State vs Rakesh Malik & Ors.
2010 Latest Caselaw 4697 Del

*                IN THE HIGH COURT OF DELHI AT NEW DELHI

+                            Crl. L.P. No. 209/2010

%                         Date of Decision: 06.10.2010

State                                                         .... Appellant
                         Through Mr.Lovkesh Sawhney, APP

                                    Versus


Rakesh Malik & Ors.                                         .... Respondent
                         Through Nemo

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE SURESH KAIT

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



ANIL KUMAR, J.

*

1. The petitioner/State has sought leave to appeal against the

Judgment dated 15th September, 2009 giving benefit of doubt to the

respondents, namely, Rakesh Malik, Mukesh Malik and Sanjeet Malik

and absolving them of the charges under Section 307/323/324/341/34

of IPC in Sessions Case No. 92/1/2008 arising out of FIR No. 623/2004

under Section 307/324/34 of IPC, PS Dabri.

2. The Trial Court has held that there are various

discrepancies and infirmities in the prosecution case which raised

doubts about the truthfulness of the prosecution case and thus giving

benefit of doubt to the accused. The Trial Court has noticed over writing

in Rukka Ex. PW-8/A about the time of sending Rukka to the Police

Station, which is also in different ink and which the prosecution has

failed to explain and thus, there is a doubt as to when it was sent to the

Police Station.

3. The Trial Court also referred to the fact that the injured,

Amit Solanki did not give the details of incident such as time etc. when

the statement was given to the SI nor did he give the details to the

doctor. Though he has given an explanation that the doctor did not ask

him as to who had assaulted him and therefore he did not disclose

about the same but this explanation has not been accepted by the Trial

Court in the facts and circumstances and other evidence on record. PW-

2, Sarwan Kumar the only independent witness did not support the

case of the prosecution.

4. The Trial Court has also based the acquittal of the

respondent/accused on the ground that PW-3, Shankar who was also

injured in the melee had tried to talk to Amit Solanki when he was

caught hold of Sanjeet Malik and Mukesh Malik and was attacked by

Rakesh Malik, pursuant to which he fell down and he was removed to

the hospital by someone. Even PW-3 who was also injured was

declared hostile. The version of PW-3 is not supported by Sh. Amit

Solanki, who did not testify that Shankar, PW-3 was assaulted by the

accused in his presence. The Trial Court has taken into account non-

production of Dharmu, who was allegedly slapped by Mukesh which led

to alleged assault on PW-1 Amit Solanki.

5. Reliance was also placed by the Trial Court on non-

examination of doctor to prove the MLC of PW-1 Amit Solanki, who was

allegedly injured by the respondent/accused. It has also been noticed

that PW-1, Amit Solanki and PW-3 Shankar, who were injured have not

supported each other's version.

6. It has also been noticed by the Trial Court that though, the

number of assailants and their names were not disclosed to the doctor,

however, the alleged statement recorded by the Police in the hospital,

the description and the names of all the alleged assailants were given.

The prosecution also failed to prove the previous incident which led to

the alleged attack by the respondent/accused on Amit Solanki nor any

person, who was witness to earlier incident, had been examined by the

prosecution.

7. Though, PW-7, Dr. Sudhir Solanki has testified that when

PW-1, Amit Solanki was admitted to the hospital, he was bleeding

profusely and even PW-1 Amit testified that he was bleeding, however,

PW-8, SI Sobhan Barriack, the IO of the case had testified that he did

not find any blood on the spot. In the circumstances, the Trial Court

has reasoned that how it could be that if the injured was bleeding

profusely, there was no blood on the spot where the injured was

allegedly attacked nor any blood stained clothes were seized. In the

circumstances, it was inferred that PW-1 Amit Solanki did not bleed or

even did not suffer any such injuries as had been alleged.

8. While acquitting the respondents, the Trial Court has also

noticed that there is no explanation as to why statement of Dharmu

was recorded under Section 161 of Crl. Procedure Code after more than

three months of the alleged previous incident and no satisfactory

explanation has been given for his non-production before the Court.

Contradiction in the statement of PW-1 Amit Solanki has also been

relied on as he had stated during the cross-examination by the defense

counsel that he was conscious and if he was conscious, then how did

he not see Shankar, PW-3 being beaten up and assaulted by the

accused persons in his presence.

9. In the MLC Ex. PW 5/A of PW-3 Shankar, the date of his

examination at Kesar Nursing Home is mentioned as 3rd September,

2004 whereas he was admitted there on 2nd September, 2004 and no

plausible and acceptable explanation has been given by the

prosecution. The Trial Court also relied on the fact that the statement

of PW-3 Shankar was not recorded by PW-13, ASI Vijay Kumar at the

hospital. If that be so then where was the statement recorded? It was

also noticed that PW-13 ASI Vijay Kumar in his examination-in-chief

testified that he recorded the statement of PW-3 Shankar at the hospital

but when attention was drawn to the endorsement of the doctor in the

application Ex. PW13/D-1 that PW-3 Shankar was not present in the

hospital, he changed his version and deposed that statement of PW-3

Shankar was recorded at his house at 12 midnight which is also not

corroborated from the record showing that the police had visited the

house of Shankar, PW-3 at night. In the circumstances, the

testimonies of PW-3 and PW-13 have not been relied on.

