State (Delhi Administration) vs Virender Kumar & Others
2008 Latest Caselaw 877 Del

                IN THE HIGH COURT OF DELHI, AT DELHI

                           Crl.A.No.244 of 1987

%                  Judgment delivered on June 11th, 2008.

#        STATE (DELHI ADMINISTRATION)       ..... Appellant
                        Through: Mr.Sanjay Lao and
                                 Mr.Jaideep Malik, Advocates

                                   Versus

$        VIRENDER KUMAR & ORS.         ....    Respondent

Through: Mr.S.D. Singh, Adv. for R-1.

Mr.A.K. Singh, Adv. for R-2 & 4.

Mr.Sudhir Nandrajog, Adv.for R-3

CORAM:

HON'BLE MR. JUSTICE G.S.SISTANI

1. Whether reporters of local papers may be allowed to see the Judgment ? Yes

2. To be referred to the Reporter or not? Yes

3. Whether the judgment should be reported in the Digest? Yes

G.S.SISTANI, J :

1. The present appeal is directed against the judgment dated

16.4.1987 passed by the Metropolitan Magistrate, Delhi. By the

impugned judgment the accused persons were acquitted.

2. The case of the prosecution as noted by the Metropolitan

Magistrate is that : a DD No.4 A was recorded at the Police Station Civil Lines at 9:25 a.m. on 16.2.1982. On the basis of

information received on telephone from PCR by SI Badrinath to

the effect that he received information on telephone from one

Pawan Kumar about an accident with Car No.WMC 8920 and two

wheeler scooter and the Car had driven away from the spot while

injured was lying on the road. S.I. Ram Chander along with the

constable Raghubir Singh, reached the spot and found one Bajaj

Scooter bearing No.DHH 6608 at the spot, but did not find any

witness. On coming to know that the injured has been removed

to Hindu Rao Hospital, constable Ram Chander deputed constable

Raghubir Singh at the spot and he went to the hospital. MLC of

the victim, Dalip Simen was collected; he was declared unfit to

make the statement. FIR No.94/92 was recorded for the offence

of under Section 279 and 337 IPC. The investigating officer

recorded the statement of the injured Dalip Simen on 17.2.1982,

the next day of the occurrence, as well as statement of the

witnesses. According to the injured he was going to Delhi

University on his Scooter at about 9:15 a.m. when he came on

Yamuna Marg in front of Bud Vihar, a white ambassador car came

behind and stopped infront of him. Thereafter six persons came

out of the car and attacked him with lead pipe and lathi.

According to him that one car driven by a lady stopped there and

some other people also collected while assailants ran away. He

claimed that he could recognize those persons and had a

suspicion that there was hand of college principal, Kartar Singh,

J.P. Jain, Physical Instructor, Ramjas College and Dr.Karan Singh

of Chemistry department. The respondents herein were arrested

in the case during the investigation on different dates. As per the

opinion of the doctor, the injuries of Dalip Simen were grievous

caused by blunt object. After completing the investigation, the

respondents were challaned for the offence punishable under

Sections 307/147/148/120-B IPC.

3. It is submitted by learned counsel for the appellant that the

judgment dated 16.4.1987 has been passed on assumptions,

conjectures and surmises. The second argument which was

raised, was that the Court below erred in not giving full meaning

of the statement of the injured person particularly in view of the

motive of the crime was writ large and more or less admitted by

the respondents. The learned court also failed to appreciate that

there was no reason why the injured person would falsely

implicate the respondents. The only other argument which was raised by learned counsel for the appellant was that the

documents were not exhibited in accordance with law.

4. The respondents are represented by A.K. Singh, Mr.S.D. Singh

and Mr.Sudhir Nandrajog Advocates. Learned counsel for the

respondents at the very outset submits that in an appeal against

acquittal by the State (i) High Court should refrain from

interfering in the decision of acquittal, (ii) if two views are

possible, the view favouring the accused should be taken by the

appellate court in appeal against acquittal and (iii) only for

compelling and substantial reasons the order of acquittal should

be set aside. It is submitted that the judgment is well reasoned

and the court below has rightly appreciated the evidence.

