Sanjay Kumar & Ors. vs The State
2012 Latest Caselaw 3938 Del

$~29
*IN THE HIGH COURT OF DELHI AT NEW DELHI

+      CRL. REV. P. No. 341/2012
%                                     Decided on: 6th July, 2012

       SANJAY KUMAR & ORS.                       ..... Petitioners
                   Through:            Mr. B.S. Sharma, Adv.

                         versus

       THE STATE                             .......Respondent
                         Through:     Mr. Mukesh Gupta, APP


CORAM:
HON'BLE MR. JUSTICE A.K. PATHAK


A.K. PATHAK, J. (Oral)

1. Petitioners were convicted under Section 386 read with

Section 34 of the Indian Penal Code, 1860 ("IPC" for short) by the

Trial Court and sentenced to imprisonment for two years with fine

of `10,000/- and in default of payment of fine to undergo simple

imprisonment for three months. Benefit of Section 428 Cr.P.C. was

also given to the petitioners. Aggrieved by the said judgment

petitioners preferred an appeal against their conviction and sentence

before the Additional Session Judge, Delhi which has been

dismissed vide judgment dated 11th June, 2012 whereby conviction

as well as sentence awarded by the Trial Court has been

affirmed/upheld.

2. It is this judgment which is under challenge in this revision

petition.

3. Prosecution story as unfolded is that FIR No. 458/01 under

Section 386 read with Section 34 IPC was registered on the

complaint of one Onkar Singh (complainant). It is alleged in the

FIR that complainant was owner of plot no. B-7, Shankar Garden

Colony near Dholi Piau, Delhi. In his absence five persons had

visited his house three times and this fact was informed to the

complainant by his servant, namely, Rakesh when complainant

returned to his house at about 7:30 pm. At about 8:30 pm when

complainant was standing outside his house petitioners along with

co-accused, namely, Satender @ Pappu and Sanjay @ Pahalwan

came there in two cars, that is, Honda City bearing registration no.

DL-4SZ- 0032 and Maruti 800 bearing registration no. DL-3C-

3908. Satender @ Pappu caught the collar of complainant and told

him to sign certain blank papers. He threatened that if complainant

did not do so he will be killed. Thereafter, Satender placed four

blank papers on the bonnet of Honda City car and commanded the

complainant to sign the papers. Sanjay Kumar brandished an iron

punch while Sunil, Sanjay @ Pahalwan and Karambir abused the

complainant. They forced him to sign four blank papers.

Complainant signed those four blank papers under fear. Thereafter,

Satender @ Pappu told the complainant that henceforth the plot of

Shankar Garden was their and asked the complainant to vacate the

same. When petitioners and co-accused were leaving the spot

complainant raised alarm "Pakro Pakro". A police team comprising

of SI Sharat Chandra, Const. Desh Raj, Const. Rambir, Const.

Ravinder and HC Rajesh, who were on patrolling duty in the area

came there and apprehended the petitioners and co-accused.

4. SI Sharat Chandra (Investigating Officer) seized the four

blank papers bearing signatures of complainant from the right hand

of Satender @ Pappu. Prosecution examined as many as eight

witnesses. Complainant has been examined as PW1. The owner of

the Honda City car was examined as PW2, who has deposed that on

13th September, 2001 car was given by him to Sanjay. Owner of

Maruti 800 car Punit Kumar Kohli was examined as PW3 who has

deposed that he had lent his car to Satender @ Pappu on 13th

September, 2001. Police officials, who were on patrolling duty

have been examined as PW4 to PW8. PW4 Const. Deshraj has

stated that he along with Const. Ravinder, Const. Ramvir, HC

Rajesh Tyagi and SI Sharat Chandra were on patrolling duty and

when they reached village Nagli Jalib they heard the alarm "Pakro

Pakro"; They reached near the house No. WZ 13 where petitioners

and co-accused were apprehended. Both the cars were taken in

possession. One metal punch was also recovered from Sanjay and

four blank papers bearing signatures of complainant were recovered

from Satender @ Pappu. PW5 to PW8 have corroborated these

facts. Trial Court has found the testimony of abovementioned

witnesses to be trustworthy and reliable. PW1 has not fully

corroborated prosecution version. He has not identified the

petitioners and co-accused. However, his testimony has supported

happening of the incident and that the persons involved were

apprehended by the police officials. He deposed that at about 8:30

pm when he was standing outside his house 4/5 boys came there

and caught hold of him from behind and asked him to sign certain

blank papers and threatened to kill him in case he refused to do so.

He signed the blank papers due to fear. He raised alarm "Pakro

Pakro". A police gypsy which was passing through, apprehended

the said persons. He has stated that he was unable to see the faces

of those persons. Defence counsel argued before the Trial Court

that since complainant (PW1) had turned turtle complicity of

petitioners in the crime was not proved. This argument was not

accepted. By placing reliance on Gurpreet Singh vs. State of

Haryana (2002) 8 SCC 18, Trial Court held that such portion of the

statement of a hostile witness which supports the prosecution

version can be accepted. Trial Court held that the presence of

accused persons on 13th September, 2001 at the spot was fully

established in view of statement of police witnesses. Appellate

Court has also affirmed this view. It has been held that

apprehension of the accused persons from the spot was established

from the statements of PW4 to PW8. Recovery of the vehicles from

the spot was also established from their statements. As per PW2

and PW3, their vehicles had been lent by them to the persons

involved in this case, on that particular day. This evidence was

sufficient to conclude the guilt of accused persons.

5. There is no gainsaying that the revisional jurisdiction is

supervisory jurisdiction exercised by the High Court for correcting

miscarriage of justice. Revisional power cannot be equated with

the power of an Appellate Court nor can it be treated as a second

appellate jurisdiction. Therefore, it would not be appropriate for the

High Court to re-appreciate the evidence and come to its own

conclusion on the same unless any glaring feature is brought to the

notice of the High Court which would otherwise tantamount to

gross miscarriage of justice. In K. Chinnaswamy Reddy vs. State

of Andhra Pradesh MANU/SC/0133/1962, Supreme Court

emphasized that revisional jurisdiction should be exercised by the

High Court in exceptional cases only when there is some glaring

defect in the procedure or a manifest error on a point of law

resulting in a flagrant miscarriage of justice. Concurrent findings

had been returned by the courts below, which in my view, cannot be

interfered with by appreciating the evidence afresh by this court in

exercise of its revisional jurisdiction.

6. In the backdrop of above settled legal position, in my view,

the concurrent view of the two courts below returned on a proper

and conscious appreciation of evidence cannot be interfered with by

a re-appreciation of the evidence in the exercise of revisional

jurisdiction. The view taken by the courts below cannot in any

manner be said to be contrary to law. The view taken by the courts

below holding that even the testimony of a hostile witness to the

extent that supports the prosecution version can be accepted is in

conformity with the settled legal preposition. PW1 has not denied

the incident. He has not even denied that the persons who come

there and forcibly obtained his signatures on certain blank papers

were apprehended by the police party who were present in the area

at that time. It is only on the point of identification that he had

turned hostile. Petitioners were apprehended by the police at the

spot. PW4 to PW8 are the members of the police party who have

deposed in unison about the apprehension of the petitioners. Be

that as it may, I do not find any flagrant illegality or violation of

procedure in the approach of the courts below.

7. For the foregoing reasons, I find the present petition being

devoid of merits, the same is dismissed.

A.K. PATHAK, J.

JULY 06, 2012/ga