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2018 DIGILAW 241 (DEL)

Rajbir Sharma v. State

2018-01-24

I.S.MEHTA, S.MURALIDHAR

body2018
ORDER : Crl. L.P. 271 of 2016 1. This is a petition seeking leave to appeal against the judgment dated 30th September, 2015 passed by the learned Additional Sessions Judge acquitting the Respondent No. 2 of the offence under Sections 341/307/506/34, IPC. The present petition is by the original complainant. The brief facts are that information was received in Police Station (PS) Ashok Vihar on 29th July, 2004 at around 9.02 p.m. which was reduced to DD No. 25. This was about a quarrel near a Gurudwara in H-Block, JJ., Colony, Wazirpur. When the Investigating Officer (IO) Kewal Singh proceeded to the spot, he found the present Petitioner, Rajbir Sharma, lying in an injured condition. He was then sent to the Babu Jagjeevan Ram Memorial Hospital for treatment. After being examined and treated, the Petitioner gave a statement to the IO in which he stated that he was returning from his scooter repair shop in Inderlok Market with his employee Nafis on his Bullet motorcycle. When he reached the main chowk on the Gurudwara Road, another Bullet motorcycle on which four boys were seated forcibly stopped him by obstructing his way after overtaking him. The Petitioner stated that one of those four boys, he knew Pradeep Jaat and Amit Kaushik (Respondent No. 2 herein). The Petitioner stated that Pradeep hit him on the face with a brick while Amit gave a bottle blow on his head. The two other associates attacked him with chairs. 2. On completion of the investigation, a charge sheet was prepared for being filed in the Court. It was entrusted to IO Kewal Singh vide a road certificate No. 97/21/05 dated 3rd February, 2005. However, the Petitioner did not hear anything further from the police or the Court. Therefore, he filed an application on 20th September, 2010 for a direction to the concerned Station House Officer (SHO) to file the challan. Kewal Singh, who had by then become a Sub-Inspector filed a reply on 20th October, 2010 stating that he had handed over the charge sheet to Ct. Sanjay to be filed in the Court. Kewal Singh sought time to search for the charge sheet. 3. Kewal Singh, who had by then become a Sub-Inspector filed a reply on 20th October, 2010 stating that he had handed over the charge sheet to Ct. Sanjay to be filed in the Court. Kewal Singh sought time to search for the charge sheet. 3. With the Court not receiving the charge sheet even thereafter, it directed, by an order dated 21st February 2011, the District Head of Police to get the charge sheet re-constructed and also take appropriate disciplinary steps against the erring police officials. Ultimately, the charge sheet in the re-constructed form was filed on 8th November, 2011 and only against Respondent No. 2 Amit Kaushik alias Amit Kumar since in the interregnum Pradeep Jaat died on 30th August, 2008. 4. The plea of Amit Kumar that he was a juvenile on the date of the offence was negatived on the basis of the report of the Medical Board constituted for that purpose. Ultimately, charges were settled against him on 19th February, 2015 under Sections 341/307/506 read with 34, IPC to which Amit Kumar pleaded not guilty and claimed trial 5. The two witnesses examined out of the list set out in column No. 13 of the charge sheet. One was Sub-Inspector G.T. Bhagat (PW-1) who got the FIR uploaded on the computer system on 30th July, 2004. The other was the Petitioner, who appeared as PW-2. While deposing in Court, the Petitioner stated that due to darkness at the spot and having been attacked suddenly, he could not see any of the assailants except accused Pardeep. He denied further knowledge about this case. He was cross-examined extensively by the APP. The attempts at getting summons served on Nafis, who was with the Petitioner a time of the incident were unsuccessful. The Petitioner also expressed his inability to produce the Nafis claiming that he had no information as to his whereabouts. With the Petitioner resiling, the trial Court by the impugned judgment dated 30th September, 2015 proceeded to acquit Respondent No. 2 of the aforementioned offences with which he was charged. 6. The present petition was initially filed as a Criminal Appeal. By an order dated 17th May, 2016 this Court directed it to be registered as a Criminal Leave Petition. With the Petitioner resiling, the trial Court by the impugned judgment dated 30th September, 2015 proceeded to acquit Respondent No. 2 of the aforementioned offences with which he was charged. 6. The present petition was initially filed as a Criminal Appeal. By an order dated 17th May, 2016 this Court directed it to be registered as a Criminal Leave Petition. The Petitioner now contends in this petition that he was under threat to his life and that of his family at the behest of Respondent No. 2 "who along with his aide, namely, Parveen Chaudhary @ Moni Gujjar had pressurized and threatened the Appellant to not support the case of the FIR." The Petitioner states that he had filed a complaint to this effect with PS Rohini District Courts on 24th October, 2015 as well as with the DCP and Commissioner of Police on 19th November, 2015. 