State (Govt of NCT of Delhi) v. Sushil Prasad Yadav

G. S. SISTANI, J. (ORAL) CrL.M.A.8321/2016 (exemptjfl

¶1Exemption allowed subject to all just e\ceptions.

¶2Application stands disp CrI.M.A.8320/2016 (dclay)

¶3This is an application under 'sect ion of the Limitation Act read with Section 482 of the Code of Criminal Procedure filed by the State seeking condonation of delay of 24 days in filing the present leave petition.

¶4Having regard to the submissions made and in the interest of justice, the delay in filing the present leave petition is condoned.

¶5Application stands disposed of. 'V CRL.L.P.No. 276/2016

¶6By the present criminal leave petition filed under section 378 (3) of the Code of Crirninal Procedure, the State seeks leave to appeal against the judgment dated 12.01.20 16 passed by Ms. Shail Jam, Special Judge, NDPS 02, Central District, Tis Hazari, Delhi in Sessions Case No. 58/2013 whereby the respondent (accused before the trial court) was acquitted of the charge punishable under Section 302 of the Indian Penal CodL The facts of the case, as noticed b y th IL und trial court, are as under "On the intervening night of 09-10/03/2013 Incpector Mahendei Kumar Mis hi a A TO i eceived a call and thus witness alongiuth Jiisp Mahender Kumar Mis/ira, SI Abinshek C't Rcjbir and Ct Sw esh went infront 0/ 1-louse no F-2 Shatri Nagar Delhi in Tata-407 They noticed thai on the fooipath one 1 iksliarehri was standing and one dead body of a male PC] aged about 40-45 yrs was lying in that / iksha 1 ehi i One Ct Devender was already pJeenl' at the spoi 10 inquned from Ct Devender and ) ecoided hic sta tement JO made his endorsement on the saiiie oiid handed over the original tehrir to Ct. Suresh for getting the case registered. Thereafter, JO prepared site plan at the instance of t. Devender. Crime team officials were also called at the spot who inspected the scene of crime and took the photographs. JO iWed blood on gauge, bloodstained cement and earth control from the spot. On inquiry it was revealed that the name of deceased was Vikram and he used to ply rickshaw and used to sleep near the spot itself The dead body of deceased Vikram was sent to Mortuary. JO had also taken one bloodstained jute bony and one piece of coloured p/as/ic, having bloodstain in possession. Both these articles were also lying in the said rickshaw. JO has also taken the rickshaw rehri into his possession. One person namely Manoj met with the JO and stated that quarrel has taken place between Vikram and Sushi!. Thereafter they left the spot in search of accused alongwith eye witness Manoj. When they reached at Indra Park, Manoj pointed towards one person as Sushil and stated that he is the same person who quarreled with deceased Vikram and killed him. Accused Sushi! was arrested by the JO vide arrest memo Ex. PWJ5/A. JO conducted personal search of accused vide memo E. 15/B"

¶8Upon committal ol iliL c sc to the court of Secions, the respondent was charged with havin committed the offciicc under Section 302 of the Indian r'ciiii Code to which he pleaded not guilt\' iiid accordingly, the prosecution was called upon to lead evidence.

¶9To bring home the guilt ol the respondent, the prosecuion examined 17 witnees in all. The statement ol the respondent was also recorded under Section 313 nI' ihL (ode of Criminal Procedure wherein he denied all tilL iiicrminidn evidence led h\ the prosecution and reiterated his innocence and claimed to ha\ e heeii t!sely implicated in the present case. He further stated that ni recovery was made at his instance and he was lifted from the main road by the police officials. The respondent chose not to lead any defence witness and claimed trial.

¶10Ms. Aashaa Tiwari, learned counsel for the State contended that the acquittal of the respondent on the grounds relied upon by the learned trial court is perverse, unjustified and not free from conjectures and surmises. '237 n k

¶11Learned Counsel for the State further contended that the trial court has failed to appreciate that there are no major contradictions in the testimonies of the relevant witnesses i.e. PW4, PW15, PW17 warranting acquittal of the respondent and the minor contradictions, discrepancies, variations and improvements are bound to occur in detailed narration of facts by a witness and the testimony of sole eye witness Manoj Kumar PW1 5 was sufficient to prove the guilt of the respondent.

