Sanjay @ Raj vs State
2010 Latest Caselaw 2443 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Date of Decision : 6th May, 2010

+                           Crl.A.No.463/2010

        SANJAY @ RAJ                               ..... Appellant
                              Through:   Mr.Anupam S.Sharma,
                                         Advocate.

                         versus

        STATE                                   ..... Respondent
                              Through:   Mr.M.N.Dudeja, A.P.P.

         CORAM:
         HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
         HON'BLE MR. JUSTICE SURESH KAIT

     1. Whether the Reporters of local papers may be allowed
        to see the judgment?
     2. To be referred to Reporter or not?
     3. Whether the judgment should be reported in the Digest?

PRADEEP NANDRAJOG, J. (Oral)

1. We are extremely pained to read the impugned

judgment and order dated 23.3.2010. Our pain and anguish is

to the fact that various arguable points which arose for

consideration and in particular the ones which had to be

considered before a finding could be returned, that the

credibility of PW-8 and PW-9 is of sterling quality thereby

justifying the acceptance of their percipient evidence, have not

been noted and hence not dealt with.

2. Similar situation was noted by the Supreme Court in

the decision reported as 2008 (16) SCC 799 Gurram

Chakravarthy (2) vs. State of AP. The matter was remanded to

the High Court for adjudication as per law after considering the

points which arose for consideration.

3. We propose to do likewise.

4. Though brevity is desired in every decision, but not

at the cost of sacrificing at the altar the consideration of points

which arise for consideration.

5. Without noting what the submissions were

pertaining to the credibility of PW-8 and PW-9 only noting one

submission that they being the relatives of the deceased was

no ground not to trust them, after noting a few judgments on

the point, learned Trial Judge has accepted the eye-witness

account of PW-8 and PW-9.

6. The name of the deceased is Hemant. Kailash

Chand PW-8 is the father of Hemant. Kamal Kishore PW-9 is

the brother of Hemant. Both of them claimed to be eye-

witnesses to the incident and as per them the appellant had

fatally attacked Hemant with a surgical blade.

7. It is not in dispute that Hemant received injuries

which proved fatal on 7.3.2004 when the festival of colours i.e.

Holi was being celebrated. Kailash Chand PW-8 claimed to

have been standing on the balcony of his flat and from said

place having seen his son Hemant being assaulted by the

appellant. Kamal Kishore PW-9 claims that while he was

returning from market he saw his brother being attacked by

Sanjay.

8. The MLC Ex.PW-6/A of deceased Hemant and the

unproved MLC at page 81 of the Trial Court Record pertaining

to the accused show that both of them were brought to Baba

Saheb Ambedkar Hospital, Rohini by Const.Umed at 2:30 PM.

It is unfortunate that Const.Umed had removed not only the

deceased but even the appellant, who was also injured, to the

hospital.

9.            Const.Umed        PW-2       deposed    that   he       was   on

patrolling     duty      and   at   1:15    PM   on   7.3.2004        received

information of a quarrel in NDMC Colony, Sector-XI, Rohini and

he reached the spot where he find a crowd of 70-80 persons.

He removed an injured to the hospital in an TSR and that

Sanjay i.e. the appellant reached the hospital thereafter.

10. On being cross-examined, Const.Umed admitted

having reached the spot after 15-20 minutes of receiving

information of the quarrel and additionally made a categoric

statement that nobody from the crowd came forward to inform

him or give any information about the offence. He denied

having taken appellant to the hospital but admitted that in not

only the MLC of the deceased but even on the MLC of the

appellant, it was recorded that it was he who had brought both

to the hospital but failed to render any explanation as to how

said fact got recorded on both the MLCs.

11. Now, it is apparent that an argument arises for

consideration whether at all PW-8 and PW-9 could be eye-

witnesses as claimed by them and this argument has to be

dealt with in the context of the testimony of Const.Umed

Singh. The point for consideration would be whether it is

natural conduct for a father and a brother not to remove their

dear one to the hospital if indeed they witnessed the incident.

The point of consideration would be, how come Const.Umed

found nobody volunteering held to the deceased at the spot

requiring him to take the deceased to the hospital for medical

treatment.

12. Further, Kailash Chand PW-8 claims to have seen

the incident from the balcony of his flat. His son PW-9 claims

to have seen the incident on returning from the market. The

inter se claim of the father and son to have witnessed the

incident, needs to be evaluated with reference to the

testimony of Kailash Chand, that his son Kamal Kishore PW-9

came to the spot when the PCR van had arrived in which his

son i.e. the deceased was removed to the hospital. This facet

has to be evaluated at two levels. Firstly that the deceased

was not removed to the hospital in the PCR van and secondly if

PW-9 is correct, then whether at all PW-9 could be the witness

to the incident.

