Delhi District Court
Smt Kumud Mittal vs The State Of Nct Delhi on 12 April, 2021
IN THE COURT OF SH. AJAY KUMAR JAIN
ASJ/SPECIAL JUDGE(NDPS), PATIALA HOUSE COURTS, NEW DELHI
Case No. CA/219/19
Smt Kumud Mittal
W/o Sh. Arun Kumar Mittal
R/o H. No. G118/7, Krishna Nagar,
New Delhi110029.
................ Appellant/Complainant
Versus
1. The State of NCT Delhi
Through: The Principle Secretary
Department of Home Affairs,
New Delhi.
2. Sukender Tokas
S/o Late Sh Subhas Chand Tokas
R/o 97, Momd. Pur Village,
Near Bhikaji Kama Place,
New Delhi.
3. Deepak Tokas @ Vishnu Tokas
S/o Sh Sukender Tokas
R/o 97, Momd. Pur Village,
Near Bhikaji Kama Place,
New Delhi.
4. Ashish Tokas @ Uday Tokas
S/o Sh Sukender Tokas
R/o 97, Momd. Pur Village,
Near Bhikaji Kama Place,
New Delhi.
.................. Accused/Respondents
FIR No. 231/09
U/s 323/506II/509 IPC
PS: R K Puram
JUDGMENT
1. Vide this appeal, the appellant/complainant Kumud Mittal has CA No. 219/2019 Smt Kumud Mittal Vs. State & Ors. Dated: 12.04.2021 Page no. 1 of 22 challenged the impugned judgment dated 21.04.2017 passed by the trial court vide which the accused/respondent Sukender Tokas was acquitted for the offences charged u/s 323/506II/509 IPC.
2. This appeal is filed by the appellant/complainant Smt Kumud Mittal against respondent no. 1 State, respondent no. 2 Sukender Tokas, respondent no. 3 Deepak Tokas @ Vishnu Tokas S/o Sukender Tokas and respondent no. 4 Ashish Tokas @ Uday Tokas S/o Sukender Tokas however before trial court the accused is Sukender Tokas, therefore the notice of appeal of present case is issued against respondent no. 2 Sukender Tokas only and not against respondent no. 3 and respondent no. 4.
3. Prosecution case in brief that on receiving DD No. 50A dated 24.05.2009 SI Janak Raj along with Constable reached the spot where found that injured Kumud Mittal had already been taken to hospital, and at hospital, injured handed over a written complaint in which she alleged that she runs grocery retail shop and when she along with her husband was at her shop, all of sudden, accused Sukender Singh along with his two sons Deepak Tokas and his brother had attacked her with one palta however the lower portion of said palta remained with them and upper portion (i.e. danda) was taken by them and in this incident she suffered injury on right hand. Besides this, Sukender Tokas had shown the revolver and threatened her, and prior to this there are other incidents of quarrels and he used to abuse and even demanded money. Pursuant to this complaint, the FIR u/s 323/506/509 IPC was registered. During investigation, site plan was prepared. Accused Sukender Tokas was arrested. Result of MLC was collected and as per report of MLC, the injury was opined simple caused by blunt object.
4. Vide order dated 07.03.2011, charges u/s 323/506/509 IPC was framed against accused to which he pleaded not guilty. Prosecution for substantiating its case, examined 05 witnesses.
CA No. 219/2019 Smt Kumud Mittal Vs. State & Ors. Dated: 12.04.2021 Page no. 2 of 22
5. PW1 Injured Kumud Mittal in her statement stated that she runs general store and when she was present with her husband, accused Sukender Singh having halwai palta hit her on left hand however the upper part got separated and rest was remained with accused. Accused also pointed revolver at her and prior to this, she was threatened by accused and also demanded money. In crossexamination stated she do not know that accused Sukender Singh is relative to landlord. She also stated it is correct that building situated near the shop belongs to the accused. Police complaint was written by her husband. She also stated that her statement also recorded by the police, and 810 public persons were also gathered at the spot at the time of incident. She also denied suggestion that she lodged the present complaint because there is a dispute regarding partition of immovable property between landlord and accused. She also denied suggestion that truck/tempo came on the road carrying her goods which blocked the road, and as accused used to object, therefore, she had grievances with the accused.
6. PW2 Arun Kumar Mittal, husband of injured Kumud Mittal also described the incident in the same manner. He also stated that prior to incident, accused demanded money and started quarrel. He also threatened to burn the shop. In crossexamination stated that no complaint lodged by them against accused regarding the prior incident. He told to the police that accused along with his son and other person came to his shop. He also denied suggestion that present case lodged against accused at the instance of landlord due to property dispute. He also stated that it is correct that he got the shop in question on rent with the help of accused.
7. PW3 Lateef, eye witness stated that the accused came there and tried to hit Arun Kumar with the palta however it got hit with the shutter of shop and got broken. Thereafter he started beating Arun Kumar meanwhile when Kumud Mittal reached, the accused hit the handle of the palta on Kumud Mittal due to which she sustained injuries and thereafter accused took out CA No. 219/2019 Smt Kumud Mittal Vs. State & Ors. Dated: 12.04.2021 Page no. 3 of 22 the revolver and loaded the same and threatened to kill them. In cross examination stated that it is correct that there is garage near the shop. He denied suggestion that no incident took place in his presence. PW4 ASI Puran Mal, Duty officer who registered the FIR. PW5 SI Janak Raj, IO stated that on receiving the call, he reached the spot, thereafter hospital where the injured handed over the written complaint then on receiving the MLC of simple hurt, prepared tehrir and FIR was registered. On completion of investigation, filed the chargesheet. In crossexamination stated that injured herself written the complaint. He had not seized any palta from the spot.
