Delhi District Court
Asj/Special.Judge(Ndps) vs Sunita on 7 February, 2023
DLNW010093712019
Presented on : 30-09-2019
Registered on : 01-10-2019
Decided on : 07-02-2023
Duration : 3 years, 4 months,
7 days
IN THE COURT OF
ASJ/SPECIAL.JUDGE(NDPS)
AT NORTH WEST, ROHINI COURTS, DELHI
(Presided Over by Sh. Vikram)
CA /165/2019
State (Govt. NCT of Delhi)
Through Public Prosecutor,
Rohini, Delhi
....Appellant/petitioner
Vs.
1. Sunita
W/o Sh. Ram Lal
R/o C-1/460, Sultanpuri,
Delhi
2. Kamlesh @ Jane
W/o Sh. Suraj Bhan
R/o C-1/396, Sultanpuri,
Delhi
3. Savitri
W/o Sh. Rama Singh
C.A. No. 165/2019 State Vs. Sunita Page no. 1
R/o C-1/460, Sultanpuri,
Delhi
....Respondent
JUDGMENT
(Delivered on 07-02-2023)
1. By way of present criminal appeal, the appellant impugns the judgment dated 16.07.2019 passed by ld. MM-01, North- West, Rohini passed in case FIR No. 1196/01, U/s 323/326/341/34 IPC, PS Sultanpuri whereby respondents have been acquitted.
2. Brief facts of the case are that on 08.10.2001 at about 06:30 am, when complainant Kavita Rani was cleaning her house and she saw that accused Kamlesh (respondent no. 2 herein) throwing dirt items and bones outside the house of complainant and on being asked accused Kamlesh told that she had thrown water on the street due to which the dirt articles got collected out the house of complainant. Thereafter, accused Kamlesh had abused and beaten the complainant with broom and in the meanwhile, sister of accused Sunita (respondent no. 1 herein) and accused Savitri (respondent no. 3 herein) came thee and they also beat the complainant. Accused Sunita bit her right hand finger due to which her finger got cut and separated from her hand and when husband of complainant came to help her, he was also C.A. No. 165/2019 State Vs. Sunita Page no. 2 beaten by accused persons. During investigation accused persons/respondents were charge sheeted for the offence punishable under Section 323/326/341/34 IPC.
3. After completion of investigation, charge sheet was filed in the Court. On 31.01.2005 charge was framed against accused persons/respondents to which they pleaded not guilty and claimed trial. Thereafter, prosecution witnesses were examined.
3.1. PW-1 is the witness of arrest of accused persons in memos Ex PW 4/C, 4/D & 4/E. 3.2 PW-2 is Duty Officer and proved copy of FIR Ex PW 2/A and endorsement Ex PW 2/B. 3.3 PW-3 Kavita Rani is complainant and proved her complaint Ex PW 3/A. 3.4 PW-4 Ram Kumar is husband of complainant and deposed that on hearing quarrel he came out side and saw that PW-3 was being beaten by accused persons and he tried to save PW-3. As per PW-4, accused Sunita was spitting blood from her mouth and finger of his wife came out from the mouth of accused Sunita which he picked the finger and gave first aid after he called police.
3.5. HC Paramjeet was also examined as PW-4. He is 1st IO. He C.A. No. 165/2019 State Vs. Sunita Page no. 3 proved rukka Ex Pw 4/A, site plan Ex PW 4/B, arrest memo of accused persons Ex PW 4/C, 4/D & 4/E and their personal search memos Ex PW 4/F, 4/G 7 4/H. 3.6 PW-5 HC Vijay Kumar is 2nd IO who collected the MLCs of injured and filed the charge sheet.
3.7 PW-6 Sh. VK Jha, LDC, SGM Hospital was summoned to prove MLC Ex PW 6/A. 3.8 PW-7 ASI Rampal had joined the investigation with 1st IO.
4. In statement recorded under Section 313 Cr.P.C. accused persons claimed innocence and stated that they have been falsely implicated because of the dispute regarding parking of complainants vehicle in front of their house. They opted to lead evidence and produced two witnesses in their defence.
5. Ld. Trial Court acquitted the accused person holding that the prosecution has failed to prove the MLC as per law as no doctor was examined and PW-6 who was summoned to prove the MLC had not spoken anything about the contents of MLC, nor any doctor was summoned to prove the signature and handwriting of the doctor who prepared the MLC. Ld. Trial Court also doubted the version of complainant and her husband as no independent witness from the neighbourhood had come to depose in favour of prosecution despite they were present at the C.A. No. 165/2019 State Vs. Sunita Page no. 4 spot and there was no allegation in the complaint that the complainant was wrongfully restrained.
6. State has assailed the acquittal of accused persons on the ground that ld. Trial Court failed to appreciate the fact that PW-3 i.e. the complainant Kavita Rani in her testimony stated that the accused persons abused her and beaten her and that accused namely Sunita had bitten her right hand finger and due to that her finger got separated from her hand. Ld. Trial Court has also failed to appreciate the testimony of PW-4 who proved that accused persons had committed the offence. It is further contended that ld. Trail Court has failed to appreciate the MLC of injured/complainant which was proved by PW-6 and also ld. Trial Court failed to appreciate the fact that both PW-3 and PW-4 supported the case of prosecution.
