Rakesh Sehgal & Anr vs State & Anr
2015 Latest Caselaw 6165 Del

$
*      IN THE HIGH COURT OF DELHI AT NEW DELHI


                                    RESERVED ON : AUGUST 04, 2015
                                    DECIDED ON : AUGUST 24, 2015


+      CRL.REV.P. 444/2014 & Crl.M.A.11742/2014.


       RAKESH SEHGAL & ANR
                                                              ..... Petitioners
                              Through :    Mr.C.P.Vig, Advocate.


                              versus

       STATE & ANR
                                                            ..... Respondents
                              Through :    Mr.Amit Ahlawat, APP for the
                                           State/R-1.
                                           Ms.Aruna Mehta, Adv., for R-2


        CORAM:
        HON'BLE MR. JUSTICE S.P.GARG


S.P.GARG, J.

1. Present revision petition has been preferred by the petitioners

to challenge the legality and propriety of an order dated 06.05.2014 of

learned Additional Sessions Judge in Crl.A.No.117/13 arising out of FIR

No.50/91 registered at Police Station Sarai Rohilla by which they were

convicted for committing offence under Section 323/506 (2) and 451 read

with Section 34 IPC after setting aside acquittal order dated 01.06.2010 of

learned Metropolitan Magistrate. They were ordered to be released on

probation probation for a period of two years besides payment of

`50,000/- as compensation to the complainant. The revision petition is

contested by respondent No.2/complainant.

2. Briefly stated, prosecution case was that on 27.02.91 at 7.45

a.m. at A-653, Shastri Nagar, the petitioners along with their mother

(since expired) and an 'unknown' individual physically assaulted Sanjiv

Mehta and Krishna Mehta after committing house-trespass. They also

criminally intimidated and threatened to kill them. DD No.9A dated

27.02.1991 about the occurrence came into existence. The Investigating

Officer lodged First Information Report on 28.02.1991 at Police Station

Sarai Rohilla after making endorsement (Ex.PW10/D) over it. The

complainant was medically examined. Statements of witnesses conversant

with the facts were recorded. The accused persons were arrested. Upon

completion of the entire investigation, a charge-sheet was filed in the

Court against the petitioners and their mother Sawarna under Sections

452/506/323/34 IPC. By an order dated 17.11.1993, the accused persons

were charged for committing offences under Sections 451/506/323 IPC to

which they pleaded not guilty and claimed trial. In order to establish its

case, the prosecution examined ten witnesses in all. The accused persons

denied the allegations and pleaded false implication in 313 statements.

During pendency of the trial, Sawarna expired and proceedings against

her were dropped as abated. After considering the rival contentions of the

parties and appreciating the evidence on record, the learned Metropolitan

Magistrate by an order dated 01.06.2010 acquitted the petitioners of the

charges. Aggrieved by it, the complainant challenged it in appeal under

Section 372 Cr.P.C. By the impugned order, the learned Additional

Sessions Judge reversed the findings of the Trial Court and convicted the

petitioners for the offences mentioned previously. Being aggrieved and

dissatisfied, the instant revision petition has been filed.

3. Learned counsel for the petitioner urged that the appellate

court did not appreciate the evidence in its true and proper perspective and

overlooked major infirmities and discrepancies in the statements of the

prosecution witnesses. The complainant had prior animosity as his sister

Meenakshi Gupta had attempted to evict them from the rented premises

i.e. Flat No.9, Apna Ghar Cooperative Group Housing Society Pitam

Pura. Meenakshi Gupta was not examined during trial. Prosecution was

unable to seize victim's blood stained clothes; to recover weapon of crime

and produce original of DD No.9A. Reliance has been placed by the

petitioners on K.Chinnaswami vs. State of Andhra Pradesh AIR 1962 SC

1788; Mohit vs. State of UP 2013 (3) JCC 2250; Dinesh Kumar vs. State

& Anr. 2013 (3) JCC 2218; Amit Kapoor vs.Ramesh Chander 2012 (4)

JCC 2885; Kumar etc.vs.Karnataka Indust. 2013 (1) JCC 731;

Mohd.Hammad vs. The State 2012 (10 JCC 424; Govinda Raju vs. State

2012 (3) JCC 1714; Amit Singh Bedi vs.State 2012 (2) JCC 901;

Narender Pal Kaur vs.Manjit Singh 2012 (2) JCC 1166; State vs.Sushil

Kumar 2014 (2) JCC 1076; State vs.Ravi 2014 (3) JCC 1649; State

vs.Arun 2013 (4) JCC 2492; Pudhu Raja vs.State 2012 (4) JCC 2751;

Murugesan vs.State 2013 (1) JCC 188; Suryakant vs.Dalip 2014 (4) JCC

2356; and Directorate of Revenue vs.Mohd.Anwar 2013 (3) JCC 120.