8. Accused in his statement u/s 313 CrPC denied all the incriminating circumstances put to him and raised the plea that the complainant filed the present false case because of his dispute with her landlord over partition of immovable property, and further accused used to object to the parking of trucks and tempo.
9. Accused in defence, examined DW1 Balvir Singh, Civil Ahlmad who has exhibited the judgment dated 31.10.2013 and DW2 Rakesh Grover also exhibited the documents of civil suit. Accused in his statement u/s 294 CrPC admitted the MLC of injured.
10. Ld. counsel for complainant/appellant submitted that Ld. trial court has not appreciated the testimony of prosecution witnesses in true perspective and ignored the MLC report showing that the injured PW1 suffered assault and simple injury. The accused Sukender Tokas found present at the place of incident and attacked the complainant which is also corroborated through MLC. Ld. counsel submits that accused has threatened the complainant and prosecution able to prove its case beyond reasonable doubt. Ld. counsel submits that against the impugned judgment the complainant filed the CRL. LP 608/2017 in the high court, and Hon'ble High Court of Delhi vide order dated 16.01.2019 had observed that complainant had right to file the appeal without seeking leave to appeal, therefore, the CA No. 219/2019 Smt Kumud Mittal Vs. State & Ors. Dated: 12.04.2021 Page no. 4 of 22 counsel for complainant withdrawn the said petition with liberty to file before the court of Addl. Sessions Judge. Accordingly, the present appeal is filed before this court however there is a delay of 08 months, and said delay is because of the fact that file was with the previous counsel and appellant was also out of the town for one month, furthermore the previous counsel had not provided the complete file. Ld. counsel submits that the delay be condoned, and accused be convicted for offences charged.
11. Ld. counsel for the respondent/accused Sukender Tokas on the other hand submitted that the acquittal by the trial court should not be interfered unless it is totally perverse and wholly unsustainable but there is nothing in impugned judgment that it is devoid of any reasoning neither any perversity in the reasoning given by trial court, there is also no plausible reason for condonation of delay made out (relied upon India Esha Bhattacharjee Vs Managing Committee of Raghunathpur Nafar 2013 (4) CCC 399 SC). Ld. counsel submits that judgment is passed after analyzing the testimony of witnesses in detail, and there is material contradiction in the injury mentioned in the MLC and in the evidence of PW1 and PW2. The appellant was never attacked by the respondent and the judgment is passed after due application of mind, hence present appeal is liable to be dismissed both on the ground of delay as well as on merits.
12. Ld. counsel also filed written arguments. Ld. counsel submits that PW1 in the complaint mentioned that halwai palta hit on her right hand whereas in her deposition stated on the left hand and MLC shows mild swelling in the right forearm. PW2 also stated that she was hit on left hand, and statement of both the witnesses found contradictory to the MLCs. PW1 stated that she has merely signed in the complaint however not sure who has written the said complaint Ex PW1/A. This itself create doubt on the original complaint/FIR. The defence of accused is highly probable that this litigation was lodged because of the pending litigations with the landlord of accused. There is also discrepancy regarding the manner of inflicting of CA No. 219/2019 Smt Kumud Mittal Vs. State & Ors. Dated: 12.04.2021 Page no. 5 of 22 injuries. There is no seizure of any palta from the spot neither any recovery of revolver. Furthermore, accused cannot hold revolver and palta both in his hand. There is no disclosure of any reason or motive in the present case. No independent witness was produced despite the fact that PW1 stated 810 public persons were present at the spot. There is nothing which can suggest that complainant got alarmed by the threats caused by accused therefore no offence u/s 506 IPC made out. Ld. counsel further submits that the testimony regarding the previous incident cannot be believed as prosecution has not produced any independent witness and furthermore the allegations are general in nature. The allegations of threatening to kill and burning of shop are all exaggerated as not even a single prior complaint before the police is filed. Ld. counsel further submits that no offence u/s 509 IPC are also made out as actual abuses are not reproduced in testimony. Ld. counsel submits that PW3 the driver of complainant is not an independent witness and his testimony is also contradictory to PW1 and PW2. The present complaint is lodged at the instance of Ravinder, landlord of complainant which is clear from the document Ex DW1/1, Ex DW1/2. Ld. counsel submits that there should not be reversal of the judgment merely because of different view is equally possible, the trial court has the advantage of seeing the demeanor of the witness and therefore the acquittal order not to be interfered unless it is totally perverse and wholly unsustainable, no offence u/s 506 IPC is also made out [relied upon AIR 2002 SC 3469, 2008 AIR SCW 6598 (6620), 2008 (10) Scale 616, 1990 (2) CC Cases 183 (HC) Rajinder Prashad and Another Vs State (Delhi Admn), 1993 Cr LJ 1025 titled Rajender Dutt Vs The State of Haryana, 2000 Cr. LJ 4772 titled Amitabh Adhar & Anr Vs NCT of Delhi & Anr., 2000 (1) CCC HC 14 titled Mrs Sonali Verma Vs Ranbir Sharma & Anr, 2000 IV AD Delhi 495 Kanshi Ram Vs State, Hon'ble High Court of Delhi in Crl. A 611/1999 titled Mahavir Kumar & Ors. Vs State, Rajinder Parshad & Anr Vs State (Delhi Administration) 1990 (2) CCC 183 HC, 2004 (1) SCC 699 case titled Narender Singh & Anr Vs State of MP, 2003 CA No. 219/2019 Smt Kumud Mittal Vs. State & Ors. Dated: 12.04.2021 Page no. 6 of 22 (8) SCC 180 State of Rajasthan Vs Raja Ram, 2012 (2) JCC 1334 in case titled State of NCT of Delhi Vs Rakesh & Ors., Hon'ble High Court of Delhi, Crl Rev. Petition No. 31/2013 titled Sarvesh Chaturvedi & Anr Vs State of NCT of Delhi & Anr.]
