State of NCT of Delhi v. Asgar Ali

MUKESH KUMAR SUB-INSPECTOR

7. The learned ASJ after taking into consideration the entire material available on record, acquitted the respondent/accused. - 5 -

8. PW-1 is the complainant in the present case, who had not only made the complaint but had stated in the complaint that he had witnessed the incident. It was, at his instance, the site plan Ex.PW1/H was prepared, accused was arrested vide memo Ex.PW1/D, the personal search of the accused was conducted, and he was the witness to the alleged recovery of danda (stick) from DDA Park, Shastri Park, Delhi.

9. Relevant portion of the testimony of PW-1 is reproduced herein below: - “On 22.1.2012, I was present at my shop. Somebody informed me that a quarrel was going on between his brother Mohd. Rizwan @ Rizvi and Asgar Ali and his sons in the DDA Park, near red light. Accordingly, I rushed to the spot. I saw that several persons had gathered there. I saw that my brother was having head injury on his head and was smeared with blood. Asgar Ali and his sons had escaped from the spot. I enquired from my brother as to what had happened, then he informed that a quarrel had taken place between him and Asgar Ali and Asgar Ali had assaulted him with danda and bat. I informed the police on 100 number. Police officials reached there and my brother Rizwan was removed to GTB Hospital. At that time my brother Rizwan was little bit drunk. I went to P.S. and lodged the report. My statement was recorded by the police which is Ex.PW1/A which bears my signature at point A. The condition of my brother became deteriorated. I called a local doctor namely Dr. Ansari. He checked my brother and informed me that my brother was no more. I further informed the police regarding death of my brother. My brother Rizwan died around 10.00 a.m. at my home. Accused Asgar Ali was arrested by the police in my presence on 24.1.2012 vide arrest memo Ex.PW1/D and his personal search was conducted vide memo Ex.PW1/E. Both the memos bear my signatures at point A. Disclosure statement of accused Asgar Ali was also recorded by the police in my presence which is Ex.PW1/F and bears my signature at point A. Police had recovered at the instance of accused Asgar Ali. I was shown the danda by the police in P.S.-de Seizure memo of danda was prepared by the police which.is Ex.pw1/G and bears my signature at point A. I had shown the place of occurrence to police and the site plan of the spot was prepared by the police at my instance which is - 6 - Ex.PW1/H and bears my signature at point A. I can identify the danda if shown to me.”

10. A careful pursual of the testimony of PW-1 clearly shows that he had not witnessed the incident by himself. However, in the complaint Ex.PW1/A, he stated that he had seen the incident with his own eyes and seen the accused assaulting his brother i.e., Mohd. Rizwan and respondent hit Mohd. Rizwan on his head with a danda. This fact was further reinforced in his examination in chief when in response to a leading question of the learned APP, he stated that he had not seen the accused assaulting his brother with danda and if this fact was mentioned in statement Ex.PW-1/A, it may not be correct. Even in his cross-examination, PW-1 admitted that he had not seen anybody assaulting his brother. Thereafter, PW-1 deposed that he had shown the place of occurrence to the police and the site plan Ex. PW- 1/H was prepared by the police at his instance. However, Ex.PW-1/H is the site plan of the alleged place of recovery of the alleged weapon of offence at the instance of the accused. During the examination-inchief, PW-1 did not even point at the site plan which was prepared at his instance. The next role of PW-1 was in the arrest of the accused and the alleged recovery of danda at the instance of the accused.

11. In this regard, the deposition of PW-14 SI Mukesh Kumar is vital where he states that on 24.01.2012, he alongwith Constable Anil went to Shastri Park and met PW-1 Naushad and at the instance of Naushad, the accused was arrested from Shastri Park Red light vide arrest memo Ex.PW1/D and personal search of accused was conducted vide memo Ex.PW1/E. The disclosure statement of the accused was recorded by him vide Ex.PW1/F and at the instance of the accused, one bamboo danda was recovered from the north-east corner of DDA Park, Shastri Park. After taking measurements, he kept this danda in a - 7 cloth pulanda, sealed it with the seal of MK and seized it vide memo Ex.PW1/G. In this regard, PW-1 had deposed that the accused was arrested in his presence vide arrest memo Ex.PW1/D and Ex PW1/E. In his presence, the disclosure statement of the accused was recorded vide Ex. PW1/F. He further deposed that he was shown a danda by the police in the police station. A seizure memo of the danda was prepared by the police which is Ex.PW1/G and it has his signatures at point A. When the sealed parcel of the danda was opened, he identified the danda Ex. P-1 to the same which was shown to him by the police in the police station and seized in his presence. During the cross-examination of PW-1 i.e., admitted that the accused was present at the police station when the accused was arrested. He admitted that recovery of the danda was not effected in his presence, the police had shown him the danda and told him that the danda would be produced in the court and it was kept in the police station. He further deposed that pool of blood was lying at the spot and no other material was lying at the spot while leaving for the hospital.

12. Therefore, from the aforesaid, it can be observed that PW-1 falsified the entire story regarding the arrest of the accused and recovery of the alleged weapon of offence at his instance. This fact becomes more probable from the cross-examination of PW-2, stated to be an eyewitness, where he stated that the PCR officials had taken the danda with them. Therefore, the testimony of PW-1 does not bring out anything incriminating against the accused.

