Delhi District Court
Jagvir Singh vs . The State on 19 November, 2009
Cr. App. No.: 7 / 0 9 & 17 / 0 9
IN THE COURT OF SH. GURDEEP SINGH, ASJ 04
NORTH EAST DISTRICT, KARKARDOOMA COURTS, DELHI.
Crl. A. No. : 7 / 0 9
Jagvir Singh vs. the State
19.11.0 9
ORDER ON SENTENCE
JAGVIR SINGH
Pr.: Sh. S. D. Shar m a , Advocate on behalf of the appella nt
with appellant.
Sh. Virender Singh, Ld. Addl. PP for the state.
Notice of the enha n ce me n t of sente nce was already
given.
I have heard Sh. S. D. Shar m a , Advocate for the
appella nt and Sh. Virender Singh, Ld. Addl. PP for the state
and I have also gone throug h the record.
Ld. Defence counsel has moved an application titled as
written sub mis sion regarding calling of the report from the
Probation Officer and cited MCD vs. state of Delhi 2005 CRL.
L.J. 3077. The order of the hon'ble Supre me Court granting
the probation without calling for the report was set aside. He
also cited MCD Vs. State of Delhi and another 2005 (3) RCR
(Criminal) wherein the Hon'ble High Court had granted the
benefit of probation for offence punis h a ble u / s 332 / 4 4 6
DMC Act. The hon'ble Supre me Court set aside the order
directing that the calling for the report is mand a tory in such
cases.
Page 1 of 32
Cr. App. No.: 7 / 0 9 & 17 / 0 9
As per the cited judgme nt, the calling for the report of
the probation officer, the same is mand a tory if the benefit of
probation is to be extended. However, in the facts of the case I
do not deem it appropriate to call for the report, even
otherwise hearing at present on the enha n ce me n t of the
sente nce as Ld. Trial Court has already sentenced the convict
to six mont h s (rigorous imprison m e n t) and fine of Rs.1000 / .
Further moving of the application today, when the order of
upholding the conviction is already passe d on 28.10.20 0 9 is
appare n t ploy to delay the matter and get the matter
adjour ne d. The application is devoid of any merit. Even
otherwise, law cited is not applicable to the facts of the
present case.
It is also sub mitted that the convict Jagvir Singh, who
was head const a ble at relevant time and still serving in
Delhi Police, is suffering from paralysis and is contin uo u sly
under treat me n t. It is further sub mitted that the marriage of
son of convict is fixed for 23.11.20 0 9 . It is further sub mitted
that the convict is entitled to benefit of probation and
sub mitte d that u / s 4 of Probation and Offender Act, the
benefit of probation is mand a tory in case where the person is
found guilty for offence not punis h a ble with death or
imprison m e n t for life. It is further sub mitte d that the convict
Page 2 of 32
Cr. App. No.: 7 / 0 9 & 17 / 0 9
has suffered trial of about 12 years and therefore he has
already suffered sufficient punis h m e n t . It is further sub mitted
that the accu sed is serving in the police and there is no
complaint against him during the entire tenure.
Therefore he be released on probation of good cond uct.
Section 4 of Probation and Offender Act provides where
the offence is not punis h a ble with deat h and imprison m e n t of
life, the court may having regarded to the circu m s t a n c e s,
nat u re of offence, character of the offender, may instead of
sente ncing him to imprison me n t release on probation and
court may also call for the report of probation officer in this
regard.
Ld. Counsel for the convict cited Jagat Pal Singh vs.
State of Haryana 1999 SCC (Cri) 1313 . In the said case the
Hon'ble Supre me Court granted benefit of probation for
offence punis h a ble u / s 323 / 4 5 2 / 5 0 6 / 3 4 IPC. He also cited
Bishnu Deo Sha w vs. State of West Bengal, AIR 1979 Supreme
Court 964 wherein the Hon'ble Supre me Court held that
where the court choose not to extend benefit of probation in
favour of the accuse d it must give special reaso n. He also
cited Chander Wati vs. State, 2005 (4) RCR (Criminal) 240
wherein Hon'ble High Court granted benefit of probation for
offence punis h a ble u / s 323 IPC. He also cited Harbhajan
Page 3 of 32
Cr. App. No.: 7 / 0 9 & 17 / 0 9
Singh vs. State of Haryana, 2002 (1) RCR (Criminal) 398
wherein benefit of probation was granted for offence
punis h a ble u / s 453 / 4 2 7 IPC and also cited Pawan Kumar &
Ors vs. State 2004 (1) JCC 634 wherein for offence punis h a ble
u / s 448 / 3 4 IPC benefit of probation was granted wherein trial
had lasted for about 11 years and it is sub mitted that the
benefit of probation has been given in the offence of like
nat u re and serious nat u re, therefore the convict are entitled
to the same.