13. Ld. Addl. PP submits that the testimony of PW1, PW2 & PW3 despite minor inconsistencies is credible on the factum of assault and threatenings and the impugned judgment of acquittal is liable to be set aside.
14. Arguments heard. Record perused.
15. Apex court in "Mohan Singh Vs. State of MP, AIR 1999 SC 883", held that effort should be made to find the truth, this is the very object for which courts are created. One has to comprehend the totality of the facts and circumstances as spelled out through the evidence depending upon the facts of each case.
16. In appreciating the evidence, the approach of the court must be integrated and not truncated or isolated meaning thereby inferences should not drawn by picking up an isolated statement from here and there; rather the evidence on a particular point should be examined in the background of the total statement of said witness or other witnesses as well as other evidence. The finding should be on the basis of objective assessment of the evidence and not on the conjunctures and surmises. In "Dalbir Singh and Ors. Vs. State of Punjab, AIR 1987 SC 1328", no hard and fast rule can be laid down about the appreciation of evidence and every case has to be judged on the basis of its own facts. While appreciating the evidence of the witness, the approach must be whether the evidence of a witness read as a whole appears to have ring of truth. Once that impression is formed, it is undoubtedly, necessary for the court to scrutinize the evidence more particularly, keeping in view the deficiency, drawbacks and the infirmities pointed out in the evidence as a whole, and evaluate them to find out whether it is against the general tenor of evidence given by the witness as to render it unworthy of belief. In 'Bhagwan Tana Patil Vs. state of CA No. 219/2019 Smt Kumud Mittal Vs. State & Ors. Dated: 12.04.2021 Page no. 7 of 22 Maharashtra, AIR 1974 SC 21', the apex court ordained that the function of the court is to disengage the truth from the falsehood and to accept what it finds the truth and rejects the rest. It is only where the truth and falsehood are inextricably mixed up, polluted beyond refinement down the core, the entire fabric of the narration given by a witness then the court might be justified in rejecting the same. This legal position was further elaborated in 'State of UP Vs. Shankar, AIR 1981 SC 897', wherein the Apex court observed that mere fact that the witness has not told the truth in regard to a peripheral matter would not justify whole sole rejection of his evidence. In this country, it is rare to come across the testimony of a witness which does not have a fringe or an embroidery of untruth although his evidence may be true in the main. It is only where the testimony is tainted to the core, the falsehood and the truth being inextricably intertwined, that the court should discard the evidence. Therefore, the duty is cast over this court to dispassionately disengage the truth from the falsehood and accept the truth and reject the same. This court is not meant to reject the testimony of a witness on slightest deflection, however has a bounden duty to search the truth. Apex court in case titled "Gangadhar Behera & Ors. Vs. State of Orissa (2002) 8 SCC 381", held that the principle falsus in uno falsus in omnimus is not applicable in India and it is only a rule of caution. Even if major portion of the evidence is found to be deficient, in case residue is sufficient to prove the guilt of the accused. The conviction can be maintained. It is the duty of the court to separate the grain from chaff. Apex court in 'Smt. Shamim Vs. State, Crl. Appeal No. 56/2016 dated 19.09.2018', in para 12 observed as under:
17. "while appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole inspires confidence. Once that impression is formed. It is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence and whether the earlier evaluation of the evidence is shaken as to render it CA No. 219/2019 Smt Kumud Mittal Vs. State & Ors. Dated: 12.04.2021 Page no. 8 of 22 unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hypertechnical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error without going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. Minor omissions in the police statements are never considered to be fatal. The statements given by the witnesses before the police are meant to be brief statements and could not take place of evidence in the court. Small/trivial omissions would not justify a finding by court that the witnesses concerned are liars. The prosecution evidence may suffer from inconsistencies here and discrepancies there, but that is a shortcoming from which no criminal case is free. The main thing to be seen is whether those inconsistencies go to the root of the matter or pertain to insignificant aspects thereof.......".
