceased Bela and her dauglrter should not have been disbelieved or igpored. 6. The case of the prosecution as set up is that aceused Kishan Pal had arr evil eye on the d.eceased.'s d.aughters. According to deceased' rvife Bela, he had indulged in character assassination of her daughters by stating that two days prior to the incident, they were standing alone late at night in ttre gal1ery of their house, which had been protested. There was also an altercation rvith regard to plants having been plucked Crl.L.P.87/2ffi3 Page4 of page 7 -v- t v I , 7tt- -i Y \L which was sorted out by t]:e intenrention of Puran chand, a tdnant of Kishan Pa1. A-s per the version of deceased's wife, she had gone to the roof on Lz'd septenrber, lggo in the morning to throw garbage arr.d giving water to hrlsi plant, when Klshan Pal and his wife omvati started abusing her and : quarreled rvith her. On hearing the commotion, her husband caTr.e to the roof arr.d. they grappled u/ith each other. She claims that accused Onrvati shut her eyes with her pa}er and then accused Kishan Pal pushed her husband. Ttrereafter : onryati had pushed her down. curiously, if her eyes had been shu! by Onrvati, then she could not have seen Kjshan PaI pushing her husband doum frour- ttre roof. The deceased's i daughter Geeta claims that she had also gone to the roof but saw the incident from the stairs. 7 . . tn" Ad ditional Sessions Judge after careful analysis of the evidence as led, found that the allegation regarding i Kishan Pal having an evil eye on the dauglrters of the deceased was pot established as no other independent wirness had t Crl.L.P.87/2ffi3 I l l i I Page 5 of page 7 v *upprrrted the sarne and even Geeta, daughter had not deposed and made arry gfievance l- Besides the altercation over pkint had a-lso rbsolved.. It was also established. on record of the deceased on this count. been anricably that there was ottrennise cordial relationship and parties were. on visiting terms. The presence of the aceused Omvati on the roof was :not established. He reached the conchrsion that grudge : against the accused, if any, was in eonrplainant's nrind. 8. The Additional Sessions Judge set out the contradictions and has given reasons as to urhy the prosecution version suffers from contradi.etions and ttlat the version of the accused of the fall being an accidental one is a pldusible one. Signjficantly, it is the prosecution's owrr ca*se thdt they were grappling urith each other. Ttrere was a parapet boundary wall of two and half ft and four inches in width. A portion of this parapet wall had given way and the bricks that had fbJlen, were found on the ground by the I.O. In these circumstances, in view of the breaking of the parapet I Crl.I-i.P.87/2003 i Page 6 of page 7 \,_ 0)\ wa-ll and consid.ering that the accused. himself sustained.ry L fracture and injuries in the fall, the defence version is : : plausible. In these circumstances, the judgrnent of the Additional Sessions Judge acquitting the accused and glvjng theur the benefit of doubt cannot be faulted with. Leave to appeirl is refused. €'; \-l - ,.f' {' July lLilt zoos ssb Page 7 ofpage 7 Crl.L.P.87/20O3