7. During the pendency of the present petition, the Petitioner filed Criminal Misc. Application No. 15258/2017 under Sections 391/311, Cr.P.C. In the said application the Petitioner states that on the basis of the above complaint dated 24th October, 2015, FIR No. 658/2016 had been registered at PS, Prashant Vihar under Sections 195-A/506/34, IPC. It is further mentioned in the said application that the police had since filed the charge sheet against the accused persons, including Respondent No. 2 and his other associate Praveen Chaudhary @ Moni Gujjar on 18th August, 2017 before the trial Court. It is on this basis that the Petitioner contends that the filing of the charge sheet by the police in the aforementioned FIR No. 658/2016 substantiates his plea that he was being threatened by Respondent No. 2 and his associates to turn hostile with respect to identifying accused Amit Kumar @ Amit Kaushik. 8. There is no denial by the Respondent No. 2 as to the fact of charge sheet having been filed against him and Praveen Chaudhary @ Moni Gujjar arising out of the FIR No. 658/2016. However, Counsel for Respondent No. 2 submitted that the Petitioner had turned hostile in the trial resulting in the impugned judgment whereby Respondent No. 2 stood acquitted. However, Counsel for Respondent No. 2 submitted that the Petitioner had turned hostile in the trial resulting in the impugned judgment whereby Respondent No. 2 stood acquitted. He submitted that if a plea of the present kind were to be permitted now, then in every case where a witness turns hostile, such witness could subsequently turn around and question the acquittal by claiming to have been under pressure or threat by the accused. 9. The Court is unable to accept the above submission. If the Petitioner herein had not filed any complaint with the police or if he had kept quiet when no action was taken thereon by the police, the matter may have been different. However, in the present case, not only did the Petitioner lodge a complaint with the police within a month after the acquittal of Respondent No. 2 by the trial Court, the police too found some prima facie merit in the complaint upon investigation. The police has, therefore, filed a charge sheet against Respondent No. 2 and his associate in the trial Court under Sections 195-A/506/34, IPC. It is not, therefore, as if some frivolous complaint was filed by the Petitioner making random allegations about having been subjected to threat when he deposed before the trial Court in the present case. 10. The above development is indeed a significant one as regards the fate of the present case. The trial collapsed when the Petitioner, the star witness, turned hostile. The trial Court had no option but to acquit Respondent No. 2 without proceeding further in the trial by examining other witnesses. That situation may have been averted if the Petitioner had come forth with the present plea. 11. Accordingly, the petition is allowed and the Petitioner is granted leave to appeal against the impugned judgment dated 30th September, 2015 of the trial Court. 12. For the reasons discussed above, this Court sets aside the impugned judgment dated 30th September, 2015 passed by the trial Court and restores the trial arising out of FIR No. 517/2004 registered at PS Ashok Vihar to the file of the learned Additional Sessions Judge, North West, Rohini. 13. The plea of the Appellant for being examined afresh under Section 311, Cr.P.C. stands allowed. He is also permitted to lead any further evidence that be put on record along with the documents pertaining to further developments in the trial Court. 14. 13. The plea of the Appellant for being examined afresh under Section 311, Cr.P.C. stands allowed. He is also permitted to lead any further evidence that be put on record along with the documents pertaining to further developments in the trial Court. 14. It is clarified, however, that this Court has not expressed any view on the merits of the charge sheet filed in FIR No. 658/2016 registered at PS Prashant Vihar under Sections 195-A/506/34, IPC against Respondent No. 2 and his associate Praveen Chaudhary @ Moni Gujjar. That case will proceed on merits independent of any observation by this Court in the present order. 15. It is open to the parties to seek permission of the trial Court to lead any further evidence. Both Respondent No. 2 as well as the Petitioner shall appear in the Court of learned ASJ-04, North West, Rohini, New Delhi on 24th February, 2018 for further proceedings. The appeal and applications are disposed of in the above terms. A certified copy of this order together with the trial Court record returned forthwith to the concerned trial Court through a Special Messenger.