18. As far as the defective and illegal investigation is concerned, apex court held that if investigation is illegal or suspicious, the rest of the evidence must be scrutinized independent of faulty investigation otherwise criminal trial descend to the IO ruling the roost. Yet if the court is convinced that the evidence of eye witnesses is true, it is free to act upon such evidence though the role of the IO in the case is suspicious (Abu Thakir, AIR 2010 SC 2119). An accused cannot be acquitted on the sole ground of defective investigation; to do so would be playing into the hands of the IO whose investigation was defective by design. (Dhanaj Singh Vs. State of Punjab AIR 2004 SC 1920). Mere defective investigation cannot vitiate the trial (Paramjit Singh Vs. state of Punjab AIR 2008 SC 441). The lapses or the irregularities in the investigation could be ignored only if despite their existence, the evidence on record bears out the case of the prosecution and evidence is of sterling quality. If the lapses or irregularities do not go the root of the matter, if they do not dislodge the substratum of the prosecution case, they can be ignored (Sunil Kundu & Anr. Vs. State of Jharkhand, 2013(4) SCC 422).
19. To sum up while appreciating evidence on record the duty of the court is to separate credible and incredible part of evidence.
CA No. 219/2019 Smt Kumud Mittal Vs. State & Ors. Dated: 12.04.2021 Page no. 9 of 22 Description of incident
20. The prosecution case is dependent upon the testimony of injured witness PW1 Kumud Mittal, PW2 Arun Kumar Mittal (her husband) and PW3 Lateef, eye witnesses of the case. The FIR in the present case registered on the written complaint of PW1 Kumud Mittal. PW1 Kumud Mittal in her written complaint Ex PW1/A on the basis of which the FIR was registered stated that on 24.05.2009 at around 10pm when she was doing the business at her shop along with her husband then all of a sudden accused Sukender Tokas along with his two sons Deepak Tokas and his brother came and started hitting them with halwai palta and one portion of said palta remained with them however the upper body (danda portion) was taken by accused and she had suffered injuries in her right hand. The accused Sukender Singh was also having revolver with which he threatened her, and prior to this incident he had also made quarrel with them and demanded money. He also used to indulge in abuses and obscene talks (ashleel batein). The incident occurred at around 10pm and complaint was given in the hospital on the same day however the FIR was registered after obtaining the MLC result on 27.05.2009.
21. PW1 Kumud Mittal in her testimony also disclosed that when she was at her general store with her husband, accused Sukender Singh came with his son Deepak and another son whose name she do not know having halwai palta hit on her left hand. The upper part of palta got separated and lower part remained at her shop and rest part was with the accused and accused also pointed revolver at them. In crossexamination of this witness, it is not found disputed that she along with her husband were not sitting in her shop or said incident had not taken place with the accused.
22. PW2 Arun Kumar Mittal, her husband also in his testimony stated that at around 10pm when he along with his wife was present on the shop, accused Sukender Singh came along with his son Deepak and another son whose name he do not know and hit his wife with halwai palta. There is CA No. 219/2019 Smt Kumud Mittal Vs. State & Ors. Dated: 12.04.2021 Page no. 10 of 22 nothing also in his crossexamination that he alongwith his wife was not sitting at his shop or the accused had not come to the shop and assaulted his wife. The testimony of PW1 and PW2 is also corroborated through testimony of PW3 Lateef, driver who used to work for PW1 & PW2 who stated that accused came and tried to hit his uncle Arun Kumar Mittal with palta but same hit with shutter of shop and got broken and started beating his uncle with handle of palta. In the meanwhile aunty Kumud Mittal reached and tried to save the uncle and accused hit the palta on the right hand of aunty whereby she sustained the injury. There is nothing in his crossexamination which can create doubt of his presence as an eye witness of the spot.
23. Furthermore there is nothing in crossexamination of any witnesses which create doubt over the presence of accused at the spot in the manner projected by the prosecution. The minor deviation in description of incident between statement of PW1, PW2 & PW3 do not in any way create doubt over the factum of assault by accused.
24. It is settled law that the testimony of injured witness is to be given heavy weightage and cannot be disbelieved merely on the basis of minor discrepancies and immaterial exaggerations. PW1 and PW2 presence at the shop is not at all found disputed. The presence of accused along with his son at his shop and hitting the PW1 with palta is also not found contradicted in any manner from the testimony of PW1, PW2 & PW3. PW3 though stated that accused first tried to hit Arun Kumar Mittal (PW2) thereafter when PW1 tried to save him from the accused then the palta got hit on her right hand, which is duly corroborated with the MLC showing the injury and the immediate filing of written complaint, and this deviation is not in any manner discredit his testimony.
Immediate complaint
25. The testimony of PW1, PW2 & PW3 is also corroborated through the version in the written complaint Ex PW1/A. Mere non mentioning of the CA No. 219/2019 Smt Kumud Mittal Vs. State & Ors. Dated: 12.04.2021 Page no. 11 of 22 name of other son or the fact that there are no previous complaint regarding abuses etc do not in any manner make the present incident of assault doubtful. It is suggested to PW1 that the complaint Ex PW1/A is written by landlord not by her husband however this fact is not suggested to PW2. The making of complaint at the hospital is not at all found disputable. Therefore the factum of immediate complaint also corroborates the credibility of the incident.