5. In support of the above submissions, learned counsel for the

respondents have placed reliance on various judgments of the

Apex Court. Mr.A.K. Singh, learned counsel for respondents No.2

and 4 also submits that as per the criminal jurisprudence an

accused is presumed to be innocent, however, once the accused

having been acquitted, the presumption of innocence is further

re-enforced, re-affirmed and strengthened and further merely if

two reasonable conclusions are possible on the basis of evidence

on record, the appellant court should not disturb the finding of acquittal arrived at by the Court below. Learned counsel has

submitted that in this case some important witnesses were not

even examined by the prosecution.

6. Before dealing with the rival contention of the parties, it would be

useful to analyse the evidence of some of the material witnesses.

7. PW-1, Sh.Paras Nath (ACP, Vigilance Branch), has deposed that

on 16.2.1982 he was passing from Yamuna Marg, at about 9:30

a.m. he saw a man lying on the road in injured condition, a

motorist and a woman were trying to put that man in their car.

He stopped there and helped them in lifting the injured to the

Car. He enquired from the persons collected over there, if there

was any eye witness to the incident, one youngman, Prem,

s/o.Chander, r/o. Sector-1, R.K. Puram, New Delhi, stated that he

had seen the occurrence. He noted down his name, parentage

and address so that he could be contacted by the I.O. The

injured was taken to the hospital where it was learnt that injured

was one Dalip Simen, lecturer of Ramjas College. In the cross-

examination he has stated that he did not enquire the detail of

the incident from Prem, who disclosed himself to be an eye

witness.

8. PW-2, Pawan Kumar has deposed that on the fateful day he was

going to Hanuman Mandir when he reached Jamuna road

opposite, he saw a scooter lying on the road and a man lying in

the injured condition; and two persons were standing there. They

stopped him and he was told that car No.MNC-8920 has caused

an accident and asked him to follow the car. He saw the car at

the turn at Raj Bhawan. He informed the PCR and came back to

the spot and saw that the injured was being removed in a car

parked nearby. In his cross-examination he has stated that he

did not himself read the number of the car, but he was only told

about it by some persons, who were standing nearby. He himself

could not decide which car had caused the accident, but he was

told that the colour of the car was white. After his cross-

examination the learned APP requested the Court to permit him

to ask further questions in view of the fact that there was

ambiguity with respect of the number of the car. The following

questions and answers were recorded:

"C.Q. You have stated in examination in chief that you saw the number of the car while chasing it as WMC-8920, whereas in cross-examination done by Ld. defence counsel you have stated that you learned this same as told by someone else, meaning thereby you did not see the No. of the car, which of the two statements is correct? A. As a matter of fact when I first saw the injured lying on the road I was told by one boy standing there that the car with this Number had caused the accident and escaped.

I immediately followed the car but I could not see its number."

9. PW-3, Dalip Simen is the injured person. He has deposed that on

16.2.1982 he was proceeding to college on scooter. When he

turned to Jamuna road opposite Budh Vihar, an ambassador car

of white colour suddenly drew up infront of his scooter. In few

seconds, six persons came out of the car and immediately began

to assault him; some of them were armed with rods and lathis.

The beating lasted for few minutes and during which rods were

applied on his limps and face and he collapsed. The assailant left

him and fled away in the car; after some minutes a couple who

was passing by in a Fiat car stopped and helped him in getting

inside the car. Simultaneously, police officers also stopped at the

spot. The couple then took him to Bara Hindu Rao Hospital. He

sent words through police officer, to his colleagues of Ramjas

College, who arrived in about half an hour. Thereafter he was

removed at approximately at 5:30 p.m. to All India Institute of

Medical Sciences for further treatment. His left leg was broken

and there was a fracture on his right leg and in addition he lost six teeth. His statement was recorded on the following day. He

deposed that except J.P. Jain, who is present in the court, no

other accused were previously known to him.

