Delhi High Court
Sapna vs State (Nct Of Delhi) & Ors on 12 March, 2021
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.REV.P. 681/2018
Date of decision: 12th March, 2021
IN THE MATTER OF:
SAPNA ..... Petitioner
Through Mr. K.G. Seth, Advocate
versus
STATE (NCT OF DELHI) & ORS ..... Respondents
Through Ms. Kusum Dhalla, APP for State
S.I. Suraj, P.S. Sangam Vihar
Mr. S.C. Chawla, Advocate for
respondents
CORAM:
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
SUBRAMONIUM PRASAD, J.
1. This revision petition filed under Section 397/401 Cr.P.C is directed
against the order dated 08.05.2018, passed by the Additional Session Judge-
02, (South), Saket Courts, New Delhi in Criminal Appeal No.27/2017 where
by the Additional Session Judge has dismissed the appeal filed by the
petitioner and has affirmed the order dated 08.11.2016, passed by the
Metropolitan Magistrate, Saket Courts, New Delhi. The learned
Metropolitan Magistrate, New Delhi by order dated 08.11.2016 has
acquitted the respondents No.2, 3 and 4 for offences under Sections
323/448/34-IPC arising out of FIR No.368/09, dated 10.10.2009, registered
at Police Station Sangam Vihar, New Delhi.
2. The petitioner states that she is the owner of the property bearing
H.No. 1125, Gali No. 19, Sangam Vihar, Delhi. It is stated that she is in
possession of the said property since June, 2004. It is stated in the revision
petition that on 01.10.2009, the accused and his associates broke open into
the house of the petitioner and threw away the household goods of the
petitioner in her absence and took away the jewellery and other articles and
documents. It is stated that on her return the petitioner went to the Police
Station. However, the records indicate that FIR bearing No. 368/09 was
registered on 10.10.2009 at Police Station Sangam Vihar, Delhi for offences
under Sections 448/323/34 IPC. After investigation charge-sheet has been
filed. On being summoned the accused entered appearance, they pleaded not
guilty and claimed trial.
3. Proceedings were initiated against the accused. In order to prove the
guilt, prosecution examined 5 witnesses.
i. PW-l (Sapna) is the complainant.
ii. PW-2 ASI Gajraj Singh duty officer was examined to prove the
copy of FIR and endorsement on rukka.
iii. PW-3 Head Constable Nathi Lal deposed that he alongwith
Constable Sarvan went to the spot on receiving DD N0.33A,
regarding quarrel on 09.10.2009.
iv. PW-4 Constable Sarvan was examined to prove the arrest
memos and personal search memos.
v. PW-5 SI Ram Kishan was examined to prove the site plan and
personal search memo of one of the accused.
4. The learned Metropolitan Magistrate after hearing both sides came to
the conclusion that the prosecution has not been able to establish its case.
The learned Metropolitan Magistrate held that for the purpose of
establishing offence under Section 323 IPC it has to be proved that the
accused caused hurt to the complainant and that the accused persons acted in
furtherance of their common intention within the meaning of section 34 IPC.
The learned Metropolitan Magistrate found that the entire case of the
prosecution rests upon the testimony of PW-1, complainant/petitioner
herein. The learned Metropolitan Magistrate after analysing the deposition
of the complainant/petitioner herein held that the complainant has given
contradictory answers to the question put by the Defence counsel. The
learned Metropolitan Magistrate found that the FIR is dated 10.10.2009
whereas according to the complainant/petitioner herein the alleged incident
took place on 09.09.2009. It is also found that she has filed Civil Suit against
the accused wherein the complainant/petitioner had stated that the date of
incident is 01.10.2009. The learned Metropolitan Magistrate did not accept
the version of the complainant/petitioner that even though the incident took
place on 01.10.2009 the complaint was not recorded by the Police Officer
and the FIR was registered only on 10.10.2009. The learned Metropolitan
Magistrate found that the complainant was changing her stance at every
stage and that the statement of the complainant is not believable. The
learned Metropolitan Magistrate by its order dated 08.11.2016 acquitted the
accused.
