Delhi District Court
Lekh Raj vs The State on 24 November, 2018
IN THE COURT OF DR. RAKESH KUMAR: SPECIAL JUDGE
(CBI) (SOUTH): DISTRICT COURTS, SAKET
NEW DELHI
Criminal Appeal Number: 39/16 (8236/16)
Lekh Raj,
S/o Netra Pal,
R/o 177-E-22/2,
Mehrauli,
New Delhi. .................Appellant
versus
1. The State
2. Hambir Singh,
S/o Arjun Singh,
R/o H. No. 177/D,
Ward No. 15, Mehrauli,
New Delhi.
3. Arjun Singh,
S/o Late Ram Singh,
R/o H. No. 177E/15,
Ward No.2, Mehrauli,
New Delhi.
4. Sandeep Mehlawat @ Shankar,
S/o Kuldeep Singh,
R/o H. No. 9/9, Kishangarh,
Vasant Kunj,
New Delhi. ...............Respondents
Date of institution of Appeal : 09.06.2016
Date of conclusion of arguments : 17.11.2018
Date of Judgment : 24.11.2018
CA No. 39/16 (8236/16) Lekh Raj v. State & Ors. Page 1 of 13
For Appellant : Mr. Mohd. Idris, Advocate.
For Respondent No.1 : Mr. Santosh Kumar, Addl. PP for State.
For Respondent No.2-4: Mr. Manish Bhardwaj, Advocate.
JUDGMENT
1. This appeal under Section 372 of the Code of Criminal Procedure, 1973 (Cr.P.C.) preferred by appellant Lekh Raj (hereinafter referred to as 'the complainant') against respondent no.1 i.e., the State and respondents no. 2 Hambir Singh, no. 3 Arjun Singh and no. 4 Sandeep Mehlawat @ Shankar (hereinafter respondents no. 2 to 4 are referred to as 'the accused persons'), is directed against judgment dated 29.04.2016, passed by the court of Sh. Sushant Changotra, Metropolitan Magistrate-5, South District, Saket Courts, New Delhi, whereby, in a case arising out of police report bearing FIR no. 438/2000 PS Mehrauli entitled State v. Vivek @ Vicky & Others, the Learned Metropolitan Magistrate acquitted the accused persons of the offences under Section 452/323/ 506/34 of the Indian Penal Code (hereinafter referred to as 'IPC').
2. The circumstances giving rise to the present appeal are that on 13.12.2000, a police report was put up by the State through the officer-in-charge of the Police Station Mehrauli, New Delhi before the learned Metropolitan CA No. 39/16 (8236/16) Lekh Raj v. State & Ors. Page 2 of 13 Magistrate with the view to take cognizance of offences under sections 452/323/506/34 of IPC and to proceed against the accused persons Vivek @ Vicky, Shankar @ Sandeep, Hambeer Singh and Arjun Singh for having committed the said offences.
3. As per the police report, on 10/11.07.2000, on receipt of DD no. 24 A, SI Jitender Kumar and Constable Mahesh Kumar went to the spot at House No. 177 E/22, Ward No. 2, Mehrauli, New Delhi where the complainant Lekh Raj met and he gave his statement to SI Jitender Kumar, the police official of Police Station Mehrauli who, inter alia, informed the police that he resided at above-said address along with his family members; that they had dispute with their neighbour Arjun regarding the plot on which they were residing and Arjun quarreled with them to get the plot vacated forcefully; that on the day of incident at about 9.15 PM night when the complainant along with his younger brother Deepak were sitting in their plot on the cot, Arjun, his son Hambeer, and his relatives Vicky and Shankar both residents of Kishangarh came and entered in their house; that Vicky had put the revolver on the temple of complainant and told that this plot has been bought by him and asked to vacate the plot till the morning otherwise he would kill the complainant; that Shankar and Hambeer had hit the complainant with dandas and slaps; that the complainant CA No. 39/16 (8236/16) Lekh Raj v. State & Ors. Page 3 of 13 cried and his family members came out and all the four accused had fled from the spot. It is further reported in the police report that on the basis of the information given by the complainant, first information report (FIR) was registered at Police Station Mehrauli, New Delhi and investigation started.
4. It is further reported that after investigation, it was concluded that the accused persons have committed offence punishable under sections 452/323/506/34 of IPC for which the accused persons be put on trial.
