State vs Rajender Singh & Ors
2012 Latest Caselaw 2964 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                       Date of decision: 04.05.2012

+               CRL.L.P. 613/2011, Crl. M.A. 20064/2011

        STATE                                           ..... Petitioner
                                 Through : Ms. Richa Kapoor, APP.

                        versus

        RAJENDER SINGH & ORS               ..... Respondents

Through : Sh. Dinesh Garg, Advocate, for Resp.

Nos. 1 to 4.

MR. JUSTICE S. RAVINDRA BHAT MR. JUSTICE S.P. GARG

MR. JUSTICE S.RAVINDRA BHAT (OPEN COURT) %

Crl. M.A. 20064/2011 (Exemption) For the reasons mentioned in the application, the application is allowed. Crl.A. 20064/2011 is accordingly disposed of. Crl. L.P.613/2011

1. After hearing counsel for the parties, we are of the opinion that the leave sought in this case ought to be granted. The Registry is accordingly directed to list the Criminal Leave Petition as Criminal Appeal.

Crl. A. (to be numbered)

2. This appeal is against the judgment and order of the learned ASJ dated 18.03.2011 in S.C. No. 111/2009. With consent, the case was heard finally today since the Trial Court records were made available to this Court.

Crl.L.P.613/2011, Crl.M.A.20064/2011 Page 1

3. The FIR in this case pertains to an incident of 03.03.2007, in which one Krishan Dutt, an injured victim made his statement, which forms the basis of the FIR. The injured witness said that on 03.03.2007 at about 09.30 PM, when he reached near T.R. Sahani Motors on the Wazirabad Road, whilst on his way home, two boys accosted him, stopped his scooter and caught hold of its handle. When he objected, two other boys standing nearby joined them. One was armed with an iron rod which was used to cause several injuries on Krishan, the complainant, PW-2. It was also alleged that one of the assailants removed a gold chain from his neck and snatched his mobile phone ("Nokia 6030" make). After he raised an alarm, a PCR van reached the spot, the accused and the two others were caught, and the iron rod was seized. It was alleged that the assailant who divested the injured of the golden chain ran away from the spot. According to the prosecution, the accused were Rajender, Narender and Naresh. The individual who ran away was Chatter Pal.

4. On the strength of these allegations, the accused were arrested; three on the spot and Chatter Pal on 06.03.2007. After conclusion of investigations, the police filed a chargesheet; the accused were tried for committing offences punishable under Sections 394/397/411/34 IPC. They pleaded not guilty and claimed trial. The prosecution examined nine witnesses, which included PW-1, the PCR official who had also seized the mobile phone, and was produced as Ex. P-1. The complainant, PW-2 was examined during the trial. The others were police witnesses, except PWs-4 and 5, the doctors who had examined the injured. According to PW-5, who proved Ex. PW-4/A, the injuries found on the victim were grievous and caused by a blunt object. Apparently, the injured had suffered a fracture. In

Crl.L.P.613/2011, Crl.M.A.20064/2011 Page 2 the opinion of PW-5, this could have been possible due to his fall from the two-wheeler. The Trial Court considered the materials on record which included the deposition of a crucial witness, i.e. PW-2. He was apparently not cross-examined. The relevant discussion, after narration of the evidence recorded by the Trial Court ultimately resulting in acquittal of the respondents are found in the following extracts:

"XXXXXX XXXXXX XXXXXX (9) I have heard Ld. Counsel on behalf of the accused persons and Ld.Addl. PP for the State.

(10) Ld. Counsel for accused submitted that before convicting the accused under any penal law, it is the duty of the prosecution to prove its case against the accused beyond reasonable doubt and in the present case there are material contradictions brought on record in the testimony of prosecution witnesses and requested for acquittal of the accused persons.

(11) In support of his contention it is submitted that PW .2 Krishan Dutt in his statement deposed that he was going to his house from Loni Flyover on his two wheeler scooter. In the present case neither the Two wheeler scooter nor its documents I.e R/C etc., were seized nor the whereabouts of two wheeler scooter I.e registration number were verified. He further submitted that as per complainant, one of the accused persons removed the golden chain from the neck of the of complainant but neither the description of the golden chain was disclosed nor it was recovered at the instance of accused persons. The alleged mobile phone make Nokia which was recovered from the possession of accused was even not belonging to complainant Krishan Dutt however, it was in the name of PW.1 Ms. Kavita d/o Sh. Ganga Ram. Description about the age of the accused persons as mentioned in his statement and the physical appearance of the accused persons present in the court, also differs. Accused persons and the

Crl.L.P.613/2011, Crl.M.A.20064/2011 Page 3 complainant/injured/PW.2 are the resident of same locality and all were known to each other. In view of the facts and circumstances of the case, it appears that some sort of altercation had taken place between PW .2/injured and the accused persons on the day of incident due to that PW .2 received injuries but with the sole aim to implicate the accused persons in some serious case, false allegations of removing the golden chain from his neck and mobile phone from his possession are levelled against the accused persons. It is further pleaded that doctor who have examined the injured and gave his opinion is also not examined.

It is further pleaded that the testimony of PW .2 on the face of it appears to be after thought. There are material contradictions in the testimonies of police witnesses/officials.

Injured PW .2 Krishan Dutt was present in the court on the date the case was fixed for final arguments and filed his affidavit deposing therein that all the accused persons have sought pardon in the presence of his family members publically and therefore, he had forgiven them for their conduct.

