Mohd.Shafi vs The State
2010 Latest Caselaw 4441 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                            Judgment reserved on: September 15, 2010
                            Judgment delivered on: September 21, 2010

+      CRIMINAL REV. P. NO.379/2010 & CRL.M.(B) NO.1024/2010

       MOHD. SHAFI                                     ....PETITIONER
                Through:             Mr. Vimal Puggal, Advocate with
                                     Mr. Rakesh Gupta, Advocate

                              Versus
       THE STATE                                   .....RESPONDENT
                      Through: Mr. Pawan K. Bahl, APP

                                           WITH

       CRIMINAL REV. P. NO.386/2010 & CRL.M.(B). NO.1030/2010

       VIJAYA SINGH                                     ....PETITIONER
                 Through:            Mr. S.A. Sattar, Advocate with
                                     Mr. Brijesh Singh, Advocate

                              Versus
       STATE                                           .....RESPONDENT
                      Through:       Mr. Pawan K. Bahl, APP

                                            AND

       CRIMINAL REV. P. NO.393/2010 & CRL. M(B) NO.1057/2010

       MOHD. ANZAR @ CHHOTTEY              ....PETITONER
                Through: Mr. Vimal Puggal, Advocate with
                         Mr. Rakesh Gupta, Advocate


                              Versus
       THE STATE                                       .....RESPONDENT
                      Through:       Mr. Pawan K. Bahl, APP


        CORAM:
        HON'BLE MR. JUSTICE AJIT BHARIHOKE

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

2.     To be referred to the Reporter or not ?
3.     Whether the judgment should be
       reported in Digest ?
Crl. Rev. P. Nos. 379/2010, 386/2010 & 393/2010                          Page 1 of 10
 AJIT BHARIHOKE, J.

1. Vijaya Singh, Mohd. Anzar and Mohd. Shaffi have filed these

revision petitions, being aggrieved by the impugned judgment of

learned Additional Sessions Judge dated 13.07.2010 dismissing their

appeals against their conviction and sentence by the learned

Magistrate for the offences punishable under Sections 325, 341 and

354 IPC read with Section 34 IPC

2. The facts giving rise to the revision petitions are that on

12.01.1998, on the receipt of information vide DD No. 25 at Police Post

Mayur Vihar, Phase-I that injured Susan Jyoti has been admitted in JPN

Hospital by her husband, Head Constable Jawahar Lal reached the

hospital and obtained her MLC No. 2492/98. The doctor declared

Susan Jyoti unfit for statement, as such her statement could not be

recorded on that day. On the next day, Susan Jyoti was discharged

from the hospital. Head Constable Jawahar Lal made efforts to contact

her and finally, he succeeded in meeting the complainant Susan Jyoti

on 19.01.1998 and recorded her statement, which led to the

registration of the case FIR No. 38/1998 under Sections

341/323/354/34 IPC at police station Trilok Puri.

3. Susan Jyoti, in her complaint stated that on 12.01.1998 at about

02.30 pm, after the completion of her duty, she boarded bus No. DL-1P-

3947, route No. 118, for her home. When the bus reached near

Ganesh Nagar Bus Stop, four boys aged between 20-22 years started

teasing her and one of them touched her breast. She objected to the

said indecent act and asked the bus driver and conductor to stop the

bus, who paid no heed to her repeated requests. At about 03.30 pm,

when the bus stopped at Shashi Garden Bus Stop, one of those four

boys alighted from the front gate of the bus and boarded from the rear

gate of the bus and whispered something in the ear of the conductor.

Thereafter, he again came near the front gate. When the bus reached

at I.T.I., Khichripur, aforesaid boy Vijaya Singh (revisionist) hit her right

eye with a stone. Despite this, neither the conductor nor the driver

stopped the bus. When the passengers of the bus strongly protested,

the bus driver stopped the bus near Kotla graveyard and all the four

boys managed to flee away. The bus was then taken to police station

Trilok Puri and the complainant from there, was rushed to Kukreja

Nursing Home, Acharya Niketan for medical aid. From there, husband

of the complainant took her to JPN Hospital and got her admitted there.

4. After the registration of FIR, investigation was carried out. The

Investigating Officer got prepared the rough site plan, recorded

statements of the witnesses and arrested the revisionist Vijaya Singh,

Mohd. Anzar @ Chhotey Lal (conductor) and Mohd. Shaffi. On

conclusion of investigation, all three of them were challaned and sent

for trial.

5. The revisionists were charged by the learned Metropolitan

Magistrate for the offences punishable under Sections 341/325/354

read with Section 34 IPC.

