Full Judgment Text
$~
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. 310/2011
rd
% Judgment reserved on 3 December, 2012
nd
Judgement delivered on 2 January, 2013
AMIT KAPOOR @ PUNJABI ..... Appellant
Through: Mr.Ravindra Narayan and
Mr. Mukul Gupta, Advs.
versus
STATE OF NCT OF DELHI ..... Respondent
Through: Mr. Mukesh Gupta, APP
CORAM:
HON'BLE MR. JUSTICE A.K. PATHAK
A.K. PATHAK, J.
1. Appellant has been convicted under Sections
186/333/353/34 IPC by the trial court and sentenced to undergo
rigorous imprisonment for three months under Section 186/34 IPC;
sentenced to undergo rigorous imprisonment for five years with
fine of Rs.1,000/- and in default of payment of fine to undergo
simple imprisonment for one month under Section 333/34 IPC;
sentenced to undergo rigorous imprisonment for one year under
Section 353/34 IPC. All the sentences have been directed to run
Criminal Appeal 310/2011 Page 1 of 9
concurrently and benefit of Section 428 Cr.P.C. has also been
given to the appellant.
2. Appellant along with Jagjeet Singh @ Jagga was sent up to
face trial for the offences under Sections 186/332/353/411/34 IPC
by the police station Anand Vihar by filing a charge-sheet in the
court of Metropolitan Magistrate, Delhi. Subsequently, case was
committed to Sessions Court. Charges under Sections
186/332/353/34 IPC were framed against appellant and Jagjeet
Singh @ Jagga. However, Jagjeet Singh @ Jagga has been
acquitted by the trial court in view of the discrepancies in the
statements of witnesses regarding role played by as well as on the
point of identity. It may be noted that all the relevant witnesses to
the incident happen to be police officials, thus, their statements
have to be scrutinized with care and caution they being seasonal
witnesses. Same set of witnesses have been disbelieved qua Jagjeet
Singh @ Jagga.
rd
3. As per the prosecution, on 23 October, 2007 Home Guard
Constable Sunil (PW1) and HC Sanjeev Kumar (PW3) were on
duty of checking vehicles at road no. 56, Ramprasth Park. They
Criminal Appeal 310/2011 Page 2 of 9
were checking vehicles coming from Raghunath Mandir side. At
about 6:45 pm a secret informer informed PW3 HC Sanjeev Kumar
that two boys would be coming on a stolen silver colour pulsar
motorcycle with an intention to commit chain snatching in Anand
Vihar area. At about 7:00 pm appellant and his accomplice (whose
names were disclosed after their apprehension) were seen coming
on the motorcycle bearing no. UP-15S-8841 from Seema Puri
border side. They were given signal to stop by PW3 H.C. Sanjeev.
They were asked to show the relevant papers of motorcycle at
which they became furious and the Sardar (Jagdish @ Jagga) who
was sitting on the pillion seat of motorcycle pushed HC Sanjeev
Kumar while appellant started motorcycle and tried to take a U-
Turn but in the process motorcycle got slipped and they fell down
and sustained injuries. Thereafter, appellant got up and gave a
helmet blow to Home Guard Constable Sunil resulting injuries on
his nose. Appellant was over powered, however, his accomplice
succeeded in escaping.
4. PW1 Home Guard Constable Sunil was removed to
Hedgewar Hospital (for short, hereinafter referred to as the
Criminal Appeal 310/2011 Page 3 of 9
„hospital‟) by ASI Desh Raj (PW9) of Police Control Room. PW1
was examined by the doctor vide MLC Ex.PW6/A. Since there was
fracture of nasal bone doctor opined injuries as grievous. Constable
Harbir, who was posted in the hospital, sent information regarding
admission of Home Guard Constable Sunil in the hospital to police
station Preet Vihar pursuant whereof, DD No. 28-A was recorded
and handed over to HC Rakesh (PW10) who along with Constable
Dev Dutt reached hospital and obtained MLC of Home Guard
Constable Sunil. Thereafter, PW 10 HC Rakesh reached at the spot
and recorded statement of PW3 HC Sanjeev Kumar wherein he
narrated the incident in the manner as has been described in para
no. 3 hereinabove. On the basis of his statement FIR No. 602/2007
was registered at police station Preet Vihar. Appellant was present
at the spot and was arrested. Pursuant to the disclosure statement
of appellant Jagjit Singh @ Jagga was arrested.
5. After completion of investigation charge-sheet was filed in
the court of Metropolitan Magistrate along with a complaint under
Section 195 Cr.P.C.