5. On the police report, the learned Metropolitan Magistrate, on 13.12.2000, took the cognizance of the offence. On 03.01.2001, the accused persons appeared before the Magistrate and the copies of police report and other documents in compliance of section 207 Cr.P.C. were supplied to the accused persons and the case was fixed for scrutiny of documents/consideration on charge.
6. On 30.01.2001, upon considering the police report and the documents sent with it under Section 173 Cr.P.C. and after giving the prosecution and the accused persons an opportunity of being heard, the Magistrate was of opinion that there was ground for presuming that the accused persons have committed an offence which such Magistrate was competent to try, framed in writing a charge against the accused persons. The charge was then read and explained to CA No. 39/16 (8236/16) Lekh Raj v. State & Ors. Page 4 of 13 the accused persons, and they were asked whether they pleaded guilty of the offence charged or claimed to be tried. The accused persons did not plead guilty and claimed trial.
7. Thereafter, the Magistrate, proceeded to hear the prosecution and took evidence in support of the prosecution. The prosecution examined as many eight witnesses. PW1 is Constable Phool Kumar. PW2 is Constable Mahesh Kumar. PW3 is Smt. Sakuntala. PW4 is Randhir Sharma. PW5 is Lekh Raj, the complainant. PW6 is SI Jitender Kumar, Investigation Officer of the case. PW7 is Deepak, the brother of complainant. PW8 is Dr. Amit Bhambri, he proved the MLC no. 65076/2000 Ex. PW8/A which was prepared by Dr. Pooja Sharma. PW9 is Rajbir Singh, medical record technician from AIIMS.
8. During the trial of the case, accused Vivek @ Vicky expired and vide order dated 05.02.2003 proceedings against him stood abated.
9. After the witnesses for prosecution have been examined, for the purpose of enabling the accused persons personally to explain all the circumstances appearing in evidence against them, the court examined the accused persons and their statements under Section 313 Cr.P.C. were recorded. The accused persons opted to lead defence evidence and examined DW1 Hambir Singh in their defence.
CA No. 39/16 (8236/16) Lekh Raj v. State & Ors. Page 5 of 1310. Upon taking of evidence, the Learned Magistrate acquitted the accused persons of the offence under Sections 452/323/50634 of IPC. Vide judgment dated 29.04.2016, the learned Magistrate, inter alia, observed as follows:-.
"The case of the prosecution is that all the accused persons had committed house trespass, as per the case of the prosecution and PW-5 Lekh Raj and PW-3 Shakuntala, the complainant was sitting in a plot and accused had come there. Thus, as per the testimony of PW-3 and PW-5, the accused persons did not enter in any walled enclosure or house.
On the other hand the accused persons have taken a defence that they have been falsely implicated in the present case. It is their contention that the complainant have habitually filed false complaints against them due to previous animosity. DW-1 Hambir Singh in his examination in chief deposed that Sh. Netrapal and Shakuntala i.e. parents of Lekh Raj were having a dispute of plot with one Tej Ram. They threw acid on Tej Ram and Prakash. Mother of accused was the witness in that case. Subsequently, in the year 1997 another dispute arose between the Netrapal and Tej Ram. The defence to this extent was not disputed in his cross examination, meaning thereby the prosecution admitted the aforesaid fact. The defence has also proved copy of judgment passed by the court of Sh. A.K. Kuhar, the then Learned ACMM, Delhi, Mark DW5/D1. The aforesaid case was with respect to injuries caused to Netrapal in the year 1997. In the said case, accused Arjun and Hambir were acquitted due to benefit of doubt. In the aforementioned judgment, it was observed that the complainant was having inimical terms with accused Arjun and Hambir as Smt. Bimla i.e. wife of accused Arjun and mother of accused Hambir was the witness against the complainant Netrapal in a criminal case, wherein he was convicted and sentenced to imprisonment. Thus, the defence has also brought sufficient material on record to show that there was previous enmity between the two parties as the father of complainant Netrapal was convicted in a case where Smt. Kamla i.e. wife of accused Arjun and mother of accused Hambir had deposed against him.
All of these facts were also put to the eye witnesses i.e. PW-3 Shakuntala, feigned ignorance of the aforementioned fact in her cross-examination. PW-4 Randhir Sharma and PW-5 Lekh CA No. 39/16 (8236/16) Lekh Raj v. State & Ors. Page 6 of 13 Raj also showed ignorance about the abovesaid facts. It is difficult to fathom that family members of Netrapal would not remember the fact that their father was convicted in a criminal case.
