The Govt. Of Nct Of Delhi vs Sh.Rama Shankar Pandey & Another
2010 Latest Caselaw 5271 Del

*                   IN THE HIGH COURT OF DELHI AT NEW DELHI

+                Crl.M.A.Nos.16833-34/2010 & Crl.L.P No.400/2010


%                          Date of Decision: 22.11.2010

The Govt. of NCT of Delhi                             .... Appellant
                    Through Mr.Vikas Pahwa, Additional Standing
                            Counsel (Criminal)

                                   Versus

Sh.Rama Shankar Pandey & Another                          .... Respondents
                 Through Nemo.

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR.JUSTICE S.L.BHAYANA

1.        Whether reporters of Local papers may            YES
          be allowed to see the judgment?
2.        To be referred to the reporter or not?            NO
3.        Whether the judgment should be                    NO
          reported in the Digest?

ANIL KUMAR, J.

*

CRL.M.A.No.16833/2010

Allowed subject to just all exceptions.

CRL.M.A.No.16834/2010

This is an application by the petitioner seeking condonation of

delay in filing the petition for leave to appeal.

The applicant has contended that certified copy of the order dated

5th March, 2010 acquitting the respondents of the charges against them

was provided on 20th April, 2010 and the comments were given by the

learned Additional Public Prosecutor on 19th May, 2010. The applicants

have given other details of the other officials who dealt with the matter

and the various steps taken to decide to file petition seeking leave to

appeal resulting into a delay of 142 days.

The applicants have also relied on a Collector Land Acquisition v.

Katiji, (1987) 2 SCC 107 and State of Nagaland Vs. Lipok Ao, 2005 (3)

SCC 752 holding that sufficient cause should be considered with

pragmatism in justice oriented approach rather than a technical

defection of sufficient causes for explaining every days delay having

regard to considerable delay of procedural red tape in the decision

making process of the government, certain amount of latitude is

permissible and should be given. The applicant has contended that the

State Government is the impersonal machinery working through its

officers or servants- hence it cannot be put on the same footing as an

individual.

Considering the facts and circumstances and the law cited by the

applicant, the applicant has been able to make out sufficient cause for

condonation of delay of 142 days in filing the petition seeking leave to

appeal.

The application is therefore, allowed and the delay in filing the

petition seeking leave to appeal is condoned.

Crl.L.P.No.400/2010

The petitioner has sought leave to appeal against the judgment

dated 5th March, 2010 acquitting the respondents, Sh.Rama Shankar

Pandey and Sh.Har Prasad @ Harish of the charges under Sections

307/452 of Indian Penal Code in Sessions Case No.54 of 2008, titled as

'State v. Santosh Yadav and others' arising from the FIR No.363 of

2004, under Sections 307/452/120 B of Indian Penal Code,

P.S.Krishna Nagar.

The case of the prosecution before the Trial Court was that on

21st August, 2004 a DD No.22 was received regarding firing on a person

at House No.C-145, Gali No.12, Kanti Nagar Extension. The injured was

removed to the hospital in the PCR. Later on, the complaint was made

by Smt. Sridevi, PW-2 who had reached the spot with her husband,

namely Sh. Sumer Chand, PW-3. Pursuant to the complaint of Smt.

Sridevi, Santosh Yadav, Har Prasad @ Harish and Rama Shankar

Pandey were arrested. The accused, Har Prasad @ Harish, Santosh

Yadav and Rama Shankar were also arrested in another FIR No.370 of

2004 of the same Police Station, under Section 399/ 402 of Indian

Penal Code.

The case of the prosecution was that on the basis of the

disclosure statement, another accused Rajesh was also arrested,

however, he was discharged later on. Against the respondents and

Santosh Yadav, charge sheet was filed for the offences punishable

under Section 307/452/120 B of Indian Penal Code. Santosh Yadav

was declared as proclaimed defender, however, the respondents Har

Prasad @ Haish and Rama Shankar Pandey pleaded not guilty and

claimed trial. During trial, prosecution examined 13 witnesses and the

statement of the respondents under Section 313 of the Criminal

Procedure Code was also recorded. Both the respondents denied the

evidence against them and asserted that they have been falsely

implicated and also led the defense evidence. In the defense evidence

accused Rama Shankar Pandey examined himself as DW-1 and also

produced a copy of the FIR Nos.370 of 2004 to 372 of 2004 from the

Court of Sh.Sanjay Sharma, Learned ASJ as Ex.DW-1/A.

The trial court took into consideration the plea by the

respondents that they were falsely implicated by investigating officer

PW-11 ASI Sh. Abdul Subhan who had also arrested them along with

others on 24th August, 2004 in another FIR No.370 of 2004 of the same

police station in order to solve the present case and he wrote false

disclosure statement and implicated them in the case.

