State vs Ashok Kumar Jain
2014 Latest Caselaw 735 Del

$~12
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
+    CRL.L.P. 17/2014

      STATE
                                                           ..... Petitioner
                         Through:       Mr. Sunil Sharma, learned
                                        Additional Public Prosecutor for
                                        the State with Mr. Yashpal,
                                        Inspector.
                         versus

      ASHOK KUMAR JAIN
                                                           ..... Respondent
                         Through:       None.

      CORAM:
      HON'BLE MR. JUSTICE KAILASH GAMBHIR
      HON'BLE MS. JUSTICE SUNITA GUPTA

                           ORDER

% 07.02.2014 Crl.M.A. No. 311/2014 (Condonation of delay)

By this application filed under Section 5 of Limitation Act read

with Section 482 of Cr.P.C., the petitioner is seeking condonation of

delay of 18 days in filing the accompanying criminal leave to appeal. For

the reason stated in the application, the same is allowed and the delay of

18 days in filing the accompanying petition seeking leave to appeal

against the impugned judgment is condoned.

Application stands disposed of.

Crl.L.P.No. 17/2014

By this petition filed under Section 378 (1) Cr.P.C., the petitioner

is seeking leave to appeal against the order dated 31 st August 2013 passed

by learned Additional Sessions Judge, thereby acquitting the respondent

from all the charges framed against him under Sections

452/342/506/323/324/307 IPC.

Addressing arguments on behalf of the appellant -State, Mr. Sunil

Sharma, learned Additional Public Prosecutor for the State submits that

the learned trial court has not properly appreciated the evidence of PW-1,

who herself was a victim of the crime and whose deposition remained

totally infallible and unimpeachable. Learned APP for the State argued

that even the medical evidence proved on record by the prosecution fully

supports the testimony of PW-1.

As per the prosecution case, on 11.09.2008 at about 12.30 p.m.,

accused came to the house of Rajni with a box of sweets, as he was

blessed with a son. Rajni asked accused to deliver the box of sweets to

her husband, however, the accused told her that her husband only told

him to give the box of sweets at his residence. Rajni opened the door and

took the box and when she tried to close the door, the accused asked her

for a glass of water and at that point of time he entered inside the house.

Rajni gave a glass of water to him and asked the accused to leave, but the

accused wanted to use the toilet and therefore, he went to the washroom.

In the meanwhile, Rajni made a call to her husband informing him that

somebody has come to their house to give a box of sweets and she gave

the landline phone to the accused to have a word with her husband. After

talking with the husband of Rajni, the accused told her that her husband

wants to talk to her, but she told the accused that she will talk to him

later. On this, the accused informed Rajni that her husband has some

emergency and it was then, she took the phone, but till that time the

phone was found disconnected. In the meanwhile, the accused had put

one of his hand on her mouth and from the other hand he caught hold of

her hairs and dragged her inside the room. Rajni gave a bite on the hand

of the accused and asked him as to what was he doing. The accused told

her that he has come to kill her. Accused also had a knife with which he

attacked her but Rajni succeeded in preventing the assault with her left

hand, although she sustained injury on her left hand. Thereafter, the

accused dragged her inside the other room. The accused was carrying a

wide tape with which he covered her mouth. The accused also tied her

hands and legs with a piece of cloth lying in her house. Rajni somehow

managed to open her hands and legs, however the accused again tied her

hands and asked her for cash. The accused sat on her, while placing his

knees on her neck and gave her many slaps. He also dragged her towards

the outer room in which the almirahs were kept. He took keys from her

and tried to open the door of almirah but as he was about to open the door

of the locker, the nephew (bhatija) of Rajni knocked the door and shouted

to open the door. On hearing him, Rajni shouted "Mohit-Mohit" but the

accused pushed her on the floor keeping his shoe on her mouth and hit

her with his shoe. The accused dragged her to the inner room and started

beating her, because of which she fell unconscious. Mohit alongwith

Gaurav tried to open the door by hitting it with a hockey stick and

consequently the strips from the wooden door came out. As soon as the

door opened, the accused fled away and hide himself in a godown of a tea

shop. When Rajni regained consciousness, she found that the outer door

was broken by Mohit and Gaurav and the accused had run away. The

Police apprehended the accused from the said tea shop in the presence of

public.

Police recorded the statement of Rajni, which was proved on

record as Ex.PW-1/A. The cloth with which accused tied up Rajni was

also seized vide seizure Memo Ex. PW-1/C. During her deposition, Rajni

identified one tie Ex.P-1, with which the accused tried to hang her with

the ceiling fan and also one nighty through which the accused tried to tie

her hands and legs.

