Amit Kapoor @ Punjabi vs State Of Nct Of Delhi
2013 Latest Caselaw 8 Del

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*IN THE HIGH COURT OF DELHI AT NEW DELHI

+      CRL.A. 310/2011

%                     Judgment reserved on 3rd December, 2012
                      Judgement delivered on 2nd January, 2013

AMIT KAPOOR @ PUNJABI                  ..... Appellant
             Through: Mr.Ravindra Narayan and
                      Mr. Mukul Gupta, Advs.

              versus
STATE OF NCT OF DELHI                             ..... Respondent
                     Through:          Mr. Mukesh Gupta, APP

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

A.K. PATHAK, J.

1. Appellant has been convicted under Sections

186/333/353/34 IPC by the trial court and sentenced to undergo

rigorous imprisonment for three months under Section 186/34 IPC;

sentenced to undergo rigorous imprisonment for five years with

fine of Rs.1,000/- and in default of payment of fine to undergo

simple imprisonment for one month under Section 333/34 IPC;

sentenced to undergo rigorous imprisonment for one year under

Section 353/34 IPC. All the sentences have been directed to run

concurrently and benefit of Section 428 Cr.P.C. has also been

given to the appellant.

2. Appellant along with Jagjeet Singh @ Jagga was sent up to

face trial for the offences under Sections 186/332/353/411/34 IPC

by the police station Anand Vihar by filing a charge-sheet in the

court of Metropolitan Magistrate, Delhi. Subsequently, case was

committed to Sessions Court. Charges under Sections

186/332/353/34 IPC were framed against appellant and Jagjeet

Singh @ Jagga. However, Jagjeet Singh @ Jagga has been

acquitted by the trial court in view of the discrepancies in the

statements of witnesses regarding role played by as well as on the

point of identity. It may be noted that all the relevant witnesses to

the incident happen to be police officials, thus, their statements

have to be scrutinized with care and caution they being seasonal

witnesses. Same set of witnesses have been disbelieved qua Jagjeet

Singh @ Jagga.

3. As per the prosecution, on 23rd October, 2007 Home Guard

Constable Sunil (PW1) and HC Sanjeev Kumar (PW3) were on

duty of checking vehicles at road no. 56, Ramprasth Park. They

were checking vehicles coming from Raghunath Mandir side. At

about 6:45 pm a secret informer informed PW3 HC Sanjeev Kumar

that two boys would be coming on a stolen silver colour pulsar

motorcycle with an intention to commit chain snatching in Anand

Vihar area. At about 7:00 pm appellant and his accomplice (whose

names were disclosed after their apprehension) were seen coming

on the motorcycle bearing no. UP-15S-8841 from Seema Puri

border side. They were given signal to stop by PW3 H.C. Sanjeev.

They were asked to show the relevant papers of motorcycle at

which they became furious and the Sardar (Jagdish @ Jagga) who

was sitting on the pillion seat of motorcycle pushed HC Sanjeev

Kumar while appellant started motorcycle and tried to take a U-

Turn but in the process motorcycle got slipped and they fell down

and sustained injuries. Thereafter, appellant got up and gave a

helmet blow to Home Guard Constable Sunil resulting injuries on

his nose. Appellant was over powered, however, his accomplice

succeeded in escaping.

4. PW1 Home Guard Constable Sunil was removed to

Hedgewar Hospital (for short, hereinafter referred to as the

„hospital‟) by ASI Desh Raj (PW9) of Police Control Room. PW1

was examined by the doctor vide MLC Ex.PW6/A. Since there was

fracture of nasal bone doctor opined injuries as grievous. Constable

Harbir, who was posted in the hospital, sent information regarding

admission of Home Guard Constable Sunil in the hospital to police

station Preet Vihar pursuant whereof, DD No. 28-A was recorded

and handed over to HC Rakesh (PW10) who along with Constable

Dev Dutt reached hospital and obtained MLC of Home Guard

Constable Sunil. Thereafter, PW 10 HC Rakesh reached at the spot

and recorded statement of PW3 HC Sanjeev Kumar wherein he

narrated the incident in the manner as has been described in para

no. 3 hereinabove. On the basis of his statement FIR No. 602/2007

was registered at police station Preet Vihar. Appellant was present

at the spot and was arrested. Pursuant to the disclosure statement

of appellant Jagjit Singh @ Jagga was arrested.

5. After completion of investigation charge-sheet was filed in

the court of Metropolitan Magistrate along with a complaint under

Section 195 Cr.P.C.

