Delhi District Court
State Through Public Prosecutor vs Ravi Kumar Son Of Padam Pratap Singh on 11 January, 2019
In the court of Additional Session Judge04, District Shahdara,
(Model/Pilot Project Court), Room No.51, Second Floor, Karkardooma
Courts, Delhi
CNR No. DL SH010056912018 date of institution : 27.08.2018
Crl. Appeal No.23/18 decision reserved on: 17.12.2018
I.D. No.130/18 date of decision : 11.01.2019
In the matter of
State through Public Prosecutor,
Shahdara, Karkardooma, Delhi ...Appellant
Versus
Ravi Kumar son of Padam Pratap Singh
resident of E14/432, Amar Colony, East
Gokulpuri, Delhi ...Respondent/accused
JUDGMENT
[On appeal u/s 378 Cr.P.C. arising from the judgment dated 22.06.2018 passed by the court of Sh. Pankaj Arora, Ld. Metropolitan Magistrate 03, Karkardooma Courts, Delhi (in brief, the trial court) in State Vs. Ravi Kumar, FIR No.971/2007 PS Nand Nagri].
1. (Introduction) - Respondent/accused Ravi Kumar was facing trial, as an accused, for charge u/s 336 IPC that on 11. 11.2007 at about 5.15 pm in front of Chaudhary Clinic at D30, Amar Colony, East Gokulpuri, Delhi, he had opened fire towards the wall so rashly or negligently that the bullet (after hitting against wall), turned, struck and entangled in the shirt of complainant PW1 Ompal Singh so as to endanger his life and personal safety. Respondent was also charged u/s 25/27 of the Arms Act that he used the country made pistol and he Crl. Appeal No. 23/18 State Vs. Ravi Kumar Page 1 of 8 was found in possession of aforesaid country made pistol without license in contravention of the notification issued by the Delhi Administration. However, the respondent/accused pleaded not guilty and claimed trial.
In the trial, before the court of Metropolitan Magistrate, total six witnesses were examined, out of them PW1 Ompal Singh is complainant, PW5 Dr. B.R. Anand, Assistant Director Ballistic, FSL Rohini had examined the bullet and full sleeve shirt and the other four witnesses examined were police officers (namely PW2 HC Narender Singh, who remained associated with IO/SI Vijay Singh, PW3 SI Kafil Ahmed who took the articles to FSL, Rohini, PW4 ASI Mohd. Shamim who was Duty Officer and recorded the FIR and PW6 Rajesh Kumar, Additional DCP, North East District , who being competent authority accorded sanction u/s 3 of the Arms Act ). It was followed by statement u/s 313 Cr.P.C. of accused. Thence after hearing both the sides, the respondent was acquitted by trial court of the charges framed against him by judgment dated 22.06.2018. The trial court considered that there was nonjoining of independent public witnesses, want of making record and proof of record of departure or arrival police officers doing investigation and evidence led was not convincing. The State is feeling aggrieved of judgment dated 22.06.2018 of acquittal. 2.1 The appellant assails trial court judgment dated 22.06.2018 that it suffers from material aspects on record as trial court failed to appreciate testimony of PW1 narrating that accused/respondent had fired on wall and the cartridge of fire deflected from wall and struck in his shirt, respondent was caught at the spot with country made pistol, the shirt Crl. Appeal No. 23/18 State Vs. Ravi Kumar Page 2 of 8 was also seized which shows hole from back side, corroborating the version of PW1. PW1 was crossexamined in detail on behalf of accused but no contradiction could have been brought on record to give him any benefit. The FSL result also opines that deformed bullet recovered corresponds to the pistol recovered, hence the appeal deserves to be allowed by setting aside judgment of acquittal and to held the respondent guilty for charge proved.
2.2 Sh. Vineet Kumar, Ld. Addl. P.P. for the State/appellant has been to the record and reasoning of the trial court to highlight the contentions raised in appeal that the same aspects, being highlighted in appeal, were not appreciated by the trial court. The trial court has took into consideration other aspects of arrival and departure record of police officers or want of its record/proof before the court, neither the same was material nor relevant with regard to the charges framed, therefore, the evidence on record has not been actually considered and appreciated, therefore, the judgment is liable to be set aside.
3. (Submissions of respondent/accused) - Sh. N.S. Bhati, Advocate for respondent has reservations on each point that the trial court has considered all material aspects, there is nonjoining of any independent public witness, whereas the case of police was that the accused was apprehended by the public persons, who were about 4 or 5 in numbers, but none of them is made a witness to the case. It is not believable that a bullet came in velocity but it had not caused any injury to the complainant, if it hit him and all these things are not appearing natural in the sequence. It is the duty of prosecution to prove its case and the prosecution cannot take advantage under the garb of want of Crl. Appeal No. 23/18 State Vs. Ravi Kumar Page 3 of 8 contradictions in the defence side, since stage of contradiction could be considered in case there is proof of case by the prosecution. There is no scientific opinion against the respondent/accused. There is no flaw in the judgment and appeal is without merit, it is liable to be dismissed. 4.1 (Findings with reasons) - The contentions of both the sides are considered inclusive of the trial court record containing oral evidence of witnesses, documentary record and scientific opinion visavis the findings given by the trial court. This judgment was reserved by order dated 17.12.2018, however, the respondent remained absent and when appearance is caused today, that is why it is being considered today, as submissions were already heard.
4.2 The trial court arrived at the findings by considering statement of all the witnesses and then recording of statement of respondent accused u/s 313 Cr.P.C. and also discussed with case law the provisions of the Punjab Police Rules, particularly the police authorities were required to prove record/entries of departure and arrival of officers in investigation and failing to prove so is against the prosecution.
