STATE Vs. DHARAMVIR ALIAS DHIRAJ

JUDGEMENT

(1.) THE state seeks leave to appeal against a judgment and order of the learned Additional Sessions Judge, dated 27.03.2010 in SC No. 354/2007 acquitting the accused respondents of the charge of having committed offences punishable under Sections 302/34 IPC.

(2.) THE prosecution case was that on 22.02.2007 the dead body of an unknown male was found lying at the DTC bus stop opposite B.D.O Office at PS Alipur. It was sent to BJRM hospital and was preserved for 72 hours for its identification. THEreafter on 25.02.2007, the body was identified by Birbal, elder brother of Dinesh Singh s/o Sh. Satya Narain Singh (hereafter "the deceased") who worked as a driver of the Tempo bearing no. DL 1 LE 2938, engaged by Sony India Ltd's warehouse at Badarpur. On interrogation by the IO the helper of the canter Ujjar Rai allegedly disclosed that on 21.02.2007 the aforesaid canter was parked in the parking of B.K Dutt market by the deceased; he also pointed out the place where one Dwarika Prasad, security guard of Lord Krishna Bank met them. He informed that two persons, who quarrelled with the aforesaid canter driver on 21.02.2007 were present near the Lal building and accordingly at his pointing out, the respondent, accused Dharamvir alias Dhiraj and Nitin Kumar were apprehended. Allegedly, on interrogation, they disclosed about their involvement in the commission of the offence. Dharamvir alias Dhiraj also allegedly assisted in the recovery of one Sony WEGA T.V.

(3.) THE learned APP argued that the Trial court failed to see that even though PW-9 did not support his previous statement, yet, his deposition taken as a whole, considered together with recovery of the articles pursuant to the disclosure statement of the accused, was sufficient to implicate them for the crimes they were charged with. It was submitted that once the prosecution established, through credible materials, that the accused were connected with the articles, and the scene of crime, by virtue of Section 106, Evidence Act, the respondent accused were under an obligation to discharge the onus, that lay upon them to explain these adverse circumstances. THEy did not do so, either in their statement under Section 313, Cr. PC. or by leading evidence. THErefore, their acquittal was erroneous, and the state had to be given leave to appeal.