Research › Search › Judgment

Delhi High Court · body

2008 DIGILAW 614 (DEL)

STATE (DELHI ADMINISTRATION) v. VIRENDER KUMAR

2008-06-11

G.S.SISTANI

body2008
G.S.SISTANI, J : 1. The present appeal is directed against the judgment dated 16.4.1987 passed by the Metropolitan Magistrate, Delhi. By the impugned judgment the accused persons were acquitted. 2. The case of the prosecution as noted by the Metropolitan Magistrate is that : a DD No.4 A was recorded at the Police Station Civil Lines at 9:25 a.m. on 16.2.1982. On the basis of information received on telephone from PCR by SI Badrinath to the effect that he received information on telephone from one Pawan Kumar about an accident with Car No.WMC 8920 and two wheeler scooter and the Car had driven away from the spot while injured was lying on the road. S.I. Ram Chander along with the constable Raghubir Singh, reached the spot and found one Bajaj Scooter bearing No.DHH 6608 at the spot, but did not find any witness. On coming to know that the injured has been removed to Hindu Rao Hospital, constable Ram Chander deputed constable Raghubir Singh at the spot and he went to the hospital. MLC of the victim, Dalip Simen was collected; he was declared unfit to make the statement. FIR No.94/92 was recorded for the offence of under Section 279 and 337 IPC. The investigating officer recorded the statement of the injured Dalip Simen on 17.2.1982, the next day of the occurrence, as well as statement of the witnesses. According to the injured he was going to Delhi University on his Scooter at about 9:15 a.m. when he came on Yamuna Marg in front of Bud Vihar, a white ambassador car came behind and stopped infront of him. Thereafter six persons came out of the car and attacked him with lead pipe and lathi. According to him that one car driven by a lady stopped there and some other people also collected while assailants ran away. He claimed that he could recognize those persons and had a suspicion that there was hand of college principal, Kartar Singh, J.P. Jain, Physical Instructor, Ramjas College and Dr.Karan Singh of Chemistry department. The respondents herein were arrested in the case during the investigation on different dates. As per the opinion of the doctor, the injuries of Dalip Simen were grievous caused by blunt object. After completing the investigation, the respondents were challaned for the offence punishable under Sections 307/147/148/120-B IPC. 3. The respondents herein were arrested in the case during the investigation on different dates. As per the opinion of the doctor, the injuries of Dalip Simen were grievous caused by blunt object. After completing the investigation, the respondents were challaned for the offence punishable under Sections 307/147/148/120-B IPC. 3. It is submitted by learned counsel for the appellant that the judgment dated 16.4.1987 has been passed on assumptions, conjectures and surmises. The second argument which was raised, was that the Court below erred in not giving full meaning of the statement of the injured person particularly in view of the motive of the crime was writ large and more or less admitted by the respondents. The learned court also failed to appreciate that there was no reason why the injured person would falsely implicate the respondents. The only other argument which was raised by learned counsel for the appellant was that the documents were not exhibited in accordance with law. 4. The respondents are represented by A.K. Singh, Mr.S.D. Singh and Mr.Sudhir Nandrajog Advocates. Learned counsel for the respondents at the very outset submits that in an appeal against acquittal by the State (i) High Court should refrain from interfering in the decision of acquittal, (ii) if two views are possible, the view favouring the accused should be taken by the appellate court in appeal against acquittal and (iii) only for compelling and substantial reasons the order of acquittal should be set aside. It is submitted that the judgment is well reasoned and the court below has rightly appreciated the evidence. 5. In support of the above submissions, learned counsel for the respondents have placed reliance on various judgments of the Apex Court. Mr.A.K. Singh, learned counsel for respondents No.2 and 4 also submits that as per the criminal jurisprudence an accused is presumed to be innocent, however, once the accused having been acquitted, the presumption of innocence is further re-enforced, re-affirmed and strengthened and further merely if two reasonable conclusions are possible on the basis of evidence on record, the appellant court should not disturb the finding of acquittal arrived at by the Court below. Learned counsel has submitted that in this case some important witnesses were not even examined by the prosecution. 6. Before dealing with the rival contention of the parties, it would be useful to analyse the evidence of some of the material witnesses. 7. Learned counsel has submitted that in this case some important witnesses were not even examined by the prosecution. 