Delhi District Court
Sh Pradeep Sehrawat vs The State (Gnct Of Delhi) on 18 May, 2016
IN THE COURT OF SHRI AMIT BANSAL
ADDITIONAL SESSIONS JUDGE-04, NEW DELHI DISTRICT
PATIALA HOUSE COURTS, NEW DELHI
Unique I D No. : 02403R0112852014
CA Number : 92/1/14
FIR No. : 662/2006
PS: : Vasant Kunj (North)
U/S: : 341/323 IPC
Sh Pradeep Sehrawat
s/o Late Sh. Jai Narain
R/o H. No. 16, Mahipal Pur,
New Delhi. .................. Appellant.
Versus
1. The State (GNCT of Delhi)
2. Umed Singh Sehrawat
S/o Late Sh. Jaishi Ram
R/o House near DESU Office,
Village Mahipal Pur,
New Delhi-110037. ................Respondent.
Date of receipt of file in this Court : 23.07.2015
Date when arguments were heard : 07.05.2016
Date of judgment : 18.05.2016
JUDGMENT
1 By way of present appeal, the appellant/complainant/victim herein has challenged the judgment of acquittal dated 05.02.2014 passed by the then Ld. MM-02, PHC, New Delhi whereby the accused / respondent no. 2 Umed CA No. 92/1/14 FIR No. 662/2006 PS Vasant Kunj (North) Pradeep Sehrawat Vs. The State & Anr. Page No.1/22 Singh Sehrawat was acquitted for the offences punishable u/s 341/323 r/w Section 34 IPC.
2 The case of the prosecution as mentioned in the statement Ex PW1/A of complainant/PW1 Sh Pradeep Sehrawat, advocate is that he alleged that he was resident of H. No. 16, Village Mahipalpur, New Delhi and on 21.11.2006 he came to attend the court of SDM, Delhi Cantt at Kapashera in a case u/s 145 CrPC against Smt Shakuntala W/o Sh Umed Singh & Ors. He stated that after attending the court he was coming to his house and when at about 2.30pm he reached at main Mahipalpur crossing highway, suddenly Umed Singh (respondent no. 2/accused) with two other persons, whose name were not known to him, came on a two wheeler scooter from his back and forcibly stopped his car by putting their scooter in front of him. He alleged that Umed Singh came from his right side, two others came from his left side, all the three forcibly entered his car and started beating him with fists and helmet. He further alleged that Umed Singh/accused/respondent no. 2 punched him on his face, chest and abdomen and the persons on his left also punched him on his left eye and other parts of the body. He alleged that he was unable to move from his seat due to the seat belt. One of them pulled him out of his car and threw him on the road. He alleged that during the incident the respondent no. 2/accused was threatening to kill him and was also telling the other two persons to finish him on the spot. He stated that while the act of beating was on, he became unconscious for a movement, the assailants ran away from the spot, thereafter he made a call on 100 number, PCR van came and carried him to Safdarjung hospital (in short referred to as SJ hospital). 3 As per the case of prosecution, PW3 Insp. B K Badola received a written complaint of complainant regarding a quarrel (Ex PW1/A), PW3 conducted CA No. 92/1/14 FIR No. 662/2006 PS Vasant Kunj (North) Pradeep Sehrawat Vs. The State & Anr. Page No.2/22 enquiry on the said complaint, he went to Mahipalpur chowk and conducted local enquiry there. PW3 thereafter prepared a rukka Ex PW3/A on the basis of Ex PW1/A and got the case FIR Ex PW2/A registered. Further investigation of the case was handed over to PW6 ASI Hawa Singh on 23.11.2006. PW6 went to the spot and prepared site plan Ex PW6/A at the instance of the complainant / PW1. PW6 enquired from PW1 and one other eye witness Mr Mahavir Singh and recorded their statements u/s 161 CrPC. The arrest memo and personal search memo of accused /respondent no. 2 both dated 05.06.2007 have been proved as Ex PW6/B and Ex PW6/C respectively. PW6 also collected the MLC and X-ray reports of PW1 i.e. ExPW4/A and Ex PW5/A respectively.
4 After conclusion of the investigation, charge sheet was filed against the accused/respondent no. 2 u/s 323/341 IPC, who duly appeared and contested the case against him on merits. The notice of accusation u/s 323/341/34 IPC was served upon the accused/respondent no. 2 on 25.03.2008 by the Ld. Trial court to which he pleaded not guilty and claimed trial. 5 The prosecution in support of its case has examined total six witnesses. 6 PW1 Sh Pradeep Sehrawat is the complainant/victim of the case incident and is the appellant in the present appeal. He reiterated the contents of his complaint dated 21.11.2006 Ex PW1/A in his testimony.