He also cited Ishar Das vs. The State of Punjab, 1942
Crl. L.J. 874 where the Hon'ble Supre me Court held that
benefit of probation can be granted in case of Food
Adulteration Act. He also cited Cha m a n Lal Vs. U.T.
Cha ndigar h 2003 (1) RCR (Criminal) 120 wherein hon'ble
High Court of Punjab and Haryan a had granted the benefit of
probation in case under Food Adulteration Act. He also cited
Ram Singh vs. U.T. Chandigarh, 2003 (1) RCR (Criminal) 242.
He also cited Saheg Singh vs. State of Haryan a, 2006(1) RCR
(Criminal) 735 wherein the convict was granted benefit of
probation in conviction in Punjab Excise Act. He also cited
Shya m Lal vs. State of Punjab 2006(2) RCR (Criminal) 647
wherein the convict was granted benefit of probation in
conviction in Punjab Excise Act. He also cited Bachittar Singh
Page 4 of 32
Cr. App. No.: 7 / 0 9 & 17 / 0 9
vs. State of Punjab 2004(1) RCR (Criminal) 729 wherein the
convict was granted benefit of probation in conviction in
Punjab Excise Act.
He also cited Ghans h y a m Das vs. MCD, AIR 1975 Crl. L.
J. 753. In the said case the benefit of the probation was
granted in case involving food adultera tion by the Hon'ble
Supre me Court. He also MCD Vs. Ratan Lal 1971 Crl. J.
1485 where the benefit of probation was extended in case
under probation of food adulteration by our own High Court.
He also
He also cited Sishan Singh vs. State of Delhi, 1997 JCC
213 1997, judgme n t of our own High Court whereby the
benefit of the probation was grante d in case of rash and
negligent driving. Similarly in Vas w a Nand vs. State 94 (2001)
DLT 773 whereby the benefit of probation was granted
involving the accu sed in rash and negligent driving. At the
outset it must be said that the cited judgme n t s are overruled
by Hon'ble Supre me Court in Dalbir Singh vs. State of
Haryana (2000) 5 SCC 82 : (2000 Crl. L. J. 2283) that the
probation cannot be granted in the rash and negligent
driving.
He also cited Pawan Kumar vs. State of Haryana, 2004
(2) RCR (Criminal) 325 wherein Hon'ble High Court of Punjab
Page 5 of 32
Cr. App. No.: 7 / 0 9 & 17 / 0 9
and Harya n a granted the benefit of probation of offence
punis h a ble under Drugs and Cosmetic Act, 1940.
He also cited Balbir Singh vs. State of Punjab, 2003(2)
RCR (Criminal) 204, wherein the benefit of probation was
granted for offence punishable u / s 324 / 3 2 5 IPC. He also cited
State vs. Om Prakas h and another, 1975 Crl. L. J. 177, our
own High Court enha n ci ng the punis h m e n t of fine of Rs.200
and sente nce of imprison m e n t till rising of the court and fine
of Rs.250 to three mont h s and fine of Rs.100 0 / He also cited
Hansa vs. State of Punjab, 1977 Crl. L. J. 1601 AIR Supreme
Court 1991 in which the benefit of probation u / s 4 was
granted for offence punis h a ble u / s 325 IPC.
On the other ha nd Ld. Addl. PP for the state cited Syed
Salid vs. M. J. Simon 1991 Crl. L. 294, the judgme n t of Andra
Prades h High Court wherein the police officials was released
on admonition where it was alleged that they had illegally
confined and torture the complaina n t for not admitting the
offence was held to be improper and accu se d was sente nced
to imprison m e n t .
This is not a ordinary case where commo n citizen is
convicted in the presen t case. The convict was at the relevant
time posted as head consta ble in the police station and had
taken law in his own hand to get the complain a n t disposse s
Page 6 of 32
Cr. App. No.: 7 / 0 9 & 17 / 0 9
from the shop at the behest of the other party and only at the
intervention of superior police official the FIR could be lodged.
The commo n citizen is left high and dry if the law enforcing
agency become law unto themselves. One is aware that the
writ of the police officials runs in the field and there is no one
to be approac h e d by the aggrieved person s in such event to
protect their life and property. The present case can be one of
the illustra tion where the barbed wire mea nt for protection of
the field started eating the field. Once the police officials
become law unto themselves, the commo n citizen would not
only loose faith in the system but also is left at their peril. We
are governed by Constitu tion of India and follows rule of law,
not rule of rulers. Rule of law can only be ens ured if the law
enforcing agency breac hing the law of land which they are
suppose d to follow and enforce are dealt with iron hand s . In
present case the act of the convict is more serious tha n
normal criminal. The convict knows the law and has chose n
to breac h it. He must suffer it conseq ue nc e s. Against the
ordinary offender there is hope for protection from the police,
but there is no one to fall back upon, if police officials
criminal.