The defence has also proved the order passed by the court of Sh. Babru Bhan, learned MM, Tis Hazari Courts, dated 14.12.2015 as Ex. DW1/A. It was passed in a complaint filed by the Netrapal Vs. Arjun Singh and Hambir & Others. Therein it was alleged that on 25.08.2012, all the accused persons threatened the complaint with dire consequences and when the complainant resisted, he was brutally assaulted. However, during the course of proceedings, it was brought on record that on 25.08.2012, accused Jai Prakash was in judicial custody in another case. Even more importantly, the complainant admitted before the court that he had filed a false complaint inadvertently.
The aforesaid evidence brought on record shows that no only accused were acquitted in a criminal case registered prior to this, but they were falsely implicated in a criminal complaint even thereafter. It shows the propensity of complainant to register false cases against the accused.
DW-1 Hambir deposed that the accused Vicky had fight with Lekh Raj. He informed the said fact to the police but the police did not believe him.
Thus, considering the deposition of eye witnesses, contradictions as mentioned above and the defence evidence brought on record, it has to be said that the possibility of false implication, even in this case cannot be ruled out. In a criminal trial, if the accused shows plausible defence, then he can be given the benefit of doubt. Unless the prosecution is able to show that the defence put forth is false, the statement of accused on oath can be accepted.
Thus, it has to be concluded that in view of the aforementioned discussion, it will be highly unsafe to convict accused Arjun, Hambir and Shankar as guilty. Proceedings qua accused Vicky had already been abated. Thus, the remaining accused persons are given the benefit of doubt and are acquitted."
11. Feeling aggrieved of the impugned judgment, the appellant has preferred the present appeal with the following prayer: -
It is, therefore, most respectfully prayed that this Hon'ble Court may very graciously be pleased to:-
(i) set aside the impugned order on sentence dated 29.04.2016 passed by the learned M.M. and punish the respondents No. 2 CA No. 39/16 (8236/16) Lekh Raj v. State & Ors. Page 7 of 13 to 4 for the offences punishable U/S 452/323/506/34 IPC as prescribed under the provisions of law;
(ii) pass such other or further order/ orders which this Hon'ble Court may deem fit and proper in the facts and circumstances of the cae.
12. I have heard counsel for the appellant and APP for the State and have gone through the record of the case FIR no. 438/2000 PS Mehrauli entitled State v. Vivek @ Vicky & Others, decided by the learned Magistrate.
13. Having drawn my attention on the contents of the appeal, the impugned judgment dated 29.04.2016 and the record of case FIR no. 438/2000, decided by the learned Metropolitan Magistrate, it is submitted by counsel for the appellant that the impugned judgment of the learned Magistrate is contrary to the facts as well as material available on record and is against the well settled provisions of law as laid down through catena of judgments and is also against the provisions of law, specially the Indian Evidence Act. It is further submitted by the counsel for the appellant that the learned trial court failed to appreciate that the appellant has proved his case against the respondents No. 2 to 4 beyond doubt and the learned trial court had not appreciated the evidence of prosecution witnesses including of the appellant, whereas all the ingredients of Section 452/323/506/34 IPC are attracting through the evidences of the prosecution witnesses. It is further submitted by the CA No. 39/16 (8236/16) Lekh Raj v. State & Ors. Page 8 of 13 counsel for the appellant that the learned trial court failed to appreciate that the evidence of prosecution witnesses are not only corroborative evidence but also supported with documentary evidence viz. Medical record of the appellant etc. It is further submitted by the counsel for the appellant that it is not disputed that there might be some contradictions in the statement of witnesses, but the same are immaterial, for which the accused persons cannot be given benefit of doubt, minor contradictions in the statement of witnesses are not fatal to the case of the prosecution as per well settled proposition of law. It is further submitted by the counsel for the appellant that the learned trial court has wrongly appreciated that the defence has brought sufficient material on record to show that there was previous enmity between two parties and the judgment Mark DW5/D1, vide which the accused Arjun and Hambir were acquitted due to benefit of doubt, itself goes to show that the accused persons are habitual of taking law in their hands, as such they cannot be benefited for their own wrong doing. It is further submitted by the counsel for the appellant that the impugned judgment passed by the learned M.M. is based on conjectures and surmises, hence the same is liable to be set-aside.