In cross examination, PW1 inter alia admitted that they were at loggerheads due to different cases pending in different courts. He deposed that there was no red light at the spot but it was about 10-12 meters ahead of the spot. He volunteered that he had to stop his vehicle as the assailants all of a sudden came on a scooter and placed it in stationary position in front of his car. He denied the suggestions that no scooter was parked in front of his CA No. 92/1/14 FIR No. 662/2006 PS Vasant Kunj (North) Pradeep Sehrawat Vs. The State & Anr. Page No.3/22 car or that he had no car. He volunteered that he was driving his car make Zen VX vide registration no. DL 2C K 7252. He deposed that he had not placed his documents regarding the said car on record and that the police had not impounded his car. He could not say the duration of the time qua the beatings given by the assailants. To a court question to the effect that if he did not even defend himself at that time, he replied that as he was wearing a seat belt, therefore, he was not able to move to defend and the assailants had attacked him all of a sudden. He further deposed in his cross examination that his car was having a central locking system but at that time it was not closed and that the door glasses of his car were closed at that time. He further denied the suggestion that the assailants did not open the door, attack him and gave him beating or that the accused /respondent no. 2 did not hit him with fists blows or helmet on any part of his body or that the accused did not enter his car or that he gave beatings to him or that he threatened to kill him. 7 PW2 ASI Ramesh Kumar was working as a Duty Officer on 22.12.2006 at PS Vasant Kunj and deposed that on that day at about 7.30pm SI B K Badola (PW3) came at a PS, produced a rukka and on its basis, he registered the case FIR Ex PW2/A. The endorsement on the rukka as made by PW2 has been proved as Ex PW2/B. He deposed that after registration of FIR, the investigation of the case was marked to PW6 ASI Hawa Singh.
In cross examination by Ld. Defence counsel, PW2 admitted that there were interpolations in 'Day' and 'Date' at column no. 3 in FIR Ex PW2/A, which seemed to be written as 'Wednesday' (day) and '22.11.2006' (date), however, after putting the fluid, the same had been changed to 'Thursday' and '21.11.2006'. He admitted that any kind of change in column no. 3 or anywhere (in FIR) was not permissible. He further inter alia deposed that at CA No. 92/1/14 FIR No. 662/2006 PS Vasant Kunj (North) Pradeep Sehrawat Vs. The State & Anr. Page No.4/22 about 8.15pm he handed over the copy of FIR and rukka to IO ASI Hawa Singh after calling him at the PS. 8 PW3 Inspector B K Badola deposed to the effect that on 21.11.2006 he received a written complaint of PW1 regarding the quarrel upon which he conducted enquiry from the complainant and reached Mahipalpur chowk, he conducted local enquiry there and then returned to the PS. He deposed that thereafter he prepared a rukka Ex PW3/A and got the case FIR registered. He deposed that after registration of the case, the investigation was handed over to ASI Hawa Singh by concerned SHO.
In cross examination by Ld. Defence counsel, PW3 inter alia deposed that he did not remember the person from whom he had conducted the local enquiry.
9 PW4 Dr Vikas Chauhan, Sr Medical Officer, SJ hospital deposed to the effect that he was deputed by Medical Superintendent (MS) to depose on behalf of Dr Avinash Jha, JR qua MLC No. 253901/06 of injured Pradeep Sehrawat. He deposed that Dr Avinash Jha had left the services of SJ hospital, his present whereabouts were not known and since Dr Avinash Jha had worked under his supervision and he had seen him writing and signing during the course of his official duties, therefore, he was acquainted with his writing and signatures. The said MLC of injured Pradeep Sehrawat (PW1/complainant/appellant) has been proved as Ex PW4/A bearing the signatures of Dr Avinash Jha at point A. He further deposed that as per the said MLC, the nature of injuries were simple caused by blunt object.
The cross examination of PW4 by accused was nil, opportunity given. 10 PW5 Dr S K Bajaj, SJ hospital deposed that he had been deputed by MS to depose on behalf of Dr Meenu Solanki, SR, Radiologist for X-ray report CA No. 92/1/14 FIR No. 662/2006 PS Vasant Kunj (North) Pradeep Sehrawat Vs. The State & Anr. Page No.5/22 number 6511 dated 21.11.2006 of injured Pradeep Sehrawat. He deposed that Dr Meenu Solanki had left the services of SJ hospital, her present whereabouts were not known and since she had worked under his supervision and he had seen her writing and signing during the course of his official duties, therefore, he was acquainted with her writing and signatures. The above said X-ray report was proved as Ex PW5/A bearing the signatures of Dr Meenu Solanki at point A. He deposed that as per the X-ray report, no bony injury was found.
