Delhi High Court
State vs Lakhan @ Raju @F Gajinder on 10 February, 2014
Author: Kailash Gambhir
$~4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.L.P. 361/2012
STATE ..... Petitioner
Through: Ms. Richa Kapoor, Additional
Public Prosecutor for the State
versus
LAKHAN @ RAJU @F GAJINDER ..... Respondent
Through: Mr.G.S. Sharma, Advocate for
Respondent with Respondent in
person.
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
HON'BLE MR. JUSTICE G.P. MITTAL
ORDER
% 10.02.2014
KAILASH GAMBHIR, J. (ORAL)
Crl. M.A. No. 12904/2012 (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 91 days in filing the accompanying criminal leave to appeal. For
the reason stated in the application, the same is allowed and the delay of
91 days in filing the accompanying petition seeking leave to appeal
against the impugned judgment is condoned.
Application stands disposed of.
Crl.L.P.No. 361/2012
1. By this petition filed under Section 378 Cr.P.C., the petitioner is
seeking leave to appeal against the order dated 2nd December 2011 passed
by learned Additional Sessions Judge, Fast Track Court, Rohini, Delhi,
thereby acquitting the respondent from the charges framed against him
under Sections 396/412 & 302/34 IPC.
2. As per the prosecution case, on the intervening night of
15/16.09.1996, Kumari Diksha was sleeping in her house with her parents
and younger brother in the same bed room. At about 3.00 a.m. she heard
noise of her mother and woke up and saw someone beating her father.
One of the assailants was beating her father with a wooden balli and the
other assailants were putting the stolen property in a bag. It was due to
the beating by the assailants that her parents were killed. It was stated by
Kumari Diksha that she saw one of the assailants standing at the door of
the bedroom of their house.
3. To prove its case, the prosecution examined 22 witnesses and on
completion of prosecution evidence, the statement of accused under
Section 313 of Cr.P.C. was recorded wherein the accused/respondent
pleaded his innocence and false implication. In defence, accused-
Respondent had examined Manohar (DW-1).
4. Addressing arguments on behalf of the appellant - State, Ms. Richa
Kapoor, Additional Public Prosecutor for the State submits that the
learned trial court committed grave illegality in acquitting the respondent
for the offences committed by him under Sections 396/412 & 302/34 of
IPC, despite the fact that the prosecution has successfully established its
case against the respondent based on clear and cogent evidence. Learned
APP for the State further argued that there was no reason for the learned
trial court to disbelieve the testimony of PW-3, who was an eye witness
to the crime and who had clearly identified the accused as one of the
robbers, standing at the door of the room, when the other four assailants
were involved in committing the robbery and murder of her parents.
Learned APP for the State further submitted that other four accused
persons have already been convicted by the learned trial court and they
were identified by PW-3, but the identification made by PW-3, so far as
the present respondent was concerned, was disbelieved by the learned
trial court. Learned APP for the State also argued that the learned trial
judge has failed to appreciate that PW-3 had no animus or motive to
falsely implicate the present respondent who was totally stranger to her
before the said incident.
5. Based on the aforesaid submissions, learned APP for the State
strongly urged for granting leave to appeal to the State to challenge the
impugned judgment of the learned trial court.
6. Per contra, learned counsel appearing for the respondent strongly
refuted the submissions made by learned APP for the State and submitted
that no judicial test identification parade was conducted for identifying
this accused although judicial test identification parade was conducted so
far as other four assailants were concerned. Learned counsel for the
respondent argued that as per the own case of PW-3, in all, there were
four assailants and this theory of appellant being 5 th assailant was
introduced by PW-3 later, while deposing in the court. Learned counsel
for the respondent also submitted that there is no incriminating evidence
produced or proved on record by the prosecution to nail the present
accused, connecting him with the commission of the said crime. Counsel
for respondent, thus, pleaded that the judgment passed by the learned trial
court be upheld by this court.
7. We have heard learned counsel for the parties at considerable
length and given our thoughtful consideration to the arguments advanced
by them. We have also perused the records of the learned Trial Court.