Corroboration through MLC and site plan
26. The testimony of PW1, PW2 & PW3 is also duly corroborated with the site plan. The site plan depicts the place of the incident however there is nothing in cross examination to dispute the place of occurrence as per site plan. There is nothing in the testimony that incident did not take place at the shop whereas PW1 & PW2 were sitting. The MLC also corroborates the factum of assault. The said MLC is duly admitted u/s 294 CrPC. Use of pistol/revolver
27. The complaint Ex PW1/A suggest that the accused threatened PW1 by showing the pistol. PW1 and PW2 in their testimony also stated that accused Sukender Singh was having revolver and threatened them by pointing towards them. There is nothing in their crossexamination of PW1 and PW2 that accused did not come to the shop with the pistol/revolver. This fact that accused was having the pistol and threatened PW1 and PW2 is also corroborated by PW3. There is nothing in crossexamination of PW3 that accused did not come at the spot with the pistol. On overall facts and circumstances as discussed, the presence of accused and inflicting of assault injuries by accused found credible. Mere non recovery of pistol in these facts and circumstances, do not suggest that accused did not come to the spot with pistol. The accused in crossexamination of PW5 IO SI Janak Raj suggested that no pistol was recovered from the accused and accused shown the licence of double barrel gun. This itself suggest that accused was also having gun. In overall facts and circumstances, mere non recovery of pistol CA No. 219/2019 Smt Kumud Mittal Vs. State & Ors. Dated: 12.04.2021 Page no. 12 of 22 do not in any manner suggest that it was not used by accused. Defence of false implication found not credible
28. Ld. counsel for accused submitted that the motive to falsely implicate is because of the litigation with the landlord of PW1 & PW2 which is completely denied by PW1 & PW2 in crossexamination. It is pertinent to notice that accused tried to lead the defence evidence to prove the factum of his dispute with the landlord of PW1 & PW2 which do not appear to be at all relevant in the facts and circumstances of the present case. Particularly, when the accused is also raising the plea in crossexamination of PW1 & PW2 and his statement u/s 313 CrPC that he used to object the parking of trucks and tempo which carried goods to the shop of complainant as he blocked the garage place of his house. On the other hand, this plea is counter to the case of accused and indicates that he used to make quarrels with PW1 & PW2, corroborating their contentions that accused used to hurl abuses and also used to threaten them with dire consequences. Mere exhibition of documents of dispute of the property with landlord during defence evidence, do not in any manner suggest that PW1 and PW2 falsely implicated the accused.
Effect of lacunae and inconsistencies in prosecution case
29. It is also contended by the Ld. counsel for accused that PW1 & PW2 in the testimony stated that palta hit her left hand however as per MLC, it is the right hand. This kind of anomaly in the testimony which is recorded around after two years of incident do not appear to be material considering the entire facts and circumstances corroborated through testimony of PW3 who though found to be the driver of PW1 & PW2 however appears credible in his version. Even otherwise, the accused in crossexamination of PW1, PW2 & PW3 not tried to raise the contention that he was not present at the spot or no incident had taken place through him in the manner described by the prosecution. The defence raised by him also not found credible, furthermore, not in any manner found discredited the incident of assault.
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30. It is also contended by Ld. counsel for accused that the testimony of PW1 is evasive over dispute with their landlord Ravinder and accused whereas PW2 admitted that landlord Ravinder belongs to the same family. These kinds of evasive answers or contradiction hardly relevant in appreciating the present incident. It is also contended by Ld. defence counsel that there are many improvements from the statement u/s 161 CrPC however there is no confrontation with statement u/s 161 CrPC, therefore, any inconsistency or improvement cannot be taken into consideration. Even otherwise as discussed there is no material improvement for contradiction found in the testimony of prosecution witnesses. Mere fact that PW3 in examination in chief not disclosed that he is also driver of Vikram auto and used to work for PW1 and PW2 do not in any manner create doubt over the veracity of his statement.
31. As far as the plea of Ld. defence counsel that this court should not interfere in the order of acquittal, merely due to the fact that a different view is possible. The trial court order of acquittal should not interfered unless it is totally perverse or wholly unsustainable. This preposition of law is not at all disputed however ignoring of the testimony of PW1, PW2 & PW3 over the factum of assault and commission of assault/injury to PW1 at the shop of PW1 & PW2 appears fully perverse and unsustainable. The testimony of PW1, PW2 & PW3 over description of incident regarding assault and use of pistol is credible. The minor exaggeration or inconsistencies in the testimony of PW1, PW2 & PW3 do not in any manner displaces the core of the prosecution case i.e. the factum of assault and use of pistol which is duly corroborated through MLC as well as site plan. The matter was immediately reported and there is no delay in reporting the incident. Therefore, the prosecution able to prove its case beyond reasonable doubt.
Delay condoned
32. It is also contended that there is a delay of 08 months in filing the CA No. 219/2019 Smt Kumud Mittal Vs. State & Ors. Dated: 12.04.2021 Page no. 14 of 22 present appeal and that delay is not duly explained by the appellant/complainant. The appellant has filed the appeal before Hon'ble High Court of Delhi and Hon'ble High Court of Delhi vide order dated 16.01.2019 have given liberty to file the appeal before Sessions court. Pursuant to which the present appeal was filed on 30.09.2019. The main ground for delay as pleaded in application u/s 5 of The Limitation Act that appellant was out of town and the previous counsel was also not handed over the file with complete set and therefore, the time has been taken in obtaining the copies of record. Furthermore, the delay is to be viewed leniently in proceedings against the offenders. Ld. counsel for accused however relied upon the judgment Esha Bhattacharjee Vs Managing Committee of Raghunathpur Nafar 2013 (4) CCC 399 SC that the delay could not be condoned in routine manner and increasing tendency to perceive delay as a nonserious matter and, hence, lackadaisical propensity can be exhibited in a nonchallant manner requires to be curbed, of course, within legal parameters. Complainant is pursuing the case since long. The matter is criminal matter and primarily it is the responsibility of the State to file the appeal however despite the merits in the appeal as also argued by the Ld. Addl. PP, no appeal is filed and the complainant has pursued the case firstly before Hon'ble High Court of Delhi and thereafter before the present court. It is natural that the complainant has to face hardships in filing the appeal in State matters. The delay on the ground of non availability of the documents due to fact that previous counsel had not handed over do not in any manner appears incredible. The sufficient cause as pleaded by the complainant has to be considered with pragmatism in a justice oriented approach rather than technical detection of sufficient cause for explaining every day's delay. The expression 'sufficient cause' will always have relevancy to reasonableness and hence, the actions which can be condoned by the court should fall within the scope of normal human conduct or normal conduct of a litigant. Considering the present facts and CA No. 219/2019 Smt Kumud Mittal Vs. State & Ors. Dated: 12.04.2021 Page no. 15 of 22 circumstances, the delay in filing appeal stands condoned.