In suc h event, even if he after trial as a nat ur al course
of event, if become old and suffer from ailment are not entitle
Page 7 of 32
Cr. App. No.: 7 / 0 9 & 17 / 0 9
to leniency from any quarter. None of the judgme n t, cited
shows that the benefit of probation has been extended in any
case to the police official. It only illustrate that the crime
committed by police officials can not be dealt with lightly.
Therefore I am of the opinion that this is a fit case, the
punis h m e n t awarded by the trial court is inadeq u a te and
liable to be enha n ce d. Indian Penal Code gives vast discretion
in the matter of sente nce. However, discretion is to be
exercised by guiding principles. One of the principle would
certainly to be that when the offender is member of law
enforcing agency and takes law into one's own hand, thereby
leaving the commo n citizen without any option, maxim u m
punis h m e n t mus t be awarded. Accordingly, I am of the
opinion that the ends of justice would be met in sentencing
the convict to undergo rigorous imprison me n t for one year
and fine of Rs.100 0 / . In default of payme nt of fine, they shall
further under go simple imprison m e n t for 15 days.
File be consigned to record room. Copy of the order on
sente nce and judgme n t be given to the convict free of cost.
Trial court record be sent back alongwith the copy of order.
Announced in open court
today i.e. on 19.11.200 9
GURDE EP SINGH
AS J0 4 / N E / KKD / 19 . 11. 0 9
Page 8 of 32
Cr. App. No.: 7 / 0 9 & 17 / 0 9
IN THE COURT OF SH. GURDEEP SINGH, ASJ 04
NORTH EAST DISTRICT, KARKARDOOMA COURTS, DELHI.
Crl. A. No. : 17 / 0 9
Surender Singh vs. the State
19.11.0 9
ORDER ON SENTENCE
SURENDER SINGH
Pr.: Sh. S. D. Shar m a , Advocate on behalf of the appella nt
with appellant.
Sh. Virender Singh, Ld. Addl. PP for the state.
Notice of the enha n ce me n t of sente nce was already
given.
I have heard Sh. S. D. Shar m a , Advocate for the
appella nt and Sh. Virender Singh, Ld. Addl. PP for the state
and I have also gone throug h the record.
Ld. Defence counsel has moved an application titled as
written sub mis sion regarding calling of the report from the
Probation Officer and cited MCD vs. state of Delhi 2005 CRL.
L.J. 3077. The order of the hon'ble Supre me Court granting
the probation without calling for the report was set aside. He
also cited MCD Vs. State of Delhi and another 2005 (3) RCR
(Criminal) wherein the Hon'ble High Court had granted the
benefit of probation for offence punis h a ble u / s 332 / 4 4 6
DMC Act. The hon'ble Supre me Court set aside the order
directing that the calling for the report is mand a tory in such
cases.
Page 9 of 32
Cr. App. No.: 7 / 0 9 & 17 / 0 9
As per the cited judgme nt, the calling for the report of
the probation officer, the same is mand a tory if the benefit of
probation is to be extended. However, in the facts of the case I
do not deem it appropriate to call for the report, even
otherwise hearing at present on the enha n ce me n t of the
sente nce as Ld. Trial Court has already sentenced the convict
to six mont h s (rigorous imprison m e n t) and fine of Rs.1000 / .
Further moving of the application today, when the order of
upholding the conviction is already passe d on 28.10.20 0 9 is
appare n t ploy to delay the matter and get the matter
adjour ne d. The application is devoid of any merit. Even
otherwise, law cited is not applicable to the facts of the
present case.
It is also sub mitte d that the convict Suren der Singh,
who was consta ble at relevant time and still serving in
Delhi Police. It is further sub mitted that the convict is entitled
to benefit of probation and sub mitted that u / s 4 of Probation
and Offender Act, the benefit of probation is man d a tory in
case where the person is found guilty for offence not
punis h a ble with death or imprison m e n t for life. It is further
sub mitte d that the convict has suffered trial of about 12 years
and therefore he has already suffered sufficient punis h m e n t .
It is further sub mitted that the accu se d is serving in the
Page 10 of 32
Cr. App. No.: 7 / 0 9 & 17 / 0 9
police and there is no complaint against him during the entire
tenure. Therefore he be released on probation of good
conduc t.
Section 4 of Probation and Offender Act provides where
the offence is not punis h a ble with deat h and imprison m e n t of
life, the court may having regarded to the circu m s t a n c e s,
nat u re of offence, character of the offender, may instead of
sente ncing him to imprison me n t release on probation and
court may also call for the report of probation officer in this
regard.
Ld. Counsel for the convict cited Jagat Pal Singh vs.
