State Of Nct Of Delhi vs Javed @ Sonu & Another
2010 Latest Caselaw 4164 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+           Crl.M.A Nos.14330-31/2010 & CRL.LP No.313/2010

%                        Date of Decision: 09.09.2010

State of NCT of Delhi                             .... Petitioner
                    Through    Mr.Sanjeev Bhandari, Additional Standing
                               Counsel (Criminal)

                                 Versus

Javed @ Sonu & Another                            .... Respondents
                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                NO
     in the Digest?



ANIL KUMAR, J.

*

Crl.M.A No.14330/2010

Allowed subject to just exceptions.

Crl.M.A No.14331/2010

This is an application seeking condonation of delay of 108 days in

filing the leave petition.

For the reasons stated in the application, delay is condoned.

CRL.LP No.313/2010

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

Judgment dated 16.11.2009 passed by the Additional Sessions Judge

in S.C.No.36 of 2007 pertaining to FIR No.281/2007, under Sections

302 & 34 of Indian Penal Code, PS Ashok Vihar, titled as 'State v. Javed

@ Sonu & Another' acquitting the respondents of the said charges.

2. The case of the prosecution in brief is that on 25th April, 2007

deceased Om Prakash was taken to Sunder Lal Jain Hospital where he

was declared brought dead by the doctors. A DD No.27 PP Wazirpur

J.J. Colony was recorded on 25th April, 2007 pursuant to which ASI Dev

Raj along with constable Shish Ram, PW-9 also reached the hospital.

On inspecting the dead body, Sub Inspector Pradeep Kumar, PW-11

had observed some scratches on the neck of the dead body and the

cause of death was not clear at that time. The DD No.27 was kept

pending for further investigation till the receipt of the post mortem

report.

3. Sh.Roshan Lal, PW-3, father of the deceased had disclosed that

he is residing with other son at Wazirpur, J.J.Colony and he had stated

that he has four daughters and his granddaughter, namely, Poonam is

unmarried who was aged about 17 years. On 23rd April, 2007, she had

not come back till 8:00 p.m. and on enquiry by him, it had transpired

that she had gone with a boy, named, Sonu residing in their

neighbourhood.

4. On enquiry in the neighbourhood, one person, namely Firoz son

of Hamid disclosed that his brother is Sonu @ Javed Khan. On being

intimated that Sonu had taken his granddaughter Poonam, Firoz talked

to Sonu @ Javed on his phone, and it was disclosed that she was

staying at the house of the friend of Javed. It was disclosed that

Poonam was at Kashmiri Gate Metro Station, therefore, Sh.Roshan Lal,

PW-3 the complainant went along with his daughter Smt.Radha to

Kashimiri Gate Metro Station where they met Poonam with Javed. The

accused Javed insisted on marrying Poonam, however, she was brought

home.

5. On 24th April, 2007, the complainant, Sh.Roshan Lal again did

not find Poonam, and on enquiry from the mother of the Javed @ Sonu

who also talked to Javed on phone, it was revealed that Poonam was left

in a park at Rithala Metro Station. The complainant, Sh.Roshan Lal,

PW-3 went with the mother of Javed @ Sonu and his son to Rithala

Metro Station and Poonam was brought back.

6. On these facts being revealed to the father of the Poonam,

deceased Om Prakash, he had arguments with Javed @ Sonu and his

brother. It was also revealed by Sh.Roshan Lal, father of deceased Om

Prakash that his son was a habitual drinker and on 25th April, 2007

when he came back, he was under influence of liquor and had some

scratches near his ear. On enquiry, it was revealed to him that Firoz

younger brother of Javed @ Sonu along with 2/3 boys injured him at

Tikona Prak, C-115 Bus Stand. Since he was under the influence of

liquor, therefore, he was advised to go to sleep, however, after sometime

when his granddaughter, namely, Arti went up stairs to give water to

deceased Om Prakash, she found him lifeless, and therefore, she came

back and disclosed to Sh.Roshan Lal who went up stairs and

immediately called the doctor who advised him after coming, to take

him to the hospital. Thus deceased Om Prakash was taken to the

hospital, however, he was declared brought dead.

7. After post mortem and the statement of Sh.Roshan Lal, PW-3 a

case under Sections 302 & 34 of Indian penal Code was registered

against the Javed @ Sonu and Imran, and the respondents were

charged under Sections 302 & 34 of Indian Penal Code. The

respondents pleaded not guilty, and therefore, during trial the

prosecution examined 12 witnesses, whereas the respondents did not

examine anyone. The statement of accused was also recorded under

Section 313 of Criminal Procedure Code who denied the allegations

made against them and stated that they had been falsely implicated.