5. The matter was taken up in appeal by the complainant. The learned
Additional Session Judge perused the record and found that the order of
acquittal does not require any interference. The learned Additional Session
Judge observed that in the Civil case filed by the complainant/petitioner it
was stated that the date of incident was 01.10.2009 but the rukka mentions
the date of incident as 09.10.2009. The learned Additional Session Judge
found that there has been inconsistency in the statement of the
complainant/petitioner as to when the incident took place as at some places
the complainant/petitioner has mentioned that the incident took place on
01.10.2009 whereas in other places she has mentioned that the date of the
incident was 09.10.2009. The learned Additional Session Judge held that
there is nothing to demonstrate that the petitioner was in possession of the
property on 09.10.2009. The Additional Session Judge noted that if the facts
stated in the civil suit are correct and the complainant/petitioner was
dispossessed on 01.10.2009, then she cannot be in possession of property on
09.10.2009 and therefore no case of criminal trespass could be made out
against the accused. The Additional Session Judge dismissed the appeal. It is
this order which is under challenge in the instant petition.
6. Mr. K. G. Seth, learned counsel for the petitioner states that the
petitioner is the owner of the said address and she purchased the same by
paying Rs. 2,00,000/- to the previous owner in June 2004. The petitioner
was handed over the possession and has been living in the said address since
June, 2004. He states that on 01.10.2009, the accused came with his
associates and threw the household goods of the petitioner in absence of the
petitioner and took away the jewellery and other article and documents. The
petitioner was in a Jagran in old Delhi and came to know about the incident
when she got calls from her neighbour. She returned to her residence and
went to the Police Station to lodge an FIR. It is stated by Mr. K.G. Seth,
learned counsel for the petitioner that the complainant made repeated visits
to the Police Station to register the FIR but the Police registered the FIR
only on 10.10.2009. Mr. K.G. Seth, learned counsel for the petitioner
contends that the petitioner has been forcefully dispossessed from her
premises. Mr. K.G. Seth, learned counsel for the petitioner vehemently
contends that the husband of the petitioner died as he was not able to take
the shock of being forcefully dispossessed. Learned counsel for the
petitioner also state that the accused have no document to substantiate that
they are the owners of the premises. He would rely on the judgment of
Supreme Court in Suraj Lamp Industries v. State of Haryana, 2012 (1) SCC
656, to contend that the documents given by the accused to substantiate their
ownership are not sufficient to confer title. Mr. K.G. Seth, learned counsel
for the petitioner would also rely on the judgement of Supreme Court in Nar
Singh v. State of Haryana, 2015 (1) SCC 496, to support his contention that
the omission on the part of the Court to put questions under Section 313
Cr.P.C cannot give benefit to the accused.
7. Heard Mr. K.G. Seth, learned counsel appearing for the petitioner,
Ms. Kusum Dhalla, learned APP appearing for the State and Mr. S.C.
Chawla, learned counsel appearing for the respondent Nos.2, 3 and 4 and
perused the documents.
8. A perusal of the deposition of PW-1, the complainant/petitioner who
is the sole eye-witness and on whom the entire case of the prosecution rests,
shows several contradictions. In her chief examination the
complainant/petitioner herein states that she does not remember the exact
date of the incident but the incident occurred nine days before Diwali. She
states that on that day at about 8:00 AM she along with her three children
went to a temple at Lal Kuan to attend Ratri Jagran. It is stated in her chief
examination that she was informed by her neighbour that the accused and
their family members had ransacked the entire household articles and
thrown them out and had demolished the house. She further states that she
returned back at around 02:30 P.M. It is stated in her chief examination that
when she asked the accused as to why they threw her household articles and
demolished her house, the accused told her that they were the owners of the
house and that she was a tenant and she has not been paying the rent and that
was the reason she has been evicted from the said house. It is stated in her
chief examination that all the accused persons started beating the
complainant/petitioner herein with iron pipe after confining her inside the
said house. It is stated in her chief examination that at about 2:00 AM in the
morning the accused took her to a forest area and confined her there for a
month and thereafter deserted her in the ridge area of Prahladpur. It is stated
in the Chief examination that she was rescued with the help of some
passerby and thereafter she informed the Police about the incident but no
action was taken.
