Delhi High Court
State vs [email protected] Ravinder & Anr on 2 January, 2014
Author: Kailash Gambhir
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.L.P. 191/2012 & Crl. M.A. No. 4383/2012 (delay)
STATE ..... Petitioner
Through: Ms. Richa Kapoor, Additional
Public Prosecutor for the State
with Sub-Inspector Sandeep,
Police Station Vasant Kunj
(North), Delhi
versus
[email protected] RAVINDER & ANR
..... Respondents
Through: Mr. Deepak Vohra, Advocate for
respondent No. 1 & 2.
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
HON'BLE MS. JUSTICE SUNITA GUPTA
ORDER
% 02.01.2014
KAILASH GAMBHIR, J.
1. By this petition filed under Section 378(1) of the Code Criminal
Procedure Code, 1973 (hereinafter referred to as 'Cr.P.C.'), the petitioner
seeks grant of criminal leave to appeal to challenge the judgment dated
26.08.2011, passed by the learned Additional Session Judge-02 (South),
Saket Courts, New Delhi, thereby acquitting the accused persons of the
charge framed against them under Section 307 of Indian Penal Code,
1860.
2. The facts and circumstances which gave rise to the registration of
the case against the accused person, as per prosecution, are that:
"One PW-1, Jogender runs a mobile shop in the part
of his house. On 02/12/2007, at about 11 p.m., while
he was working in his shop, he heard the noise of a
quarrel from outside on which he came out and saw 2-
3 boys were quarrelling with Sumit s/o Inderjeet.
Sumit had suffered injuries. PW-1 asked those boys
reason for quarrel. In the meanwhile PW-1 saw that
one of the boy had caught hold of Sumit and another
two boys, one of whom was Rathi Juicewala residing
nearby and from other boy a revolver like weapon fell
down while that person fell down during the quarrel
and then Rathi Juicewala asked that person to fire on
Sumit as he was disturbing him. That person who had
fallen down picked the revolver and fired upon Sumit.
Sumit sat down holding his stomach and PW-1ran
from the spot. All the three persons also fired upon
PW-1."
3. Addressing arguments in support of the present criminal leave to
appeal, Ms. Richa Kapoor, Additional Public Prosecutor for the State
submits that the learned Trial Court fell in grave error by not appreciating
the testimonies of the eye witness (PW-1) and the injured witness (PW-
3), who in their respective depositions named these accused persons in
committing the said crime. Learned APP further submitted that it is a
settled legal position that because of any lapse on the part of the
investigation agency, the accused persons shall not be given any benefit
of doubt.
4. We have heard learned counsel for the petitioner and given our
thoughtful consideration to the arguments advanced by her. We have also
gone through the impugned judgment and other material placed on
record.
5. The learned trial court has rightly not given due credence to the
testimonies of Joginder (PW-1) and Sumit (PW-3) as they failed to
disclose the names of these accused persons in their very first statement
given before the police. The learned trial court has also rightly found the
presence of PW-1 at the spot doubtful, as the alleged incident had taken
place in the month of December at 11 PM and at that time there was a
remote possibility of Joginder working in his shop. The doubt on the
testimony of PW-1 also strengthens from the fact that after escaping from
the spot after the alleged incident he could meet the Investigating Officer
at about 2 AM in the night.
6. We are also unable to comprehend that Sumit (PW-3), the victim of
the crime, could not name the accused persons in his first statement
recorded under Section 161 of Cr.P.C. whereas he could name them in his
supplementary statement. The non-examination of Inderjeet - father of the
victim who accompanied him to the hospital also proved fatal to the case
of the prosecution. The prosecution has also failed to place on record any
material to justify as to how and on what basis they could link the present
co-accused persons with the commission of the crime in question as
Joginder (PW-1) in his first statement, named some Rathi Juice Wala as
one of the accused persons but no such person was named as an accused
by the prosecution. We are also amazed to find that Joginder (PW-1)
conducted his own inquiry to find out the names of the accused persons in
the commission of the said crime and based on his inquiry, the
prosecution apprehended the said accused persons. Learned trial court has
also commented upon the faulty and shoddy investigation carried out by
the Investigating Officer due to which many holes were left unfilled.
While agreeing with the observations of the learned trial court we further
find that neither the victim - Sumit himself lend any credence to the case
of the prosecution nor PW-1 who claimed himself to be the eye witness to
the said incident could succeed in doing so. The findings reached by the
learned trial court giving benefit of doubt to the accused persons is
neither found to be perverse nor illegal and the same appears to us to be
based on sound reasoning, after objective analysis of the material placed
on record by the prosecution.
7. 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. 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."
8. In the aforesaid background of the legal position and on
appreciation of the material on record, we are not persuaded to take any
contrary view as has been arrived at by the learned Trial Court in
acquitting the accused.
9. In view of the above factual matrix and legal position, we find no
merit in the present leave to appeal petition and the same is hereby
dismissed.
KAILASH GAMBHIR, J
SUNITA GUPTA, J
JANUARY 02, 2014
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