State(Delhi Admn.) vs Shankar Lal & Anr.
2009 Latest Caselaw 3254 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                        Judgment reserved on: August 11, 2009

                        Judgment delivered on: August 19, 2009


+      CRIMINAL APPEAL NO.88/1995

       STATE(DELHI ADMN.)                     ..... Appellant
                              Through:   Mr.Sunil Sharma,
                                         Advocate.

                   Versus

       SHANKAR LAL & ANR.                      ..... Respondents
                              Through:   Mr. Rajiv Bajaj, Advocate
                                         with Respondents in
                                         person.

       CORAM:
       HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
       HON'BLE MR. JUSTICE AJIT BHARIHOKE


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 Digest ?                                          Yes


AJIT BHARIHOKE, J.

1. Instant appeal is directed against the impugned judgment of

acquittal passed by the learned Additional Sessions Judge in

favour of accused Shankar Lal and Jabra Ram.

2. Briefly stated, the case of the prosecution is that on

23.8.1991, complainant Smt.Pammi Gulati was going to the house

of her brother. At about 8.00 PM, when she reached near

Gurudwara, Block No.29, West Patel Nagar, accused Shankar Lal

is alleged to have come from behind and snatched away her

purse containing Rs.2,500/-, two keys and some documents and

tried to run away. When she turned and ran after him, accused

Shanker Lal struck on her right hand with some hard object and

caused her injury. Shankar Lal accused allegedly passed on the

purse to his co-accused Jabra Ram and asked him to go away and

accused Jabra Ram escaped from the spot on a cycle. Accused

Shankar Lal, however, was apprehended with the help of PW3

Jagdish Lal Khanduja. In the meanwhile, someone informed the

Police. PCR van as well as Shiv Kumar, SI the Investigating Officer

reached at the spot of occurrence. Accused Shankar Lal was

formally arrested. On interrogation, he made disclosure

statement Ex.PW3/B, wherein he disclosed that after snatching

the purse of the complainant, he had passed it on to his

accomplice Jabra Ram and that he could get Jabra Ram arrested

and the purse recovered. Pursuant to the said disclosure

statement, on 24.08.1991, Shankar Lal led the Police party to his

Jhuggi at Bheel Basti, Road No.20, Baljit Nagar, Delhi and pointed

out his accomplice Jabra Ram sleeping in a corner of the Jhuggi.

Accused Jabra Ram on interrogation, made a disclosure that from

the spot he came to the Jhuggi of the accused Shankar Lal and

had concealed the stolen purse in a container of flour which he

could get recovered. Thereafter, he took out the purse of the

complainant with all its contents from a container of flour lying in

the room which was taken into possession vide Ex.PW3/F. PW1

Pammi Gulati later on identified the purse as well as its contents

at the Police Station. It is also alleged that PW1 Pammi Gulati

went for treatment to Bhatia Nursing Home. Her prescription slip

Ex.PW4/A was prepared and she was found to have suffered

dislocation and fracture on the right wrist.

3. On completion of formal investigation, both the accused

were sent for trial for having committed offence punishable under

Sections 392/394/397 IPC read with Section 34 IPC. Accused

persons were accordingly charged. Both of them pleaded not

guilty and claimed trial. The learned Trial Judge did not find the

evidence of the prosecution reliable and acquitted both the

accused.

4. The learned counsel for the State has submitted that the

impugned judgment is against the evidence on record. He has

taken us through the statement of complainant Pammi Gulati and

submitted that from her statement, it is apparent that, not only

she was robbed, but in the process she had suffered injury on her

right wrist when she was hit by the accused Shankar. Her

aforesaid version, according to the learned counsel for the State,

stands corroborated by the testimony of PW4 Dr. (Mrs.) A.K.