33. Ld. trial court in the impugned judgment had given precedents to the minor contradictions has given. PW1 & PW2 in deposition stated that the injury is on the left hand whereas in the MLC it is in the right hand. There is nothing in the evidence on record to infer that accused had not attacked PW1 & PW2 when they were sitting in their shop for business. PW1 immediately after the incident taken to the hospital where MLC was prepared showing the mild swelling in right forearm and said injury was caused due to assault. The said factum is also corroborated by PW3 as well as the site plan and MLC. The version of the incident given by PW3 though appears to be somewhat different from PW1 & PW2 which is normal while depicting an incident by any person who was watching and from this deviation it cannot be held that the incident of assault had not taken place in the manner stated by PW1 & PW2. The use of pistol/revolver was not at all disputed in crossexamination of PW1, PW2 & PW3 therefore mere non recovery has no effect on the veracity of the statement of PW1, PW2 & PW3 on that fact. The trial court had given undue weightage to the minor discrepancies which had no effect on the core of prosecution case, thus found perverse and unsustainable.
34. Ld. counsel for accused submitted that this court could not interfere in the acquittal order unless it is totally perverse and wholly unsustainable. This preposition of law is not at all disputed. Apex court in case titled as Chaman Lal Vs State of Himachal Pradesh, Crl. Appeal No. 1229/2017 dated 03.12.2020 categorically dealt upon the law on appeal against acquittal and spoke an ambit of section 378 CrPC. The relevant para is reproduced as under:
9. Before considering the appeal on merits, the law on the appeal against acquittal and the scope and ambit of Section 378 Cr.P.C. and the interference by the High Court in an appeal against acquittal is required to be considered. 9.1 In the case of Babu v. State of Kerala, (2010) 9 SCC 189), this Court had reiterated the principles to be followed in an appeal against acquittal under Section 378 Cr.P.C. In paragraphs 12 to 19, it is observed and held as under:
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12. This Court time and again has laid down the guidelines for the High Court to interfere with the judgment and order of acquittal passed by the trial court.
The appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be the more probable one. While dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subjectmatter of scrutiny by the appellate court. (Vide Balak Ram v. State of U.P (1975) 3 SCC 219, Shambhoo Missir v.State of Bihar (1990) 4 SCC 17, Shailendra Pratap v. State of U.P (2003) 1 SCC 761, Narendra Singh v. State of M.P (2004) 10 SCC 699, Budh Singh v. State of U.P (2006) 9 SCC 731, State of U.P. v. Ram Veer Singh (2007) 13 SCC 102, S. Rama Krishna v. S. Rami Reddy (2008) 5 SCC 535, Arulvelu v. State (2009) 10 SCC 206, 13 Perla Somasekhara Reddy v. State of A.P (2009) 16 SCC 98 and Ram Singh v. State of H.P (2010) 2 SCC 445)
13. In Sheo Swarup v. King Emperor AIR 1934 PC 227, the Privy Council observed as under: (IA p. 404) "... the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses."
14. The aforesaid principle of law has consistently been followed by this Court. (See Tulsiram Kanu v. State AIR 1954 SC 1, Balbir Singh v. State of Punjab AIR 1957 SC 216, M.G. Agarwal v. State of Maharashtra AIR 1963 SC 200, Khedu Mohton v. State of Bihar (1970) 2 SCC 450, Sambasivan v. State of Kerala (1998) 5 SCC 412, Bhagwan Singh v. State of M.P(2002) 4 SCC 85 and State of Goa v. Sanjay Thakran (2007) 3 SCC 755)
15. In Chandrappa v. State of Karnataka (2007) 4 SCC 415, this Court reiterated the legal position as under: (SCC p. 432, para 42) "(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive CA No. 219/2019 Smt Kumud Mittal Vs. State & Ors. Dated: 12.04.2021 Page no. 17 of 22 powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
16. In Ghurey Lal v. State of U.P (2008) 10 SCC 450, this Court reiterated the said view, observing that the appellate court in dealing with the cases in which the trial courts have acquitted the accused, should bear in mind that the trial court's acquittal bolsters the presumption that he is innocent. The appellate court must give due weight and consideration to the decision of the trial court as the trial court had the distinct advantage of watching the demeanour of the witnesses, and was in a better position to evaluate the credibility of the witnesses.