The cross examination of PW5 by accused was nil, opportunity given. 11 PW6 ASI Hawa Singh is the IO of the case. He deposed that on 23.11.2006 he was handed over the investigation of the present case, he went to the spot and prepared site plan Ex PW6/A at the instance of complainant/PW1. He further deposed that he enquired from the complainant and one eye witness namely Mahavir Singh and recorded their statements u/s 161 CrPC. The arrest memo and personal search memo of accused /respondent no. 2 were proved as Ex PW6/B and Ex PW6/C respectively.
In cross examination by Ld. Defence counsel, PW6 inter alia deposed that he reached the spot after 1 ½ hours after receiving the copy of FIR, he did not remember at what time he reached the spot and he did not remember at what time the incident took place. He further deposed that the corrections at points 'A', 'B' and 'C' in FIR were already there when it was handed over to him, however, he neither objected to the same nor brought the same in the knowledge of his superiors as he did not find any foul play in the same. He deposed that Mahavir Singh came from the side of his house, was going for taking medicines and met him on the red light intersection towards CA No. 92/1/14 FIR No. 662/2006 PS Vasant Kunj (North) Pradeep Sehrawat Vs. The State & Anr. Page No.6/22 Mahipalpur. He denied the suggestion that he neither visited the spot nor met Mahavir Singh. He deposed that the vehicle in which complainant came to the spot on the date of incident was not available when he reached the spot and he did not seize the said vehicle.
12 The statement of the accused/respondent no. 2 u/s 313 CrPC was recorded on 03.08.2012 in which he denied all the material incriminating circumstances appearing in the prosecution evidence on record against him. He further stated that though on that day he was present at the spot but he did not cause any injury to the complainant. He further stated that he was wrongly arrested in this case and preferred to lead defence evidence. 13 The accused / respondent no. 2 examined total two defence witnesses in support of his case.
DW-1 Sh. Ganender Singh has deposed in his examination in chief that on 21.11.2006 he went to the house of accused Umed Singh and Mr. Vishal son of accused with another person went to drop him at red light, Mahipalpur so that he could catch a bus upto Sarai Kale khan. He further deposed that at red light some persons were wrangling with each other and he was told by Vishal that the said three persons were son of his uncle (Tauji) namely Pradeep (appellant herein). He also deposed that after some time those three persons left the spot at around 03:00 pm and the fourth person with whom they were fighting was the complainant/appellant and pointed out towards the complainant of the case who was present in the court.
In cross examination by Ld. APP for State, DW-1 denied the suggestion that he was not present at the spot or that he was deposing falsely. 14 DW-2 Sh. Parmod Kumar has deposed to the effect that on 21.11.2006, he alongwith one Dhanender went to the house of niece of Dhanender in CA No. 92/1/14 FIR No. 662/2006 PS Vasant Kunj (North) Pradeep Sehrawat Vs. The State & Anr. Page No.7/22 Mahipalpur and Vishal son of Umed Singh (accused/respondent no. 2) was also with them who had come to drop them. He deposed that at about 03:00 pm when they moved from there and reached red light Mahipalpur, they saw that three boys were beating Pradeep, cousin of Vishal, and after a while those three boys ran away from there. He further deposed that thereafter he took a bus and went on his way.
In cross examination by Ld. APP for State, DW-2 deposed that he did not call the police when he saw that Pradeep was being beaten up. He denied the suggestion that he was deposing falsely.
15 The Ld. Trial Court after hearing the arguments of the Ld. APP for the State as well as the Ld. defence Counsel vide the impugned judgment dated 05.02.2014 acquitted the accused/respondent no. 2 for the commission of offences punishable under Section 323/341 r/w Section 34 IPC. The Ld. Trial Court held that the previous enmity is a double edged weapon which could be motive for the crime and also a ground for false implication of the accused. The Ld. Trial Court also held that where enmity is proved to be the motive for the commission of the crime, the accused could not urge that despite proof of the motive of the crime, the witnesses proved to be inimical should not be relied upon and referred to the judgment of Hon'ble Supreme Court of India in case titled as Anil Rai Vs State of Bihar, (SC) 2001 (3) R.C.R. (Criminal) 722 and came to the conclusion that in the present case motive for false implication of the accused could not be ruled out as PW-1/complainant had admitted that there was previous enmity between him and the accused and that they were at loggerheads due to different cases pending between them at different courts.
The Ld. Trial Court further held while acquitting the accused that the CA No. 92/1/14 FIR No. 662/2006 PS Vasant Kunj (North) Pradeep Sehrawat Vs. The State & Anr. Page No.8/22 alleged eye witness namely Mr. Mahavir Singh expired during the course of proceedings in this case, he could not therefore be examined and it was not safe to base the conviction on the basis of sole testimony of the complainant uncorroborated by any eye witness account especially when there is previous history of enmity between the parties.
