State (Delhi Admn.) v. Shankar Lal & Anr

1. Whether Reporters of local papers may be allowed to see the judgment? Yes

2. To be referred to the Reporter or not ? Yes

3. Whether the judgment should be reported in Digest ? Yes AJIT BHARIHOKE, J.

1. Instant appeal is directed against the impugned judgment of acquittal passed by the learned Additional Sessions Judge in favour of accused Shankar Lal and Jabra Ram.

2. Briefly stated, the case of the prosecution is that on 23.8.1991, complainant Smt.Pammi Gulati was going to the house of her brother. At about 8.00 PM, when she reached near Gurudwara, Block No.29, West Patel Nagar, accused Shankar Lal 2009:DHC:3342-DB is alleged to have come from behind and snatched away her purse containing Rs.2,500/-, two keys and some documents and tried to run away. When she turned and ran after him, accused Shanker Lal struck on her right hand with some hard object and caused her injury. Shankar Lal accused allegedly passed on the purse to his co-accused Jabra Ram and asked him to go away and accused Jabra Ram escaped from the spot on a cycle. Accused Shankar Lal, however, was apprehended with the help of PW[3] Jagdish Lal Khanduja. In the meanwhile, someone informed the Police. PCR van as well as Shiv Kumar, SI the Investigating Officer reached at the spot of occurrence. Accused Shankar Lal was formally arrested. On interrogation, he made disclosure statement Ex.PW3/B, wherein he disclosed that after snatching the purse of the complainant, he had passed it on to his accomplice Jabra Ram and that he could get Jabra Ram arrested and the purse recovered. Pursuant to the said disclosure statement, on 24.08.1991, Shankar Lal led the Police party to his Jhuggi at Bheel Basti, Road No.20, Baljit Nagar, Delhi and pointed out his accomplice Jabra Ram sleeping in a corner of the Jhuggi. Accused Jabra Ram on interrogation, made a disclosure that from the spot he came to the Jhuggi of the accused Shankar Lal and had concealed the stolen purse in a container of flour which he could get recovered. Thereafter, he took out the purse of the complainant with all its contents from a container of flour lying in the room which was taken into possession vide Ex.PW3/F. PW[1] at the Police Station. It is also alleged that PW[1] Pammi Gulati went for treatment to Bhatia Nursing Home. Her prescription slip Ex.PW4/A was prepared and she was found to have suffered dislocation and fracture on the right wrist.

3. On completion of formal investigation, both the accused were sent for trial for having committed offence punishable under Sections 392/394/397 IPC read with Section 34 IPC. Accused persons were accordingly charged. Both of them pleaded not guilty and claimed trial. The learned Trial Judge did not find the evidence of the prosecution reliable and acquitted both the accused.

4. The learned counsel for the State has submitted that the impugned judgment is against the evidence on record. He has taken us through the statement of complainant Pammi Gulati and submitted that from her statement, it is apparent that, not only she was robbed, but in the process she had suffered injury on her right wrist when she was hit by the accused Shankar. Her aforesaid version, according to the learned counsel for the State, stands corroborated by the testimony of PW[4] Dr. (Mrs.) A.K. Bhatia who treated her on the same night and issued the prescription slip Ex.PW4/A. The learned counsel has further submitted that the trial Judge ought to have taken note of the fact that complainant Pammi Gulati had no motive or animus against the appellant Shankar Lal to falsely implicate him and ought to have accepted her testimony instead of giving undue importance to minor infirmities and contradictions in the prosecution evidence. He has submitted that on overall appreciation of the facts and circumstances of the case, the testimony of complainant Pammi Gulati appears to be natural and consistent and it has a ring of truth around it, which version also stands corroborated by the recovery of her stolen purse including money and other articles, at the instance of the respondents. Thus, he has urged us to set aside the judgment of acquittal and convict both the respondents.

5. The law relating to the powers of the appellate Court hearing an appeal against an acquittal and approach to be adopted is well-settled. The Hon‟ble Supreme Court in the matter of Salim Zia Vs. State of U.P., AIR 1979 SC 391, after analysing earlier pronouncements inter alia, observed thus: “2. The different phraseology used in the judgments of this Court such as- (a) „substantial and compelling reasons‟; (b) „good and sufficiently cogent reasons‟; (c) „strong reasons‟, are not intended to curtail or place any limitation on the undoubted power of an appellate court in an appeal against acquittal to review the entire evidence and to come to its own conclusion as stated above but in doing so it should give proper consideration to such matters as (i) the views of the trial Judge as to the credibility of the witnesses; (ii) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (iii) the right of the accused to the benefit of any real and reasonable doubt; and (iv) the slowness of an appellate Court in disturbing a finding of fact arrived at by a judge who had the advantage of seeing the witnesses.”

6. In the matter of Ashok Kumar Vs. State of Rajasthan, AIR 1990 SC 2134, Hon‟ble Supreme Court had observed thus: “Law is well settled. While caution is the watchword, in appeal against acquittal as the trial Judge has occasion to watch demeanour of witnesses and interference should be made merely because a different conclusion could have been arrived, the provision does not inhibit any restriction of limitation. Prudence demands restraint on mere probability or possibility but in perversity or misreading interference is imperative otherwise existence of power shall be rendered meaningless”.