Criminal Appeal 310/2011 Page 4 of 9
6. Trial court has found statements of PW1 Home Guard
Constable Sunil, PW3 HC Sanjeev and PW10 HC Rakesh
trustworthy and reliable and has concluded that from their
testimonies it was proved that the appellant had deterred PW1 and
PW3 from performing their duties, inasmuch as had caused
grievous injuries on the person of PW1 in order to deter police
officials to perform their duties and further that the appellant was
apprehended at the spot.
7. I have heard the learned counsel for the appellant and
learned APP and have also perused the trial court record carefully
and am not able to concur with the view taken by the trial court, I
find statements of material witnesses, that is, PW1 Constable Sunil,
PW3 HC Sanjeev and PW10 HC Rakesh to be discrepant in nature,
inasmuch as the statements of injured and eye witnesses are
inconsistent and are not sufficient to prove the prosecution case
beyond the shadow of reasonable doubt. It may further be noted
that their statements have not been found trustworthy and reliable
by the trial court with regard to accomplice of the appellant.
Criminal Appeal 310/2011 Page 5 of 9
8. That apart, there is a delay of about three and a half hours in
registration of FIR which has not been sufficiently explained
leaving the scope of coloured version creeping in the prosecution
story. Delay in the peculiar facts of this case is fatal more
particularly because despite availability of injured in the hospital
his statement was not recorded immediately; instead Investigating
Officer chose to go to spot and record the statement of PW3 HC
Sanjeev. As per PW 10 HC Rakesh, on receipt of information
regarding the incident, he reached the hospital and obtained MLC
of PW1 Home Guard Constable Sunil, who had sustained injuries.
Reason for not recording his statement, as per him, was that PW1
was under observation. Meaning thereby he was not fit for making
a statement. However, his this version is belied from the
documentary evidence, that is, MLC Ex. PW6/A. A perusal of
Ex.PW6/A makes it clear that the doctor had not made any
endorsement “Under Observation”. Instead, doctor has written on
the MLC “fit for statement”, meaning thereby PW1 Home Guard
Constable Sunil was fit for making a statement. Despite this, PW10
HC Rakesh did not record his statement who is victim to the
Criminal Appeal 310/2011 Page 6 of 9
offence and could have described the incident. He was the best
person to narrate the incident at the first available opportunity.
There is no reason as to why PW 10 HC Rakesh could not have
recorded his statement for the prompt registration of FIR. Instead,
he chose to proceed to the spot and record statement of PW3 HC
Sanjeev.
9. Besides above, statements of PW1 and PW3 are discrepant
so as to make their presence at the spot together suspicious. PW1
Home Guard Constable Sunil has deposed that he was on duty
from 2:00 pm to 10:00 pm; he was present along with PW3
Sanjeev on picket duty. However, as per PW3, he was on duty
along with PW1 between 6:00 pm to 10:00 pm. Above all there is
material contradiction in this statement regarding roles ascribed to
the appellant and his accomplice are concerned. As per the
prosecution story, appellant was driving the motorcycle while his
accomplice was sitting on the pillion who pushed PW3. PW3
while deposing in Court, has stated that it is the appellant who was
driving the motorcycle. As against this, PW1 Home Guard
Constable Sunil has said that accomplice of appellant was driving
Criminal Appeal 310/2011 Page 7 of 9
the motorcycle while appellant was sitting on the pillion seat. In his
cross-examination by the learned public prosecutor, PW1 denied
that appellant was driving the motorbike. As per PW1 Home
Guard Constable Sunil and PW3 Sanjeev, both, that is, appellant
and his accomplice were wearing helmets however, accomplice of
the appellant being Sardar probability of his wearing helmet was
not there and in fact this is one of the reason for which appellant‟s
accomplice has been acquitted. There is yet another major lacuna
in the prosecution case which makes the prosecution story
suspicious. As per PW10 statement of HC Sanjeev was recorded at
the spot, however, PW3 in his cross-examination, that he had
narrated the incident to HC Rakesh at the spot but his statement
was got signed in the police station.
10. In view of the sketchy, shaky and inconsistent stand taken by
the above-noted material witnesses it would not be safe to conclude
against the appellant that he had committed the offences for which
he had been charged. I am of the view that trial court ought to have
given benefit of doubt to the appellant in the light of evidence
discussed herein above.
Criminal Appeal 310/2011 Page 8 of 9
11. For the foregoing reasons, conviction of the appellant is set
aside. He be set free forthwith, if not wanted in any other case.
12. Appeal is disposed of in the above terms.
13. Copy of this order be sent to the Jail Superintendent for
serving it on the petitioner as also for compliance.
A.K. PATHAK, J.
