State vs Ram Gopal
2016 Latest Caselaw 2506 Del

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*       IN THE HIGH COURT OF DELHI AT NEW DELHI
+       CRL.A. 597/1999

%                                        Judgment dated 30.03.2016
        STATE                                   ..... Appellant
                Through : Ms.Aashaa Tiwari, APP for State with SI
                          Mahipal Singh, PS- Darya Ganj.
                            Versus
        RAM GOPAL                         ..... Respondent
                       Through : Mr.Siddharth Thakur, Advocate (Amicus
                                 Curiae)
CORAM :
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL

G.S.SISTANI, J. (ORAL)

1. Present appeal has been filed by the State under Section 378(1) of the Code of Criminal Procedure against the judgment dated 23.08.1997 passed by Shri S. M. Chopra, Additional Sessions Judge, Delhi in Sessions Case No. 249/1992 by which the respondent has been acquitted of all the charges against him.

2. The brief facts of the case, as noticed by the Trial Court are as under:

"2. The police version is that on 29.05.92 at about 10:30 PM a message was passed on from Police Control Room to the CDCR (Central District Control Room) that near Ghata Masjid Darya Ganj some bad characters had entered the House no.4675. A DD was recorded and ASI Avtar Singh left the spot with two constables and Head constable. Two other Inspectors and SHO also proceeded to the spot. One public person Onkar Singh, HC Ram Avatar, one constable Jaivir and another public person Bharat Jain met the SHO at the spot, namely on the ground floor of the house no.4675 Darya Ganj . The

accused Ram Gopal was also present at the spot and he was injured. Two dead bodies one of Dr.O.P Malhotra and another of his wife were lying on the pool of blood with multiple stab injuries. The stairs within the house were also having blood stains and chili powder was also found scattered there. SHO Inspector S.K.Sharma recorded the statement of Onkar Singh on the basis of which FIR was got recorded.

3. It is the case of prosecution that as per the statement of Onkar Singh he used to reside at house no.4677. At about 10 PM he heard cries of Mrs.Malhotra from the house of Dr.Malhotra who used to live in house no.4675/21. This person Onkar Singh ran, came down and ran towards the nearby police booth. But in the gali he saw HC Ram Avatar and constable Jaivir, he took both of these police officials in front of the house of Dr.Malhotra. Grill door in the front was locked from inside. Near the stairs the accused who is referred to a servant in that house was grappling with Dr.Malhotra and his wife at that time he was wielding a long knife in his hand and was repeatedly assaulting Dr.Malhotra and Mrs.Malhotra. According to Onkar Singh the accused was shouting that those who deprive the legitimate rights of the poor are met with such treatment. The lock on the grill was broken open with an iron rod by HC Avtar Singh. The accused ran upstairs on the first floor, on entering the house both Mrs. Malhotra and Dr.Malhotra were found dead. The accused was hiding behind a steel Almirha of the house.

4. After having got the case registered on the statement of Onkar Singh a crime team was called, scene of crime was got photographed, blood stained earth, two pairs of havai chapples and the chillies powder etc. were taken into possession from the spot. Accused was arrested and he alleged to have made a disclosure statement and got recovered a knife from that very house. T-shirt of the accused was also blood stained was also taken into the possession. The dead body was sent for

postmortem. The case property was sent to CFSL, investigation culminated in filing of the chargesheet in the court against the accused under section 302 IPC and Section 27 of the Arms Act 1989."

3. To bring home the guilt against the accused, the prosecution examined 20 witnesses in all. The statement of the accused was recorded under Section 313 of the Code of Criminal Procedure wherein he denied all the incriminating facts and took the plea that he was a cook and worked as a domestic servant in the house of the deceased persons for the last 10 months. It was further stated that he was severely beaten by the police and made to sign on certain papers. The accused further stated that neither he made any disclosure statement nor did he get recovered any knife as alleged by the prosecution. The accused also stated that he was forced to dip his hands in the blood and that is how blood appeared on his shirt. Furthermore, the accused on hearing the cries of the wife of the doctor came out of the kitchen and saw that four persons were assaulting the doctor and his wife and all of them had buttondar knife. On seeing this, the accused rushed to the kitchen and picked up red chilly powder to put in the eyes of persons who were assaulting the doctor and his wife. According to the accused the doctor had tenants and the relations between them were not cordial and had inimical relations over some property matters.