¶12Learned counsel for the State lurther contended that the trial court has erred in recorded its lThdin gs that the kLt\ ( 2i days in conducting the postmortem suggests that there is mischici on the part of the Investigating Officer and time was taken to frame the uepondent.

¶13Learned counsel for the Suite relied upon the arrest of ihe respondent contending that the arrest \ as lro per and without an y coercion or oppression by the Investigaiin 011icer and further rlied upon the recovery of\vooden plank to prove the guilt ol the respondent.

¶14Learned counsel for the State Iuirther conki ided that the trial court has failed to take into niice that the iSI tepori. dearly suggests that there was blood on the weapon of offence i.e. wooden plank/fatta.

¶15We have given our thoughtful consideration to the contentions urged by the counsel for the State and perused the impugned judgment and material placed on record.

¶16Before delving into the arguments raised by the learned counsel for the State, it is relevant to discuss the testimonies of PW4, PW15 and PW17. Page 4of12

¶17PW1 5 Manoj Kumar, the only eye witness deposed that Sushil and Vikram used to sleep on the footpath of Shastri Nagar along with him and that on the date of incident Sushil and Vikram consumed liquor, after which Sushi! demanded money from Vikram on which Vikram gave beatings to Sushi! with a wooden plank. Thereafter, Sushil left the spot. After sometime, he again returned and repeatedly gave wooden plank blows on the face of the Vikram and escaped from the spot. PW1 5 Manoj Kumar deposed that Sushil was apprehended from Indra Park, Shastri Nagar. Delhi on his pointing out.

¶18Another public vi ness P\V4 . K. Sharma Ueped that on the date of incident at about mid ni ght Vikrarn who was \ c hcnd came to his hotel and he saw that blood was oozing from his I1Lid ..md Vikram had asked him for his mobile phone to make a call.

¶19PW16 5] Sushil Kumar deposed that on the intervening night pf 9th - 10th March. 2013 it was noticed that dead body of a male person aged about 40-45 vca vas l ying in [hL nh hi rehni parked on the footpath. Constahk Devender \\ us ulrcad\ present there. Inquiry was made from him an his 1atenicnI vu recorded which was sent to the police station for registrauoii of the case. Investigating Officer prepared the site plan on the pointing out of Constable Devender. Crime Team inspected the spot and took the photographs and lifted blood on gauge, bloodstained cement and earth control from the spot. Inquiries revealed that the name of the deceased was Vikram who used to ply rickshaw and sleep on the footpath. According to PW16, an eyewitness namely Manoj PWI 5 met him on the spot and narrated the entire incident. V

¶20On a close scrutiny of the witnesses examined by the prosecution as discussed above, it appears that there are several lacunae in the case of the prosecution which does not inspire confidence and diminish the credibility of the prosecution case.

¶21According to PW15 Manoj Kumar, Sushil and Vikram had consumed liquor and thereafter Sushi! demanded money from Vikram. Vikram gave beatings to Sushil with a wooden plank consequently, Sushil left the spot. Thereafter, Sushil again returned and inflicted injuries on the face of the Vikrani with a v ouden plink which resulted in his death. 4 The prosecution has lii!ed to render afl\ e\planauon as to how PW15 Manoj Kumar jailed to report the matter v hen Vi1.t am had hit Sushil for the first lime. No explanation has also come ki ih as to how PW15 Manoj failed to report the mthter to the police when Sushi! had returned for the second time and hit Vikram with the \vooden plank. Had the story of the prosecution been true then the dead body of the deceased 'uld ha.e been found at the place ii incident. However, it is in evidence that the dead hd\ i ilte deceased was recovered on the rickshaw rehri on the nevt da y by P\\' I in the presence of Ct. Devender. Furthermore, PW4 Sushil Kumar Sharma put forth a different story that Vikram had come to his hotel at about midnight and blood was oozing from his head and he demanded his mobile phone to make a call. It is further noteworthy that PW1 5 nowhere mentioned that any injury was caused on the head of the deceased by Sushil rather his testimony is contradictory to the deposition of PW4.