17. In State of Rajasthan v. Naresh (2009) 9 SCC 368, the Court again examined the earlier judgments of this Court and laid down that: (SCC p. 374, para 20) "20. ... an order of acquittal should not be lightly interfered with even if the court believes that there is some evidence pointing out the finger towards the accused."
18. In State of U.P. v. Banne (2009) 4 SCC 271, this Court gave certain illustrative circumstances in which the Court would be justified in interfering with a judgment of acquittal by the High Court. The circumstances include:
(SCC p. 286, para 28) "(i) The High Court's decision is based on totally erroneous view of law by ignoring the settled legal position; (ii) The High Court's conclusions are contrary to evidence and documents on record; (iii) The entire approach of the High Court in dealing with the evidence was patently illegal leading to grave miscarriage of justice; (iv) The High Court's judgment is manifestly unjust and unreasonable based on erroneous law and facts on the record of the case; (v) This Court must always give proper weight and consideration to the findings of the High Court; (vi) This Court would be extremely reluctant in interfering with a case when both the Sessions Court and the High Court have recorded an order of acquittal." A similar view has been reiterated by this Court in Dhanapal v. State (2009) 10 SCC 401.
19. Thus, the law on the issue can be summarised to the effect that in exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the CA No. 219/2019 Smt Kumud Mittal Vs. State & Ors. Dated: 12.04.2021 Page no. 18 of 22 order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of his innocence.
Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference."9.2 When the findings of fact recorded by a court can be held to be perverse has been dealt with and considered in paragraph 20 of the aforesaid decision, which reads as under:
"20. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is "against the weight of evidence", or if the finding so outrageously defies logic as to suffer from the vice of irrationality. (Vide Rajinder Kumar Kindra v. Delhi Admn (1984) 4 SCC 635, Excise and Taxation OfficercumAssessing Authority v. Gopi Nath & Sons 1992 Supp (2) SCC 312, Triveni Rubber & Plastics v. CCE 1994 Supp. (3) SCC 665, Gaya Din v. Hanuman Prasad (2001) 1 SCC 501, Aruvelu v. State (2009) 10 SCC 206 and Gamini Bala Koteswara Rao v. State of A.P (2009) 10 SCC 636)." (emphasis supplied) 9.3 It is further observed, after following the decision of this Court in the case of Kuldeep Singh v. Commissioner of Police (1999) 2 SCC 10, that if a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with. 9.4 In the recent decision of Vijay Mohan Singh v. State of Karnataka, (2019) 5 SCC 436, this Court again had an occasion to consider the scope of Section 378 Cr.P.C. and the interference by the High Court in an appeal against acquittal. This Court considered catena of decisions of this Court right from 1952 onwards. In paragraph 31, it is observed and held as under:
"31. An identical question came to be considered before this Court in Umedbhai Jadavbhai (1978) 1 SCC 228. In the case before this Court, the High Court interfered with the order of acquittal passed by the learned trial court on reappreciation of the entire evidence on record. However, the High Court, while reversing the acquittal, did not consider the reasons given by the learned trial court while acquitting the accused. Confirming the judgment of the High Court, this Court observed and held in para 10 as under: (SCC p.
233)"10. Once the appeal was rightly entertained against the order of acquittal, the High Court was entitled to reappreciate the entire evidence independently and come to its own conclusion.Ordinarily, the High Court would give due importance to the opinion of the Sessions Judge if the same were arrived at after proper appreciation of the evidence. This rule will not be applicable in the present case where the Sessions Judge has made an absolutely wrong assumption of a very material and clinching aspect in the peculiar circumstances of the case."31.1. In Sambasivan v. State of Kerala CA No. 219/2019 Smt Kumud Mittal Vs. State & Ors. Dated: 12.04.2021 Page no. 19 of 22 (1998) 5 SCC 412, the High Court reversed the order of acquittal passed by the learned trial court and held the accused guilty on reappreciation of the entire evidence on record, however, the High Court did not record its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. Confirming the order passed by the High Court convicting the accused on reversal of the acquittal passed by the learned trial court, after being satisfied that the order of acquittal passed by the learned trial court was perverse and suffered from infirmities, this Court declined to interfere with the order of conviction passed by the High Court.
