Delhi High Court

State vs Mewa Singh & Ors. on 24 July, 2009

Author: Indermeet Kaur

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                              Date of Order : 24th July, 2009.

+                           CRL.L.P. 253/2007
        STATE                                              ..... Petitioner
                                Through:       Ms. Richa Kapoor, APP.

                        versus

        MEWA SINGH &ORS.                                 ..... Respondents
                      Through:                 Mr. Rajesh Mahajan, Advocate

                                        WITH

+                               CRL.REV.P. 7/2008

        PAWAN KUMAR @ SATISH                                ..... Petitioner
                     Through:                  Mr. Rajesh Mahajan, Advocate

                        versus

        THE STATE AND ORS.                                ..... Respondents
                       Through:                Ms. Richa Kapoor, APP

        CORAM:
        HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
        HON'BLE MS. JUSTICE INDERMEET KAUR

            1. Whether the Reporters of local papers may be
               allowed to see the judgment?

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

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

INDERMEET KAUR, J. (ORAL)

1. By this common order, we shall dispose of the petition

preferred by the State seeking leave to appeal against the

impugned judgment dated 20.8.2007 passed by learned Trial

Judge whereby he had acquitted all the four accused. We are

also deciding the revision petition filed by the complainant,

Pawan Kumar @ Satish seeking the same relief.

2. Briefly stated, the facts of the case as emanating from

the record are that Pawan Kumar @ Satish

(hereinafter referred to as „the complainant‟) was a

commission agent engaged in the sale and purchase of

property. He was also engaged in placement services abroad

i.e. was sending persons abroad on commission. On

10.3.2004, the complainant had gone to Nanak Pyau to meet

a friend. He received telephone call from respondent no.1

Mewa Singh (hereinafter referred to as „R1‟) to meet him at

Bus Terminal Azadpur. The parties met there and spent two

hours together over a cup of tea. On invitation of Mewa Singh

the complaint joined him at his house at Rohini where

respondent no.2 Rajender (hereinafter referred to as „R-2‟),

respondent no.3 Manohar Lal (hereinafter referred to as „R-3‟)

and respondent no.4 Kripal Manik (hereinafter referred to as

„R-4‟) also joined them. The complainant was accosted by the

respondents as to why their work had not been done and the

96 persons whom the complainant had undertaken to send

abroad had not been sent abroad in spite of the complaint

having received the commission. In the course of this

discussion hot words were exchanged between the parties.

The respondents threatened the complainant that he would be

taught a lesson and they caught hold of him and gave him leg

and fist blows. They locked the complainant inside the room

and bolted it from outside and went out to chalk out their

further course of action. They also robbed him of his mobile

phone, gold chain, gold ring and Rs.2500/- in cash which he

was carrying on his person. R-2 had been attributed the role

of snatching the mobile from the complainant and R-1 had

taken his gold ring and gold chain. The complainant was then

pushed down from the first floor, pursuant to which he

sustained injuries on his hands, jaw and left eye. He somehow

managed to escape from the clutches of the respondents. He

hired a TSR and reached the house of his brother Rajiv at

Laxmi Nagar who removed him to Ram Lal Kundan Lal

Hospital. The complainant was given medical aid but since

he was unfit for statement till the following day, the D.D.which

had recorded the first information about this incident at 11.55

PM on 10.3.2004 was kept pending and after the statement of

the complainant was recorded on the following day the rukka

was prepared at 2.30 PM on 11.3.2004, pursuant to which the

FIR was registered on the same day at 4.45 PM.

3. Learned Trial Judge had initially framed charge against

the accused persons under section 394 read with Section 34

IPC. Thereafter the charge was amended to be read as one

under Section 397/34 IPC.

4. On behalf of the State and the complainant, it has been

argued that the learned Trial Judge has committed a fallacy in

acquitting accused persons as the testimony of PW-1 is clear

and categorical and does not suffer from any blemish; he has

attributed a specific role to each of the accused persons and

there is no reason as to why he would implicate them falsely.