The Ld. Trial court also held that as the injuries in this case were simple in nature and may be self inflicted, so false implication of the accused could not be completely ruled out.
The Ld. Trial Court also casted a doubt on the case of the prosecution due to interpolations in the day and date of occurrence of offence as mentioned in the FIR.
The Ld. Trial Court further relied upon the testimony of DW-1 & DW-2 mentioning that their credibility had not been shaken in their cross examination, the defence witnesses are as much competent witnesses as the prosecution witnesses and the court had no reason to disbelieve their version.
Thus the accused/respondent no. 2 herein was acquitted by the Ld. Trial Court vide impugned judgment for offences under Section 341/323 r/w Section 34 IPC.
16 I have heard the arguments of Ld. counsel for the appellant/complainant, Ld. Addl. PP for State/respondent no. 1 and Ld. counsel for respondent no. 2/accused and have carefully perused the record. The arguments would be mentioned at the relevant stages of the judgment.
17 The Ld. counsel for appellant/complainant argued that the Ld. Trial Court committed an illegality while giving undue weightage to the previous enmity between the appellant and respondent no. 2 as the motive for the crime and a ground for false implication of the accused. He argued that absence of CA No. 92/1/14 FIR No. 662/2006 PS Vasant Kunj (North) Pradeep Sehrawat Vs. The State & Anr. Page No.9/22 motive loses its significance in a case of direct evidence and in that regard relied upon the judgment of Hon'ble Supreme Court of India in case titled as Lokesh Shivakumar Vs. State of Karnataka, (2012) 3 SCC 196. He also argued that enmity is not a sufficient ground for rejecting testimony and in that context relied upon the judgment of Hon'ble Supreme Court of India in case titled as Raman Kaliya Vs State of Gujarat, AIR 1979 SC 1261. He argued that relationship is not a factor to affect the credibility of witness and referred to the judgment of Hon'ble Supreme Court of India in case titled as Rizan Vs State of Chattisgarh, through the Chief Secretary, Govt. of Chattisgarh, Raipur, AIR 2003 Supreme Court 976 (1). He argued that the Ld. Trial Court erred in law while reaching to the conclusion that in the present case motive for false implication of the accused could not be ruled out while relying upon the judgment of Hon'ble Supreme Court of India in case titled as Anil Rai Vs State of Bihar, Criminal Appeal No. 389/1998 as decided on 06.08.2001. He argued that in the said case, the Hon'ble Supreme Court of India has held that in case of inimical witnesses, the courts are required to scrutinize their testimony with anxious care to find out whether their testimony inspires confidence to be acceptable notwithstanding the existence of enmity. He submitted that the Hon'ble Apex Court has also held in that case that the testimony of eye witnesses, which is otherwise convincing and consistent, could not be discarded simply on the ground that the injured was related to the eye witnesses or previously there were some disputes between the accused and the injured or the witnesses. He argued that the Ld. Apex Court in the said case has further held that mere existence of enmity, particularly when it is alleged as a motive for the commission of the crime could not be made a basis to discard or reject the testimony of eye witnesses, the CA No. 92/1/14 FIR No. 662/2006 PS Vasant Kunj (North) Pradeep Sehrawat Vs. The State & Anr. Page No.10/22 deposition of whom is otherwise consistent and convincing. He also argued that motive is otherwise also not attributable to minor offences prescribing less punishment.
18 Ld. Addl. PP for the State/respondent no. 1 also argued on the lines of arguments of Ld. counsel for the appellant/complainant. 19 Ld. counsel for accused/respondent no. 2, however, argued that the Ld. Trial Court did not commit any illegality as it was an admitted fact by the complainant/PW-1 that there was previous enmity between the parties. He argued that the Ld. Trial Court rightly came to the conclusion that motive for false implication of the accused could not be ruled out due to previous enmity between the parties.