6. Before dealing with the rival contention of the parties, it would be useful to analyse the evidence of some of the material witnesses. 7. PW-1, Sh.Paras Nath (ACP, Vigilance Branch), has deposed that on 16.2.1982 he was passing from Yamuna Marg, at about 9:30 a.m. he saw a man lying on the road in injured condition, a motorist and a woman were trying to put that man in their car. He stopped there and helped them in lifting the injured to the Car. He enquired from the persons collected over there, if there was any eye witness to the incident, one youngman, Prem, s/o.Chander, r/o. Sector-1, R.K. Puram, New Delhi, stated that he had seen the occurrence. He noted down his name, parentage and address so that he could be contacted by the I.O. The injured was taken to the hospital where it was learnt that injured was one Dalip Simen, lecturer of Ramjas College. In the cross-examination he has stated that he did not enquire the detail of the incident from Prem, who disclosed himself to be an eye witness. 8. PW-2, Pawan Kumar has deposed that on the fateful day he was going to Hanuman Mandir when he reached Jamuna road opposite, he saw a scooter lying on the road and a man lying in the injured condition; and two persons were standing there. They stopped him and he was told that car No.MNC-8920 has caused an accident and asked him to follow the car. He saw the car at the turn at Raj Bhawan. He informed the PCR and came back to the spot and saw that the injured was being removed in a car parked nearby. In his cross-examination he has stated that he did not himself read the number of the car, but he was only told about it by some persons, who were standing nearby. He himself could not decide which car had caused the accident, but he was told that the colour of the car was white. After his cross-examination the learned APP requested the Court to permit him to ask further questions in view of the fact that there was ambiguity with respect of the number of the car. He himself could not decide which car had caused the accident, but he was told that the colour of the car was white. After his cross-examination the learned APP requested the Court to permit him to ask further questions in view of the fact that there was ambiguity with respect of the number of the car. The following questions and answers were recorded: “C.Q. You have stated in examination in chief that you saw the number of the car while chasing it as WMC-8920, whereas in cross-examination done by Ld. defence counsel you have stated that you learned this same as told by someone else, meaning thereby you did not see the No. of the car, which of the two statements is correct? A. As a matter of fact when I first saw the injured lying on the road I was told by one boy standing there that the car with this Number had caused the accident and escaped. I immediately followed the car but I could not see its number.” 9. PW-3, Dalip Simen is the injured person. He has deposed that on 16.2.1982 he was proceeding to college on scooter. When he turned to Jamuna road opposite Budh Vihar, an ambassador car of white colour suddenly drew up infront of his scooter. In few seconds, six persons came out of the car and immediately began to assault him; some of them were armed with rods and lathis. The beating lasted for few minutes and during which rods were applied on his limps and face and he collapsed. The assailant left him and fled away in the car; after some minutes a couple who was passing by in a Fiat car stopped and helped him in getting inside the car. Simultaneously, police officers also stopped at the spot. The couple then took him to Bara Hindu Rao Hospital. He sent words through police officer, to his colleagues of Ramjas College, who arrived in about half an hour. Thereafter he was removed at approximately at 5:30 p.m. to All India Institute of Medical Sciences for further treatment. His left leg was broken and there was a fracture on his right leg and in addition he lost six teeth. His statement was recorded on the following day. He deposed that except J.P. Jain, who is present in the court, no other accused were previously known to him. 10. His left leg was broken and there was a fracture on his right leg and in addition he lost six teeth. His statement was recorded on the following day. He deposed that except J.P. Jain, who is present in the court, no other accused were previously known to him. 10. PW-5, Dr.K.K. Malhotra has deposed that the injured Dalip Simen was brought to Hindu Rao Casualty by one Ravinder Chawla with alleged history of fight. He has identified his signatures on his report, Ex.PW-5/A, and in the cross-examination he has stated that the injuries on the body of Dalip Simen could also occurred in a major road side accident. 