State of Haryana 1999 SCC (Cri) 1313 . In the said case the
Hon'ble Supre me Court granted benefit of probation for
offence punis h a ble u / s 323 / 4 5 2 / 5 0 6 / 3 4 IPC. He also cited
Bishnu Deo Sha w vs. State of West Bengal, AIR 1979 Supreme
Court 964 wherein the Hon'ble Supre me Court held that
where the court choose not to extend benefit of probation in
favour of the accuse d it must give special reaso n. He also
cited Chander Wati vs. State, 2005 (4) RCR (Criminal) 240
wherein Hon'ble High Court granted benefit of probation for
offence punis h a ble u / s 323 IPC. He also cited Harbhajan
Singh vs. State of Haryana, 2002 (1) RCR (Criminal) 398
wherein benefit of probation was granted for offence
Page 11 of 32
Cr. App. No.: 7 / 0 9 & 17 / 0 9
punis h a ble u / s 453 / 4 2 7 IPC and also cited Pawan Kumar &
Ors vs. State 2004 (1) JCC 634 wherein for offence punis h a ble
u / s 448 / 3 4 IPC benefit of probation was granted wherein trial
had lasted for about 11 years and it is sub mitted that the
benefit of probation has been given in the offence of like
nat u re and serious nat u re, therefore the convict are entitled
to the same.
He also cited Ishar Das vs. The State of Punjab, 1942
Crl. L.J. 874 where the Hon'ble Supre me Court held that
benefit of probation can be granted in case of Food
Adulteration Act. He also cited Cha m a n Lal Vs. U.T.
Cha ndigar h 2003 (1) RCR (Criminal) 120 wherein hon'ble
High Court of Punjab and Haryan a had granted the benefit of
probation in case under Food Adulteration Act. He also cited
Ram Singh vs. U.T. Chandigarh, 2003 (1) RCR (Criminal) 242.
He also cited Saheg Singh vs. State of Haryan a, 2006(1) RCR
(Criminal) 735 wherein the convict was granted benefit of
probation in conviction in Punjab Excise Act. He also cited
Shya m Lal vs. State of Punjab 2006(2) RCR (Criminal) 647
wherein the convict was granted benefit of probation in
conviction in Punjab Excise Act. He also cited Bachittar Singh
vs. State of Punjab 2004(1) RCR (Criminal) 729 wherein the
convict was granted benefit of probation in conviction in
Page 12 of 32
Cr. App. No.: 7 / 0 9 & 17 / 0 9
Punjab Excise Act.
He also cited Ghans h y a m Das vs. MCD, AIR 1975 Crl. L.
J. 753. In the said case the benefit of the probation was
granted in case involving food adultera tion by the Hon'ble
Supre me Court. He also MCD Vs. Ratan Lal 1971 Crl. J.
1485 where the benefit of probation was extended in case
under probation of food adulteration by our own High Court.
He also
He also cited Sishan Singh vs. State of Delhi, 1997 JCC
213 1997, judgme n t of our own High Court whereby the
benefit of the probation was grante d in case of rash and
negligent driving. Similarly in Vas w a Nand vs. State 94 (2001)
DLT 773 whereby the benefit of probation was granted
involving the accu sed in rash and negligent driving. At the
outset it must be said that the cited judgme n t s are overruled
by Hon'ble Supre me Court in Dalbir Singh vs. State of
Haryana (2000) 5 SCC 82 : (2000 Crl. L. J. 2283) that the
probation cannot be granted in the rash and negligent
driving.
He also cited Pawan Kumar vs. State of Haryana, 2004
(2) RCR (Criminal) 325 wherein Hon'ble High Court of Punjab
and Harya n a granted the benefit of probation of offence
punis h a ble under Drugs and Cosmetic Act, 1940.
Page 13 of 32
Cr. App. No.: 7 / 0 9 & 17 / 0 9
He also cited Balbir Singh vs. State of Punjab, 2003(2)
RCR (Criminal) 204, wherein the benefit of probation was
granted for offence punishable u / s 324 / 3 2 5 IPC. He also cited
State vs. Om Prakas h and another, 1975 Crl. L. J. 177, our
own High Court enha n ci ng the punis h m e n t of fine of Rs.200
and sente nce of imprison m e n t till rising of the court and fine
of Rs.250 to three mont h s and fine of Rs.100 0 / He also cited
Hansa vs. State of Punjab, 1977 Crl. L. J. 1601 AIR Supreme
Court 1991 in which the benefit of probation u / s 4 was
granted for offence punis h a ble u / s 325 IPC.
On the other ha nd Ld. Addl. PP for the state cited Syed
Salid vs. M. J. Simon 1991 Crl. L. 294, the judgme n t of Andra
Prades h High Court wherein the police officials was released
on admonition where it was alleged that they had illegally
confined and torture the complaina n t for not admitting the
offence was held to be improper and accu se d was sente nced
to imprison m e n t .
This is not a ordinary case where commo n citizen is
convicted in the presen t case. The convict was at the relevant
time posted as consta ble in the police station and had taken
law in his own han d to get the complain a n t disposse s from
the shop at the behest of the other party and only at the
intervention of superior police official the FIR could be lodged.