(12)On the contrary ld. Addl. PP for the State submitted that the prosecution has brought on record sufficient incriminating corroborative evidence against the accused persons. PW .2 injured specifically deposed that he has been caught hold by the accused persons and they were having iron rod in their hands. They caused beating to him and removed his golden chain and mobile phone from his possession. The testimony of all the witnesses is further corroborated by the police officials. Factum of arrest, registration of the case, factum of recording the disclosure statement and recovery of the alleged iron rod and mobile phone Nokia 6030, at the instance of accused persons also brought on record and in view of the testimony of all the witnesses, it is proved that prosecution succeeded in proving its case against the accused persons beyond reasonable doubt and requested for conviction of both the accused persons.

Crl.L.P.613/2011, Crl.M.A.20064/2011 Page 4 (13)In view of the facts and circumstances of the case, evidence adduced by the prosecution and also considering the evidence of public witnesses who are neighbourers and also the fact that no previous involvement of any of the accused is brought on record, I am of the considered view that prosecution has failed to prove its case against accused persons beyond reasonable doubt. Therefore, accused persons have become entitled to be given them the benefit of doubt. Accordingly the benefit of doubt is given to all the accused persons. I hereby acquitted all the accused persons namely Rajender, Narender, Naresh and Chatter Pal for the offence as alleged against them.

(14)The bail bond/ surety bond furnished by the accused persons shall remain in force till the expiry of six months and accused are further directed to appear before the appellant court, if they are required to appear before the appellant court in view of the provision of Section 437A Cr.P.C. File be consigned to Record Room.

XXXXXX XXXXXX XXXXXX"

5. It was contended that the judgment is bereft of any reasoning and was influenced by an affidavit filed by the complainant which condoned or pardoned all the accused. It was submitted that the Trial Court was mostly influenced by this and did not discuss the evidence nor mention that the accusations against the respondents were unfounded, and if so for what reason.

6. The learned Counsel for the respondents submitted that the appeal is a belated one. Most importantly, the submission on behalf of the respondents was that the parties had come to terms, which was evident from the affidavit taken on the record by the Trial Court, which virtually pardoned the respondents' role. He argued that once the parties had come to terms, the larger interest of the community dictated that the Court ought to close the

Crl.L.P.613/2011, Crl.M.A.20064/2011 Page 5 matter.

7. We have gone through the Trial Court's impugned judgment. It does not contain any reasoning much less the rationale for acquitting the respondents. As far as the submission on behalf of the accused that the parties had come to terms is concerned, such an argument, having regard to the nature of the offence and the charges framed cannot be countenanced by a Court of Sessions. The provisions of Criminal Procedure Code (Cr.PC) clearly deal with various types of offences that are compoundable; they are detailed in Section 320 which set-out the procedure and also the method to be adopted by the Court while dealing with requests for compounding various offences. In this case, the accused were charged with offences punishable under Sections 392/397/411/34 IPC. Most of these are grave in nature and in any event, none of them fall within the purview of Section 320 Cr.PC; they are as such not compoundable. It is not the case that the offences are of the kind which can be plea-bargained, and request could have been made to the Court for leniency in sentencing or any such course of action.

8. Apart from the submission by the respondents which we are not inclined to agree with, the impugned judgment, in our opinion betrays a more fundamental law. Every Court, of first instance, has to discuss the facts, evidence and the materials led before it in order to arrive at the conclusions that it records. In another words, it is the reasons which a Judge adopts that is the centerpiece of the judgment. It determines the rights of the parties before the Court. We notice with regret that in this case, the concerned ASJ, Sh. B.S. Chumbak has not disclosed any reasons as to why the respondents deserved to be acquitted. Unlike other organs of governance,

Crl.L.P.613/2011, Crl.M.A.20064/2011 Page 6 the Judge conducts all work in public view; the hearings, proceedings in every case and the recording of testimonies are in Court. The judgment of the Court, is the visible outcome, the culmination of this process; the reasoning on which the Court bases its conclusions occupy the centrepiece of the entire process. If a judgment merely catalogs the contentions, and tests the conclusions, it is stipulative, and devoid of the essence of the judicial process; such judgments lack sanctity. Further, in the absence of reasons, the aggrieved party is at sea, and would be hard put to challenge the decision in appeal. Equally, the party succeeding in the litigation wins but a pyrrhic victory, which is undone, as it is indefensible. Even though the reasoning may not be elaborate, what persuades a Judge should be clearly disclosed in the judgment. This is not only important from the point of view of the parties, who have valuable right to appeal against the judgment on such reasoning, but also from the normative angle since all determinations are made from the said reasoning and logic which has to be clearly visible to all instead of being left to the reader, to divine.

10. We are also of the opinion that there is no procedure which permits filing of an affidavit by a complainant or injured either pardoning or exonerating the accused as appears to have swayed the Trial Judge in this case.

11. In view of the above reasons, the impugned judgment cannot be sustained; it is accordingly set-aside. The matter shall be remitted to the Trial Court for consideration afresh, on merits, and delivery of judgment with clear and cogent reasons, after hearing submissions on behalf of the parties. The parties are directed to be present before the Trial Court on 22.05.2012 for this purpose. It is open to the Trial Court to ensure the

Crl.L.P.613/2011, Crl.M.A.20064/2011 Page 7 presence of the accused, if any or some of them are not present. The appeal is allowed in the above terms. Order dasti.

                                                   S. RAVINDRA BHAT
                                                             (JUDGE)



                                                               S.P.GARG
                                                                (JUDGE)
        MAY          04, 2012
        'ajk'




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