20 The law relating to inimical witnesses or previous disputes between the parties as a motive for the commission of crime has been well settled and laid down by the Hon'ble Supreme Court of India in the case of Anil Rai (Supra), wherein the Hon'ble Supreme Court of India inter alia held as follows:
"...........The admitted position of law is that enmity is a double edged weapon which can be a motive for the crime as also the ground for false implication of the accused persons. In case of inimical witnesses, the courts are required to scrutinize their testimony with anxious care to find out whether their testimony inspires confidence to be acceptable notwithstanding the existence of enmity. Where enmity is proved to be the motive for the commission of the crime, the accused cannot urge that despite proof of the motive of the crime, the witnesses proved to be inimical should not relied upon. Bitter animosity held to be a double edged weapon may be instrumental for false involvement or for the witnesses inferring and CA No. 92/1/14 FIR No. 662/2006 PS Vasant Kunj (North) Pradeep Sehrawat Vs. The State & Anr. Page No.11/22 strongly believing that the crime must have been committed by the accused. Such possibility has to be kept in mind while evaluating the prosecution witnesses regarding the involvement of the accused in the commission of the crime. Testimony of eye witnesses, which is otherwise convincing and consistent, cannot be discarded simply on the ground that the deceased were related to the eye witnesses or previously there were some disputes between the accused and deceased or the witnesses. The existence of animosity between the accused and the witnesses may, in some cases, give rise to the possibility of the witnesses exaggerating the role of some of the accused or trying to rope in more persons as accused persons for the commission of the crime. Such a possibility is required to be ascertained on the facts of each case. However, the mere existence of enmity in this case, particularly when it is alleged as a motive for the commission of the crime cannot be made a basis to discard or reject the testimony of the eye witnesses, the deposition of whom is otherwise consistent and convincing." (Emphasis supplied) The Ld. Trial Court in the impugned judgment although referred to the above said judgment of Hon'ble Supreme Court of India, however, did not give any finding if the deposition of PW-1 was otherwise consistent and convincing. The Ld. Trial Court should have scrutinized the testimony of PW-1 with anxious care to find out if his testimony inspired confidence to be acceptable notwithstanding the existence of enmity. Although the Ld. Trial Court rightly referred to the above said judgment of Hon'ble Supreme Court of India but without any appreciation of evidence of PW-1 wrongly came to the conclusion that motive for false implication of accused could not be ruled out due to previous enmity between the parties. Further, the Hon'ble Supreme CA No. 92/1/14 FIR No. 662/2006 PS Vasant Kunj (North) Pradeep Sehrawat Vs. The State & Anr. Page No.12/22 Court of India in case of Raman Kalia (Supra) has inter alia held as follows:
"......the only comment against the witnesses was that they were inimical to the accused but that by itself was not a sufficient ground for rejecting their testimony."
In view of the facts of the case and above said settled law, the Ld. Trial Court erred in discarding the testimony of PW-1 simply by holding that as PW-1 had admitted that there was previous enmity between him and the accused, therefore in this case motive for false implication of the accused could not be ruled out.
21 The Ld. counsel for appellant/complainant argued that the Ld. Trial Courts findings that as the injuries to PW-1 were only simple in nature and might be self inflicted thereby false implication of the accused could not be completely ruled out, are not sustainable in the eyes of the law and facts of the case. In that context he referred to the testimony of PW-4 and PW-5 wherein no suggestion was put to them in cross examination by Ld. defence counsel that the injuries were self inflicted by PW-1.
22 Ld. Addl. PP for State/respondent no. 1 argued on the same lines as the arguments of Ld. counsel for appellant.
23 The Ld. counsel for respondent no. 2/accused argued that the said findings of Ld. Trial Court was based on the facts of the case as PW-1 was shown to have suffered only simple injuries which might have been self inflicted to falsely implicate the accused due to admitted inimical relation between them.
24 PW-4 Dr. Vikas Chauhan from Safdarjung Hospital proved the MLC of PW-1/complainant as Ex. PW4/A, whereas, PW-5 Dr. S.K. Bajaj from the same hospital proved the X-Ray report of PW-1 as Ex. PW5/A. PW-4 CA No. 92/1/14 FIR No. 662/2006 PS Vasant Kunj (North) Pradeep Sehrawat Vs. The State & Anr. Page No.13/22 deposed that as per the MLC Ex. PW4/A, the nature of injuries were simple caused by blunt object. PW-5 deposed that as per X-Ray report Ex. PW5/A, no bone injury was found. Perusal of record would show that both PW-4 & PW-5 were not cross examined by accused despite opportunity and their cross examination by the accused was nil, opportunity given. No suggestion whatsoever was thus put to PW-4 or PW-5 that such injuries to PW-1 were in fact self inflicted. The cross examination of PW-1 would also show that no suggestion regarding the injuries to him being self inflicted ones was given to him. The accused in his statement under Section 313 Cr. PC as recorded on 03.08.2012 also did not state that the injuries to PW-1 were self inflicted injuries. In these circumstances and record, the Ld. Trial Court committed an illegality while coming to the conclusion that the injuries being only simple in nature might have been self inflicted leading to inference of false implication of the accused. In fact, it was never the case or defence of the accused/respondent no. 2 that the injuries to PW-1 might have been self inflicted. It also cannot be laid down as a general proposition of law that simple injuries might be self inflicted injuries. The said finding of Ld. Trial Court is thus totally perverse and is not sustainable in the eyes of law. 25 The Ld. Trial Court further relied upon the testimony of DW-1 and DW-2 to prove that the injuries were sustained by the complainant due to his fight with some other persons, their credibility could not be shaken in their cross examination and the defence witnesses are as much competent witnesses as the prosecution witnesses.
