Delhi High Court
Vaibhav Gupta vs State & Ors on 18 May, 2017
$ 10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on : 18th May, 2017
+ CRL.L.P. 443/2016 and Crl. M.A. 13063/2016
VAIBHAV GUPTA ..... Petitioner
Through: Mr. R.K. Jain, Advocate
versus
STATE & ORS ..... Respondents
Through: Mr. Tarang Srivastava, APP with
SI Amit Kumar, PS Subash Place for R-
1/State
Mr. Ankit Mangla and Mr.Kanu Agrawal,
Advocates for R-2 to 5
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
ORDER (ORAL)
1. The first information report (FIR) no.449/1997 was registered in
police station Saraswati Vihar respecting offence punishable under
Section 325 read with Section 34 of Indian Penal Code, 1860 (IPC)
having been committed allegedly by the respondents, Jai Prakash
Gupta, the late father of the petitioner herein being the first informant.
2. According to the allegations in the said FIR, Purshottam Dass
Gupta, father of the informant had been assaulted within the precincts
of his house in his presence. The case eventually resulted in a report
under Section 173 of the Code of Criminal Procedure, 1973 (Cr. PC)
being submitted in the court of the Metropolitan Magistrate on the
basis of criminal case which was registered against no.78/02. The said
criminal case involved the four respondents herein as the accused
persons who stood summoned and were put to trial on charge for
offence under Section 325, 34 IPC. The said trial resulted in judgment
dated 05.02.2011 whereby the respondents were acquitted primarily
for the reason the first informant Jai Prakash Gupta and the other
crucial witness Purshottam Dass Gupta had died and there was no
other evidence available to confirm the involvement or complicity of
the respondents in the crime.
3. By the petition at hand, the said order is sought to be
challenged, the petitioner seeking leave to file a criminal appeal, also
referring in the process to an earlier order of the Metropolitan
Magistrate passed on 11.01.2011 whereby his application under
Section 311 Cr. PC for his evidence and that of one Sarla Gupta to be
taken was declined. The petitioner thus seeks to assail not only the
judgment of acquittal dated 05.02.2011 but also the rejection of the
prayer for additional evidence to be considered and taken on board by
order dated 11.01.2011.
4. Having heard the learned counsel for the petitioner and having
gone through the record, this court is of the opinion that the reasons
why the prayer under Section 311 Cr. PC was declined by the
Metropolitan Magistrate cannot be faulted. In the evidence presented
before the trial court to the report under Section 173 Cr. PC, only two
witnesses were shown as material, the case hinging on their eye-
witness account. Purshottam Dass Gupta had died in 1999. The case
thereafter depended primarily on the evidence of Jai Prakash Gupta,
the first informant and the solitary surviving eye witness to the
incident. Jai Prakash Gupta was called by the trial court on number of
occasions but he would not appear. Adjournments were taken for
several reasons attributable to him. Eventually, his evidence also
became unavailable since he died on 30.05.2007. During the entire
said period, there was no move made either by the prosecution or by
the petitioner or even by Jai Prakash Gupta to bring on record the fact
that the petitioner or Sarla Gupta had also been present at the scene
when the incident took place.
5. It is against the above backdrop that the Magistrate found the
effort through the application under Section 311 Cr. PC to be a move
to fill in lacuna, such move having come on 20.05.2008, almost 11
years after the occurrence.
6. Since the order declining the relief under Section 311 Cr. PC
cannot be faulted, the leave petition is rendered devoid of substance as
in absence of any other evidence, the trial court was left with no
option but to acquit the respondents.
7. The petition and the accompanying application are dismissed.
R.K.GAUBA, J.
MAY 18, 2017
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