8. After considering the testimonies on record, the trial court has

relied on the statement of sister of the deceased, Smt.Radha (PW-2) who

was told by the deceased that he was beaten up by the accused Javed @

Sonu and Imran at Tikona Park, C-115 Bust Stand, and the injuries on

his neck were on account of being beaten up. Father of the deceased

PW3, Sh.Roshan Lal also stated that he was told that he was beaten by

Javed @ Sonu and Imran. However, Poonam did not state anything

about the beating of deceased Om Prakash by Javed @ Sonu or anyone

else. She only stated that her father was beaten up by Javed @ Sonu

and Imran and later on he had died.

9. The prosecution had produced only one eye witness to the

alleged incident of beating by Javed @ Sonu and Imran to deceased Om

Prakash, namely, PW-10 Sehdev, but PW-10 Sehdev in the court stated

that he does not know anything about this case, and nothing happened

in his presence, and he never made any statement to the police. The

said witness was declared hostile, however, nothing material came out

of his cross-examination. The alleged eye witness PW-10 Sehdev rather

deposed that Om Prakash was addicted to liquor which fact was also

admitted by PW-3 Sh.Roshan Lal, father of the deceased.

10. The trial court also noticed the injuries to the deceased on the

basis of testimony of the doctor Mohd.Arshad (PW-1) who had deposed

that no active bleeding was found except two injuries behind the right

ear of the injured that is two lacerated wounds 2 inches below and

behind the right lobule ear. One of the injuries was one inch in length

and another was two inch in length. According to the doctor, there were

no blood stains on his clothes. He proved the MLC as PW1/A.

11. The trial court while acquitting the accused relied on testimony of

the PW-2, Smt.Radha, sister of the deceased who had deposed that the

blood was oozing out from the injury of deceased Om Prakash whereas

the doctor Mohd.Arshad, PW-1 had stated that no active bleeding was

found in the body of the patient. Smt.Radha (PW-2), sister of the

deceased had stated that the collar of the shirt which the deceased wore

was stained with blood. Smt.Radha (PW-2), sister of the deceased rather

stated that injuries did not seem to be serious, therefore, her injured

brother was not taken to the hospital. The trial court has also observed

that even if the blood was coming out of the alleged injuries, as have

been noticed by Smt.Radha (PW-2), sister of the deceased, still the

family members did not consider it serious enough to take the deceased

to the hospital, rather they advised him to go to the first floor of the

house, and rest there.

12. The trial court also has held that according to Smt.Radha (PW-2),

sister of the deceased though number of people had heard about the

injuries to deceased and as to who had injured him, however, she did

not disclose about any of such people in the locality. Contradiction in

the statement of Smt.Radha (PW-2), sister of the deceased as to when

her statement was recorded by the police was also observed. She also

contradicted as to whether the doctor was called before her deceased

brother was taken to the hospital. Rather according to her no doctor

was called for, nor any doctor came to her house to examine the

condition of her brother, whereas father of the deceased, Sh.Roshan Lal

had stated that doctor Yasin from the neighbourhood had been called

who advised them to take the deceased to the hospital at once. Doctor

Yasin was however, not examined by the prosecution.

13. According to the trial court, there were improvements in the

statement of PW-2 Smt.Radha, and also contradictions in the statement

of other witnesses in respect of accused Javed @ Sonu and Imran.

Smt.Radha (PW-2), sister of the deceased had stated that he was not

under influence of liquor which fact was not believed because the father

of the deceased had told categorically in his deposition that his son

came back injured on the back of his neck and he was under the

influence of liquor which fact was also established from the FSL report,

EX. PW-12/A stipulating that the blood sample was found to contain

Ethyl Alcohol 78.4 mg by 100 ml of blood. Contradictions in the

statement of father of the deceased was also referred while acquitting

the accused as, though he told that his son was addicted to liquor,

however, he denied this during the cross-examination, when he was

confronted with his statement recorded under Section 161 Cr.P.C.

14. From the testimonies of the witnesses, it was inferred that

though at the time of alleged fight other persons from the Mohalla had

collected, however, when the deceased went home he was alone.

Complainant in the first statement given to the police under Section

161 Cr.P.C. did not name accused and only later on in the

supplementary statement under Section 161 Cr.P.C. had named the

respondents Javed @ Sonu and Imran.

15. It was also held that if daughter Poonam was taken prior to the

date of incident on 23rd April, 2007, his name should have been

disclosed by the complainant to the police. The complainant even

denied giving the name of Firoz and 2-3 boys to the police while

deposing in the court, and also denied that he did not tell the police

that an old lady near Tikona Park had seen the quarrel taking place

near the wall of the park. The trial court also found the version

regarding Poonam unacceptable as if she was taken by the accused

against her wishes despite having an opportunity she did not raise any

alarm, nor did she try to contact her family members rather she agreed

to go with the accused. If the accused wanted to marry Poonam, it is

strange that he will leave her at a park near Metro Station Rithala.

Since she did not inform her family members despite having a phone at

her residence, it was inferred that she went with the accused Javed @

Sonu on her own. It was also noticed by the trial court that if she was

taken forcibly on 23rd April, 2007, then she would not have gone again

with the accused on 24th April, 2007. In the circumstances, it has been

inferred that the versions of PW-2, PW-3 and PW-4 have inherent

contradictions and even the injuries to the deceased noticed in post

mortem, were not in consonance with the injuries mentioned in MLC to

the deceased disclosed by the PW-1 (Dr.Mohd.Arshad).