The rukka recorded on the statement of the complainant has

explicitly explained the reason for the delay in the registration

of the FIR and it was primarily for the reason that the

complainant was initially in an unconscious state and was not

fit to make a statement; he had been declared fit by the

concerned doctor only on the following day at, 11.50 AM. FIR

had been registered at 4.45 PM i.e. within less than two hours

of the endorsement on the said statement which was made at

2.35 PM. Attention has been drawn to Ex.PW-11/A, the first

information furnished by Police Control Room, about the

incident. It is argued that the second information about the

said incident was recorded on 00:30 hours wherein the name

of R-2 has explicitly been mentioned as the person who had

thrown the complainant from the roof. It is argued that this

documentary evidence sufficiently establishes that the version

of PW-1 which has been discredited by the Trial Judge is not in

consonance with the record and his evidence has not been

appreciated in the correct perspective; it was as early as

00:30 hours on the intervening night of 10.3.2004 and

11.3.2004 itself that the information about R-2 have thrown

the complainant from the roof top had been detailed.

Attention has also been drawn to the MLC Ex.PW-8/A prepared

by Ram Lal Kundan Lal Hospital recorded at 12.50 AM which

has evidenced two fractures in the forearms of the

complainant, thus the promptness of time when medical aid

was given to the injured also substantiates the version of the

complainant that there was no time for manipulation or

interpolation. It is argued that the recovery of the mobile

phone which has been disbelieved by the Trial Judge is also

not based on the facts as have been elicited from the record.

5. The record has been perused. On a perusal of the same

we note that the version of the prosecution is hinged largely

on the version of PW-1 Pawan Kumar @ Satish the

complainant and the injured. Admittedly, this is a case where

the complainant and the respondents were known to one

another. This has been admitted by the respondents in their

statements under Section 313 Cr. P.C. It was on the invitation

of R-1 that the complainant had joined him at his house at

Rohini. R-2 who is the son of R-1 and R-3 and R-4 were all

present at the house of R-1. It is also an admitted case that

the parties had previous transactions whereby the

complainant had undertaken to send certain persons abroad

and on the fateful day discussion was on this issue.

6. PW-1 Pawan Kumar, on oath has stated that on

10.3.2004, he had gone to Nanak Pyau to visit his friend. R-1

on telephone invited him to join him at Azadpur bus terminal.

The parties met there and spent two hours together. On the

invitation of R-1, the complainant joined him at his house for

food where 3-4 persons which included R-2 to R-4 were

already sitting there and having liquor. In the course of the

discussion, the parties started arguing with one another and

R-2 snatched his mobile phone and R-4 threatened him with

his fist. PW-1 has further deposed that he was given fist and

leg blows by all the accused and whereas R-1 and R-2 caught

hold of him, the others gave him repeated leg and fist blows.

His mobile phone, gold chain, gold ring and Rs.2500/- was

snatched by R-1. They bolted him inside the room and went

out for further talks. PW-1 suspect foul play and opened the

door and started running but he was given a push from the

first floor pursuant to which he received injury on his hands,

jaw and left eye. He managed to hail a TSR and went to his

brothers house at Laxmi Nagar. He was removed to the

hospital by his brother. His blood stained shirt was also taken

into possession by the police.

7. In cross-examination, he has stated that his statement

was recorded by the police in the night of 10.3.2004 and he

was conscious at that time but at the time when he was

removed from Rohini to hospital he was unconscious. He

further stated that he had gained consciousness on the next

day i.e. 11.3.2004. He denied the suggestion that he had

implicated the accused persons falsely or that the injuries had

been sustained by him in an accident and not the result of the

act of the accused.

8. Learned Trial Judge had disbelieved the version of PW-1

and has given no credence to his testimony.