10. Regarding grant of leave to State against an order of

acquittal, it cannot be disputed that the High Court has the power to

reconsider the whole issue, reappraise the evidence and come to its own

conclusions 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 findings of

acquittal, the High Court must consider each ground on which the

order of acquittal is based and should record its own reasons for

accepting those grounds.

11. This also cannot be disputed that in reversing the findings

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

presumption of innocence is still available in favour 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, 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. For this, reliance 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.

12. With this settled law regarding the scope of setting aside

the order of acquittal, we have heard the learned Additional Public

Prosecutor and the learned counsel for the respondent and have also

gone through the Trial Court record especially the testimonies of the

witnesses and the relevant documents.

13. The learned counsel for the State has contended that PW 1

did not give the details of assailants as the attending doctor had not

asked him about the assailants and on that account no adverse

inference for non disclosure can be taken. The acquittal by the Trial

Court is not based only on disclosure of assailants before the Doctor

but on a number of other factors. Perusal of the testimonies of the

witnesses reveals that the two injured PW 1 Amit Solanki and PW 3

Shankar has not even supported each other. These two persons who

were allegedly attacked by the respondents should have deposed

consistently. Their testimonies have major contradictions. No plausible

explanation for the same has been given. PW 1 had not become

unconscious so as not to know or notice as to who had assaulted PW 3,

Shankar but he could not depose about it and his version is unreliable.

The concerned doctor has not been examined to prove the MLC of PW 1

to demonstrate as to what injuries were caused to him. Though it has

been deposed that Amit Solanki was bleeding profusely when he was

admitted but neither his clothes had been stained nor recovered by the

police nor the place where incident had taken place, blood was found

nor lifted by the police. That makes the version of Amit Solanki about

assault on him and such injuries caused to him which led to profusely

bleeding, not acceptable.

14. No acceptable explanation has also been given about the

contradictions in the MLC of PW 3, Shankar, the date of his

examination at Kesar Nursing Home is mentioned as 3rd September,

2004 whereas he was admitted there on 2nd September, 2004. The

statement of PW-3 Shankar was not recorded by PW-13, ASI Vijay

Kumar at the hospital. Though it has been deposed by the ASI Vijay

Kumar PW 13, that it was recorded at his home, but this fact cannot be

accepted as it has not be corroborated nor it can be accepted in the

present facts and circumstances that the police visited his home at

night.

15. The motive for alleged assault has been alleged to be

assault on Dharmu few months back. However, Dharmu has not been

examined nor any plausible reason has been given for not examining

him except that he was not available. What efforts were made to locate

him has not been explained or deposed by any witness. Surprisingly the

statement of Dharmu under section 161 of Cr. P.C about the earlier

incident when he was allegedly assaulted and slapped by one of the

assailants was recorded three months after the earlier incidents. No

plausible explanation has been given by the learned Additional Public

Prosecutor for not examining any of the witnesses of earlier incident.

16. In the circumstances the injured have deposed

inconsistently nor supporting each other and independent witness PW 2

Sarwan Kumar has not supported the version of any one of them. There

are other contradictions also. In the circumstances, the learned APP is

unable to explain as to how the findings and inferences of the Trial

Court are perverse or unsustainable. Even after re-appreciating the

evidence this Court does not find sufficient evidence to inculpate the

respondents/accused. No other grounds have been raised on behalf of

the petitioner which would entitle them for leave to appeal against the

order of the Trial Court giving benefit of doubt to the respondents and

acquitting them.

17. This is no more res integra that the High Court should give

proper considerations to matters such as the views of the trial judge as

to the credibility of the witnesses; the presumption of innocence in favor

of the accused, a presumption certainly not weakened by the fact that

they have been acquitted at the trial; the right of the accused to the

benefit of any doubt and slowness of the Appellate Court in disturbing

the finding of fact arrived at by a judge who had the advantage of seeing

the witnesses.

18. In the circumstances, we are unable to hold that the

judgment of the Trial Court is unsustainable or perverse or the findings

are against the evidence or record so as to entail any interference by

this Court. The petitioner in the circumstances has failed to make out

any grounds to grant leave to appeal to the petitioner against the

judgment dated 15th September, 2009 acquitting the respondents by

giving him benefit of doubt. In the circumstances, the petition for leave

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

ANIL KUMAR, J.

SURESH KAIT, J.

OCTOBER 06, 2010 'rs'