JANUARY 02, 2013
ga
Criminal Appeal 310/2011 Page 9 of 9
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. 310/2011
rd
% Judgment reserved on 3 December, 2012
nd
Judgement delivered on 2 January, 2013
AMIT KAPOOR @ PUNJABI ..... Appellant
Through: Mr.Ravindra Narayan and
Mr. Mukul Gupta, Advs.
versus
STATE OF NCT OF DELHI ..... Respondent
Through: Mr. Mukesh Gupta, APP
CORAM:
HON'BLE MR. JUSTICE A.K. PATHAK
A.K. PATHAK, J.
1. Appellant has been convicted under Sections
186/333/353/34 IPC by the trial court and sentenced to undergo
rigorous imprisonment for three months under Section 186/34 IPC;
sentenced to undergo rigorous imprisonment for five years with
fine of Rs.1,000/- and in default of payment of fine to undergo
simple imprisonment for one month under Section 333/34 IPC;
sentenced to undergo rigorous imprisonment for one year under
Section 353/34 IPC. All the sentences have been directed to run
Criminal Appeal 310/2011 Page 1 of 9
concurrently and benefit of Section 428 Cr.P.C. has also been
given to the appellant.
2. Appellant along with Jagjeet Singh @ Jagga was sent up to
face trial for the offences under Sections 186/332/353/411/34 IPC
by the police station Anand Vihar by filing a charge-sheet in the
court of Metropolitan Magistrate, Delhi. Subsequently, case was
committed to Sessions Court. Charges under Sections
186/332/353/34 IPC were framed against appellant and Jagjeet
Singh @ Jagga. However, Jagjeet Singh @ Jagga has been
acquitted by the trial court in view of the discrepancies in the
statements of witnesses regarding role played by as well as on the
point of identity. It may be noted that all the relevant witnesses to
the incident happen to be police officials, thus, their statements
have to be scrutinized with care and caution they being seasonal
witnesses. Same set of witnesses have been disbelieved qua Jagjeet
Singh @ Jagga.
rd
3. As per the prosecution, on 23 October, 2007 Home Guard
Constable Sunil (PW1) and HC Sanjeev Kumar (PW3) were on
duty of checking vehicles at road no. 56, Ramprasth Park. They
Criminal Appeal 310/2011 Page 2 of 9
were checking vehicles coming from Raghunath Mandir side. At
about 6:45 pm a secret informer informed PW3 HC Sanjeev Kumar
that two boys would be coming on a stolen silver colour pulsar
motorcycle with an intention to commit chain snatching in Anand
Vihar area. At about 7:00 pm appellant and his accomplice (whose
names were disclosed after their apprehension) were seen coming
on the motorcycle bearing no. UP-15S-8841 from Seema Puri
border side. They were given signal to stop by PW3 H.C. Sanjeev.
They were asked to show the relevant papers of motorcycle at
which they became furious and the Sardar (Jagdish @ Jagga) who
was sitting on the pillion seat of motorcycle pushed HC Sanjeev
Kumar while appellant started motorcycle and tried to take a U-
Turn but in the process motorcycle got slipped and they fell down
and sustained injuries. Thereafter, appellant got up and gave a
helmet blow to Home Guard Constable Sunil resulting injuries on
his nose. Appellant was over powered, however, his accomplice
succeeded in escaping.
4. PW1 Home Guard Constable Sunil was removed to
Hedgewar Hospital (for short, hereinafter referred to as the
Criminal Appeal 310/2011 Page 3 of 9
„hospital‟) by ASI Desh Raj (PW9) of Police Control Room. PW1
was examined by the doctor vide MLC Ex.PW6/A. Since there was
fracture of nasal bone doctor opined injuries as grievous. Constable
Harbir, who was posted in the hospital, sent information regarding
admission of Home Guard Constable Sunil in the hospital to police
station Preet Vihar pursuant whereof, DD No. 28-A was recorded
and handed over to HC Rakesh (PW10) who along with Constable
Dev Dutt reached hospital and obtained MLC of Home Guard
Constable Sunil. Thereafter, PW 10 HC Rakesh reached at the spot
and recorded statement of PW3 HC Sanjeev Kumar wherein he
narrated the incident in the manner as has been described in para
no. 3 hereinabove. On the basis of his statement FIR No. 602/2007
was registered at police station Preet Vihar. Appellant was present
at the spot and was arrested. Pursuant to the disclosure statement
of appellant Jagjit Singh @ Jagga was arrested.
5. After completion of investigation charge-sheet was filed in
the court of Metropolitan Magistrate along with a complaint under
Section 195 Cr.P.C.