13. Similarly, vice versa, with reference to the claim of

Kamal Kishore PW-9 that he saw his father for the first time

when his brother was being removed to the hospital in a PCR

van needs to be evaluated.

14. What needs to be discussed is whether at all PW-8

and PW-9 have so contradicted each other that none has to be

believed.

15. In this controversy, the testimony of Sanjay PW-15

has also to be factored in. He is the brother-in-law of Hemant

and as per him he saw Hemant in a pool of blood on the street

but could not see the assailant as he had seen some persons

running away. Sanjay nowhere claims that his father-in-law

PW-8 and his other brother-in-law PW-9 were present at the

spot. Not only that his categoric admission that neither PW-8

nor PW-9 were present at the spot and they reached the spot

only after he informed them, has to be considered.

16. Not only that. The admission made by Kailash

Chand that his statement was recorded by the police in the

night, which statement we find has formed the First

Information Report, needs to be considered in the context of

whether the FIR is ante timed. In this context, the admissions

made by the investigating officer that it is correct that the

arrest memo of the accused shows the time of arrest at 3:15

PM whereas the FIR purports to be registered at 4:05 PM needs

to be discussed. How come, on the arrest memo FIR stands

recorded when FIR was registered subsequently. The fact of

the investigating officer not being able to explain the hiatus as

afore-noted has to be dealt with.

17. With reference to the timing of the FIR it has to be

considered as to what is the effect of the proof of the fact that

the FIR was delivered to the Ilaqa Magistrate at around 10:00

AM on 8.3.2004 whereas the same purports to be registered at

4:05 PM on 7.3.2004.

18. The afore-noted are the core issues which need a

serious reflection by the learned Trial Judge and apart

therefrom there are various other link submissions.

19. We find no discussion by the learned Trial Judge.

20. The cryptic finding by the learned Trial Judge that it

is settled law that minor contradictions and discrepancies is

neither here nor there, a finding returned in para 13, is

regretful. Surely, issued noted herein above are serious issues

and indeed to be discussed properly by the learned Trial Judge.

21. That apart, medical jurisprudence is to be discussed

with reference to the cranio cerebral damage detected on the

brain of the deceased and the possibility thereof being the

result of the acts attributed by PW-8 and PW-9. The defence

had to be factored being that the appellant was a good friend

of the deceased and was in love with the sister of the

deceased which was not acceptable to Kailash Chand PW-8.

The defence of the appellant that he and the deceased were

assaulted by goons and he made request to the investigating

officer to record his statement when appellant was declared fit

for statement at the hospital also needs to be decided.

22. Besides, evidence of the defence witnesses and

especially DW-2 who stated that the appellant got married to

the daughter of PW-8 who unfortunately died as a result of

tuberculosis during trial and proved the certificate Ex.DW-2/A

had also to be discussed.

23. In plain language, the learned Trial Judge has done

a most shoddy job. The judicial process has been violated.

The judicial process means that the judicial mind considers

and reflects upon the issues which arise for consideration and

requires to be dealt with as per law are duly dealt with after

the judicial mind coming to grip with the issues.

24. We express our opinion on the various issues which

seriously arise for consideration lest either party is prejudiced

at the remanded stage.

25. We allow the appeal and set aside the impugned

judgment and order dated 23.3.2010 as also the order on

sentence dated 26.3.2010.

26. The matter is remanded to the learned Trial Judge

with a direction that arguments would be heard by the learned

Trial Judge on 12.5.2010 on which date learned counsel for the

appellant and the learned Public Prosecutor would appear.

Decision would be pronounced latest by 29.5.2010.

27. We direct the learned Trial Judge to dutifully note

and deal with the issues which arise for consideration, some of

which have been broadly noted by us herein above. By no

means said issues are exhaustive of the ones which arise for

consideration. We permit the learned counsel for the

appellant to place on record written submissions and require

the same to be dealt with by the learned Trial Judge.

28. Mr.M.N.Dudeja, learned APP states that he would

instruct the learned Public Prosecutor attached to the learned

Trial Judge today itself to be re-prepared with the matter to

argue the same on 12.5.2010.

29. Copy of this decision be supplied dasti to learned

counsel for the appellant as also to learned counsel for the

State under signatures of the Court Master today itself.

30. Trial Court Record would be returned to the learned

Trial Judge latest by tomorrow i.e. 7.5.2010.

31. One last word. Noting the fact that the appellant

was on bail and had to surrender after the impugned decision

was pronounced, we direct that till fresh adjudication of the

matter by the learned Trial Judge, the appellant be admitted to

bail on his furnishing a personal bond in sum of Rs.10,000/-

with one surety in the like amount to the satisfaction of the

learned Trial Judge.

PRADEEP NANDRAJOG, J.

SURESH KAIT, J.

MAY 06, 2010 dk