Page 14 of 32
Cr. App. No.: 7 / 0 9 & 17 / 0 9
The commo n citizen is left high and dry if the law enforcing
agency become law unto themselves. One is aware that the
writ of the police officials runs in the field and there is no one
to be approac h e d by the aggrieved person s in such event to
protect their life and property. The present case can be one of
the illustra tion where the barbed wire mea nt for protection of
the field started eating the field. Once the police officials
become law unto themselves, the commo n citizen would not
only loose faith in the system but also is left at their peril. We
are governed by Constitu tion of India and follows rule of law,
not rule of rulers. Rule of law can only be ens ured if the law
enforcing agency breac hing the law of land which they are
suppose d to follow and enforce are dealt with iron hand s . In
present case the act of the convict is more serious tha n
normal criminal. The convict knows the law and has chose n
to breac h it. He must suffer it conseq ue nc e s. Against the
ordinary offender there is hope for protection from the police,
but there is no one to fall back upon, if police officials
criminal.
In suc h event, even if he after trial as a nat ur al course
of event, if become old and suffer from ailment are not entitle
to leniency from any quarter. None of the judgme n t, cited
shows that the benefit of probation has been extended in any
Page 15 of 32
Cr. App. No.: 7 / 0 9 & 17 / 0 9
case to the police official. It only illustrate that the crime
committed by police officials can not be dealt with lightly.
Therefore I am of the opinion that this is a fit case, the
punis h m e n t awarded by the trial court is inadeq u a te and
liable to be enha n ce d. Indian Penal Code gives vast discretion
in the matter of sente nce. However, discretion is to be
exercised by guiding principles. One of the principle would
certainly to be that when the offender is member of law
enforcing agency and takes law into one's own hand, thereby
leaving the commo n citizen without any option, maxim u m
punis h m e n t mus t be awarded. Accordingly, I am of the
opinion that the ends of justice would be met in sentencing
the convict to undergo rigorous imprison me n t for one year
and fine of Rs.100 0 / . In default of payme nt of fine, they shall
further under go simple imprison m e n t for 15 days.
File be consigned to record room. Copy of the order on
sente nce and judgme n t be given to the convict free of cost.
Trial court record be sent back alongwith the copy of order.
Announced in open court
today i.e. on 19.11.200 9
GURDE EP SINGH
AS J0 4 / N E / KKD / 19 . 11. 0 9
Page 16 of 32
Cr. App. No.: 7 / 0 9 & 17 / 0 9
IN THE COURT OF SH. GURDEEP SINGH:ASJ 04
NORTH EAST DISTRICT:KARKARDOOMA COURTS:DELHI
In the matter of:
Jagbir Singh
S /o Late Sh. Bhagwan Singh
R/o Vill. Gangta n, P.O. Dighal
Distt. Jh ajjar, Haryan a ............Appellant
Versus
The State
(Govt. of NCT of Delhi) ............Respo n de n t
Crl. Appeal No. 07 / 0 9
FIR No. 228 / 1 9 9 7
U/s 448 / 1 0 9 / 3 4 IPC
PS: Welcome
AND
Suren der Singh
S /o Late Sh. Raghu b a r Singh
R/o 912, Gomuk h Apartme n t,
Kaus h a m bi
Ghaziaba d, UP. ............Appellant
Versus
The State
(Govt. of NCT of Delhi) ............Respo n de n t
Crl. Appeal No. 17 / 0 9
FIR No. 228 / 1 9 9 7
U/s 448 / 1 0 9 / 3 4 IPC
PS: Welcome
O R D E R
28.10.2 0 0 9
1.Vide this commo n order, I shall decide two appeals titled as Jagbir Singh Vs. State and Surinder Singh Page 17 of 32 Cr. App. No.: 7 / 0 9 & 17 / 0 9 Vs. State arising out of the judgmen t dated 17.2.20 0 9 and order on sente nce on 26.2.200 9 whereby the appellants were sentenced to undergo rigorous imprison me n t for six mont h s and fine of Rs.1000 / for offence punis h a ble u / s 448 IPC.