6. Prosecution examined 10 witnesses to bring home the guilt of the

accused persons, only witness to the incident being the complainant

Susan Jyoti (PW1).

7. The revisionist petitioners, when examined under Section 313

Cr.P.C. denied the prosecution case in its entirety and pleaded

innocence. They however, did not choose to lead evidence in their

defence.

8. The learned Metropolitan Magistrate, on appreciation of evidence

and after hearing the counsels for the parties, convicted the petitioners

on charges punishable under Section 341, 323 and 354 IPC read with

Section 34 IPC and vide the order on sentence dated 12.03.2010,

awarded the sentence to the petitioners.

9. Feeling aggrieved, the petitioners preferred appeals against the

impugned judgment of conviction and the order on sentence passed by

the learned Metropolitan Magistrate. The learned Additional Sessions

Judge, after hearing the counsels on behalf of the appellants (revision

petitioners), affirmed the impugned judgment of conviction and the

order on sentence.

10. Feeling aggrieved by the aforesaid concurrent finding of facts

resulting in conviction of the petitioners and the sentence awarded to

them, the petitioners have preferred the above revision petitions.

11. Learned Sh. Vimal Puggal, Advocate appearing for the petitioners

Mohd. Shaffi and Mohd. Anzar has challenged the impugned judgment

dismissing the appeal mainly on the point of law. He has taken me

through the statement of the complainant Susan Jyoti, which was

recorded a week after the incident and which is the basis of

registration of the case and submitted that as per the complaint

statement, the revision petitioners were the conductor and the driver

of the bus. They did not participate in teasing or molestation of the

prosecutrix Susan Jyoti, nor is it alleged in the complaint statement

that anyone of them participated in causing injury to the prosecutrix.

He has pointed out that as per Susan Jyoti, she was hit with a stone on

her right eye by the accused Vijaya Singh. Learned counsel has

submitted that on the basis of aforesaid facts, it cannot be said that

the petitioners Mohd. Anzar and Mohd. Shaffi had anything to do with

outraging modesty of the complainant Susan Jyoti or causing any injury

to her, particularly when there is no evidence to suggest that there was

sharing of common intention between the petitioners Mohd. Shaffi and

Mohd. Anzar with the aforesaid four boys, who indulged in eve-teasing.

He has argued that at best, it can be said that since the petitioners

Mohd. Anzar and Mohd. Shaffi did not stop the bus on the request of

the prosecutrix, they had caused wrongful restraint to her. Thus, he

has submitted that the conviction of Mohd. Anzar and Mohd. Shaffi for

the offences punishable under Section 323 and 354 IPC is bad in law as

there is no evidence to substantiate said charges against the

petitioners Mohd. Anzar and Mohd. Shaffi.

12. Learned counsel for the petitioner Vijaya Singh has tried to assail

the impugned judgment resulting in his conviction on merits by raising

the issue that the testimony of sole witness of incident PW1 Susan Jyoti

is not reliable firstly, because of the delay in recording of FIR, secondly,

that despite of the fact that the incident took place in a running bus full

of passengers, there is no independent witness to corroborate her

version. Thirdly, because of the reason that the as per the DD report,

Susan Jyoti was admitted in JPN Hospital by her husband but he has not

been produced as a witness which has caused prejudice to the

defence, fourthly, for the reason that no record pertaining to MLC of

Susan Jyoti prepared by Kukreja Nursing Home has been produced in

evidence to support her version and fifthly, the identification of the

accused Vijaya Singh by the witness in the court does not inspire

confidence as no TIP was conducted to fix the identity of the revisionist

Vijaya Singh.

13. Learned APP, on the other hand, has argued in favour of the

impugned judgment. He has submitted that the court of learned

Metropolitan Magistrate as well as the appellate court i.e the Additional

Sessions Judge, has returned a concurrent finding of fact. Therefore, in

the revisional jurisdiction, this court is not expected to reappreciate the

evidence as if it is sitting in appeal.

14. I have considered the rival contentions. The first question which

crops up for determination is as to what is the scope of revisional

jurisdiction of the High Court in a petition filed against the order of

dismissal of appeal against conviction and sentence by the learned

Additional Sessions Judge. In the matter of State of Kerala vs.

