State (Govt. Of Nct Of Delhi) vs Mukesh & Ors.
2016 Latest Caselaw 1377 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI
+       CRL.L.P. 594/2015
%                                        Judgment dated 22nd February, 2016

        STATE (GOVT. OF NCT OF DELHI)                        ..... Petitioner

                           Through       Ms. Aashaa Tiwari, APP for the State
                                         with SI Uma Dutt, P.S. Mangol Puri.
                           versus
        MUKESH & ORS.                                      ..... Respondents

                           Through       Mr. Gaurav Sharma with Mr. D.P.
                                         Sharma, Advocates for respondent No.1.
                                         Mr. Avadh Kaushik, Advocate for
                                         respondents no.2 and 3.
CORAM:
    HON'BLE MR. JUSTICE G.S.SISTANI
    HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL

G.S.SISTANI, J (ORAL)
CRL.M.A. 11200/2015(delay)

1. This is an application filed by the petitioner seeking condonation of 53 days' delay in filing the present leave to appeal petition.

2. Present application is vehemently opposed by counsel for respondent No.1, who submits that this application has been made without any application of mind, it is vague, lacks material particulars and stereo type. Counsel further submits that valuable rights have accrued in favour of respondent No.1 and thus, the court should take a serious view in the matter and dismiss the application. In support of this submission learned counsel for respondent No.1 relies upon Office of the Chief Postmaster General & Ors. v. Living Media India Limited and Anr., reported at (2012) 3 SCC 563, wherein the Supreme Court of India has held that the law of limitation binds everybody including the Government and delay should not be condoned as a matter of

routine exercise. Counsel further submits that each day's delay has not been explained by the State in filing the present leave to appeal petition.

3. Per contra, counsel for the State submits that the delay was not on account of inaction or carelessness but on account of the fact that the file pertaining to the present case was sent to various authorities and only after the matter was declared fit for an appeal, the present case was marked to the Additional Public Prosecutor who also took time to prepare the same, which resulted in delay of approximately 53 days in filing the present petition.

4. We have heard the learned counsel for the parties and considered their submissions.

5. While there is no quarrel with the proposition sought to be urged by learned counsel for the respondent that the law of limitation would bind everyone including the Government, we may notice that the case of Chief Postmaster General & Ors.(supra) sought to be relied upon by the learned counsel for the respondent is not applicable to the facts of the present case as in the aforesaid matter, the delay of over 427 days was explanined. We may also notice that the issue with regard to delay in filing appeals and leave to appeals was considered by a Division Bench of this Court. Affidavits were filed by senior officers to show steps that were being taken to avoid delay. We are informed that the procedures stand streamlined. Even otherwise, the Supreme Court has repeatedly held that in deciding the matters on delay, the Court must adopt a liberal approach.

6. In the case of Collector, Land Acquisition, Anantnag and Another v. Mst.

Katiji and Others, (1987) 2 SCC 107, the following principles were culled out:

"1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.

2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.

3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.

4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.

5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.

6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so."

7. In the case of Chief Postmaster General & Ors.(supra), reference was also made to the case of G.Ramegowda, Major and Others. v. Special Land Acquisition Officer, Bangalore, (1988) 2 SCC 142, wherein it was held as under:

"15. In litigations to which Government is a party there is yet another aspect which, perhaps, cannot be ignored. If appeals brought by Government are lost for such defaults, no person is individually affected; but what, in the ultimate analysis, suffers is public interest. The decisions of Government are collective and institutional decisions and do not share the characteristics of decisions of private individuals.

17. Therefore, in assessing what, in a particular case, constitutes "sufficient cause" for purposes of Section 5, it might, perhaps, be somewhat unrealistic to exclude from the considerations that go into the judicial verdict, these factors which are peculiar to and

characteristic of the functioning of the government. Governmental decisions are proverbially slow encumbered, as they are, by a considerable degree of procedural red tape in the process of their making."