4. Learned counsel for the complainant urged that the

statements were recorded after a considerable period and minor

discrepancies emerging therein are of no consequence. FIR was lodged

promptly on the day of incident. There is no inconsistency between

ocular and medical evidence. Independent witness PW-2 (Bishamber) has

corroborated the complainant's version in its entirety.

5. Reliance has been placed on M/s Tata Steel Ltd. vs.M/sAtma

Tube Products Ltd. & Ors. in CRM-790-MA-2010 (O&M) dated

18.03.2013; Keser Singh vs.Dheeraj Kumar in CRM-A-547-MA-2011

(O&M) dated 18.03.2013; Shyamal Ghosh vs.State of West Bengal 2012

(6) SCALE; Parmeshwar Mandal vs.State of Bihar vide Cr.Appeal

No.1078/2012 dated 26.11.2013; Jeewan and Ors.vs.State of Uttrakhand

JT 2012 (12) 473 SC; Mritunjoy Biswas vs.Pranab @ Kuti Biswas &

Anr.2013 AIR SC 3334; Japani Sahoo vs.Chander Shekhar Mohanty

(2007) 7 SCC 374; Manjeet Singh @ Kukku vs.State (N.C.T.) of Delhi

2000 AIR(SC) 1062; Pramod Kumar vs.State (GNCT) of Delhi AIR 2013

SC 3344; Jeewan & Ors. vs.State of Uttarakhand JT 2012 (12) SC 473.

6. The occurrence took place on 27.02.1991 at around 7.45 a.m.

DD No.9A (Mark PW3/1) is on record. However, during investigation,

original of DD 9A as recorded by the Investigating Officer either on oral

statement of the complainant or on his written complaint could not be

produced. Neither the I.O nor the complainant furnished reasonable and

believable explanation about its whereabouts. In the absence of original

DD No.9A on record, its genuineness and authenticity is under cloud. It is

unclear at what exact time the incident was reported to the police by the

complainant. DD No.9A mark (PW-3/1) reveals that at the time of

incident, the petitioners were accompanied by an 'unknown' individual.

However, no specific role was assigned to the said 'individual' and his

identity could not be ascertained. The Investigating Officer did not give

any plausible explanation as to why FIR was not lodged on 27.02.1991

itself soon after recording DD No.9A. Contents of DD No.9A reflect that

the complainant had gone directly to Police Station Sarai Rohilla from the

spot to lodge First Information Report and had expressed willingness to

get himself medically examined.

7. In Court statement, the complainant (PW-3) introduced new

facts and stated that he was hit by a fist blow by Rakesh Sehgal. He had a

'kara' in his hand as a result of which blood started oozing from his left

eye and nose. After the assailants fled the spot, a TSR was arranged by

Mr.Bishamber Lal and he was taken to Hindu Rao Hospital for medical

examination by his mother. There, the doctor on duty after hearing the

incident declined to provide him medical treatment and insisted to first

lodge complaint in the Police Station. Since there was no duty constable

at Hindu Rao Hospital that time, he went to ACP office and met ACP

Dahiya who advised him to go to Police Station Sarai Rohilla to lodge

complainant assuring to make a telephone call there. Thereafter, he went

to Police Station, Sarai Rohilla; lodged the complaint and was medically

examined at Hindu Rao Hospital at around 12.40 p.m.

The complainant did not reveal doctor's name who had

declined to provide medical treatment at first instance and had insisted

him to first lodge the complaint. The complainant had no occasion or

justification to contact and approach ACP Dahiya to intervene when

police officials at Police Station Sarai Rohilla had not declined to lodge

report for the incident happened in their jurisdiction. Instead of getting

first aid at a nearby hospital/clinic, the complainant went all the way to

Hindu Rao Hospital covering a distance of 5/6 kilometer. He did not get

any medical treatment till he was finally examined at Hindu Rao Hospital

at around 12.30 p.m. The complainant was conspicuously silent as to why

no information about the occurrence was conveyed at the earliest to PCR

at 100 and why at first instance, he avoided to lodge complaint at Police

Station Sarai Rohilla. It appears that the complainant was interested only

to get himself medically examined to strengthen his version. As per MLC

(Ex.PW-5/A) proved by a record clerk from Hindu Rao Hospital, the

complainant had suffered only swelling over left lower lid and multiple

abrasions/swelling on nose. Nature of injuries was opined 'simple' by

blunt object. There was, thus, no urgency/emergency for the complainant

to rush to Hindu Rao hospital for treatment of injuries at first instance.

No weapon of offence including 'kara' was recovered during

investigation. In DD No.9A the complainant omitted to record if Rakesh

had a 'kara' in his hand as a result of which he sustained injuries on eye

and nose. None of the accused persons was armed with any 'deadly'

weapon at the time of occurrence. It is not the complainant's case that

injuries were inflicted with 'kara' deliberately.