16. In the post mortem report which has been proved as Ex.PW-7/A,

more injuries were found by the doctors which were scratches,

abrasions along with swelling with haematoma and the cause of death

is given as diffuse cerebral damages consequent upon herniation of

territorial cerebella, as a result of acceleration and deceleration injuries

over head which were caused by blunt force and are consistent with

assault. The trial court, however, held that the person who is alleged to

have seen the incident of beating to the deceased has not supported the

case of the prosecution and on the basis of the statement of the PW-2,

Smt.Radha, Sister of the deceased, PW-3 father of the deceased and

PW-4, it cannot be established that accused had beaten the deceased

Om Prakash. The plea that accused was given beating by striking his

head against the wall of Tikona Park was also not established as no

such evidence has been produced. Even the deceased did not tell his

sister and father PW-2 and PW-3 that while beating his head was

banged against the wall by the accused.

17. While holding that prosecution has failed to establish the guilt of

the accused, the trial court has also noticed the contradictions in the

statement of PW-2 Smt.Radha, sister of the deceased and PW-3

Sh.Roshan Lal, father of the deceased regarding whether the blood was

oozing from the injuries of the deceased at the time he came back home.

In the circumstances, on the basis of inherent contradictions in the

testimonies of the relatives of the deceased and there being no eye

witness and alleged eye witness PW-10 Sehdev having become hostile,

the trial court has held that prosecution has failed to establish the

charges against the respondents. The trial court also relied on the fact

that if the injuries were serious on account of banging the head of the

deceased with the wall of the Tikona park then he could not have

walked back on foot and therefore, the whole version of the prosecution

is doubtful and the prosecution has failed to prove its case beyond the

shadow of doubt.

18. The learned counsel for the petitioner has contended that the

contradictions in the statement of witnesses are minor imperfections

and cannot be the ground for rejection of their testimonies or holding

that there are not major contradictions.

19. It is no more res integra that 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 accepting

those grounds and not subscribing to the view of the trial Court that

the accused is entitled to acquittal.

20. This also cannot be disputed 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 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, 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, Prem Kumar 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.

21 This Court has gone through the testimonies of PW-2, PW-3, PW-

4 and PW-10. Perusal of these testimonies, reveals that the

contradictions noticed by the trial court are not contrary to the

depositions of the witnesses. What was stated by the deceased on

coming back to his sister and to his father, their versions have inherent

contradictions. In the circumstances, it cannot be held that these are

some imperfections only. Even the father of the deceased did not

disclose the name of the accused in the statement before the police and

the names were divulged only in the supplementary statement.

However, before the court he denied that he had not given the name

which was found to be contrary to his statement before the police. The

testimonies of the witnesses regarding blood oozing out from the

wounds of the deceased also has major contradictions. The observation

that the injuries were found to be not so serious as deceased was asked

to go to the first floor of the house and rest and they were not thought

to be serious enough to take the deceased to the hospital cannot be

faulted in the facts and circumstances. The version of Poonam that she

was taken forcefully by [email protected] Sonu also cannot be believed as, if she

was taken against her consent on 23rd April, 2007, she would not have

gone on 25th April, 2007 with accused/respondent No.1. There is no eye

witness to the alleged beating by accused to the deceased Om Prakash.

Merely on the statement of PW-2, PW-3 & PW-4, it will not be

appropriate in the facts and circumstances to infer that the deceased

was beaten by the accused because of which he died later on. On the

basis of alleged circumstantial evidence also it cannot be inferred that

the accused had assaulted the deceased. In the circumstances, on the

perusal of the testimonies of the witnesses in detail along with

documents, this Court also concurs with the finding of the trial court

that the prosecution has not been able to establish the charges against

the respondents.

22. The learned Additional Public Prosecutor has raised no other

point except that the testimonies of the prosecution are consistent and

they have only minor variations. There is no evidence that the deceased

was assaulted by the respondent and on the basis of the testimonies of

Pw2, Pw3 and Pw4, on account of inherent contradiction in their

depositions, it cannot be held that the deceased was assaulted by the

accused leading to his death. The learned Additional Public Prosecutor

has failed to make out a case that the findings of the trial Court are

unsustainable or perverse on any of the grounds. In the circumstances

on perusal of the testimonies of the witnesses and the material on the

trial Court record, this Court is also of the opinion that the prosecution

has failed to make out any such perversity in the judgment of the trial

Court which will entitle prosecution/petitioner for leave to appeal

against the impugned judgment dated 16.11.2009 acquitting the

respondents of the charges against them. In the circumstances the

leave to appeal petition is without any merit and the leave is declined

and the petition is, therefore, dismissed.

ANIL KUMAR, J.

SURESH KAIT, J.

SEPTEMBER 09, 2010 VK