8. It would be useful to also refer to State of Haryana v. Chandra Mani and Others, (1996) 3 SCC 132, wherein it was observed as under:

"...while condoning the delay of 109 days in filing the LPA before the High Court, this Court has observed that certain amount of latitude within reasonable limits is permissible having regard to impersonal bureaucratic setup involving red-tapism. In the same decision, this Court directed the State to constitute legal cells to examine whether any legal principles are involved for decision by the courts or whether cases required adjustment at governmental level."

9. Applying the law laid down to the present case, we are of the view that to meet the ends of justice, the delay of 53 days in filing the leave to appeal should be condoned. Accordingly delay in filing the leave to appeal petition is condoned. Let criminal leave to appeal petition be taken on record.

10. The application stands disposed of.

CRL.L.P. 594/2015

11. The present Criminal Leave Petition has been filed under Section 378(1)(b) of the Code of Criminal Procedure by the State seeking leave to appeal against the impugned judgment dated 07.03.2015 passed by learned Additional Sessions Judge, North District Courts, Rohini, New Delhi in Sessions Case No. 97/2011 whereby all the three accused persons, respondents herein were acquitted of the charges framed against them.

12. The case as set up by the prosecution before the Learned Trial Court is that on 17.10.2010 at about 11:06 PM, on receipt of DD No. 66B, in respect of an intense quarrel between Hindu-Muslims, IO/Inspector Gajendra Kumar, the then SHO Mangolpuri and ASI Narendra with other staff reached at the

spot where they were informed that the two injured boys were taken to Sanjay Gandhi Hospital. The IO went to the Hospital where he collected MLC of Rohit who was declared brought dead and on the MLC of injured Bobby it was endorsed that he had been taken to a private hospital. In the hospital itself, Inspector Gajender recorded the statement of eye witness Rajni (mother of deceased) and on her statement the FIR in question was registered.

13. After the investigation, the charge for the offence under section 302/307/120B read with section 34 of the Indian Penal Code was framed against the respondent Mukesh Kumar, Muzzamil Hussain and Mohd. Arif. Additionally, the charge for the offence under section 25/27 of the Arms Act was framed against the respondent Mohd. Arif. Respondents pleaded not guilty and claimed trial to the charges framed against them.

14. The prosecution examined as many as 28 witnesses to bring home the guilt of the respondents. The statements of the accused persons were recorded under section 313 of the Code of Criminal Procedure wherein they denied the accusations leveled against them. One witness was examined in defence. The Learned Trial Court eventually came to the conclusion that the prosecution has not been able to prove its case beyond all reasonable doubts and accordingly acquitted the accused persons.

15. Aggrieved by the acquittal of the respondents, the present leave petition has been preferred by the State.

16. Ms. Aashaa Tiwari, learned Additional Public Prosecutor contended that the Trial Court had committed grave error in holding the respondents not guilty of the offence under section 302/307/120B read with section 34 of the Indian Penal Code and of the offence under section 25/27 of the Arms Act. She further contended that the impugned judgment is erroneous and unsustainable, which would result in miscarriage of justice and the same is

liable to be set aside.

17. Counsel for the State further submitted that the findings recorded by the learned Trial Court are not based on proper appreciation of the evidence on record and, in fact, they are perverse and totally untenable.

18. Ms. Tiwari contended that PW-13 i.e. injured eye witness has manipulated the facts disclosed in FIR due to delay in FIR whereas PW13 has categorically explained that this delay was due to his taking treatment in various hospitals, owing to his grievous injuries on the eye caused by knife.

19. She further contended that the learned Trial Court has failed to appreciate the testimony of other eye witness PW-8 whereby she clearly states the roles attributed by each of the respondents and co-accused in inflicting injuries on the deceased and the injuries explained by PW-8 clearly corroborates with the MLC Ex. PW11/A of deceased.

20. Mr. Gaurav Sharma, learned Counsel for the respondent No.1 with all force countered the arguments addressed by learned counsel for the State. He has specifically contended that the the Trial Court has appreciated the material on record by taking care and caution by equal importance to the evidence of the prosecution witnesses and also the defence witness. The Trial Court has also appreciated the evidence considering the improvements and contradictions which are serious in nature elicited during the course of cross examination of the witnesses proved through the evidence of other witnesses.