2. Facts giving rise to these appeals are that the appellant s, who are at the relevant time were posted as Head Consta ble and Consta ble at PS Welcome alongwith one Kamles h, who expired and proceedings agains t her were abated, were charges heeted for offence punis h a ble u / s 448 / 3 4 and 109 / 3 4 IPC on the allegation that one Tejbir gave written complaint to the police alleging that on 15.9.19 9 7 at about 4:30 p.m. all the three accused came to his shop no.117, Main Road, Babarp u r, Sha h d a r a, Delhi hurled abus e s and started throwing goods out of his shop. Jagbir Singh appellant, who was in inebriated state, put their lock on the shop and they brought him to the police station and was released on 10:30 p.m. He made complaint to Sh. Y.S. Dadwal, the then DIG who ordered vigilance inquiry. The date in the vigilance Page 18 of 32 Cr. App. No.: 7 / 0 9 & 17 / 0 9 inquiry was fixed on 19.9.19 9 7 at about 10:00 a.m. On 19.9.199 7 at 9:40 a.m. accused / a p p ella n t S. S. Bahad u r, and Kamles h tried to open the lock but he did not allow them to do so as the vigilance inquiry was pending. Both of them man h a n d led him and took him and his wife to PS, where they misbeh aved with him. On 18.09.19 9 7 he was having hearing with Kamles h in the court of SDM. After the hearing, he was called to PS Welcome on the pretext that ACP will record his state me n t. He went to PS Welcome where ACP snu b b e d the accused and thereafter he was taken to another room and his stateme n t was recorded and he was turned away and after the completion of the investigation the charges heet was filed. The appellant s alongwith Kamles h were charged for offence punis h a ble u / s 448 / 3 4 IPC.
3. The prosecution has cited as many as 20 witnesses but despite the protracted trial for more tha n 10 years, the prosecution examined only 13 witnesses and the prosecu tion evidence was closed by order of the Ld. MM and vide judgme n t the Page 19 of 32 Cr. App. No.: 7 / 0 9 & 17 / 0 9 accused Jagbir Singh and Surinder Singh were convicted and sente nced and hence the appeals.
4. Notice of the appeals was given to the state. I have heard Sh. S. D. Shar m a , Advocate for the appellant s and Sh. Virender Singh, Ld. Addl. PP for the state. I have also gone throug h the record.
5. The impugne d judgmen t has been assailed on the ground that the copies of challan were not supplied to the accused and the charge was framed without supplying the copies. Secondly, there is inordina te and unexplained delay in lodging the FIR. Thirdly, testimony of PW1, PW2, and PW3 ie.
complaina n t , his wife and son are contra dictory. Fourt hly, the witnes se s are interested witnes se s and lastly that there is enmity between the Kamles h and the complain a n t , therefore out of the animosity the presen t complaint was lodged.
6. Taking the first argu me n t first. I have peru se d the file. The order dated 7.1.99, all the three accused appeared with the coun sel. It is recorded that the Page 20 of 32 Cr. App. No.: 7 / 0 9 & 17 / 0 9 copies were supplied and matter was fixed for scrutiny and charge. On the margin of the orders heet '27 copies' are written and name of Kamles h is also written and orders heet is torn on some parts. Thereafter an application was moved by Kamles h alongwith these two appellant dated 28.7.99 for supply of the following deficient copies i.e. (1) photocopy of suit paper (2) photograp h s (3) photocopy of CJ order dated 27.2.199 9. It would mean that except these docu me n t s other copies were supplied. Thereafter IO was repeatedly called and it appear s from the file that he did not appear and supply copies and charge was framed. Now the question arises whether any prejudice has been caused to the appellant on accou n t of non supply of the docu me n t s . The prosecution has neither proved the photograp h s nor order of civil judge nor suit docu me n t, therefore, it can not be said that any prejudice has been caused on accou nt of these docu me n t s . Moreover, from the cross examin a tion of Angoori Devi, Tejbir Singh and Ajit Singh it is appare n t that they were supplied with the copies of Page 21 of 32 Cr. App. No.: 7 / 0 9 & 17 / 0 9 their stateme n t and they were confronted with the stateme n t recorded u / s 161 Cr.PC at various places. Therefore it cannot be said that any prejudice has been caused on accou nt of non supply of these three docu me n t s .
7. Now, coming to the second argu me n t s of Ld. Counsel i.e. the delay in lodging FIR. Ld. Counsel has cited Balakrus h n a vs. The State of Orissa, AIR 1971 Supreme Court 804 and State of Maharas htra Vs. Ahmed Shaikh Babajan & Ors in support of his argu me n t s . To appreciate the argu me n t s , it is necess a ry to under st a n d the whole controversy. A complaint has been given by Tejbir Singh to Asst. Commissioner of Police, Sha h d a r a whereby he had narrate d the facts that on 15.9.19 9 7, Monday, at about 4:35 p.m. Appellant Jagbir, S.S. Baha d u r alongwith wife of his younger brother Kamles h came to his shop and threw all the goods outside the shop and started abu sing. Jagbir was in inebriated state after throwing the entire goods from the shop, put lock with his own hand and kept the key with him. He was taken to the Page 22 of 32 Cr. App. No.: 7 / 0 9 & 17 / 0 9 police station and was left at 10:30 p.m. He lodged the complaint of the same at Police Head Quarter to DIG Sh. Y.S. Dadwal who asked for the inquiry of the same to vigilance branc h and vigilance kept the matter for 19.9.19 9 7 at 10:00 a.m. Before that at about 9:40 a.m. appellant S.S. Baha d u r brought the wife of his (complaina n t) younger brother Kamles h to the shop and started opening the lock. He told them that let the vigilance person s come from the Police Head Quarter otherwise they will not allow them to open the lock. On this appellant S.S. Bahad u r started grappling with him and brought some police person s and started attemp ting to open the lock. His wife was pus he d by them. He was taken to the police station and was abu sed. On 18.9.19 9 7, he was having appear a n c e at SDM Court alongwith Kamles h, after the hearing, he was called the police station Welcome, on the pretext that his stateme n t will be recorded by ACP. ACP rebuked them. Then they took him to the other room and recorded his stateme n t and sent him away. When his son told Jagbir that daugh ter of Kamles h Page 23 of 32 Cr. App. No.: 7 / 0 9 & 17 / 0 9 was born after two years after the murder of his brother (i.e. hus b a n d of Kamlesh). On this he said let the one more child be born. He further stated that new lock which was put on the shop was brought by appellant Jagbir.