10. PW-5, Dr.K.K. Malhotra has deposed that the injured Dalip Simen

was brought to Hindu Rao Casualty by one Ravinder Chawla with

alleged history of fight. He has identified his signatures on his

report, Ex.PW-5/A, and in the cross-examination he has stated

that the injuries on the body of Dalip Simen could also occurred in

a major road side accident.

11. I have heard learned counsel for the parties and also gone

through the record of the case.

12. In this case PW-1, Paras Nath (ACP) is a witness who happened to

come to the spot immediately after the occurrence. However, he

was not an eye witness to the incident. In the testimony of PW-1,

the witness categorically states that he made an attempt to find

out if there was any one who had witnessed the incident. One

Prem, s/o.Chander, r/o. Sector-1, R.K. Puram, New Delhi is stated

to have seen the occurrence. While in his testimony, PW-1,

states that he noted down his name, parentage and address, but

PW-1 does not state that what Prem had disclosed to him. From the testimony, it is established that there was an eye witness and

the evidence of this eye witness was essential to establish an

accident or a fight, but the prosecution has failed to produce the

said Prem, to enable the prosecution to establish and support

their case.

13. PW-3, is the victim and the injured and there is no doubt that he

has received various injuries. PW-2, Pawan Kumar in his

statement has categorically stated that on the fateful day when

he was passing by, he saw a scooter lying on the road and a man

lying in an injured condition. Two persons standing nearby had

informed him that car bearing No.WMC 8920 had caused an

accident and he was asked to follow that car. As per the

testimony of PW-2, car bearing No.WMC 8920 had caused an

accident with the scooter.

14. The victim (PW-3) was removed to Hindu Rao Hospital. The

victim chose not to make any statement but asked the Police

persons present to inform his colleagues. The victim at his

request was thereafter removed to All India Institute of Medical

Science at 5:30 p.m. on the same date. The complainant made a

statement on the following day. The sequence of events have

been given by the complainant in his examination-in-chief. There is no explanation as to why the complainant did not make the

statement before the Police at the first available opportunity.

This raises a suspicion towards the conduct of the complainant. It

cannot be ruled out that the statement which was given the

following day was a tutored statement after consulting his

colleague. PW-2 has also deposed that he was informed that an

accident had taken place. FIR was also registered under Sections

279/337 IPC. From the evidence of PW-3 it also emerges that

there were two rival groups in Ramjas College. One is headed by

Mr.J.P.Jain, accused and the other belonging to the complainant

(Dalip Simen). The statement of PW-3, complainant is also not

reliable in view of the discrepancy with respect to the colour of

the car which was allegedly used by the accused persons in the

alleged commission of the offence. In his statement before the

police he had stated that the colour of the Ambassador car was

white, whereas in his statement on oath in the court during cross-

examination he stated that the colour of the car was light. The

trial court has noticed that in fact the colour of the car bearing

No.WMC 8920 was light blue and not white as stated by PW-3 in

his statement before the Police and thereafter improvement was

made by him when he stated in the cross-examination that the colour of the car was light. The trial court has also considered

the fact that the general description given by the complainant

(PW-3) of the accused persons did not tally with the ones, who

were arrested. Even in the Court he could not properly recognize

and identify the accused persons.

15. Accused, Virender Kumar Jain had tendered in defence evidence

a carbon copy of the challan Ex.D-1 along with receipt

acknowledging payment of fine. This was with respect to the car

bearing No.WMC 8920 which was challaned by the traffic

enforcement staff at Smalkha in Haryana on 16.2.1982 at 9:35

a.m. the challan also bears the signatures of Mr.V.K. Jain. The

Court has observed that these two documents D-1 and D-2 have

been exhibited without calling the officials who wrote the challan

and without calling the Magistrate who imposed the fine on the

accused, in view of the fact that they have come out from the

testimony adduced by the prosecution in the case, thus

documents are relevant as these two documents show that the

vehicle in question was not in Delhi on 16.2.1982 on the date of

the occurrence.