8. Conflicting versions have emerged about number of

assailants who had arrived the spot. PW-1 (Smt.Krishna Mehta) and PW-

3 (Sanjiv Mehta) have described that the assailants were 'four' in number.

PW-2 (Bishamber Lal) who had allegedly arrived at the spot at the time of

incident, however, did not corroborate their version on this aspect and

merely spoke about the presence of a 'lady' and a gent i.e.Rakesh who

had assaulted Sanjiv Mehta. PW-2 (Bishember Lal) did not disclose about

the presence of the petitioner Navdeep Sehgal and the 'unknown' boy; no

role was assigned to them. PW-4 (Krishan Kr.Sachan) who had allegedly

reached the spot on hearing the noise spoke about the presence of a lady

and three individuals running from the spot. However, he was unable to

identify the assailants as he had seen them from behind. Apparently, PW-

4 (Krishan Kr.Sachan) was not a witness to the incident. He was declared

hostile and was cross-examined by the learned Additional Public

Prosecutor. He was specific and definite to say in the cross-examination

also that he had not seen the quarrel and had heard it only from the public.

9. Relations between the parties were hostile before the

incident. Flat No.9, Apna Ghar Cooperative Group Housing Society,

Pitam Pura was let out for two years w.e.f. 1.08.1987 through

complainant's mother. In the cross-examination, the complainant

admitted that after two years when the flat was not vacated as stipulated,

his sister Meenakshi Gupta pressurized his mother to mediate. After

getting power of attorney from his sister, his mother visited the accused at

Flat No.9, Apna Ghar Cooperative Group Housing Society, Pitam Pura in

the first week of April, 1990 but they refused to vacate it. The dispute

arose for the first time in April, 1990. It has further come on record that

earlier also the tenant had persisted complainant's sister and her husband

to sell the flat which offer was declined by them. Complainant admitted

in the cross-examination that there was enmity between them and the

accused persons before 27.02.1991 as the accused persons were trying to

grab the flat of his sister let out through his mother who acted as a

mediator. Admittedly, no complaint, whatsoever, was lodged against the

petitioners that time. The complainant volunteered to add that certain

'common friends' were involved to settle the dispute. However, no such

common 'friend' was examined. Since the complainant, Meenakshi and

her family had earlier declined to sell the tenanted premises to the

petitioners, apparently there was no cause for the petitioner suddenly to

visit the complainant in the early morning hours with the sole purpose to

pressurize them to sell it. Since relations between the parties were

strained, it is unbelievable that the petitioners would take their mother

along to the complainant's residence to assault them after committing

house-trespass. As observed above, none of them was armed with any

lethal weapon. The investigation conducted is not upto the mark. No

photographs of the scene of incident were taken; no blood stained material

was lifted from the spot; blood stained clothes of the victim were not

seized; and, no weapon could be recovered.

10. Material discrepancies/infirmities have emerged in the

statements of PW-1 (Smt.Krishna Mehta) and PW-3 (Sanjiv Mehta).

Initially, there was hot exchange of words with PW-1 for sufficient

duration. Strange enough, the complainant present in the house reading

newspaper did not reach the spot to intervene. Only when the accused

persons allegedly abused his mother and came in the drawing room, the

complainant happened to arrive there. It is not expected that the

petitioners would hurl filthy abuses in the presence of their mother. No

independent public witness from neighbourhood was associated and

examined. PW-2 (Bishamber) had good relations with the complainant.

His presence at the spot is suspect as he did not take the victim to the

hospital; he did not report the incident to the police; his statement was

recorded subsequently. PW-4 (Krishan Kr.Sachan) did not speak about

PW-2's presence at the spot. He did not implicate the petitioners for

committing house trespass and assaulting the complainant. Puran Chand

expired before he could be examined in the court.

11. Considering the inherent defects in the prosecution case and

material infirmities appearing in the statements of prosecution witnesses,

the Appellate Court was not justified to reverse the findings of acquittal

recorded by the learned Trial Court. This jurisdiction is to be exercised

only in exception cases when there is glaring defect in the procedure or

there is a manifest error on a point to law and consequently there is a

flagrant miscarriage of justice.

12. In the light of the above discussion, the impugned order dated

06.05.2014 of learned Additional Sessions Judge in Crl.A.No.117/13

arising out of FIR No.50/91 registered at Police Station Sarai Rohilla on

conviction and sentence cannot be sustained and is set aside giving benefit

of doubt to the petitioners. The petitioners are acquitted of the offence

charged.

13. The revision petition filed by the petitioners is allowed. Trial

Court record (if any) along with a copy of this order be sent back

forthwith.

(S.P.GARG) JUDGE AUGUST 24, 2015 sa