8. This complaint was received in the office of ACP on 19.9.19 9 7. The same was marked to Inspector Prit Singh for investigation by ACP. On that he made endorse me n t on the same day and the FIR was registered.
9. Now question arises, whether there is any inordinate delay. The incident is of 15.9.199 7. He was detained by the police of the same police station from where the appellant s had come. On the next day, he made complaint at the Police Head Quarter who directed the investigation and the matter was fixed for 19.9.199 7 by the vigilance. On that day his written state me n t was received by ACP and was marked for investigation and FIR was registered. The complain a n t had given details as to how there is delay from 15 th to 19 th . The Local police Page 24 of 32 Cr. App. No.: 7 / 0 9 & 17 / 0 9 was actively conniving with Kamlesh the then accused and therefore it was not possible for him to get the FIR registered. The normal cases for cause of delay has to be looked at different angle tha n from, the cases where it is alleged that the police officials of the same police station are involved. It is next to impossible to get FIR registered against the police official of the same police station. Even the attempt to protest was resulted in illegal detention at PS of the complaina n t . He was hu miliated at the police station. Therefore it can not be said that there were deliberate delay. The delay was properly explained for above reason s.
10. It is also necess a ry to mention here that the investigation was cond ucted by the police officer of the rank of inspector despite that from the perus al of the file it is appare n t that investigating officer was negligent. Inspector Prit Singh was repeatedly called by the trial court for the supply of the copies but he did not respon d and complied with direction of the court and even he did not appear for serving of the witnesses at trial when the processes were Page 25 of 32 Cr. App. No.: 7 / 0 9 & 17 / 0 9 sent throug h him. The reason is appare n t that the police officials are involved. There is always an attempt by the police officials to shield their colleague. Hon'ble Supre me Court has held that in such cases the stan d a r d of proof has to be taken differently tha n normal criminal cases. Reference can be made from Dalbir Singh v. State of U.P , (SC), 2009(2) AICLR 143, SUPREME COURT OF INDIA.
To quote:
"10. Rarely in cases of police torture or custodial death, there is any direct ocular evidence of the complicity of the police personnel alone who can only explain the circumsta nce s in which a person in their custody had died. Bound as they are by the ties of brotherhood, it is not unkno w n that the police personnel prefer to remain silent and more often than not even pervert the truth to save their colleagues and the present case is an apt illustration as to how one after the other police witnes s e s feigned ignorance about the whole matter."
"11. The exaggerated adherence to and insistence upon the establish m e nt of proof beyond every reasonable doubt by the prosecution, at times even when the prosecuting agencies are thems elve s fixed in the dock, ignoring the ground realities, the factsituation and the peculiar circumstances of a given case, as in the present case, often results in miscarriage of justice and make s the justice delivery syste m suspect and Page 26 of 32 Cr. App. No.: 7 / 0 9 & 17 / 0 9 vulnerable. In the ultimate analysis the society suffers and a criminal gets encouraged. Tortures in police custody, which of late are on the increase, receive encouragement by this type of an unrealistic approach at times by the courts as well because it reinforces the belief in the mind of the police that no harm would come to them if one prisoner dies in the lock up because there would hardly be any evidence available to the prosecution to directly implicate them with the torture. The courts must not lose sight of the fact that death in police custody is perhaps one of the worst kind of crimes in a civilized society, governed by the rule of law and poses a serious threat to an orderly civilized society. Torture in custody flouts the basic rights of the citizens recognized by the Indian Constitution and is an affront to human dignity. Police excess e s and the maltreatme nt of detainees / u n d er trial prisoners or suspects tarnishe s the image of any civilised nation and encourages the men in `Khaki' to consider them selves to be above the law and sometimes even to become law unto thems elves. Unless stern measures are taken to check the malad y of the very fence eating the crops, the foundations of the criminal justice delivery syste m would be shake n and the civilization itself would risk the consequence of heading, toward s total decay resulting in anarchy and authoritarianis m reminiscent of barbarism. The courts must, therefore, deal with such cases in a realistic manner and with the sensitivity which they deserve, otherwise the common man may tend to gradually lose faith in the efficacy of the syste m of judiciary itself, which, if it happen s, will be a sad day, for any one to reckon with."