26 The Ld. Counsel for appellant/complainant argued that the defence witnesses were not at all relevant witnesses as they have deposed about some incident occurring on 21.11.2006 at 03:00 pm, whereas, the time of CA No. 92/1/14 FIR No. 662/2006 PS Vasant Kunj (North) Pradeep Sehrawat Vs. The State & Anr. Page No.14/22 case incident is 02:30 pm. 27 Ld. Addl. PP for State/respondent no. 1 argued on the same lines as the arguments of Ld. counsel for appellant.
28 Ld. counsel for respondent no. 2/accused contended that the Ld. Trial Court rightly placed reliance upon the testimony of defence witnesses as they were equally competent witnesses as prosecution witnesses. 29 DW-1 & DW-2 have deposed about one incident on 21.11.2006 at about 03:00 pm wherein three sons of complainant gave beating to him at red light of Mahipalpur. The case of the prosecution as evident from the testimony of PW-1 and notice of accusation dated 25.03.2008 is to the effect that on 21.11.2006 at about 02:30 pm at the main Mahipalpur crossing highway, he alongwith two other unknown persons (since not arrested) in furtherance of their common intention wrongfully restrained PW-1 and caused simple injuries to him thereby committing an offence punishable under Section 323/341/34 IPC. It thus seems from the testimony of DW-1 and DW-2 that they have deposed regarding some other alleged incident on 21.11.2006 but at 03:00 pm, whereas, the case incident, as discussed above, pertains to date 21.11.2006 but at 02:30 pm. The testimony of DW-1 and DW-2 is thus totally irrelevant to the outcome of the case. Although, there can not be any doubt upon the settled law that the defence witnesses are as much competent witnesses as prosecution witnesses and their testimony can be relied upon to the extent they appear to be credible, however, in the present case, the Ld. Trial Court committed an illegality by placing reliance upon the testimony of DW-1 & DW-2 to prove that the injuries were sustained by the complainant due to his fight with some other persons because, as mentioned above, DW-1 & DW-2 have deposed regarding some other alleged incident of different time CA No. 92/1/14 FIR No. 662/2006 PS Vasant Kunj (North) Pradeep Sehrawat Vs. The State & Anr. Page No.15/22 but on the same date and their testimony thus become irrelevant to the outcome of the case. The Ld. Trial court thus committed an illegality in that regard and the findings in this regard of the Ld. Trial Court are not sustainable in the eyes of law.
30 The power of appellate court in appeal against acquittal has been aptly mentioned by the Hon'ble Supreme Court of India in case titled as Suresh Kumar Vs State of Haryana, JT 2014 (2) SC 404. The Hon'ble Supreme Court of India inter alia held as follows:
"56. A few years ago, the law on the subject was culled out from a large number of decisions and summed up in Ghurey Lal Vs State of UP [JT 2008 (10) SC 324:2008 (10) SCC 450] as follows:
"1. The appellate court may review the evidence in appeals against acquittal under Sections 378 and 386 of the Criminal Procedure Code, 1973, its power of reviewing evidence is wide and the appellate court can reappreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law.
2. The accused is presumed innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent.
3. Due or proper weight and consideration must be given to the trial court's decision. This is especially true when a witness credibility is at issue. It is not enough for the High Court to take a different view of the evidence. There must also be substantial and compelling reasons for holding that the trial court was wrong.
In light of the above, the High Court and other appellate courts should follow the well-settled principles crystallized by number of judgments if it is going to overrule or otherwise disturb the trial court's acquittal.
1. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has very substantial and compelling reasons for doing so.CA No. 92/1/14 FIR No. 662/2006 PS Vasant Kunj (North) Pradeep Sehrawat Vs. The State & Anr. Page No.16/22
A number of instances arise in which the appellate court would have "very substantial and compelling reasons" to discard the trial court's decision. "Very substantial and compelling reasons" exist when:
(i) The trial court's conclusion with regard to the facts is palpably wrong;
(ii) The trial court's decision was based on an erroneous view of law;
(iii)The trial court's judgment is likely to result in "grave miscarriage of justice";
(iv)The entire approach of the trial court in dealing with the evidence was patently illegal;
(v) The trial court's judgment was manifestly unjust and unreasonable;
(vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of the ballistic expert, etc.
(vii) This list is intended to be illustrative, not exhaustive".