However, section 2 (r) of the Criminal Procedure Code, 1973 (briefly Cr.P.C.) defines 'police report' and in section 173 (2) Cr.P.C. the form is prescribed in which such report is to be furnished but it does not prescribe that extract of those registers are to be annexed with the police report, which are maintained under the Punjab Police Rules. Moreover, it is also not appearing that the record of such information was in issue before the court as much emphasized by the trial court. Otherwise, case diaries are written by IO as per requirement of section Crl. Appeal No. 23/18 State Vs. Ravi Kumar Page 4 of 8 172 Cr.P.C., there is no reference of perusal of such diaries by the trial court.
4.3 After analyzing the record and considering them, the appeal is dismissed for the following, also additional, reasons :
(i) after recording the prosecution evidence, the stage of statement u/s 313 Cr.P.C. arrives, in which each adverse circumstances are to be explained to the accused and his responses are to be recorded, however, in the appeal grievances are about nonappreciation of evidence but there are no grievances about statement of accused. Accused was not asked question that he had country made pistol or it was seized nor that it was produced in the court or same was recovered from him by the complainant,
(ii) the questions u/s 313 Cr.P.C. put to the accused were there is evidence of filing of chargesheet u/s 173 Cr.P.C; the evidence of arrest memo or seizure memo or sketch or site plan memo or sanction etc. This type of questions were asked from him. Whether they can be construed incriminating evidence against the accused to hold proof of charge or to convict him. The police report u/s 173 CrPC in itself cannot be construed incriminating evidence,
(iii) it is settled law that the judgment cannot be based on those facts, which were not put to the accused as adverse circumstances and the appeal is proposing the facts, which were not put to the accused in his statement u/s 313 CrPC as the trial court did not felt it so to ask him,
(iv) there is no public witness joined and it is surfacing in police case that the accused was apprehended with the help of many public persons and PW2 HC Narender Singh also confirms this aspect that the Crl. Appeal No. 23/18 State Vs. Ravi Kumar Page 5 of 8 public persons were inquired by the IO, however, no such person has been witness in the chargesheet, to that extent there is no flaw in the findings rendered by the trial court,
(v) nonexamination of Investigating Officer in the court is not always fatal to the case of prosecution but when such Investigating Officer is material and his evidence is material, then statement of Investigating Officer will be required. In this case, SI Vijay Kumar was Investigating Officer from inception to end, the trial court took coercive steps against him to secure his presence for evidence through senior officers, however, for want of his appearance, his name was dropped as last resort by the trial court after final opportunity for him. In Habib Mohammad Vs. State of Hyderabad, AIR 1954 SC 51, it was held that an adverse inference arises against the prosecution case for non appearance of material witness,
(vi) it is also settled law that the prosecution has to stand of its own case; for want of existence of contradictions in the statement of witnesses will not accrue presumption for the guilt of accused and
(vii) in "State of UP Vs. Awdhesh 2008 IX AD SC 656, it was held that in appeal against acquittal, the appellant is to satisfy that the conclusion drawn by the trial court is contrary to the evidence and law, otherwise, appeal cannot succeed, since there are double presumption in favour of accused/respondent. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person should be presumed to be innocent unless he is proved to be guilty by a competent court of law. Secondly the accused having secured an acquittal, the presumption of his innocence is certainly not Crl. Appeal No. 23/18 State Vs. Ravi Kumar Page 6 of 8 weakened but reinforced, reaffirmed and strengthened by the court". However, it is not so emerging in the appeal against respondent. 4.4 In view of the above, the appeal stand disposed off as dismissed.
5. (For trial court) - While going through the record, it is observed that statement u/s 313 Cr.P.C. has been recorded by the trial court but the manner of framing of question is not proper, each question shall not only contain incriminating facts but also questions shall reflect complete facts. The questions put to accused in his statement u/s 313 Cr.P.C. were 16 questions, out of them 10 questions were like 'why the present chargesheet or evidence u/s 173 Cr.P.C is against you', 'there is evidence against you of personal search memo Ex.PW1/G', 'there is evidence against you of arrest memo Ex.PW1/H', 'there is evidence against you of FSL result Ex.PW5/A' and so on, whereas the recording of statement u/s 313 r/w 281 Cr.P.C. is not just a formality but an important stage in the criminal trial. In fact, it is the stage when there is direct dialogue between the court and the accused, it is also an opportunity for the accused to explain and reply about the adverse circumstances appearing against him. When the questions themselves are not containing complete meaning or element of incriminating evidence, it will not achieve the purpose for which statement u/s 313 Cr.P.C. was meant for. There is no bar for trial court to ask and record general question, which may be recorded in separate part of that statement (from portion of adverse circumstances put to the accused).
This illustration is just as a guidance for the trial court so that in the other cases being dealt with and statement of accused are to be Crl. Appeal No. 23/18 State Vs. Ravi Kumar Page 7 of 8 recorded, the procedure established is required to be followed by the trial court. With this observations, the judgment concludes.
6. Copy of this judgment be sent to the trial court with record.
Announced in open court today Friday, Pausa 21, Saka 1940 (Inder Jeet Singh) Additional Session Judge04 (Shahdara), KKD Courts, Delhi 11.01.2019 Digitally signed by INDERJEET SINGH INDERJEET Location: Shahdara District, Karkardooma SINGH Courts Date: 2019.01.11 17:25:27 +0530 Crl. Appeal No. 23/18 State Vs. Ravi Kumar Page 8 of 8