4. Ms. Aashaa Tiwari, learned counsel appearing on behalf of the State vehemently argued that the impugned judgment is contrary to the settled position of law and thus not sustainable. Counsel contends that the Trial Court has disregarded and failed to take into account the relevant material on record and has based its findings on mere

conjectures and surmises. Counsel further submits that the Trial Court gravely erred in disbelieving the evidence of as many as four eyewitnesses without any cogent and justifiable reasons and the impugned judgment suffers from serious infirmities and deserves to be set aside.

5. Counsel for the State urged that the contradictions in the depositions of the police officials as pointed out by the Trial Court are minor which are not fatal to the case of the prosecution.

6. Counsel for the State further urged that the Trial Court gave undue importance to the fact that the broken lock and iron rod were not seized and produced. Further, the court erred in disbelieving the recovery of knife which was seized after pointing out by the accused.

7. Per contra, Mr. Thakur, the Amicus Curiae in the present case while supporting the impugned judgment and order of acquittal strongly contended that there are material contradictions in the testimonies of the eye-witnesses and the Trial Court has rightly acquitted the accused person since the prosecution has failed to establish the charge beyond reasonable doubt. Learned counsel further contended that interference by this Court in the impugned judgment is not warranted as the findings of acquittal recorded by learned Trial Court are neither perverse nor against the evidence. Learned counsel further contended that if two views based on the evidence led by the prosecution are possible, then the view which is favourable to the accused has to be accepted by the appellate court in an appeal against acquittal.

8. We have heard learned counsel for the parties and also examined the judgment in detail rendered by the Trial Court.

9. In the present case the prosecution has relied upon the ocular evidence of four witnesses who had allegedly witnessed the occurrence i.e PW4 Onkar Singh, PW7 Bhartesh Jain, PW15 HC Ram Avatar and PW19 Constable Jaivir.

10. PW4 Onkar Singh, neighbor of the deceased persons in his deposition before the court stated that on 29.05.1992 at about 10:00 P.M. when he was present at his home, he heard the cries of Mrs. Malhotra (since deceased) on which he rushed to her house and found that the grill door of the house was closed and locked and saw that a short statured person of black complexion was grappling and giving blows to Dr.Malhotra and his wife with some weapon in his hand and both were crying that person was their servant i.e. the respondent herein. PW4 further stated that when he ran towards the police booth, two policemen were coming from that side, thereafter they went to the house of the Dr. Malhotra and saw him lying on the floor and blood was coming out. The wife of the Dr. Malhotra resisted the attack of the accused. One police official broke open the lock of the grill with the help of an Iron rod. PW4 further stated that he entered the house along with one Mr. Jain and some police officials. They followed the accused on the first floor, who hid himself behind an almirah. Other police officials also reached there.

11. Mr. Bhartesh Jain, another eyewitness to the occurrence appeared in witness box as PW7 and deposed that on 29.05.1992 at about 10:00 P.M. he saw Onkar Singh, HC Ram Avtar and Constable Jaivir

running to the house of Dr. Malhotra. He saw the accused assaulting Dr.Malhotra and his wife. Grill door of the house was locked from inside and accused was stabbing the deceased. The accused ran up- stairs, one of the police officials broke open the lock of the grill with an Iron rod. All four of them entered inside the house. Both the deceased persons were lying dead. They chased the accused and found him hiding behind the almirah on the first floor.

12. PW15 HC Ram Avatar and PW19 Constable Jaivir who claimed to be the eyewitnesses to the occurrence stated that in the evening of the fateful day, they were on duty at Ghata Masjid Police Picket and were on patrolling in the area when they saw PW4 Onkar Singh running towards them who told them that he (PW4) had heard the cries from the house of Dr.Malhotra. They accompanied him to that house and broke open the lock by an iron rod. They further stated that there was a wooden door on the main house in the grill gate. They further stated that they could see what was happening inside the house even while standing outside the house from the grill. They saw the accused stabbing Dr. Malhotra and his wife. According to PW15 the house was locked from outside on the grill whereas PW19 deposed that the house was locked from inside.

13. It has been laid down in a catena of judgments that the cardinal principle of criminal jurisprudence is that the prosecution is supposed to prove its case beyond reasonable doubt by leading reliable, cogent and convincing evidence. Similarly, it is an established principle that prosecution is supposed to stand on its own legs and cannot derive benefits whatsoever from the weakness, if any,

in the defence of accused. The burden of proof of the version of prosecution in criminal trial, throughout trial lies upon prosecution and shifts to the accused who is entitled to the benefit of every reasonable doubt in the prosecution story and any such doubt entitles him to acquittal.