(Emphasis supplied) The Hon'ble Supreme Court of India in case of Nallabothu Ramulu @ Seetharamaiah & Ors. Vs State of Andhra Pradesh, JT 2014 (5) SC 404 has inter alia held as follows:
"20. Finally, we must note that the High Court has not stated why it felt that the trial court's view was perverse. It has not stated what were the compelling reasons, which persuaded it to disturb the order of acquittal. As noted by the Court in several decisions if two reasonable views are possible, the appellate court shall not disturb the order of acquittal because it feels that some other view is possible. The reasonable view which reinforces the presumption of innocence of the accused must be preferred. In our opinion the trial court's view was not perverse. It was taken after thorough marshalling of evidence. It was a reasonably possible view. The High Court erred in disturbing it."
31 Be that as it may, as discussed above, the Ld. Trial Court did not discuss CA No. 92/1/14 FIR No. 662/2006 PS Vasant Kunj (North) Pradeep Sehrawat Vs. The State & Anr. Page No.17/22 in the impugned judgment if the deposition of PW-1 was consistent and convincing or if it inspired confidence to be acceptable notwithstanding the admitted position of existence of enmity between the parties. The testimony of PW-1 has already been mentioned above in this judgment. Now, this court would proceed to scrutinize the testimony of PW1 to find out if it inspires confidence or is liable to be discarded and rejected.
32 PW-1/complainant has deposed to the effect that when he reached near Mahipalpur main chowk highway, the accused Umed Singh with two other persons came from behind, stopped their scooter in front of his car and forcibly stopped him. He further deposed that accused came from his right side, the other two persons came from his left side, they forcefully entered into his car and started beating him. He further deposed that accused attacked him with fist and helmet and hit it on his face and other parts of his body. He deposed that he was unable to move because of use of seat belt. In cross examination by Ld. defence counsel, PW-1 inter alia deposed that he was having a central locking system in his car but at that time it was not closed but the door glasses of his car were closed at that time. During his cross examination by Ld. defence counsel, the Ld. Trial Court put a Court question to him as to why he did not even defend himself at that time to which PW-1 replied that as he was wearing a seat belt therefore he was not able to move to defend and the accused persons had attacked him all of a sudden.
The Ld. Counsel for accused/respondent no. 2 has argued that the said testimony of PW-1 is totally improbable and false because if PW-1 was on driver's seat of the said car and was wearing a seat belt then no one could have entered into the said car from the right side of the driver/PW-1. Ld. Addl. PP for State/respondent no. 1 argued that minor discrepancies in the CA No. 92/1/14 FIR No. 662/2006 PS Vasant Kunj (North) Pradeep Sehrawat Vs. The State & Anr. Page No.18/22 testimony of PW-1 should be ignored, whereas, Ld. counsel for accused/respondent no.2 argued that as PW-1 is an injured witness therefore his testimony is reliable.
I am in agreement with the submissions of the Ld. Counsel for accused / respondent no. 2 to the effect that no person can enter into a car from the driver's right side if the driver is in fact sitting on the driver's seat and is further wearing a seat belt. The testimony of PW1 would show that he has deposed to the effect that he was sitting on the driver's seat of his car with seat belt fastened around him, he was unable to move or defend himself due to use of said seat belt, however, has deposed that even in that situation, the accused entered into his car from the right side and started beating him. It is highly improbable and impossible that a full grown person can enter into a car from the right side of the driver if the driver is in fact sitting on the driver seat and has fastened his seat belt. It would show that the testimony of PW1 is totally unreliable and unbelievable to prove the guilt of the accused/respondent no.
2. The testimony of PW1 is thus not convincing and reliable and therefore the conviction of respondent no. 2 / accused cannot be based upon the said testimony. PW1 is the most material witness for the prosecution being the complainant / victim and as his testimony is unreliable, therefore, the benefit of doubt accrued would go in favour of accused/respondent no. 2 who would be entitled to acquittal in this case u/s 323/341/34 IPC. The prosecution has thus failed to prove beyond reasonable doubt that on 21.11.2006 at about 2.30pm on the main Mahipalpur crossing highway, he along with two other unknown persons (since not arrested) in furtherance of their common intention wrongfully restrained PW1 and voluntarily caused simple injuries to him.