7. I have heard ld. Addl. PP on behalf of appellant and ld. Counsel for petitioners.
8. Hon'ble Supreme Court has, on the legal position of the power of Appellate Court in dealing with judgments of acquittal, in Ghurey Lal Vs. State of U.P, (2008) 10 SCC 450 after going through previous judgments has held that:-
"72. The following principles emerge from the cases above:
1. The appellate court may review the evidence in appeals against acquittal under sections 378 and 386 of the Criminal C.A. No. 165/2019 State Vs. Sunita Page no. 5 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 trial court was wrong.
73. 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 dis- turb 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.
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 miscar-
riage of justice";
C.A. No. 165/2019 State Vs. Sunita Page no. 6
iv) The entire approach of the trial court in dealing with the evi- dence was patently illegal;
v) The trial court's judgment was manifestly unjust and unrea- sonable;
vi) The trial court has ignored the evidence or misread the mate- rial evidence or has ignored material documents like dying dec- larations/ report of the Ballistic expert, etc.
vii) This list is intended to be illustrative, not exhaustive.
2. The Appellate Court must always give proper weight and con- sideration to the findings of the trial court.
3. If two reasonable views can be reached - one that leads to ac- quittal, the other to conviction - the High Courts/appellate courts must rule in favour of the accused.
See Surajpal Singh & Others v. State, AIR 1952 SC 52, Tulsiram Kanu vs. The State, AIR 1954 SC 1, Madan Moha Singh v. State of Uttar Pradesh, AIR 1954 SC 637, Atley v. State of U.P AIR 1955 SC 807,Aher Raja Khima v. State of Saurashtra AIR 1956 SC 217,M.G. Aggarwal vs. State of Maharashtra AIR 1963 SC 200, Noor Khan v. State of Rajasthan, AIR 1964 SC 286, Khedu Mohton & Others v. State of Bihar (1970) 2 SCC 450, Shivaji Sa- habro Bobade & Another v. State of Maharashtra (1973) 2 SCC 793, Lekha Yadav v. State of Bihar (1973) 2 SCC 424, Khem Karan & Others v. State of U.P. & Another AIR 1974 SC 1567, Bishan Singh & Others v. The State of Punjab (1974) 3 SCC 288, Umedbhai Jadavbhai v. The State of Gujrat (1978) 1 SCC 228, B.N. Mutto & Another v. Dr. T.K. Nandi (1979) 1 SCC 361, Tota Singh & Another v. State of Punjab (1987) 2 SCC 529, Ram Ku- mar v. State of Haryana 1995 supp. (1) SCC 248, Madan Lal v. State of J&K, (1997) 7 SCC 677, Sambasivan & Others v. State of Kerala (1998) 5 SCC 412, Bhagwan Singh & Ors. v. State of M.P. (2002) 4 SCC 85, Harijana Thirupala & Others v. Public Prosecutor High Court of A.P. Hyderabad (2002) 6 SCC 470, C. Antony v. K.G. Raghavan Nair (2003) 1 SCC 1, State of Kar- nataka v. K. Gopalkrishan, (2005) 9 SCC 291, The State of Goa C.A. No. 165/2019 State Vs. Sunita Page no. 7 v. Sanjay Thakran (2007) 3 SCC 755, State of Rajasthan v. Raja Ram (2003) 8 SCC 180 & Chandrappa & Others v. State of Kar- nataka (2007) 4 SCC 415."
9. There are only two witnesses of the incident i.e. PW-3 & PW-4. As per rukka Ex PW 4/A, the time of incident is 06:38 am in the morning but DD No. 10B records that information was received in the PS only at 07:20 am. This DD No. 10 B is not proved. However, it records that there was a quarrel in C-1/436, Sultanpuri. The MLC records the admission of PW-3 in the hospital at 08:00 am who was taken there by Pw-4. It is the claim that the accused persons gave beatings to PW-3 and one of the accused severed a portion of her finger. It is unbelievable that despite receiving such injury one would take this much time to go to hospital. The rukka also shows that it was sent for registration for FIR at 06:50 pm. This delay of about 12 hours in registration of FIR is therefore, fatal to the case of prosecution. It is not proved on record that the severance of the portion of the finger of PW-3 was caused by human bite as no doctor to this effect was examined and there is no such opinion. There could have been many possibility of receiving such injuries.
10. The testimony of PW-4 rather appears to be false as he deposed that accused Sunita spit the blood and finger from her mouth but no such deposition was given by PW-3. Besides that there is an apparent contradiction in the version of PW-3 & PW-4 as PW-3 stated that PW-4 was reading newspaper but as per PW- 4 he was sleeping. When asked if any neighbour was present, C.A. No. 165/2019 State Vs. Sunita Page no. 8 both witnesses stated that the neighbours were present, however, none was joined in the investigation.
11. In these circumstances, ld. MM was not wrong in holding that there are reasonable doubts in the case of prosecution and acquitting the accused persons. The appeal, therefore, stands dismissed.
12. File be consigned to record room. A copy of this judgment be sent to concerned Court alongwith TCR. Digitally signed by VIKRAM VIKRAM Date:
2023.02.07 16:39:30 +0530 Date : 07.02.2023 (Vikram) ASJ-02/Spl. Judge (NDPS), North West, Rohini Courts, Delhi/07.02.2023 Digitally signed Dictated on : 07.02.2023 by VIKRAM Transcribed on : 07.02.2023 VIKRAM Date:
2023.02.07 checked on : 07.02.2023 16:39:36 Signed on : 07.02.2023 +0530 (Vikram) ASJ-02/Spl. Judge (NDPS), North West, Rohini Courts, Delhi/07.02.2023 C.A. No. 165/2019 State Vs. Sunita Page no. 9