Bhatia who treated her on the same night and issued the

prescription slip Ex.PW4/A. The learned counsel has further

submitted that the trial Judge ought to have taken note of the fact

that complainant Pammi Gulati had no motive or animus against

the appellant Shankar Lal to falsely implicate him and ought to

have accepted her testimony instead of giving undue importance

to minor infirmities and contradictions in the prosecution

evidence. He has submitted that on overall appreciation of the

facts and circumstances of the case, the testimony of

complainant Pammi Gulati appears to be natural and consistent

and it has a ring of truth around it, which version also stands

corroborated by the recovery of her stolen purse including money

and other articles, at the instance of the respondents. Thus, he

has urged us to set aside the judgment of acquittal and convict

both the respondents.

5. The law relating to the powers of the appellate Court

hearing an appeal against an acquittal and approach to be

adopted is well-settled. The Hon‟ble Supreme Court in the matter

of Salim Zia Vs. State of U.P., AIR 1979 SC 391, after analysing

earlier pronouncements inter alia, observed thus:

"2. The different phraseology used in the judgments of this Court such as-

               (a)    „substantial and compelling reasons‟;

               (b)    „good and sufficiently cogent reasons‟;

               (c)    „strong reasons‟,

are not intended to curtail or place any limitation on the undoubted power of an appellate court in an appeal against acquittal to review the entire evidence and to come to its own conclusion as stated above but in doing so it should give proper consideration to such matters as (i) the views of the trial Judge as to the credibility of the witnesses; (ii) 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; (iii) the right of the accused to the benefit of any real and reasonable doubt; and (iv) 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."

6. In the matter of Ashok Kumar Vs. State of Rajasthan,

AIR 1990 SC 2134, Hon‟ble Supreme Court had observed thus:

"Law is well settled. While caution is the watchword, in appeal against acquittal as the trial Judge has occasion to watch demeanour of witnesses and interference should be made merely because a different conclusion could have been arrived, the provision does not inhibit any restriction of limitation. Prudence demands restraint on mere probability or possibility but in perversity or misreading interference is imperative otherwise existence of power shall be rendered meaningless".

7. From the aforesaid judgments, it is settled position of law

that there is no embargo upon the powers of the appellate Court

hearing appeal against acquittal to review the entire evidence

and come to its own conclusion but, in doing so, the appellate

Court must keep in mind that the Trial Court was in better

position to appreciate the evidence because he had an advantage

of observing the demeanour of the witnesses and should not only

consider every material on record having bearing on the question

of fact but also the reasons given by the court below in support of

its judgment.

8. Coming to the facts of the case, perusal of the complaint

statement of Pammi Gulati Ex.PW1/A would reveal that she had

stated that while trying to escape, accused Shankar Lal had

struck her with a hard object resulting in an injury on her right

wrist. Ex.PW2/A is the endorsement of the Investigating Officer

on the said statement in which he had recommended registration

of a case under Section 394/34 IPC against the accused persons.

Offence under Section 394 IPC is a grave offence which is

punishable with imprisonment for life or with rigorous

imprisonment for a term which may extend to 10 years and also

the accused is liable to be fined. Considering the seriousness of

the charge, under natural course of circumstances, had the

prosecution version been true, the Investigating Officer was

expected to take the injured to a government hospital for

treatment as well as preparation of her MLC. However, perusal of

the endorsement Ex.PW2/A shows that the Investigating Officer

opted to accept the request of complainant that she wanted to

get herself treated in a private nursing home which conduct on

the part of the Investigating Officer points towards the unfairness

of the investigation. Not only this, if the complainant had

expressed her desire to get herself treated in a private nursing

home, the Investigating Officer at least was expected to send her

to the nursing home of her choice with a police escort for

treatment and preparation of MLC but, this apparently was also

not done. This circumstance raised a serious doubt against the

prosecution version.

9. Smt. Pammi Gulati in her cross-examination has stated that

she remained with the Police till about one or one and a half hour

after the incident and thereafter she went to the Bhatia Nursing

Home for treatment with her father-in-law Shri Om Prakash Gulati.