11. These cases also suggest that there is total lack of supervision from the senior officer for ens uring that Page 27 of 32 Cr. App. No.: 7 / 0 9 & 17 / 0 9 the guilty are brought to the book and monitoring of the cases. Despite the protracted trial for 10 years police has failed to conclude their evidence before Ld. trial court and trial court was compelled to close the evidence. In such circu m s t a n c e s justice can be casu alty and wrongdoer are benefited. However fortu n a tely it has not happe ne d in this case.
12. Now coming to the remaining argu me n t s . Ld. Coun sel has also sub mitted that there are inconsiste ncy in the testimony of three material witnesses. It is stated that PW1 deposed that Jagbir was throwing goods from the shop and Kamles h was stan ding but he had nowhere stated in his testimony or in his complaint that PW2 Angoori Devi and PW3 Ajit Singh were also present. Smt. Angoori Devi stated that all the three thrown the goods and she did not state PW1 and PW3 were also present. Ld. Trial Court had considered the argu me n t s and PW3 is not relied upon as he has improved his version in the court from the version recorded u / s 161 Cr.PC from his state me n t recorded by police.
Page 28 of 32 Cr. App. No.: 7 / 0 9 & 17 / 0 9
13. Now coming to the testimony of PW1 and PW2. As pointed out by the coun sel, PW1 in his stateme n t has not stated that his wife Angoori Devi was also presen t but if one closely scrutinize the evidence one finds that the shop in question is located at plot No. 117, which also residence of this witness. Therefore, the shop is not at a very far place where the presence of Angoori Devi is difficult. Even if, she was presen t at her house when this incident happe ne d. She would come within no time to the shop. Although her state me n t was recorded on 14.4.19 9 8 ie after about seven month s of the incident but again this shows the cond uct of the local police and the investigating officer of this case who was trying to shield the culprits, who are posted in the same police station and therefore did not go ahead to record her stateme n t at the right time. Although one would have disbelieved the stateme n t of such witness if recorded after a long delay in other circu m s t a n c e s but in the facts of the presen t case whereby connivance of local police is appare n t on the face of it the state me n t has to be Page 29 of 32 Cr. App. No.: 7 / 0 9 & 17 / 0 9 believed. Even PW1 has not stated so that PW3 was present but in his cross examina tion PW1 has categorically stated that he and his wife PW2 was arrested by police on 15.9.199 7 which proves her presence at the spot. There is no suggestion or cross examin a tion that Angoori Devi was not presen t on that day. Angoori Devi has also not been questioned regarding her presence at the spot on the alleged day.
14. Now coming to the last argu me n t s that there is animosity between Kamlesh and complaina n t . Ld. Counsel has drawn my attention towards cross examin a tion of Ajit Singh wherein he admitted that a civil litigation was going on between his father and his uncle Ram Phal regarding the shop. He had also admitted that his uncle was murdered in the year 1995. He admitted that sub seq u e n tly Kamlesh accused, in this case was also murdered and a case was registered in which his father was one of the accused persons. He, however, stated he has been acquitted. Even if there is animosity between Kamles h and the complain a n t, there is no Page 30 of 32 Cr. App. No.: 7 / 0 9 & 17 / 0 9 animosity of complaina n t qua present appellant. They are police official and Tejbir has no animosity towards them so that he may implicate them. This argu me n t is also without any merit.
15. Ld. Defence Counsel also sub mitted that all the witnesses are interested witnesses and closely related to the complain a n t and therefore their testimony cannot be relied upon. There is no law that the testimo ny of the interested witnesses cannot be relied upon. In the facts and circum s t a n c e s of the present case where there was disp ute amongst family members, it is commo n that neighbou rer and other public person s do not come forward to give evidence so as to attract ire of the either party agains t them in case they give evidence. Testimony of the PW1 and PW2 are consisten t and trust worthy and therefore the same is relied upon and the testimony cannot be seen with suspicion merely becau s e they are interested rather they are the natu r al witnes se s in this case.
16. Therefore, I am of the opinion that the judgme n t of Page 31 of 32 Cr. App. No.: 7 / 0 9 & 17 / 0 9 the trial court is well reasoned and suffers from no infirmity, and accordingly the same is upheld. The appellant s were given notice for enha n ce m e n t of the punis h m e n t . Let them to be heard on the point of enha n ce m e n t of punis h m e n t .
Announced in the open court on today i.e 28 / 1 0 / 2 0 0 9 GURDEEP SINGH ASJ 04 /NE / KKD / 2 8 . 1 0 . 2 0 0 9 Page 32 of 32