14. In Sunil Kundu and Anr. Vs State of Jharkhand reported in (2013) 4 SCC 422, the Hon'ble Apex Court held as under:

"....When the prosecution is not able to prove its case beyond reasonable doubt it cannot take advantage of the fact that the accused have not been able to probablise their defence. It is well settled that the prosecution must stand or fall on its own feet. It cannot draw support from the weakness of the case of the accused, if it has not proved its case beyond reasonable doubt".

15. The presence of so called eye-witnesses at the place of occurrence casts a serious doubt as according to PW15 HC Ram Avatar the house was locked from outside whereas PW19 Constable Jaivir stated that the house was locked from inside. The factum whether the door was locked from inside or outside does not stand established. Moreso, the lock alleged to have been broken with an iron rod was neither taken into possession nor seized. Both PWs 17 and 19 deposed that apart from the grill gate there was also a wooden door and from the said wooden door what was happening inside was visible from the main road. Scaled site plan prepared by the draftsman does not indicate the position of the grill or wooden door. It is highly improbable that the accused who was employed as a domestic help would commit the crime by keeping the door open, especially the spot where the crime

was committed was visible from road. Thus, an adverse inference has to be drawn as the vital piece of evidence has not been produced. In totality there are major contradictions in the testimonies of the eye- witnesses which cannot be accepted based on which the Trial Court rightly appreciated the evidence and by no stretch of imagination it can be said that the findings recorded by the Trial Court are perverse .

16. At the first blush, the iron rod and lock having not been seized would seem of little significance. However, the non-seizure of the iron rod and the lock gains immense importance in view of the testimonies of the witnesses who claim to be eye witnesses, being PW4, Onkar Singh, PW7, Bhartesh Jain, PW15, HC Ram Avtar and PW19 Constable Jaivir. The testimonies of these witnesses have been noticed in paragraphs 10, 11 and 12 aforegoing.

17. As per the testimony of PW4, when he heard cries of Mrs. Malhotra, he rushed to her house and found the grill of the house closed and locked. He saw a short stature person grappling and giving blows to Dr.Malhotra and his wife. As per PW7, the grill door of the house was locked from inside and accused was stabbing the deceased. As per PWs15 and 19, they broke open the lock by an iron rod. In case, as per the testimony of PW7, the grill door of the house was locked from inside, then according to the testimony of PW19, the house was locked from inside, whereas as per the testimony of PW15 the house was locked from outside. Though, PW4 has not categorically stated that the door was locked from inside or outside. This confusion could have been cleared if the lock and the iron rod were seized and examined.

18. As far as recovery of weapon used in the alleged offence, is concerned, PW14 S.C. Sharma, the then SHO deposed that accused got recovered the knife from under the carpet in the drawing room on the first floor whereas PW19 Constable Jaivir, eye-witness to the occurrence stated that the accused was holding the knife when they entered the house of the deceased persons. Further, the recovery of weapon is falsified by the Rukka sent for registration of FIR, as has been noticed by the Trial Court in para 26, which reads as under :

"The Rukka sent from the spot which is stated to have been sent at 11:45 P.M. makes no mention of the recovery of weapon. If any weapon had been recovered either on the person of the accused or at his instance the same would have been mentioned in the endorsement made by the SHO and he would have suggested for the registration of the case under the Arms Act in addition to the relevant provision of the Indian Penal Code."

19. From the above, it is clear that the case of the prosecution that the knife was recovered at the spot is neither convincing nor believable. Under these circumstances, we have no option but to hold that the prosecution has miserably failed to prove the seizure and recovery of knife.

20. We deem it appropriate to notice herein that at about 10:20 P.M., DD No.18A was recorded that dacoits had barged into 21, Darya Ganj which was near the Beat Box. The DD was entrusted to SI Dharam Singh, who along with Constable Mukesh left for the spot. At about 10:30 P.M. another DD No. 19-A was recorded that some bad elements entered the house of No. 4675, Darya Ganj, Ghata Masjid and the same was entrusted to ASI Avtar Singh. SI Dharampal Singh,

who was assigned the DD No. 18A and made the initial investigation was an important witness but was not examined by the prosecution. Moreso, two different DDs were recorded on the basis of different information. The perusal of the record shows that DD No. 18A which was entrusted to SI Dharampal Singh was proved to be destroyed and the FIR was registered on the basis of DD No. 19A. The withholding and destruction of the first information received by the police created a hole in the case of the prosecution.

21. In the above backdrop, we are of the considered view that the guilt of the respondent has not been proved beyond reasonable doubt and we find that the whole case of the prosecution appears to be very shaky and doubtful there being various defects and infirmities and do not connect the respondent with the alleged offence.