9. In her cross-examination she accepts that in the civil suit filed by her
she had stated in the plaint that she had been dispossessed on 01.10.2009. In
the cross-examination she also states that on 09.09.2009 she lodged a
complaint with the Police on which date the incident took place.
10. While specifically asked a question as to whether the incident took
place on 01.10.2009 or 09.09.2009, the complainant/petitioner herein
reiterated that the correct date is 09.09.2009. She further stated that she had
not given any complaint to the Police on 10.10.2009 nor signed any
document on 10.10.2009. She has further stated that no statement was
recorded on 10.10.2009.
11. PW-3 Head Constable Nathi Lal had deposed that he received DD
No.33A on 09.10.2009. He reached the spot at 5:00 AM where he found the
complainant and her household items had been scattered. He states that he
sent the complainant to the AIIMS Trauma Centre but when he went to
AIIMS, the complainant was not found in the OPD. He also states that the
complainant visited the Police Station and gave her statement.
12. There are several contradictions in the chief examination and the
cross-examination of the complainant and the courts below are justified in
coming to the conclusion that the deposition of PW-1 does not inspire
confidence.
13. Reading of the judgments of the Courts below shows that the Trial
Court and the first Appellate Court after perusing the documents and
analysing the evidence have acquitted the accused. It cannot be said that the
judgment of the Courts below are perverse.
14. The scope of the revision petition under Sections 397/401 Cr.P.C.
read with Section 482 Cr.P.C. has been explained in Amit Kapoor v.
Ramesh Chander, (2012) 9 SCC 460, the Supreme Court observed as under:
"12. Section 397 of the Code vests the court with the
power to call for and examine the records of an inferior
court for the purposes of satisfying itself as to the legality
and regularity of any proceedings or order made in a
case. The object of this provision is to set right a patent
defect or an error of jurisdiction or law. There has to be
a well-founded error and it may not be appropriate for
the court to scrutinise the orders, which upon the face of
it bears a token of careful consideration and appear to be
in accordance with law. If one looks into the various
judgments of this Court, it emerges that the revisional
jurisdiction can be invoked where the decisions under
challenge are grossly erroneous, there is no compliance
with the provisions of law, the finding recorded is based
on no evidence, material evidence is ignored or judicial
discretion is exercised arbitrarily or perversely. These
are not exhaustive classes, but are merely indicative.
Each case would have to be determined on its own
merits.
xxxxx
20. The jurisdiction of the court under Section 397 can be
exercised so as to examine the correctness, legality or
propriety of an order passed by the trial court or the
inferior court, as the case may be. Though the section
does not specifically use the expression "prevent abuse
of process of any court or otherwise to secure the ends
of justice", the jurisdiction under Section 397 is a very
limited one. The legality, propriety or correctness of an
order passed by a court is the very foundation of
exercise of jurisdiction under Section 397 but ultimately
it also requires justice to be done. The jurisdiction could
be exercised where there is palpable error, non-
compliance with the provisions of law, the decision is
completely erroneous or where the judicial discretion is
exercised arbitrarily. On the other hand, Section 482 is
based upon the maxim quando lex aliquid alicui concedit,
concedere videtur id sine quo res ipsa esse non potest i.e.
when the law gives anything to anyone, it also gives all
those things without which the thing itself would be
unavoidable. The section confers very wide power on the
Court to do justice and to ensure that the process of the
court is not permitted to be abused." (emphasis supplied)
15. After two courts have acquitted the accused, this Court while
exercising its jurisdiction under Section 397/401 Cr.P.C. cannot substitute
its own conclusion to the one arrived at by the Courts below. It cannot be
said that the view taken by the Courts below is not a plausible view.
16. The judgment dated 08.05.2018, passed by the Additional Session
Judge-02, (South), Saket Courts, New Delhi in Criminal Appeal No.27/2017
is sustained.
17. Accordingly, the revision petition is dismissed along with the pending
applications, if any.
SUBRAMONIUM PRASAD, J.
MARCH 12, 2021
Rahul