¶22According to the case of the prosecution, the death of the deceased came to light on 10.03.2013 and even though the respondent had been Cr1. LP276/2016 Page6ofl2 arrested on the same day but the post mortem of the dead body of the deceased was conducted on 21.03.2013. There is a total contradiction in evidence on record as in Crime Report Ex.PW8/A it was mentioned "Unknown dead body" whereas PW2 had identified the dead body as of Vikram and the statement of PW15 was recorded on 10.03.2013. Strange enough the prosecution has failed to explain as to how PW15 Manoj Kumar was present at the spot and witnessed the quarrel between Sushil and Vikram. No explanation has come forth as to how the matter was reported the p>flc. I here is no explanation to the fact that PWI 5 Manoj Kuiujr v messed the inciknt at mid-night and the FIR was ftt. 1 ded Litter a dela y of 10 hours n the next day at about 9:30 am. The pi secution 1irther failed i nnect that the death of the deceased was caused b y wooden plank as the blood on wooden ilank does not match ith the blood of the deceased. Furthermore, Dr. Akash Jhaiijce PW 10 who conducted the post mortem on the hod\ of ihe deceased failed In ive any opinion regarding thc injurk' 'uI krcd b y the deceased. It is highly improbable that the cp nJcnt as inmd sitting in blood stained clothes close to the place of incident after he had caused the death of deceased Vikram. Moreso, FSL report Ex.PX does not prove that the clothes belong to the respondent which he was wearing at the time of the incident. Thus, the report of the FSL is inconclusive.

¶23In the light of the aforestated contradictions and lacunae in the prosecution case, we have no hesitation to come to the conclusion that prosecution case does not inspire any confidence to bring home the guilt of the respondent in respect of the charge levelled against Cr!. LP 276/2016 ru t.J him. The presence of PW1 5 at the spot casts a serious doubt that he witnessed the alleged incident, rather he appears to be a planted witness.

¶24The law with regard to the grant of leave is well settled by a catena of judgments. Leave to appeal can be granted only where it is shown that the conclusions arTived at by the trial court are perverse or there is misapplication of law or any legal principle.

¶25In SadIiu Saran Sing/i Vs. State of UP reported in 2016 (2) SCALE 629, the Hon'ble Apex Court observed: "18. Generally, an appeal against acquittal has always been altogether on a dfferent pedestal from that of an appeal against conviction. In an appeal against acquittal where the presumption of innocence in favour of the accused is reinforced, the appellate Court would interfere with the order of acquittal only when there is perversity of/act and law. However, we believe that the paramount consideration of the Court is to do substantial justice and avoid miscarriage ofjustice which can arise by acquitting the accused who is guilty of an offence. A miscarriage ofjustice that may occur by the acquittal of the guilty is no less than from the conviction of an innocent. This Court, while enunciating the principles with regard to the scope ofpowers of the appellate Court in an appeal against acquittal, in the case of Sambasivan and Ors. v. State of Kerala: (1998) 5SCC 412, has held. The principles with regard to the scope of the powers of the appellate Court in an appeal against acquittal are well settled The powers of the appellate Court in an appeal against acquittal are no less than in an appeal against conviction. But where on the basis of evidence on record two view are possible the appellate Court cannot be substitute its view in the place of that of the trial Court. It is only when the approach of the trial Court in acquitting an accused is found to be clearly erroneous in its consideration of evidence on record and in deducing conclusions there from that the appellate Court can interfere with the order of acquittal.

¶19This Court, in several cases, has taken the consistent view that the appellate Court, while dealing with an appeal against acquittal, has no absolute restriction in law to review and relook the entire evidence on which the order of acquittal is founded. If the appellate Court, on scrutiny, finds that the decision of the Court below is based on erroneous views and against settled position of law, then the interference of the appellate Court with such an order is imperative.