13. In this regard deposition of PW-2 Mohd. Guddu and the relevant portion of his testimony are reproduced herein below: - “On 12.1.2012, it was about 12 or 1.00 noon, I was present near Shastri Park red light and was watching a cricket match being played in the ground. I know the - 8 accused Asgar Ali, present before the court today, as he is a resident of the same colony where I reside. On that day, a quarrel took place between Rizvi and accused Asgar Ali in the Shastri Park playground. Asgar Ali gave a danda blow on the head of Rizvi due to which blood started. I telephonically informed Nawab, the brother of Rizvi concerning the incident. Nawab reached the spot within oozing from the head of Rizvi. 10-15 minutes. PCR officials came there and removed Rizvi from the hospital. Rizvi had reached home from the hospital. On the following day, I came to know about the death of Rizvi. I narrated the facts before the police also.” Thereafter, in his cross-examination he deposed that: - “On 22.1.2012 and it was my off day. There were about 40-50 persons present in the park who were watching the match. Rizvi was also present in the park. Rizvi was playing gambling on that day in the park and there were three more persons who were playing gambling with Rizvi. Those persons were not known to me. There were about 23-24 persons who were playing cricket in fielding as well as in batting. I was at a distance of about 50 feet from the place where persons were gambling. I reached the place at about 11.00 a.m. or 11.30 a.m. where a cricket match was being played. When I reached the spot at that point of time no quarrel was going on. I had gone near the accused prior to the incident. The incident occurred between the period 12 noon to 1 p.m., I cannot tell the exact time of the incident. I heard the noise of a quarrel which was going on between Asgar Ali and Rizvi and then I proceeded towards them. I tried to intervene between the two. Other persons also intervened, but I do not know their names. Accused and Rizvi were grappling (hatha pai ho rahi thi). Both the persons were separated by me. After separation accused Asgar Ali ran towards the road and returned the spot with a danda and then hit Rizvi on his head.”

14. The aforesaid testimony of the witness is credible and valid explanation of his presence at the place of the incident; however, no FIR was registered on the basis of his statement despite his narrating - 9 the incident to the police. It is observed that according to PW-2 Guddu, he had never met the police; however, the record shows that his statement under Section 161 of the Cr.P.C was recorded by IO on 23.01.2012. In his examination, he stated that he never met the police. Further, the site plan was not prepared at his instance, when the police were well aware and the complainant was also well aware that PW-2, is an eyewitness to the incident. This creates a doubt about the story of the prosecution and no valid explanation is provided by the prosecution in this regard.

15. In the present case, lodging of FIR by the complainant claiming himself to be an eye witness despite not being an eye witness; the preparation of the site plan at the instance of PW-1, who had no idea where the incident might have happened; and the planting of a weapon of offence upon the accused raise serious doubts about the truthfulness of the case of the prosecution. Therefore, the benefit of doubt given to the accused/respondent by the learned trial court is well justified.

16. The Hon‟ble Supreme Court in the matter of State of Maharashtra v. Sujay Mangesh Poyarelar[1] while considering its earlier pronouncements including the decision in the case of Chandrappa & Ors. v. State of Karnataka[2] has held that the power of the appellate court in an appeal against acquittal cannot be said to be restrictive and the High Court has full power to re-appreciate, review and reweigh at large the evidence on which the order of acquittal is relied and to reach its own conclusion on such evidence. Both questions of fact and of law are open to determination by the appellate court. It has also been held that nonetheless it is not correct to say that 2008 9SCC475 (2007)4 SCC415 - 10 unless the appellate court in an appeal against acquittal under challenge is convinced, that the finding of acquittal recorded by the trial court is „perverse‟, it cannot interfere. If the appellate court on reappreciation of evidence and keeping in view the well established principles, comes to a contrary conclusion and records a conviction, such conviction cannot be said to be contrary to law.

17. The Supreme Court in the matter of Hakeem Khan &Ors v. State of M.P.[3] has again considered the powers of the appellate court for inference in cases where acquittal is recorded by the trial court. In the said decision it has been held that if the „possible view‟ of the trial court is not agreeable for the High Court, even then such „possible view‟ recorded by the trial court cannot be interdicted. It is further held that so long as the view of the trial court can be reasonably formed, regardless of whether the High Court agrees with the same or not, the verdict of the trial court cannot be interdicted and the High Court cannot be supplanted over the view of the trial court.

18. Learned ASJ while passing the impugned judgement has made observations in para 46 with regard to the conduct of the investigation officer and lapse in the investigation. In light of the fact and circumstances of the present case, it is pertinent to peruse the position of the law in this regard.

19. In the decision of State of West Bengal v. Mir Mohammad Omar & Ors.4, the Hon‟ble Supreme Court has directed the courts to ordinarily desist from castigating the investigation even while ordering acquittal.

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19.1. In the decision of Testa Setalvad v. State of Gujarat[5], the Hon‟ble Supreme Court in para 9 has observed that the courts should not make remarks against individuals or authorities unless they are absolutely required for the matter to be decided. Para 9 of the aforesaid judgment is reproduced here below:

20. For the reasons stated above and relying on the observation of the Hon‟ble Supreme Court, the remarks against the investigation agency at paragraph No.46 of the impugned judgement dated 16.04.2015 passed by the Additional Session Judge are not necessary and, therefore, the same are hereby expunged.

21. Having considered the aforesaid facts and circumstances, this court finds that the prosecution has not been able to successfully prove the charge beyond a reasonable doubt. On examination of the material available on record, this court is not inclined to take a different view other than the view which has already been taken by the court below. Accordingly, the appeal is dismissed.

(PURUSHAINDRA KUMAR KAURAV) JUDGE