14. Per contra, the learned counsel for the respondents has submitted that the learned trial court has rightly acquitted the accused persons.
CA No. 39/16 (8236/16) Lekh Raj v. State & Ors. Page 9 of 1315. I have given my thoughtful consideration to the submissions made on behalf of the parties.
16. As already observed, vide the impugned judgment, the learned Magistrate has acquitted the accused persons for the offence under sections 452/323/506/34 IPC.
17. The instant case was registered on the complaint of one Lekh Raj who was examined as PW5. The prosecution has also examined PW3 Shakuntala, mother of the complainant, PW4 Randhir Sharma and PW7 Deepak, brothers of the complainant. Specific questions were put to these witnesses to establish that there were previous litigations between the parents of the complainant and the accused persons. All these witnesses have showed ignorance about the previous litigations in their cross-examination. However, DW1 Hambir Singh has, in his examination-in-chief, specifically stated that father and mother of the complainant had a dispute with Tej Ram, due to which dispute, acid was thrown by mother and father of the complainant on Tej Ram, Ram Murti and Jai Parkash. It is further stated by DW1 that his mother was a public witness in that case. It is also stated by DW1 that in 1997, there was another dispute of plot between Netrapal and family of Tej Ram and ankle of Tej Ram CA No. 39/16 (8236/16) Lekh Raj v. State & Ors. Page 10 of 13 was cut during that fight. It is further stated by DW1 Hambir Singh that his name and his father's name were also added in that case and they were acquitted. It is also stated by DW1 that a complaint CC No. 1131/1 was filed in Tis Hazari Court against him and his father which was dismissed on 14.12.2015. DW1 has also produced certified copy of judgment dated 14.12.2015 Mark DW1/A. It is further stated by DW1 that the accused persons had filed false case against him and his family and they have falsely implicated in present case also and continuing harassing them and threatening to file another case also in future. During the cross-examination of DW1, his testimonies regarding above-said litigations were not rebutted on behalf of the complainant. Not a single question was put to DW1 which can controvert that these litigations were not happened. The above-said testimonies of DW1 remained unchallenged. During the statements of accused persons also, specific explanations that earlier also they were falsely implicated were tendered by them.
18. It has been held by the Hon'ble Supreme Court in Aher Raja Khima v. State of Saurashtra, AIR 1956 SC 217 as follows:
There are two important factors in every criminal trial that weigh heavily in favour of an accused persons ; one is that the accused is entitled to the benefit of every reasonable doubt and the other, an off-shoot of the same principle, that when an accused persons offers a reasonable explanation of his conduct, then, even though CA No. 39/16 (8236/16) Lekh Raj v. State & Ors. Page 11 of 13 he can not prove his assertions they should ordinarily be accepted unless the circumstances indicate that they are false.
19. In the instant case, the accused persons not only given reasonable explanations of their conduct but also proved the same. The accused persons have been able to prove that there were previous enmity between the accused persons and family of the complainant. The complainant and their family members did not give proper reply to the questions put on behalf of accused regarding the previous enmity which shows that proper answers were not given with a view to obtain conviction against accused persons on the basis of incomplete evidence.
20. From the testimonies of these witnesses, the case has not been proved beyond reasonable doubts. The learned Magistrate has rightly acquitted the accused persons under Section 452/323/506/34 IPC for which the accused persons were charged.
21. To sum up, in view of the above discussion, it is found that the accused has rightly and lawfully been acquitted for the offence punishable under Section 452/323/506/34 of IPC. The impugned judgment dated 29.04.2016, passed by learned trial court is hereby upheld. The appeal is without CA No. 39/16 (8236/16) Lekh Raj v. State & Ors. Page 12 of 13 merit and, accordingly, same is dismissed.
22. The record of the case FIR No. 438/2000 PS Mehrauli entitled State v. Vivek @ Vicky & Others, called from the court of the learned Magistrate be sent back along with a copy of this judgment.
23. File be consigned to the Record Room.
Pronounced in the open court (DR. RAKESH KUMAR) on 24th of November 2018 Special Judge (PC Act) (CBI) South District, Saket Courts, New Delhi.
Digitally
signed by
RAKESH
RAKESH KUMAR
KUMAR Date:
2018.11.24
14:41:00
+0530
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