If that version was true, the complainant was expected to give the

name of accused Shankar Lal as the robber while giving history of

her injuries to the Doctor concerned. Ex.PW4/A is the prescription

slip of the complainant. In this prescription slip, history is given

as "patient looted by some unknown persons (robber) severe pain

over right wrist joint". In the cross-examination, PW4 Dr.(Mrs.)

A.K. Bhatia has stated that on her enquiry from Pammi Gulati, she

was not able to tell her as to in what manner and by whom she

had been inflicted injuries. This implies that when the

prescription slip Ex.PW4/A was prepared by Dr. (Mrs.) A.K. Bhatia,

she was not aware of the identity of accused Shankar Lal. This

creates a doubt as to how the name of accused Shankar Lal got

to be mentioned as the culprit in the complaint statement

Ex.PW1/A of complainant Pammi Gulati which was admittedly

recorded by the Investigating Officer SI Shiv Kumar at the spot of

occurrence before Pammi Gulati had left for medical treatment at

Bhatia Nursing Home. This circumstance casts a strong doubt

against the truthfulness of the version of complainant Pammi

Gulati.

10. PW5 Investigating Officer SI Shiv Kumar has stated that

accused Shankar Lal was interrogated by him at the spot of

occurrence and he made a disclosure statement Ex.PW3/B.

Perusal of said disclosure statement reveals that the accused

Shankar Lal disclosed that he had hit the complainant with an iron

rod which he had thrown towards "Nali" (drain) taking advantage

of the darkness. Despite of this, there is nothing on the record to

indicate that the Investigating Officer made any effort whatsoever

to recover the weapon of offence. Had the prosecution case been

true, the Investigating Officer definitely would have tried to locate

the iron rod once accused Shankar Lal had disclosed that he had

thrown it towards the nali. This circumstance further compounds

the doubt of the case of prosecution.

11. Further, as per the testimony of complainant Pammi Gulati,

PW3 Jagdish Lal, who had allegedly apprehended Shankar Lal,

was previously known to her. Investigating Officer in his cross-

examination has stated that when he reached at the spot, there

was a crowd of people at the spot of occurrence but, he inquired

only from one person about the incident. That one person,

obviously was Jagdish Lal who was known to the complainant.

This conduct of the Investigating Officer creates doubt about

fairness of the investigation. When admittedly 40 to 50 persons

were available at the spot of occurrence, it was expected of

Investigating Officer to make enquiry from others also and join

them as witnesses.

12. Even the prosecution version regarding the arrest of

accused Jabra Ram at the instance of the accused Shankar Lal

and recovery of stolen property at the instance of accused Jabra

Ram is doubtful. As per the prosecution case, accused Shankar

Lal was arrested at the spot. The Investigating Officer in his

cross-examination has stated that he reached at the spot of

occurrence at 8.25 PM and remained there for about three/three

and a half hours. During said period, he is stated to have

recorded the disclosure statement of the accused Shankar Lal.

Had this version been true, the Investigating Officer was expected

to proceed for the arrest of co-accused Jabra Ram and to recover

the case property immediately after recording the disclosure

statement instead of waiting till next morning when the raid was

conducted to recover the stolen property. Further, case of the

prosecution is that the accused Shankar Lal, while being chased

by public, passed on the stolen purse to Jabra Ram who managed

to escape. Had this story been true then, under the natural

course of circumstances, accused Jabra Ram would have taken

the money out of the purse and got rid of the incriminating

evidence instead of going to the jhuggi of Shankar Lal and waiting

there for Police to come and affect recovery of incriminating

articles from his possession.

13. In view of discrepancies above, we find ourselves unable to

agree with the submissions made by the learned counsel for the

State. We do not find any infirmity in the finding of acquittal

returned by the learned Additional Sessions Judge. Appeal is,

therefore, dismissed.

14. Accused persons are on bail. Their bail-cum-surety bonds

are, accordingly cancelled and discharged.

AJIT BHARIHOKE, J.

AUGUST 19, 2009                      SANJAY KISHAN KAUL, J.
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