11. I have heard learned counsel for the parties and also gone through the record of the case. 12. In this case PW-1, Paras Nath (ACP) is a witness who happened to come to the spot immediately after the occurrence. However, he was not an eye witness to the incident. In the testimony of PW-1, the witness categorically states that he made an attempt to find out if there was any one who had witnessed the incident. One Prem, s/o.Chander, r/o. Sector-1, R.K. Puram, New Delhi is stated to have seen the occurrence. While in his testimony, PW-1, states that he noted down his name, parentage and address, but PW-1 does not state that what Prem had disclosed to him. From the testimony, it is established that there was an eye witness and the evidence of this eye witness was essential to establish an accident or a fight, but the prosecution has failed to produce the said Prem, to enable the prosecution to establish and support their case. 13. PW-3, is the victim and the injured and there is no doubt that he has received various injuries. PW-2, Pawan Kumar in his statement has categorically stated that on the fateful day when he was passing by, he saw a scooter lying on the road and a man lying in an injured condition. Two persons standing nearby had informed him that car bearing No.WMC 8920 had caused an accident and he was asked to follow that car. As per the testimony of PW-2, car bearing No.WMC 8920 had caused an accident with the scooter. 14. The victim (PW-3) was removed to Hindu Rao Hospital. The victim chose not to make any statement but asked the Police persons present to inform his colleagues. As per the testimony of PW-2, car bearing No.WMC 8920 had caused an accident with the scooter. 14. The victim (PW-3) was removed to Hindu Rao Hospital. The victim chose not to make any statement but asked the Police persons present to inform his colleagues. The victim at his request was thereafter removed to All India Institute of Medical Science at 5:30 p.m. on the same date. The complainant made a statement on the following day. The sequence of events have been given by the complainant in his examination-in-chief. There is no explanation as to why the complainant did not make the statement before the Police at the first available opportunity. This raises a suspicion towards the conduct of the complainant. It cannot be ruled out that the statement which was given the following day was a tutored statement after consulting his colleague. PW-2 has also deposed that he was informed that an accident had taken place. FIR was also registered under Sections 279/337 IPC. From the evidence of PW-3 it also emerges that there were two rival groups in Ramjas College. One is headed by Mr.J.P.Jain, accused and the other belonging to the complainant (Dalip Simen). The statement of PW-3, complainant is also not reliable in view of the discrepancy with respect to the colour of the car which was allegedly used by the accused persons in the alleged commission of the offence. In his statement before the police he had stated that the colour of the Ambassador car was white, whereas in his statement on oath in the court during cross-examination he stated that the colour of the car was light. The trial court has noticed that in fact the colour of the car bearing No.WMC 8920 was light blue and not white as stated by PW-3 in his statement before the Police and thereafter improvement was made by him when he stated in the cross-examination that the colour of the car was light. The trial court has also considered the fact that the general description given by the complainant (PW-3) of the accused persons did not tally with the ones, who were arrested. Even in the Court he could not properly recognize and identify the accused persons. 15. Accused, Virender Kumar Jain had tendered in defence evidence a carbon copy of the challan Ex.D-1 along with receipt acknowledging payment of fine. Even in the Court he could not properly recognize and identify the accused persons. 15. Accused, Virender Kumar Jain had tendered in defence evidence a carbon copy of the challan Ex.D-1 along with receipt acknowledging payment of fine. This was with respect to the car bearing No.WMC 8920 which was challaned by the traffic enforcement staff at Smalkha in Haryana on 16.2.1982 at 9:35 a.m. the challan also bears the signatures of Mr.V.K. Jain. The Court has observed that these two documents D-1 and D-2 have been exhibited without calling the officials who wrote the challan and without calling the Magistrate who imposed the fine on the accused, in view of the fact that they have come out from the testimony adduced by the prosecution in the case, thus documents are relevant as these two documents show that the vehicle in question was not in Delhi on 16.2.1982 on the date of the occurrence. 