21. Mr. Sharma has supported the impugned judgment and submitted that the Trial Court has rightly canvassed the acquittal of the accused persons by concluding that the prosecution failed to prove its case beyond reasonable doubt. Mr. Sharma further submits that while dealing with the judgments of acquittal, the Appellate court must be very careful in reversing the judgment unless the judgment of the Trial Court is so erroneous, illegal and

it shocks the conscious of the court. Therefore, he contended that there is no room for this Court to interfere with the well-reasoned judgment of the Trial Court. Hence, he has pleaded for the confirmation of the said judgment of acquittal passed by the learned Trial Court.

22. We have heard the learned counsel for the parties and perused the material on record and we are of the view that as far as the leave to appeal qua respondents no.2 and 3 is concerned, the State has been able to prima facie show that case for grant of leave is made out.

23. As far as respondent No.1 is concerned, we are of the view that no case is made out for the reason that in the FIR, respondent No.1 Mukesh has not been named and in the testimony of PW-2, there is marked improvement to the extent that name of Mukesh Kumar has been added and there are marked improvements from his statement recorded under Section 161 Cr.P.C. In his statement Ex.PW-2/DA, PW-2, Ramesh, father of the deceased, had stated that he saw his son and his friend in an injured condition and his wife disclosed to him that Arif Khan, Anwar and Wasim, who are resident of A-Block, assaulted them, whereas in Court he testified as having witnessed the incident. Although, PW-8, Rajni, mother of the deceased, named all the respondents including the respondent No.1 in her examination-in-chief, but during cross-examination, she testified that the names of all the accused persons were told by Anil to the police and thereafter, the police informed her about the names. We may also notice while PW-8 in her statement made in Court categorically stated that Mukesh and Mohd Asif gave knife blows to his son, but in her statement Ex.PW8/A, she did not mention that respondent No.1 Mukesh was at the spot. Even PW-13, Ajay, who was an injured and would be a very important witness, also did not testify that PW-8 was present at the spot at the time of the incident. Another important reason why we are of the view

that the State has not been able to make out a case against respondent No.1 is that name of Mukesh is not mentioned by the injured, PW-13 in his testimony. We may also take into account that as per the IO, the investigation made by him establishes that Mukesh did not participate in the assault. Accordingly, no case is made out against respondent No.1.

24. We do not find that the conclusions arrived at by the Trial Court qua respondent No.1 are perverse or there is misapplication of law or any legal principle. The High Court cannot entertain a petition merely because another view is possible or that another view is more conceivable. [See Arulvelu and Anr. v. State, 2009 (10) SCC 206 and Ghurey Lal v. State of Uttar Pradesh, (2008) 10 SCC 450].

25. Consequently, leave to appeal qua respondent No.1, Mukesh stands dismissed.

26. As far as respondents No.2 and 3 are concerned, we grant leave to appeal to the State. The leave to appeal qua respondents No.2 and 3 is accordingly allowed. Let the Criminal Leave to Appeal Petition qua respondents No.2 and 3 be registered as Crl.A______ /2016.

Crl.A.             /2016

27. Admit.

28. Learned counsel for the respondents accepts notice of admission. Trial Court record has already been requisitioned. Let paper books be prepared.

29. Counsel for the parties agree that compilation need not be prepared as counsel for respondents No.2 and 3 have prepared an exhaustive compilation and the same would be used during the course of hearing in the appeal.

30. List the appeal in the category of Regular Matters on its own turn.

31. List before the Registrar (Appellate) on 10.03.2016 to enable the respondents no.2 and 3 to furnish a personal bond in the sum of Rs.15,000/-

each with one surety each in the like amount to the satisfaction of the Registrar (Appellate).

G.S.SISTANI, J

SANGITA DHINGRA SEHGAL, J

FEBRUARY 22, 2016 pst