To prove its case, the prosecution in all examined eight witnesses.

Learned trial court after evaluating the prosecution evidence found that

the testimony of PW-1 was full of improvements and also there was a

total failure on the part of the prosecution to collect other important

evidence, failure of which led the trial court to acquit the accused on the

premise that the prosecution has failed to prove its case against the

appellant beyond reasonable doubts.

The lapses which in our view were quite serious on the part of the

Investigating Officer have been spelt out by the learned trial court in para

20 of the impugned judgment and the same are reproduced as hereunder:-

"As per the Pw-1 accused came at the spot with sweet box but no sweets box was seized from the spot. Similarly PW-1 stated that she had attacked on the hand by knife but no knife was recovered from the spot. She has also stated that accused brought tape by which he tied her mouth but no tape was seized. The knife by which accused allegedly attacked on the complainant was not seized from the spot. The prosecution has failed to prove where all these articles have gone. Further PW-1 has claimed that she made call to her husband

and got accused to talk with her husband but call details of her mobile phone or her husband were not placed on record to prove that she had made call to him telling him about the arrival of accused. Neither her husband has been made a witness to corroborate the said part of testimony of PW-1. Further PW-1 has claimed that she had bite on the hand of the accused but no MLC of accused is produced to prove bite mark on his person. Further, PW-1 had stated that she was hit by knife with the intention to kill her and she stopped the assault by her left hand. On perusal of her MLC, I found that there is only lacerated wound over left thumb whereas if she received any injury by knife then it would have been cut injury and that too not only on thumb but on the part of hand because thumb will never came on the way while stopped the assault of knife. Further no independent witness from public who had apprehended the accused has been joined in the investigation. Hence prosecution has failed to corroborate the testimony of PW-

1."

With utter disgust and dismay we express our utmost displeasure

with regard to the manner of investigation, as was carried out by the

investigating officer in this case. Pursuant to direction given by this court,

Investigating Officer/Inspector Yashpal, PS South Rohini, is present in

court. When questioned as to why the accused was not medically

examined, Inspector Yashpal stated that the accused was medically

examined and the MLC of the accused was available on the police file.

This is utmost shocking that if the accused was medically examined and

his MLC report was obtained from the hospital then for what reasons the

same was not placed by the Investigating Officer alongwith the charge

sheet.

With the kind of investigation as has been carried out in this case,

we have no hesitation in saying that this Police Officer has no basic

knowledge or competence for conducting investigation in any crime and

due to this reason alone, he made no efforts to seize the box of sweets,

which was brought by the accused while taking entry into the house of

the victim. The police also made no attempt to recover the knife with

which the accused had attacked the victim. No efforts were made to

produce on record the evidence with regard to the telephonic call made by

the victim to her husband. The police even failed to join independent

public witness although as per the case of the prosecution, a lot of people

gathered at the time of apprehending the accused. Husband of the victim

was also not made a prosecution witness to prove his telephonic

conversation with his wife and the accused. The MLC of the accused was

also not placed on record. This is not a solitary case where we find the

failure of the Investigating Agency to commit such serious lapses. This is

primarily due to the incompetency of many such police officers who are

entrusted with such a sensitive job of carrying out investigation into any

crime and secondly because of lack of willingness on the part of the

government to separate the investigation from the law and order, despite

being directed by the Hon'ble Supreme Court many a times, right from

the authoritative pronouncement in Prakash Singh vs. Union of India

reported in (2006) 8 SCC 1 and various recommendations made by Law

Commission of India in this regard. In many cases, the court also feels

helpless where such serious lapses are committed by the investigating

agencies in not carrying out its most solemn duty of conducting fair,

honest, flawless and scientific investigation into any crime and the

ultimate result of this is the acquittal of criminals, which increases the

rate of acquittals and results in multiplication of crimes in the society. All

such erring police officers who are responsible and who become cause for

failure in any prosecution case on account of their sheer negligence or

culpable lapses or incompetence must suffer departmental action as has

been recently held by the Hon'ble Apex Court in the case of State of

Gujarat vs. Kishanbhai reported in 2014 (1) SCALE 177.

While directing notice of the present leave petition, we direct the

concerned Joint Commissioner of Police to initiate departmental

proceedings against the Investigating Officer of this case and other erring

police officials and submit a compliance report by way of affidavit,

before the next date of hearing.

Issue notice of this petition/application to the respondent by all

legally permissible modes of service, returnable on 12th March, 2014.

A copy of this order be given Dasti to learned APP for the State.

KAILASH GAMBHIR, J

SUNITA GUPTA, J FEBRUARY 07, 2014 pkb