16. Learned counsel for the State has raised strong objections with regard to the trial court placing reliance on these documents Ex.D-1 and D-1. Learned counsel for the respondent on the other hand while relying upon R.V.E.Venkatachala Gounder Vs. Arulmigu Viswesaraswami & V.P. Temple and Anr. AIR 2003 SC 4548 and more particularly on paragraphs 19 and 20 have submitted that the objection with regard to the mode of proof should have been taken at the appropriate stage before the evidence is tendered and once the document has been admitted in evidence and is marked as an Exhibit, the objection cannot be raised. Paragraphs 19 and 20 of the judgment read as under: “19. Order 13, R.4 of the Cr.P.C. provides for every document admitted in evidence in the suit being endorsed by or on behalf of the Court, which endorsement signed or initiated by the Judge amounts to admission of the document in evidence. An objection to the admissibility of the document should be raised before such endorsement is made and the Court is obliged to form its opinion on the question of admissibility and express the same on which opinion would depend the document being endorsed as admitted or not admitted in evidence. In the latter case, the document may be returned by the Court to person from whose custody it was produced. 20. In the latter case, the document may be returned by the Court to person from whose custody it was produced. 20. The learned counsel for the defendant-respondent has relied on the Roman Catholic Mission v. State of Madras and another, AIR 1966 SC 1457 in support of his submission that a document not admissible in evidence, though brought on record, has to be excluded from consideration. We do not have any dispute with the proposition of law so laid down in the abovesaid case. However, the present one is a case which calls for the correct position of law being made precise. Ordinarily an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes: - (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as „an exhibit,? an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken before the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The later proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence for two reasons: firstly, it enables Court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the Court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the Court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the later case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in superior Court.” 17. Applying the aforestated principles to the facts of the present case, the objection of the learned counsel for the State is not that the documents Ex.D-1 and D-2 by itself are inadmissible but the challenge is to the mode of proof. Since such objection was not taken at the time when the documents were exhibited the same would amount to waiver of the objection. 18. This court has analyzed the evidence which has been placed on record. The trial court has rightly arrived at the conclusion taking into consideration that PW-1 ACP, Paras Nath had taken down the name of the eye witness but the prosecution did not produce him as a witness. PW-2 in his testimony has stated that he was informed that Car bearing No. WMC 8920 has caused an accident. PW-2 has arrived at the spot of the incident within minutes of the incident and he deposed that car bearing No.DHH 6608 had caused an accident. 19. PW-2 in his testimony has stated that he was informed that Car bearing No. WMC 8920 has caused an accident. PW-2 has arrived at the spot of the incident within minutes of the incident and he deposed that car bearing No.DHH 6608 had caused an accident. 19. Taking into consideration the fact that admittedly PW-3, the complainant had stated that there were two groups in Ramjas College, who were in confrontation with each other – one group headed by J.P. Jain and the other is headed by the complainant. Complainant had raised suspicion on J.P. Jain. This court finds the statement of PW-3 the most unreliable, in view of the fact that complainant did not give the statement to the Police at the first opportunity available, but called his colleague to Hindu Rao Hospital and then he was removed to AIIMS the same day and only thereafter he made a statement only the next day. The FIR which was initially lodged was under Sections 279/337 IPC, which was later on converted into Sections 147/325/149 IPC. In view of the settled proposition of law, there is no force in the argument of the learned counsel for the State that no reliance should have been placed on D-1 and D-2. The State should have objected to the mode of proof prior to the time when the document was being exhibited. While hearing an appeal for acquittal, the High Court has full power to review the entire evidence upon which the order of acquittal is founded and then come to its own conclusion. However, it has repeatedly been held that unless the findings of the trial court are unreasonable and perverse, the High Court should not interfere with the order of acquittal. The Court will not interfere only because a different plausible view may arise on evidence or that the view taken by the trial judge while acquitting the accused cannot be the view of a reasonable man based on the material on record. There are no reasons for interference in the judgment of the trial court. Consequently, appeal is dismissed.