22. In M.G. Agarwal v. State of Maharashtra reported in [1963] 2 SCR 405, the law relating to an appeal against an order of acquittal was raised before a Constitution Bench of the Hon'ble Supreme Court of India. Taking note of earlier decisions, it was observed as follows:

" In some of the earlier decisions of this Court, however, in emphasizing the importance of adopting a cautious approach in dealing with appeals against acquittals, it was observed that the presumption of innocence is reinforced by the order of acquittal and so, `the findings of the trial court which had the advantage of seeing the witnesses and hearing their evidence can be reversed only for very substantial and compelling reasons': vide Surajpal Singh v. State : 1952 CriLJ 331. Similarly in Ajmer Singh v. State of Punjab : 1953 CriLJ 521, it was observed that the interference of the High Court in an appeal

against the order of acquittal would be justified only if there are `very substantial and compelling reasons to do so'. In some other decisions, it has been stated that an order of acquittal can be reversed only for `good and sufficiently cogent reasons' or for `strong reasons'. In appreciating the effect of these observations, it must be remembered that these observations were not intended to lay down a rigid or inflexible rule which should govern the decision of the High Court in appeals against acquittals. They were not intended, and should not be read to have intended to introduce an additional condition in Clause (a) of Section 423(1) of the Code. All that the said observations are intended to emphasize is that the approach of the High Court in dealing with an appeal against acquittal ought to be cautious because as Lord Russell observed in Sheo Swarup the presumption of innocence in favour of the accused `is not certainly weakened by the fact that he has been acquitted at his trial'. Therefore, the test suggested by the expression `substantial and compelling reasons' should not be construed as a formula which has to be rigidly applied in every case. That is the effect of the recent decisions of this Court, for instance, in Sanwat Singh v. State of Rajasthan and Harbans Singh v.State of Punjab 1962 Supp 1 SCR 104 and so, it is not necessary that before reversing a judgment of acquittal, the High Court must necessarily characterise the findings recorded therein as perverse."

23. In State of Goa v. Sanjay Thakran and Another reported in (2007) 3 SCC 755, the Hon'ble Supreme Court held that :

"14. By a series of decisions, this Court has laid down the parameters of appreciation of evidence on record and jurisdiction and limitations of the appellate court, and while dealing with appeal against order of acquittal

this Court observed in Tota Singh and Anr. v. State of Punjab (1987) 2 SCC 529, as under:

6....The jurisdiction of the appellate court in dealing with an appeal against an order of acquittal is circumscribed by the limitation that no interference is to be made with the order of acquittal unless the approach made by the lower court to the consideration of the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the court below is such which could not have been possibly arrived at by any court acting reasonably and judiciously and is, therefore, liable to be characterised as perverse. Where two views are possible on an appraisal of the evidence adduced in the case and the court below has taken a view which is a plausible one, the appellate court cannot legally interfere with an order of acquittal even if it is of the opinion that the view taken by the court below on its consideration of the evidence is erroneous.

15. Further, this Court has observed in Ramesh Babulal Doshi v. State of Gujarat (1996) 9 SCC 225:

7....This Court has repeatedly laid down that the mere fact that a view other than the one taken by the trial court can be legitimately arrived at by the appellate court on reappraisal of the evidence cannot constitute a valid and sufficient ground to interfere with an order of acquittal unless it comes to the conclusion that the entire approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court

answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then-and then only- reappraise the evidence to arrive at its own conclusions...."

24. In State of Maharashtra through CBI Vs. Ahmad Shah Khan @ Salim Durani and Anr. reported in 2013 (3) SCALE 272, the Apex Court held that :

"47. This Court has laid down parameters for interference against the order of acquittal time and again. The appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be the more probable one. While dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject-matter of scrutiny by the appellate court. In exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference. The findings of fact recorded by a court can be held to be

perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is "against the weight of evidence", or if the finding so outrageously defies logic as to suffer from the vice of irrationality."

25. In the light of the entire above discussions, we are of the considered view that the Trial Court did not commit any error in recording the finding of acquittal in favour of the respondent/accused. We do not find any valid or justifiable ground to interfere with the impugned judgment and order of the Trial Court.

26. Before parting with this judgment, we would like to place on record our appreciation for Ms. Aasha Tiwari, learned APP for the State who is always ready with her matters and Mr. Siddharth Thakur, Amicus Curiae for valuable assistance which was rendered by him in this case.

27. For the foregoing reasons, the appeal is hereby dismissed.

G. S. SISTANI, J

SANGITA DHINGRA SEHGAL, J MARCH 30, 2016 gr/pst