Puttumana Illath Jathavedan Namboodiri, (1999) 2 SCC 452 the

Supreme Court has examined this question and observed thus:

"5. Having examined the impugned judgment of the High Court and bearing in mind the contentions raised by the learned counsel for the parties, we have no hesitation to come to the conclusion that in the case in hand, the High Court has exceeded its revisional jurisdiction. In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to reappreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice. On scrutinizing the impugned judgment of the High Court from the aforesaid standpoint, we have no hesitation to come to the conclusion that the High Court exceeded its jurisdiction in interfering with the conviction of the respondent by reappreciating the oral evidence. The High Court also committed further error in not examining several items of evidence relied upon by the Additional Sessions Judge, while confirming the conviction of the respondent. In this view of the matter, the impugned judgment of the High Court is wholly unsustainable in law and we, accordingly, set aside the same. The conviction and sentence of the respondent as passed by the Magistrate and affirmed by the Additional Sessions Judge in appeal is confirmed. This appeal is allowed. Bail bonds furnished stand cancelled. The respondent must surrender to serve the sentence."

15. From the above enunciated proposition of law, it is clear that the

High Court in its revisional jurisdiction, can call for and examine the

record of proceedings, only for the purpose of satisfying itself as to the

correctness, legality or propriety on any finding, sentence or order. The

jurisdiction, however, is supervisory in nature for correcting

miscarriage of justice but the revisional power of the High Court cannot

be equated with the power of appellate Court nor it can be treated as a

second appellate jurisdiction. Ordinarily, therefore, it would not be

appropriate for the High Court to reappreciate the evidence and come

to its own conclusion, when there is concurrent finding of facts, unless

any glaring feature is brought to the notice of the High Court, which

would otherwise tantamount to gross miscarriage of justice.

16. Applying the aforesaid proposition of law to the facts of this case,

I am of the view that so far as the revision petition filed by Vijaya Singh

is concerned, his counsel has only raised question of facts and he has

tried to dig holes in the prosecution evidence which has been

appreciated by the learned Metropolitan Magistrate, while returning

finding of conviction and the same was re-appreciated by the learned

Additional Sessions Judge. Therefore, I decline to interfere with the

concurrent finding of facts returned by the learned Metropolitan

Magistrate and the learned Additional Sessions Judge so far as the

conviction and sentence of the appellant Vijaya Singh is concerned.

His revision petition is accordingly dismissed.

17. As regards the revision petitions filed on behalf of the petitioners

Mohd. Anzar and Mohd. Shaffi, they have raised pure questions of law.

On going through the complaint of the prosecutrix, which is the basis of

the FIR, it is apparent that role ascribed to the said petitioners, who are

conductor and driver of the bus, is that despite of request made by the

prosecutrix, they did not stop the bus. From the aforesaid conduct of

the conductor and the driver, only inference which can be drawn under

law is that they caused wrongful restraint to the prosecutrix by not

stopping the bus at her request. However, as regards the offence of

causing injury and outraging modesty of Susan Jyoti under Section 323

and Section 354 IPC, no role has been ascribed to the conductor and

driver and there is nothing on record to suggest that they shared

common intention with the petitioner Vijaya Singh of outraging

modesty of the prosecutrix or to cause injury to her. No doubt,

prosecutrix Susan Jyoti in the trial has deposed that she was molested

and when she requested the conductor Mohd. Anzar and bus driver

Mohd. Shaffi to stop the bus, Mohd. Anzar said "ek bar chhathi pe hath

lagane se kya hota hai" but this version of the prosecutrix is an

improvement upon her earlier statement, which formed basis of the

registration of the case, where it is not so mentioned, therefore, this

version is not reliable. Thus, under the circumstances, I am of the view

that the learned Additional Sessions Judge has committed an error in

law in holding that the revision petitioners Mohd. Anzar and Mohd.

Shaffi shared common intention with the petitioner Vijaya Singh and

other boys, who outraged the modesty of the prosecutrix Susan Jyoti or

caused injury to her. Thus, their conviction under Section 323 IPC and

Section 354 with the aid of Section 34 IPC cannot be sustained.

18. In view of the discussion above, the Criminal Revision Petition

No.386/2010 of Vijaya Singh is dismissed. Criminal Revision Petitions

filed by Mohd. Anzar and Mohd. Shafi are partly accepted and while

maintaining their conviction and fine imposed under Section 341 IPC,

their conviction and sentence under Section 323 and 354 IPC is set

aside.

19. It is informed that the revisionists Mohd. Anzar and Mohd. Shafi

are in jail. They were sentenced to pay fine of ` 500/- each for the

offence under Section 341 IPC, which fine has already been deposited.

Therefore, they be released forthwith, if not required in any other case.

20. Criminal Revision Petitions and the pending applications are

disposed of accordingly.

(AJIT BHARIHOKE) JUDGE SEPTEMBER 21, 2010 pst