While acquitting the respondents, the trial court has taken into

consideration the detailed order dated 11th July, 2005 discharging

another accused Rajesh who had deposed in his statement that the two

persons asked him some address when he was near Kanti Nagar Police

Station. In this context these persons somehow got enraged and one of

them asked the other to kill him which necessitated Rajesh to run from

there. He therefore, ran towards Gali No.12, Kanti Nagar Extension

where he found one door of the house opened and so he entered into

that house. Those two persons however, followed him in the house.

According to Rajesh, one lady was present in that room and when she

raised alarm one of the two boys fired at him resulting into him

becoming unconscious where after both the accused fled from there.

The court discharged Rajesh by a detailed order dated 11th July,

2005 which order was not challenged. The version given by the Rajesh

was in directly contrary to the case of the prosecution.

The version of the prosecution was that the respondents had

gone to the house of the complainant, Smt. Sridevi PW-2 to rob her and

with this motive they had fired upon her but by chance Rajesh who was

their accomplice received the bullet injury and therefore, they left him

there and ran away from the spot. Despite the order dated 11th July,

2005 discharging Rajesh and disbelieving the prosecution version, the

said order was not challenged and it became final.

The trial court has also noticed various contradictions in the

statement of Smt. Sridevi PW-2 and in the statements of PW-3 and PW-

4. The trial court has also relied on (2002) Vol.-I, SCR 1011, 'Allah

Rakha K.Mansoori v. State of Gujarat' and 1997 SCC (Cri) 118, titled

Meharban v. State of M.P. defining minor contradictions and the

testimonies which are result of parrot like statements and the

improvement and the exaggeration which are made by the witnesses in

the witness box.

The trial court also relied on the fact that though Smt. Sridevi on

the basis of her testimony had a fleeting glimpse of the accused and

they were not known to her earlier, however, both the accused were not

put to test identification parade. The trial court did not give any benefit

to the petitioner on account of producing the respondents/accused in

another case FIR No.370 of 2004 where they were identified by the

complainant and thus holding that both the accused were to be put to

the test identification parade to establish their identification as per

perpetrators of the crime and in the circumstances, the identification of

the respondents in the Court during trial will not be of much value. The

trial court thus, held that the prosecution has failed to prove the

identification of both the accused beyond reasonable doubt as the

assailants who attacked the complainant PW-2 on 21st August, 2004

and acquitted them of the offence punishable under Section 307/452

read with Section 120 B of Indian Penal Code.

This is settled law that in reversing the finding of acquittal the

High Court has to keep in view the fact that the presumption of

innocence is still available in favor of the accused which is rather

fortified and strengthened by the order of acquittal passed in his favour.

Even if on fresh scrutiny and reappraisal of the evidence and perusal of

the material on record, if the High Court is of the opinion that another

view is possible or which can be reasonably taken, then the view which

favours the accused should be adopted and the view taken by the trial

Court which had an advantage of looking at the demeanour of witnesses

and observing their conduct in the Court is not to be substituted by

another view which may be reasonably possible in the opinion of the

High Court. Reliance for this can be placed on 2009(1) JCC 482=AIR

2009 SC 1242, Prem Kanwar v. State of Rajasthan; 2008 (3) JCC 1806,

Syed Peda Aowlia v. the Public Prosecutor, High Court of A.P,

Hyderabad; Bhagwan Singh and Ors v. State of Madhya Pradesh, 2002

(2) Supreme 567; AIR 1973 SC 2622 Shivaji Sababrao Babade & Anr v.

State of Maharashtra; Ramesh Babu Lal Doshi v. State of Gujarat,

(1996) 4 Supreme 167; Jaswant Singh v. State of Haryana, 2000 (1)

JCC (SC) 140. The Courts have held that the golden thread which runs

through the web of administration of justice in criminal cases is that if

two views are possible on the evidence adduced in the case, one

pointing to the guilt of the accused and the other to his innocence, the

view which is favourable to the accused should be adopted. The

paramount consideration of the Court is to ensure that miscarriage of

justice is prevented. A miscarriage of justice which may arise from

acquittal of the guilty is no less than from the conviction of an innocent.

The High Court has the power to reconsider the whole issue,

reappraise the evidence and come to its own conclusion and findings in

place of the findings recorded by the trial Court, if the findings are

against the evidence or record or unsustainable or perverse. However,

before reversing the finding of acquittal the High Court must consider

each ground on which the order of acquittal is based and should record

its own reasons for not accepting those grounds and not subscribing to

the view of the trial Court that the accused is entitled to acquittal.