9. Contradictions as noted by the Trial Judge is the version

of PW-1on oath in Court qua his first statement under Section

161 of the Cr.P.C. before the Investigating Officer Ex.PW-1/A

are as follows :-

i. On oath in Court PW-1 had stated that Rajender Singh and Mewa Singh caught hold of him while the others gave him kick and fist blows. In Ex.PW-1/A role of catching hold has been attributed to Mewa Singh and Manohar Lal, and Rajender and Kripal had given kick and fist blows. ii. On oath in Court PW-1 had stated that the accused persons on query from him as to why he had been called there, had threatened him and told that he would be taught a lesson for the harassment meted out to them; no such threat finds mention in Ex.PW-1/A.

iii. On oath in Court PW-1 had stated that the accused persons bolted him inside the room and then they all went

out to hold further talks; PW-1 suspected foul play and came out and started running. This entire version did not find mention in Ex.PW-1/A; Even otherwise how the complainant was able to escape from the clutches of the accused when as per his own case he had been bolted by the accused persons from outside had not been explained by the complainant in his testimony.

iv. On oath in Court PW-1 had stated that after he had started running the accused persons gave him a push from the first floor and he sustained injuries on his hands, jaw and left eye. In Ex.PW-1/A he had stated that he was on the balcony when he was pushed down; details of the injuries had also not been given.

10. Trial Judge had held these improvements to be material

in the testimony of PW-1 and going to the core of the matter,

this version was discredited and accordingly discarded.

11. On a cumulative reading of this testimony we concur

with the view taken by the Trial Court; testimony of PW-1 is

not free from blemish and suspicion; it being tarnished, does

not inspire confidence. This is further fortified by the

additional circumstances taken into account by the Court

below.

12. Learned Trial Judge had noted that the incident in this

case had occurred at about 8.30 PM on 10.3.2004. MLC

Ex.PW-8/A has recorded the admission of the injured at 12.30

AM of 11.3.2004 at private hospital i.e. Ram Lal Kundan Lal

Hospital. The Doctor who had prepared the MLC namely

Dr.Sidhu Goel had not come into witness box. The MLC had

noted two fractures of the forearms, but the X-Ray report of

the injured had not been collected; no advice for X-ray had

also been noted by the doctor in the MLC. In fact, there was

nothing to suggest whether the X-Ray of the patient had been

carried out or not. The patient was declared "not fit for

statement" and thereafter at 11.50 AM on 11.3.2004 he had

been declared "fit for statement" but the interpolation in the

first endorsement i.e. "not" having been added later on has

also been noted by the Trial Judge. Trial Judge had held that

this document i.e. the MLC is not free from doubt as the

doctor who had declared the patient "not fit" and thereafter

"fit" for statement had not come into the witness box and as

such there was no opportunity to cross-examine the said

doctor who was the only person to explain as to when and in

what circumstances the word "not" had been added.

13. Rajiv PW-2 is the brother of the complainant who had

removed him to hospital. He had on oath stated that at the

time when his brother came to his house he was in a serious

condition; his clothes were torn and blood was coming out

from the wounds of his body. His brothers told him that

Mewa Singh, Rajender, Manohar Lal and Kripal i.e. the

respondents herein had beaten him and snatched his gold

chain, gold ring and mobile phone as also Rs. 2500/- in cash.

14. PW-2 as per this version was fully aware of the incident

at the time when he had taken his brother for medical aid.

There is no explanation as to why the statement of the brother

had not been recorded by the investigating officer at that time

at the hospital itself; the investigating officer PW-10 SI Ram

Phal has admitted that he had met PW-2 in the hospital.

PW-2 in his cross-examination has stated that his statement

was recorded on 09.6.2004 i.e. almost three months after the

date of the incident. Why the investigating officer did not

record the statement of PW-2 in the hospital itself as PW-2 as

per his own version was fully aware of the incident, as also the

names of the assailants, has not been answered. The details

of the injuries as deposed by PW-2 also did not find mention in

the MLC Ex.PW-8/A. No history of the patient had also been

recorded.

15. Ex.PW-11/A shows that first information of the incident

was recorded at 11.55 PM on 10.3.2004 that the brother of

Rajiv Kumar had suffered injuries. The second entry is at

00:13 Hours and records that Pawan had received injuries at

the hands of Rajender and his other associates and the injured

had been removed to the hospital. The third entry on

Ex.PW-11/A is at 3.00 AM is that the injured had received

fractures. All these entries show that the informant is Rajiv

Kumar. In these circumstances, it was all the more incumbent

on the investigating officer to have recorded the statement of

Rajiv forthwith in the hospital itself and not wait for three

months i.e. the till June 2004 when his statement was finally

recorded.