Criminal Appeal 310/2011 Page 4 of 9
6. Trial court has found statements of PW1 Home Guard
Constable Sunil, PW3 HC Sanjeev and PW10 HC Rakesh
trustworthy and reliable and has concluded that from their
testimonies it was proved that the appellant had deterred PW1 and
PW3 from performing their duties, inasmuch as had caused
grievous injuries on the person of PW1 in order to deter police
officials to perform their duties and further that the appellant was
apprehended at the spot.
7. I have heard the learned counsel for the appellant and
learned APP and have also perused the trial court record carefully
and am not able to concur with the view taken by the trial court, I
find statements of material witnesses, that is, PW1 Constable Sunil,
PW3 HC Sanjeev and PW10 HC Rakesh to be discrepant in nature,
inasmuch as the statements of injured and eye witnesses are
inconsistent and are not sufficient to prove the prosecution case
beyond the shadow of reasonable doubt. It may further be noted
that their statements have not been found trustworthy and reliable
by the trial court with regard to accomplice of the appellant.
Criminal Appeal 310/2011 Page 5 of 9
8. That apart, there is a delay of about three and a half hours in
registration of FIR which has not been sufficiently explained
leaving the scope of coloured version creeping in the prosecution
story. Delay in the peculiar facts of this case is fatal more
particularly because despite availability of injured in the hospital
his statement was not recorded immediately; instead Investigating
Officer chose to go to spot and record the statement of PW3 HC
Sanjeev. As per PW 10 HC Rakesh, on receipt of information
regarding the incident, he reached the hospital and obtained MLC
of PW1 Home Guard Constable Sunil, who had sustained injuries.
Reason for not recording his statement, as per him, was that PW1
was under observation. Meaning thereby he was not fit for making
a statement. However, his this version is belied from the
documentary evidence, that is, MLC Ex. PW6/A. A perusal of
Ex.PW6/A makes it clear that the doctor had not made any
endorsement “Under Observation”. Instead, doctor has written on
the MLC “fit for statement”, meaning thereby PW1 Home Guard
Constable Sunil was fit for making a statement. Despite this, PW10
HC Rakesh did not record his statement who is victim to the
Criminal Appeal 310/2011 Page 6 of 9
offence and could have described the incident. He was the best
person to narrate the incident at the first available opportunity.
There is no reason as to why PW 10 HC Rakesh could not have
recorded his statement for the prompt registration of FIR. Instead,
he chose to proceed to the spot and record statement of PW3 HC
Sanjeev.
9. Besides above, statements of PW1 and PW3 are discrepant
so as to make their presence at the spot together suspicious. PW1
Home Guard Constable Sunil has deposed that he was on duty
from 2:00 pm to 10:00 pm; he was present along with PW3
Sanjeev on picket duty. However, as per PW3, he was on duty
along with PW1 between 6:00 pm to 10:00 pm. Above all there is
material contradiction in this statement regarding roles ascribed to
the appellant and his accomplice are concerned. As per the
prosecution story, appellant was driving the motorcycle while his
accomplice was sitting on the pillion who pushed PW3. PW3
while deposing in Court, has stated that it is the appellant who was
driving the motorcycle. As against this, PW1 Home Guard
Constable Sunil has said that accomplice of appellant was driving
Criminal Appeal 310/2011 Page 7 of 9
the motorcycle while appellant was sitting on the pillion seat. In his
cross-examination by the learned public prosecutor, PW1 denied
that appellant was driving the motorbike. As per PW1 Home
Guard Constable Sunil and PW3 Sanjeev, both, that is, appellant
and his accomplice were wearing helmets however, accomplice of
the appellant being Sardar probability of his wearing helmet was
not there and in fact this is one of the reason for which appellant‟s
accomplice has been acquitted. There is yet another major lacuna
in the prosecution case which makes the prosecution story
suspicious. As per PW10 statement of HC Sanjeev was recorded at
the spot, however, PW3 in his cross-examination, that he had
narrated the incident to HC Rakesh at the spot but his statement
was got signed in the police station.
10. In view of the sketchy, shaky and inconsistent stand taken by
the above-noted material witnesses it would not be safe to conclude
against the appellant that he had committed the offences for which
he had been charged. I am of the view that trial court ought to have
given benefit of doubt to the appellant in the light of evidence
discussed herein above.
Criminal Appeal 310/2011 Page 8 of 9
11. For the foregoing reasons, conviction of the appellant is set
aside. He be set free forthwith, if not wanted in any other case.
12. Appeal is disposed of in the above terms.
13. Copy of this order be sent to the Jail Superintendent for
serving it on the petitioner as also for compliance.
A.K. PATHAK, J.
JANUARY 02, 2013
ga
Criminal Appeal 310/2011 Page 9 of 9