CA No. 92/1/14 FIR No. 662/2006 PS Vasant Kunj (North) Pradeep Sehrawat Vs. The State & Anr. Page No.19/2233 It is a settled law that the defect in the investigation by itself cannot be a ground for acquittal and it is to be examined whether there is any such lapse by the IO due to which the benefit should be given to the accused. It is further a settled law that where there has been negligence on the part of the Investigating Agency or omissions etc which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence dehors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth. In the case of defective investigation, the court has to be circumspect in evaluating the evidence but it would not be right in acquitting an accused person solely on account of the defect, otherwise, it would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective. My views are substantiated by the judgment of Hon'ble Delhi High Court in Criminal Appeal No. 480/2010 & 783/2010 titled as Ashok Kumar Vs State & Chander Shekhar @ Shekhar Vs The State of the NCT of Delhi as decided on 14.07.2014 (as relied upon by Ld. Counsel for appellant) and the judgments of Hon'ble Supreme Court of India in case Hema Vs State, through Inspector of Police, Madras, (2013) 10 SCC 192 and in case C.Muniappan & Ors. Vs State of Tamil Nadu, (2010) 9SCC 567.
In the present case, however, as discussed above, this court has held that the testimony of PW1 is not reliable and convincing and therefore the conviction of accused cannot be based upon it. In the present case, further there have also been serious lapses in the investigation which affect the object of finding out the truth. The alleged car of PW1 in which the offence took place was not seized by the IO to look for any signs of struggle including CA No. 92/1/14 FIR No. 662/2006 PS Vasant Kunj (North) Pradeep Sehrawat Vs. The State & Anr. Page No.20/22 any blood, hair, finger prints, etc. PW6/IO in that regard has not given any explanation in his testimony and has simply deposed that the vehicle in which complainant/PW1 came to the spot on the date of incident was not available when he reached the spot and that he did not seize the said vehicle. Further, the testimony of PW3 Insp. B K Badola would show that on 21.11.2006 he conducted enquiry on the complaint of the complainant, reached Mahipalpur chowk where he conducted local enquiry, thereafter returned to the PS where he prepared a rukka Ex PW3/A bearing his signatures at point A and got the FIR registered. It thus seems from the testimony of PW1 that the rukka was prepared by PW3 on 21.11.2006 and the case FIR was also registered on 21.11.2006. Perusal of record however shows that the rukka Ex PW3/A bears the signatures of PW3 at point A with date 22.11.2006 and mentions that rukka was produced on 22.11.2006 at 7.30pm. PW2 ASI Ramesh Kumar, Duty Officer, has proved the FIR as Ex PW2/A and has deposed that on 22.11.2006 at about 7.30pm PW3 came to PS and produced a rukka upon which case FIR was registered. FIR Ex PW2/A also bears the date of 22.11.2006 and PW2 has admitted in cross examination by Ld. Defence counsel that there were interpolations in 'Day' and 'Date' at col. no. 3 in FIR which seemed to be written as 'Wednesday' (Day) and '22.11.2006' (Date), however, after putting the fluid, the same had been changed to 'Thursday' and '21.11.2006'. PW6/IO in cross examination has merely deposed that the above said corrections in the FIR were already there when it was handed over to him and he did not object the same nor brought it into the knowledge of his superiors as he did not find any foul play in the same. It is merely a bald explanation and no convincing explanation on that score has come on record by the prosecution. The misery of the prosecution is further compounded by CA No. 92/1/14 FIR No. 662/2006 PS Vasant Kunj (North) Pradeep Sehrawat Vs. The State & Anr. Page No.21/22 the testimony of PW3 who, as discussed above, has taken a contrary view from the record and other prosecution witnesses by deposing to the effect that rukka was prepared and FIR was registered on 21.11.2006 and not on 22.11.2006. The said interpolations of day and date in the FIR Ex PW2/A would thus become very material in the light of testimony of PW3. It raises a further strong doubt over the case of the prosecution, which is further compounded by the fact that the testimony of PW1 is not convincing and is unreliable to convict the accused/respondent no. 2. The accused/respondent no. 2 is thus entitled to benefit of doubt and is further entitled to acquittal in this case. In these circumstances, this appellate court has no very substantial and compelling reasons to overrule or otherwise disturb the final order of acquittal passed by the Ld. Trial court in the impugned judgment dated 05.02.2014.
34 In view of the foregoing discussion, I find no illegality in the final result of the impugned judgment dated 05.02.2014 thereby acquitting the accused/respondent no. 2 for the offences punishable u/s 323/341 r/w Section 34 IPC, however, on different reasoning as mentioned above. 35 The present appeal is therefore dismissed.
36 TCR be sent back along with copy of this judgment.
37 Appeal file be consigned to record room after completion of all necessary formalities as per rules.
Announced in the open
Court on 18.05.2016 (AMIT BANSAL)
ADDITIONAL SESSIONS JUDGE-04
NEW DELHI DISTRICT/ PATIALA
HOUSE COURTS/NEW DELHI
CA No. 92/1/14 FIR No. 662/2006 PS Vasant Kunj (North) Pradeep Sehrawat Vs. The State & Anr. Page No.22/22