6. Trial court has found statements of PW1 Home Guard

Constable Sunil, PW3 HC Sanjeev and PW10 HC Rakesh

trustworthy and reliable and has concluded that from their

testimonies it was proved that the appellant had deterred PW1 and

PW3 from performing their duties, inasmuch as had caused

grievous injuries on the person of PW1 in order to deter police

officials to perform their duties and further that the appellant was

apprehended at the spot.

7. I have heard the learned counsel for the appellant and

learned APP and have also perused the trial court record carefully

and am not able to concur with the view taken by the trial court, I

find statements of material witnesses, that is, PW1 Constable Sunil,

PW3 HC Sanjeev and PW10 HC Rakesh to be discrepant in nature,

inasmuch as the statements of injured and eye witnesses are

inconsistent and are not sufficient to prove the prosecution case

beyond the shadow of reasonable doubt. It may further be noted

that their statements have not been found trustworthy and reliable

by the trial court with regard to accomplice of the appellant.

8. That apart, there is a delay of about three and a half hours in

registration of FIR which has not been sufficiently explained

leaving the scope of coloured version creeping in the prosecution

story. Delay in the peculiar facts of this case is fatal more

particularly because despite availability of injured in the hospital

his statement was not recorded immediately; instead Investigating

Officer chose to go to spot and record the statement of PW3 HC

Sanjeev. As per PW 10 HC Rakesh, on receipt of information

regarding the incident, he reached the hospital and obtained MLC

of PW1 Home Guard Constable Sunil, who had sustained injuries.

Reason for not recording his statement, as per him, was that PW1

was under observation. Meaning thereby he was not fit for making

a statement. However, his this version is belied from the

documentary evidence, that is, MLC Ex. PW6/A. A perusal of

Ex.PW6/A makes it clear that the doctor had not made any

endorsement "Under Observation". Instead, doctor has written on

the MLC "fit for statement", meaning thereby PW1 Home Guard

Constable Sunil was fit for making a statement. Despite this, PW10

HC Rakesh did not record his statement who is victim to the

offence and could have described the incident. He was the best

person to narrate the incident at the first available opportunity.

There is no reason as to why PW 10 HC Rakesh could not have

recorded his statement for the prompt registration of FIR. Instead,

he chose to proceed to the spot and record statement of PW3 HC

Sanjeev.

9. Besides above, statements of PW1 and PW3 are discrepant

so as to make their presence at the spot together suspicious. PW1

Home Guard Constable Sunil has deposed that he was on duty

from 2:00 pm to 10:00 pm; he was present along with PW3

Sanjeev on picket duty. However, as per PW3, he was on duty

along with PW1 between 6:00 pm to 10:00 pm. Above all there is

material contradiction in this statement regarding roles ascribed to

the appellant and his accomplice are concerned. As per the

prosecution story, appellant was driving the motorcycle while his

accomplice was sitting on the pillion who pushed PW3. PW3

while deposing in Court, has stated that it is the appellant who was

driving the motorcycle. As against this, PW1 Home Guard

Constable Sunil has said that accomplice of appellant was driving

the motorcycle while appellant was sitting on the pillion seat. In his

cross-examination by the learned public prosecutor, PW1 denied

that appellant was driving the motorbike. As per PW1 Home

Guard Constable Sunil and PW3 Sanjeev, both, that is, appellant

and his accomplice were wearing helmets however, accomplice of

the appellant being Sardar probability of his wearing helmet was

not there and in fact this is one of the reason for which appellant‟s

accomplice has been acquitted. There is yet another major lacuna

in the prosecution case which makes the prosecution story

suspicious. As per PW10 statement of HC Sanjeev was recorded at

the spot, however, PW3 in his cross-examination, that he had

narrated the incident to HC Rakesh at the spot but his statement

was got signed in the police station.

10. In view of the sketchy, shaky and inconsistent stand taken by

the above-noted material witnesses it would not be safe to conclude

against the appellant that he had committed the offences for which

he had been charged. I am of the view that trial court ought to have

given benefit of doubt to the appellant in the light of evidence

discussed herein above.

11. For the foregoing reasons, conviction of the appellant is set

aside. He be set free forthwith, if not wanted in any other case.

12. Appeal is disposed of in the above terms.

13. Copy of this order be sent to the Jail Superintendent for

serving it on the petitioner as also for compliance.

A.K. PATHAK, J.

JANUARY 02, 2013 ga