7. From the aforesaid judgments, it is settled position of law that there is no embargo upon the powers of the appellate Court hearing appeal against acquittal to review the entire evidence and come to its own conclusion but, in doing so, the appellate Court must keep in mind that the Trial Court was in better position to appreciate the evidence because he had an advantage of observing the demeanour of the witnesses and should not only consider every material on record having bearing on the question of fact but also the reasons given by the court below in support of its judgment.

8. Coming to the facts of the case, perusal of the complaint statement of Pammi Gulati Ex.PW1/A would reveal that she had stated that while trying to escape, accused Shankar Lal had struck her with a hard object resulting in an injury on her right wrist. Ex.PW2/A is the endorsement of the Investigating Officer on the said statement in which he had recommended registration of a case under Section 394/34 IPC against the accused persons. punishable with imprisonment for life or with rigorous imprisonment for a term which may extend to 10 years and also the accused is liable to be fined. Considering the seriousness of the charge, under natural course of circumstances, had the prosecution version been true, the Investigating Officer was expected to take the injured to a government hospital for treatment as well as preparation of her MLC. However, perusal of the endorsement Ex.PW2/A shows that the Investigating Officer opted to accept the request of complainant that she wanted to get herself treated in a private nursing home which conduct on the part of the Investigating Officer points towards the unfairness of the investigation. Not only this, if the complainant had expressed her desire to get herself treated in a private nursing home, the Investigating Officer at least was expected to send her to the nursing home of her choice with a police escort for treatment and preparation of MLC but, this apparently was also not done. This circumstance raised a serious doubt against the prosecution version.

9. Smt. Pammi Gulati in her cross-examination has stated that she remained with the Police till about one or one and a half hour after the incident and thereafter she went to the Bhatia Nursing Home for treatment with her father-in-law Shri Om Prakash Gulati. If that version was true, the complainant was expected to give the name of accused Shankar Lal as the robber while giving history of her injuries to the Doctor concerned. Ex.PW4/A is the prescription as “patient looted by some unknown persons (robber) severe pain over right wrist joint”. In the cross-examination, PW[4] Dr.(Mrs.) A.K. Bhatia has stated that on her enquiry from Pammi Gulati, she was not able to tell her as to in what manner and by whom she had been inflicted injuries. This implies that when the prescription slip Ex.PW4/A was prepared by Dr. (Mrs.) A.K. Bhatia, she was not aware of the identity of accused Shankar Lal. This creates a doubt as to how the name of accused Shankar Lal got to be mentioned as the culprit in the complaint statement Ex.PW1/A of complainant Pammi Gulati which was admittedly recorded by the Investigating Officer SI Shiv Kumar at the spot of occurrence before Pammi Gulati had left for medical treatment at Bhatia Nursing Home. This circumstance casts a strong doubt against the truthfulness of the version of complainant Pammi Gulati.

10. PW[5] Investigating Officer SI Shiv Kumar has stated that accused Shankar Lal was interrogated by him at the spot of occurrence and he made a disclosure statement Ex.PW3/B. Perusal of said disclosure statement reveals that the accused Shankar Lal disclosed that he had hit the complainant with an iron rod which he had thrown towards “Nali” (drain) taking advantage of the darkness. Despite of this, there is nothing on the record to indicate that the Investigating Officer made any effort whatsoever to recover the weapon of offence. Had the prosecution case been true, the Investigating Officer definitely would have tried to locate thrown it towards the nali. This circumstance further compounds the doubt of the case of prosecution.

11. Further, as per the testimony of complainant Pammi Gulati, PW[3] Jagdish Lal, who had allegedly apprehended Shankar Lal, was previously known to her. Investigating Officer in his crossexamination has stated that when he reached at the spot, there was a crowd of people at the spot of occurrence but, he inquired only from one person about the incident. That one person, obviously was Jagdish Lal who was known to the complainant. This conduct of the Investigating Officer creates doubt about fairness of the investigation. When admittedly 40 to 50 persons were available at the spot of occurrence, it was expected of Investigating Officer to make enquiry from others also and join them as witnesses.

12. Even the prosecution version regarding the arrest of accused Jabra Ram at the instance of the accused Shankar Lal and recovery of stolen property at the instance of accused Jabra Ram is doubtful. As per the prosecution case, accused Shankar Lal was arrested at the spot. The Investigating Officer in his cross-examination has stated that he reached at the spot of occurrence at 8.25 PM and remained there for about three/three and a half hours. During said period, he is stated to have recorded the disclosure statement of the accused Shankar Lal. Had this version been true, the Investigating Officer was expected to proceed for the arrest of co-accused Jabra Ram and to recover the case property immediately after recording the disclosure statement instead of waiting till next morning when the raid was conducted to recover the stolen property. Further, case of the prosecution is that the accused Shankar Lal, while being chased by public, passed on the stolen purse to Jabra Ram who managed to escape. Had this story been true then, under the natural course of circumstances, accused Jabra Ram would have taken the money out of the purse and got rid of the incriminating evidence instead of going to the jhuggi of Shankar Lal and waiting there for Police to come and affect recovery of incriminating articles from his possession.