This court has heard the learned Additional Public Prosecutor in

detail and has also gone through the testimonies of the witnesses

recorded before the trial court as well as document from the record of

the Trial Court.

The learned counsel for the petitioner is unable to satisfy this

court that the discrepancies or inconsistencies in the statement of PW-2

and PW-3 are minor. PW-2 Smt. Sridevi has deposed that she was alone

in the house and her son and husband was gone outside for work and

the gate of the house was open and one person came running from the

outside and two unknown person followed him. When she objected and

asked for reasons to entering her house one of them closed her mouth

by putting his palm and the other two persons fired at her which

missed and hit the third person. Seeing the person bleeding in her

home she got perplexed and confused. She also deposed that she heard

one person calling other person as Pandey to go out as Rajesh had

suffered bullet injury. She deposed that on hearing her shrieks her

neighbour Pappu and landlord Ganga Ram arrived. She was almost

unconscious at that time so water was sprinkled on her face. He

neighbour Pappu had gone to the godown where her husband was

working and her husband took her to private doctor and she was in the

godown for 2-3 hours before returning to her house with her husband

when she found her other neighbour as well as police at the spot. She

further deposed that on 25th August, 2004 she came to know about the

arrest of the some offenders and so they were called to the police station

and taken to the court complex at Karkardooma where she identified

the respondents. Her husband PW-3 Sumder Chand had rather

deposed differently that on 25th August, 2004 he had gone with his wife

to the Karkardooma Court where he identified Santosh Yadav and

Rama Shankar Pandey who had allegedly worked with him and both of

them knew that he had cash in his house. Some of the contradictions in

the statements of witnesses are whereas PW-2 had stated that PW-4

had taken her to godown where PW-3 was working, however, in the

cross-examination she stated that the neighbour Pappu had gone to the

godown to call her husband from the place of his working at Azad

Nagar and her husband had come from his working place. Learned

Additional Public Prosecutor is unable to explain these contradictions

which cannot be termed minor in the facts and circumstances. In any

case it cannot be held that the inferences of the trial Court are not

sustainable in the facts and circumstances and the Learned Additional

Public Prosecutor is unable to show any perversity in the observations

and findings of the trial Court.

The learned Additional Public Prosecutor has also not been able

to show as to why the accused were shown to the complainant even

though they were to appear in some other case at Karkardooma Court.

If the accused were shown to the complainant as they were not

produced with muffled face, they were entitled to decline test

identification parade and in the circumstances, their identification in

the court will not carry much value. In the facts and circumstances, the

inferences of the trial court that the petitioner has failed to prove

identification of both the accused persons beyond reasonable doubt

cannot be held to be unsustainable or perverse.

Though the evidence of Test Identification Parade only has

corroborative value as substantive piece of evidence is the identification

in the Court, however, where suspect is already shown to the witnesses

before the Test Identification Parade, his identification in the Court

becomes valueless and the accused cannot be convicted on the basis of

such identification. The Supreme Court in 1998 SCC (Crl.) 1276,

Shaikh Umar Ahmed Shaikh and Anr v. State of Maharashtra on

account of strong probability in that case that the suspects were shown

to the witnesses had held that their identification in the Court by the

witnesses was meaningless. The Supreme Court had further held that

the statement of witnesses it the Court identifying the accused in the

Court lost all its value and could not be made the basis for recording

the conviction against the accused and had set aside the convictions

which were passed on such unreliable evidence. In this case on strong

probability that the suspect were shown their subsequent identification

was held to be valueless. The Supreme Court in another case, (1998)

SCC (Cri.) 201, Ganpat Singh and Anr v. State of Rajasthan had also

held that where the accused were shown to the sole witnesses in the

police station who later identified them in the Test Identification Parade,

the evidence of such persons in the Court after considerable time was

held to be nor reliable and could not be the basis for conviction. In the

circumstances the inference of the Trial Court cannot be held to be not

sustainable or perverse or illegal in any manner.

No other grounds has been raised on behalf of the petitioner by

learned Additional Public Prosecutor seeking leave to appeal against the

order of the trial Court acquitting the respondents of the charges made

against them.

In the facts and circumstances, the petitioner has failed to make

out any ground which will entitle the petitioner for leave to appeal. This

court concurs with the inferences drawn by the trial court. Even if, any

other view is possible in the facts and circumstances, the High Court

will not substitute its view with that of trial court which is also based

on noticing the demeanour of the witnesses.

Taking into consideration the totality of the facts and

circumstances, there are no grounds to interfere with judgment of the

trial court acquitting the respondents. The petition seeking leave to

appeal is therefore, without any merit and it is dismissed.

ANIL KUMAR, J.

S.L.BHAYANA, J.

NOVEMBER 22, 2010 'vk