16. All these circumstances had weighed in the mind of the

Trial Court to hold that there was a deliberate and intentional

delay in getting the FIR registered i.e. after a time gap of

almost 20 hours; this time period was clearly suggestive of

manipulation and interpolation in the evidence adduced;

investigation thus not being fair.

17. The circumstance of the seizure of the blood stained T-

Shirt of the complainant as an incriminating circumstance

against the respondents has also been rejected by the Trial

Judge. It has been noted that MLC Ex.PW-8/A had nowhere

recorded that shirt of the complainant had been removed or

handed over to any person by the doctor and the doctor not

having come into witness box to depose on this count, this

seizure i.e. Ex.PW-10/C is also suspicious; it is also silent on

the sealing of the seizure of the said T-Shirt.

18. Ex.PW-10/B the memo of the seizure of the blood and

sample soil lifted from the spot had also not been sent for any

CFSL examination; whether the said sample, soil contained

blood, human or of any other origin had not been answered.

19. The recovery of the mobile phone from Rajender on

12.3.2004 has been documented in Ex.PW-6/A. Const.

Sandeep Singh PW-7 and Const. Budhiraja were the attesting

witness to the said document and of whom only PW-7 had

been examined. PW-7 had made a general statement that

the accused Mewa Singh and Rajender were arrested in this

case and they made disclosure statement and got recovered

one mobile phone and one hutch card which had been taken

into possession vide the said memo. No specifics had been

mentioned by PW-7 in his version on oath in Court as to from

which part of the house, Rajender had got this recovery

effected; as per the prosecution this recovery was from

underneath the almirah of the house of R-2 but PW-7 was

silent on this score; trial Judge had also noted that on oath in

Court PW-1 had stated that he was carrying a charger as also

a mobile phone but in his first statement Ex.PW-1/A recorded

before the police no reference had been made to the charger.

The discrepancies in the versions of PW-7 and PW-10 the

Investigation Officer i.e. the persons who were present in the

house of Rajender at the time of this recovery had also been

noted; all these cumulative factors had led Trial Judge to

disbelieve the recovery.

20. No recovery of the gold chain or the gold ring had been

made.

21. Admittedly, parties had met at the house of R-1 and the

conversation was steered on the breach of promise by the

complainant; he not having sent 96 persons abroad for which

he being a commission agent had received the commission.

Complainant was pressurized by the respondents to give an

explanation; the discussion had reached a sore point; in these

circumstances the motive on the part of the complainant to

falsely implicate the respondents can also not be ruled out.

22. The powers of an Appellate Court while dealing with

appeals against an order of acquittal are well established. In

Kalu @ Masih & Ors. v. State of M.P. I (2006) CCR 28(SC) while

dealing with this proposition the Supreme Court had inter alia

held:

"While deciding an appeal against acquittal, the power of the Appellate Court is no less than the power exercised while hearing appeals against conviction. In both types of appeals, the power exists to review the entire evidence. However, one significant difference is that an order of acquittal will not be interfered with, by an Appellate Court, where the judgment of the trial Court is based on evidence and the view taken is reasonable and plausible. It will not reverse the decision of the trial Court merely because a different view is possible. The Appellate Court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt. Further if it decides to interfere, it should assign reasons for differing with the decision of the trial Court."

23. It is well settled that wherefrom two reasonable

conclusions are possible on the basis of the evidence on

record, the Appellate Court would normally not disturb the

finding of acquittal recorded by the Trial Court. It has also to

be borne in mind that in case of an acquittal there is a double

presumption in favour of the accused; firstly the presumption

of innocence available to him under the fundamental

principles of criminal jurisprudence that every person shall be

presumed to be innocent unless he is proved guilty by a

competent Court of law; secondly the presumption of

innocence is further reinforced, reaffirmed and strengthened

by the Trial Court.