¶20This Court in Cizandrappa v. State of Karnataka:

(2007) 4 SCC 415, after referring to a catena of decisions, has laid down the following general principles with regard to powers of the appellate Court while dealing with an appeal against an order of acquittal: .1 42 From the above decisions, in our considered 'view, the following general principles regarding powers of the appellate Court while dealing with an appeal against an order of acquittal enierge.

(1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power an appellate Court on the evidence before it may reach its own conclusion, both on questions offact and of law.

(3) Various expressions, such as, ubstantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted Cr!. LP276/2016 Page9ofl2 conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseoiogies are more in the nature of jiourishes of language' to emphasise the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.

(4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presuined to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accus'ed having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court.

¶26In the case of Slate of Madhya Piwiesli '. Dal Sing/i & Ors., reported in 2013 (8) SC 625, the Hon'ble Supreme Court has held that the appellate court whLte considering the appeal against the judgment of acquittal shall interfere only when there are compelling and substantial reasons for doing sc and if the judgment is unreasonable and relevant materials have been unjustifiably ignored, it would be a compelling reason for interference. Page 10 ofl2

¶27In Mrinal Das and Ors. Vs. The State of Tripura reported in AIR 2011 SC 3753, the Hon'ble Apex Court held that: "It is clear that in an appeal against acquittal in the absence of perversity in the judgment and order, interference by this Court exercising its extraordinary jurisdiction, is not warranted. However, f the appeal is heard by an appellate court, being the final court offact, is fully competent to re-appreciate, reconsider and review the evidence and take its own decision. In other words, law does not prescribe any limitation, restriction or condition on 'xerc se ojuch pofter and the appellate court is frcc to Lii / i € ci zb mi ii conclusion keeping in mind thai c Liuhial IJJ u !JL 1IO/ p1 esumption in favour of the accused The presumption of innocenc i available to the pci son and in ci uninaljurisprudenc vei ' person is pi esuined to be innocent unless he is prrn cc' onity by the competent court If two i easonable views are possible on the basis of the evidence on record, the appellate court chould not distui b the findin/s of acquittal There is no limitation on the part of the appellate cow I to review the evidence upon Inch the ordei of ac//u/ILL1 is found and to come to its own conclusion 2 Ii pJL Ilute coui I can U/\O i eview the conclusion airived at by the trial Court with respect to both facts iiid lau While dealing with the appeal against acquiiia/ prejrred by the State, it is the duty of the appellate court to marshal the entire evidence on record and only by giving cogent and adequate reasons set aside the judgment of acquittal. An order of acquittal is to be interfered with only when there are "compelling and substantial reasons "for doing so. If the order is "clearly unreasonable ", it is a compelling reason for interference. When the trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts etc., the appellate court is competent to reverse Cr!. LP 276/2016 May 20, 2016 gr// SANG the decision of the trial Court depending on the materials placed." 28 While deciding the present leave to appeal, the aforestated principles culled out by the Apex Court are to be kept in view. In the present case from the evidence which has emerged on record, we conclude that the learned Trial Court has rightly observed that the prosecution failed to prove its case against the respondent beyond reasonable doubt, the prosecution has not made out a case to grant the leave to appeal and the view takcii h' th y lcjriicd Trial Court for acquitting the respondent was p ihle and plausible.

¶29In totality oF the Facts and circumstances. we do not find any infirmity in the impugned judgment. Ac rdingl,, no grounds are made out to interfere in the impugned judgment passed by learned trial court and the leave to appeal petition is dkmissed. G.S.SISTANI, J

$-4 4 IN THE HIGH COURT OF DELHI AT NEW DELHI + CRIMINAL LEAVE PETITION No. 276/2016 % Judgment dated 20th May, 2016 STATE (GOVT. OF NCT OF DELHI) Petitioner Through: Ms. Aashaa Tiwari, APP for the State versus SUSHIL PRASHAD YADAV ...........Respondent Throuh None CORAM: HON'BLE MR. JUSTICE C. S. SISTANI HON'BLE MS. JUSTICE SANGITA DIIJNGRA SEII( \L