16. Learned counsel for the State has raised strong objections with

regard to the trial court placing reliance on these documents Ex.D-1 and D-1. Learned counsel for the respondent on the other

hand while relying upon R.V.E.Venkatachala Gounder Vs.

Arulmigu Viswesaraswami & V.P. Temple and Anr. AIR 2003

SC 4548 and more particularly on paragraphs 19 and 20 have

submitted that the objection with regard to the mode of proof

should have been taken at the appropriate stage before the

evidence is tendered and once the document has been admitted

in evidence and is marked as an Exhibit, the objection cannot be

raised. Paragraphs 19 and 20 of the judgment read as under:

"19. Order 13, R.4 of the Cr.P.C. provides for every document admitted in evidence in the suit being endorsed by or on behalf of the Court, which endorsement signed or initiated by the Judge amounts to admission of the document in evidence. An objection to the admissibility of the document should be raised before such endorsement is made and the Court is obliged to form its opinion on the question of admissibility and express the same on which opinion would depend the document being endorsed as admitted or not admitted in evidence. In the latter case, the document may be returned by the Court to person from whose custody it was produced.

20. The learned counsel for the defendant-respondent has relied on the Roman Catholic Mission v. State of Madras and another, AIR 1966 SC 1457 in support of his submission that a document not admissible in evidence, though brought on record, has to be excluded from consideration. We do not have any dispute with the proposition of law so laid down in the abovesaid case. However, the present one is a case which calls for the correct position of law being made precise.

Ordinarily an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes: - (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as „an exhibit,‟ an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken before the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The later proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence for two reasons: firstly, it enables Court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the Court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the Court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the later case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in superior Court."

17. Applying the aforestated principles to the facts of the present

case, the objection of the learned counsel for the State is not that

the documents Ex.D-1 and D-2 by itself are inadmissible but the

challenge is to the mode of proof. Since such objection was not

taken at the time when the documents were exhibited the same

would amount to waiver of the objection.

18. This court has analyzed the evidence which has been placed on

record. The trial court has rightly arrived at the conclusion taking

into consideration that PW-1 ACP, Paras Nath had taken down the

name of the eye witness but the prosecution did not produce him

as a witness. PW-2 in his testimony has stated that he was

informed that Car bearing No. WMC 8920 has caused an accident.

PW-2 has arrived at the spot of the incident within minutes of the

incident and he deposed that car bearing No.DHH 6608 had

caused an accident.

19. Taking into consideration the fact that admittedly PW-3, the

complainant had stated that there were two groups in Ramjas

College, who were in confrontation with each other - one group

headed by J.P. Jain and the other is headed by the complainant.

Complainant had raised suspicion on J.P. Jain. This court finds the statement of PW-3 the most unreliable, in view of the fact that

complainant did not give the statement to the Police at the first

opportunity available, but called his colleague to Hindu Rao

Hospital and then he was removed to AIIMS the same day and

only thereafter he made a statement only the next day. The FIR

which was initially lodged was under Sections 279/337 IPC, which

was later on converted into Sections 147/325/149 IPC. In view of

the settled proposition of law, there is no force in the argument of

the learned counsel for the State that no reliance should have

been placed on D-1 and D-2. The State should have objected to

the mode of proof prior to the time when the document was

being exhibited. While hearing an appeal for acquittal, the High

Court has full power to review the entire evidence upon which the

order of acquittal is founded and then come to its own conclusion.

However, it has repeatedly been held that unless the findings of

the trial court are unreasonable and perverse, the High Court

should not interfere with the order of acquittal. The Court will

not interfere only because a different plausible view may arise on

evidence or that the view taken by the trial judge while acquitting

the accused cannot be the view of a reasonable man based on

the material on record. There are no reasons for interference in the judgment of the trial court. Consequently, appeal is

dismissed.

G.S. SISTANI (JUDGE) June 11th, 2008 „ssn‟