While confirming the order of conviction passed by the High Court, this Court observed in para 8 as under: (SCC p. 416)"8. We have perused the judgment under appeal to ascertain whether the High Court has conformed to the aforementioned principles. We find that the High Court has not strictly proceeded in the manner laid down by this Court in Ramesh Babulal Doshi v. State of Gujarat (1996) 9 SCC 225 viz. first recording its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable, which alone will justify interference in an order of acquittal though the High Court has rendered a wellconsidered judgment duly meeting all the contentions raised before it. But then will this noncompliance per se justify setting aside the judgment under appeal? We think, not. In our view, in such a case, the approach of the court which is considering the validity of the judgment of an appellate court which has reversed the order of acquittal passed by the trial court, should be to satisfy itself if the approach of the trial court in dealing with the evidence was patently illegal or conclusions arrived at by it are demonstrably unsustainable and whether the judgment of the appellate court is free from those infirmities; if so to hold that the trial court judgment warranted interference. In such a case, there is obviously no reason why the appellate court's judgment should be disturbed. But if on the other hand the court comes to the conclusion that the judgment of the trial court does not suffer from any infirmity, it cannot but be held that the interference by the appellate court in the order of acquittal was not justified; then in such a case the judgment of the appellate court has to be set aside as of the two reasonable views, the one in support of the acquittal alone has to stand. Having regard to the above discussion, we shall proceed to examine the judgment of the trial court in this case."31.2. In K. Ramakrishnan Unnithan v. State of Kerala (1999) 3 SCC 309, after observing that though there is some substance in the grievance of the learned counsel appearing on behalf of the accused that the High Court has not adverted to all the reasons given by the trial Judge for according an order of acquittal, this Court refused to set aside the order of conviction passed by the High Court after having found that the approach of the Sessions Judge in recording the order of acquittal was not proper and the conclusion arrived at by the learned Sessions Judge on several aspects was unsustainable. This Court further observed that as the Sessions Judge was not justified in discarding the relevant/material evidence while acquitting the accused, the CA No. 219/2019 Smt Kumud Mittal Vs. State & Ors. Dated: 12.04.2021 Page no. 20 of 22 High Court, therefore, was fully entitled to reappreciate the evidence and record its own conclusion. This Court scrutinised the evidence of the eyewitnesses and opined that reasons adduced by the trial court for discarding the testimony of the eyewitnesses were not at all sound. This Court also observed that as the evaluation of the evidence made by the trial court was manifestly erroneous and therefore it was the duty of the High Court to interfere with an order of acquittal passed by the learned Sessions Judge. 31.3. In Atley v. State of U.P. AIR 1955 SC 807, in para 5, this Court observed and held as under: (AIR pp. 80910) "5. It has been argued by the learned counsel for the appellant that the judgment of the trial court being one of acquittal, the High Court should not have set it aside on mere appreciation of the evidence led on behalf of the prosecution unless it came to the conclusion that the judgment of the trial Judge was perverse. In our opinion, it is not correct to say that unless the appellate court in an appeal under Section 417 Cr.P.C came to the conclusion that the judgment of acquittal under appeal was perverse it could not set aside that order.
It has been laid down by this Court that it is open to the High Court on an appeal against an order of acquittal to review the entire evidence and to come to its own conclusion, of course, keeping in view the wellestablished rule that the presumption of innocence of the accused is not weakened but strengthened by the judgment of acquittal passed by the trial court which had the advantage of observing the demeanour of witnesses whose evidence have been recorded in its presence.
It is also well settled that the court of appeal has as wide powers of appreciation of evidence in an appeal against an order of acquittal as in the case of an appeal against an order of conviction, subject to the riders that the presumption of innocence with which the accused person starts in the trial court continues even up to the appellate stage and that the appellate court should attach due weight to the opinion of the trial court which recorded the order of acquittal.
If the appellate court reviews the evidence, keeping those principles in mind, and comes to a contrary conclusion, the judgment cannot be said to have been vitiated. (See in this connection the very cases cited at the Bar, namely, Surajpal Singh v. State AIR 1952 SC 52;Wilayat Khan v. State of U.P AIR 1953 SC 122) In our opinion, there is no substance in the contention raised on behalf of the appellant that the High Court was not justified in reviewing the entire evidence and coming to its own conclusions.
31.4. In K. Gopal Reddy v. State of A.P. (1979) 1 SCC 355, this Court has observed that where the trial court allows itself to be beset with fanciful doubts, rejects creditworthy evidence for slender reasons and takes a view of the evidence which is but barely possible, it is the obvious duty of the High Court to interfere in the interest of justice, lest the administration of justice be brought to ridicule." (emphasis supplied) CA No. 219/2019 Smt Kumud Mittal Vs. State & Ors. Dated: 12.04.2021 Page no. 21 of 22
10. Having gone through the impugned judgment and order passed by the High Court and also the judgment and order of acquittal passed by the learned trial Court, we are of the firm opinion that in the facts and circumstances of the case the High Court is justified and, as such, has not committed any error in reversing the order of acquittal passed by the learned trial Court and convicting the accused for the offences under Sections 376 and 506 IPC. Being the first appellate Court and as observed hereinabove in the aforesaid decisions the High Court was justified in reappreciating the entire evidence on record and the reasoning given by the learned trial Court. In the facts and circumstances of the case, the High Court has acted within the parameters of the law laid down by this Court in the decisions, referred to hereinabove.
35. The impugned judgment of acquittal passed by trial court is based on giving undue importance to minor discrepancies as already discussed therefore held to be wholly perverse and unsustainable.
36. The accused is charged for offences u/s 323/506/509 IPC. The factum of assault and infliction of simple injury is duly proved. Hence, offence u/s 323 IPC is clearly made out. The threatening is writ large even without producing the exact words of threatening through the factum of showing the pistol/revolver in the incident, therefore, offence u/s 506 (II) IPC is also made out. As far as offence u/s 509 IPC is concerned, it cannot be held that accused intended to insult the modesty of woman, therefore, offence u/s 509 IPC is not made out. On overall appreciation of evidence, the prosecution able to prove the offence u/s 323/506 (II) IPC beyond reasonable doubt. Accused Sukender Tokas is found guilty of offence u/s 323/506 (II) IPC and convicted accordingly. The trial court impugned judgment of acquittal is set aside. Accused Sukender Tokas be heard on point of sentence.
Announced in the open court (Ajay Kumar Jain)
on this 12th day of April, 2021 ASJ/Special Judge NDPS
PHC/New Delhi
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