8. It is a settled legal position that in an appeal against an order of
acquittal, the Appellate Court should not normally interfere with the
findings of fact arrived at by the learned Trial Court unless the reasoning
given by the learned Trial Court is perverse or illegal on the very face of
it. The Appellate Court should also bear in mind that with the acquittal of
the accused person by the learned Trial Court, the presumption of
innocence of the accused persons has been given the legitimacy. It is also
a settled legal position that where there is possibility of arriving at two
different conclusions on the basis of the evidence on record, the Appellate
Court should not disturb the finding of acquittal arrived at by the Lower
Court merely because the other possible view is a preferred view. It is
useful here to refer to the judgment of the Hon'ble Apex Court in the
matter of Rangaiah vs. State of Karnataka reported in AIR 2009 SC
1411. Relevant paras of the same are reproduced as under:-
" From the above decisions, in our considered view, the following
general principles regarding powers of appellate Court while dealing with
an appeal against an order of acquittal emerge:
(1) An appellate Court has full power to review, reappreciate and
reconsider the evidence upon which the order of acquittal is founded;
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction
or condition on exercise of such power and an appellate Court on the
evidence before it may reach its own conclusion, both on questions of
fact and of law;
(3) Various expressions, such as, 'substantial and compelling reasons',
'good and sufficient grounds', 'very strong circumstances', 'distorted
conclusions', 'glaring mistakes', etc. are not intended to curtail extensive
powers of an appellate Court in an appeal against acquittal. Such
phraseologies are more in the nature of 'flourishes of language' to
emphasize the reluctance of an appellate Court to interfere with
acquittal than to curtail the power of the Court to review the evidence
and to come to its own conclusion.
(4) An appellate Court, however, must bear in mind that in case of
acquittal, there is double presumption in favour of the accused. Firstly,
the presumption of innocence available to him under the fundamental
principle of criminal jurisprudence that every person shall be presumed
to be innocent unless he is proved guilty by a competent court of
law. Secondly, the accused having secured his acquittal, the
presumption of his innocence is further reinforced, reaffirmed and
strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the
evidence on record, the appellate court should not disturb the finding of
acquittal recorded by the trial court."
9. In the present case, PW-3 - Kumari Diksha is the star witness of
the prosecution as she has witnessed as to what had happened on the
intervening night of 15th/16th September 1996 while she was present in
her house along with her parents as well as her brother in the same bed
room.
10. As per the prosecution, the murder of the parents of the
Complainant-Diksha and robbery from their house had taken place on the
intervening night of 15th/16th September 1996. As per the first statement
of Complainant - Diksha, based on which rukka was sent for registration
of FIR, the complainant mentioned about the presence of four assailants
and not five. The four assailants have already been convicted by the
learned trial court and we have been informed that their appeals are
already pending consideration before the High Court. Surprisingly, there
was no reference of any assailant being present outside the room when
the actual incident with regard to the robbery and murder had taken place.
It is also an admitted fact that no judicial test identification parade was
conducted for identifying the present accused by the said eye witness -
Diksha and she wrongly stated in her cross-examination that she had
identified the accused - Lakhan @ Raju @ Gajinder in the test
identification parade conducted in Tihar Jail.
11. Learned trial court has rightly placed reliance on the judgment of
the Apex Court in Raju @ Rajendra vs. State of Maharashtra, reported
in 1997 (3) CC Cases 103(SC), wherein the Apex Court took a view that
in the absence of any test identification parade proceedings held for
identification of accused immediately after his arrest, it is difficult to
solely rely upon the identification by witness for the first time in court
and that too after a lapse of almost one and half year of the incident and
in such circumstances, benefit of doubt can be given to the accused.
12. In the facts of the present case also, no test identification parade
proceedings to identify the accused-respondent has taken place after his
arrest on 30.04.2001, and the accused was first identified by PW-3,
during the trial on 28.03.2007 i.e. after a long gap of almost six years and
therefore the ratio laid down in the case of Raju @ Rajendra (supra) is
fully attracted to the facts of the present case.
13. We have also been informed that that this complainant in the
previous trial against four assailants, never introduced the name of fifth
person as the assailant, standing near the gate of the room, when the
crime was committed.
14. In the aforesaid background of the legal position and on
appreciation of the material on record, we do not find any illegality,
perversity or infirmity in the impugned judgment passed by the learned
trial court acquitting the respondent herein. Consequently, we find no
merit in the contentions raised by learned APP for the State and no case is
made out for grant of leave to appeal against the impugned judgment.
15. Accordingly, the present petition seeking criminal leave to appeal
is dismissed.
KAILASH GAMBHIR, J
G.P. MITTAL, J
FEBRUARY 10, 2014
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