State (Govt of NCT of Delhi) v. Sonu Sharma & Ors.

1. The present petition is filed under Section 378 of the Code of Criminal Procedure, 1973 (‘CrPC’) seeking leave to challenge the judgment dated 23.11.2017 (hereafter ‘the impugned judgment’), in Sessions Case No. 122/2015 arising out of FIR No. 313/2013, registered at Police Station Dwarka North, whereby the learned Trial Court had acquitted Respondent Nos. 1-2,[4] of the offence under Section 395 of the IPC and Respondent No. 3 of the offence under Section 412 of the IPC.

2. Briefly stated, the FIR was registered on a complaint given by one Dhani Ram who alleged that on the intervening night of 07/08.09.2013 when he was on security duty with one Sukhbir Singh and Suresh at the BSES store, Dwarka, then at about 3:00 am, 3-4 persons reached the spot and asked them to keep quiet. It is alleged that thereafter, one of them gave a fist blow on the complainant’s face and another person hit with his leg whereafter the complainant raised an alarm. It is alleged that thereafter Suresh came out whereafter both of them were beaten by the said persons. It is alleged that the accused persons had an iron rod, a wooden stick and a pistol like object. It is alleged that the accused persons tied and gaged the complainant and the said Suresh and Sukhbir and made them sit in the store. It is alleged that thereafter, two of the accused persons kept watch and the others went to look at the items in the store. It is alleged that thereafter, upon hearing the sound of a vehicle, the accused persons left the store and bolted it from outside. Thereafter, the victims managed to free themselves and made a call at 100 number.

3. During the course of the investigation, the victims were medically examined. Respondent No. 2 was identified by Sukhbir Singh in TIP proceedings. Further, a recovery of 30 robbed aluminium plates was effected from Respondent No. 3.

4. Respondent Nos. 1-2, 4 were charged with the offence under Section 395 of the IPC whereas Respondent No. 3 was charged with the offence under Section 412 of the IPC.

5. By the impugned judgment, the learned ASJ acquitted the respondents of the charged offences. It was noted that the complainant/PW[8] and victim Suresh/PW[2] categorically stated that they were unable to identify the accused persons as robbers. It was noted that as far as the testimony of PW1/Sukhbir Singh is concerned, he too deposed that he could only identify Respondent No. 2 as his face was not covered. It was noted that even the testimony of PW[1] was not reliable because in his statement to the police, it was never disclosed that the faces of the other accused persons were covered. It was noted that no description of any of the robbers were given by the victims immediately after the incident.

6. It was noted that even the number of robbers who had come to commit the alleged crime was in dispute. It was noted that the version of the victims were inter se contradictory in relation to the numbers of persons who had visited the store. It was also noted that none of the victims were able to disclose about the articles allegedly robbed from the BSES store.

7. The learned ASJ noted that insofar as the recovery of articles from Respondent No. 3 is concerned, even though 30 aluminium plates were recovered from him, however, the said aluminium plates did not find mention in the list of robbed articles. It was further noted that no explanation was given by the Investigating Officer as to on what basis the said aluminium plates were alleged to have been robbed in the incident when the same was never included in the list of robbed articles or shown to the victims/store incharge for identification. Consequently, considering the loopholes in the version of the prosecution, the learned ASJ acquitted the respondents of the charged offences.

8. The learned Additional Public Prosecutor for the State submits that the learned ASJ erred in acquitting the respondents of the charged offences. He submits that the acquittal of the respondents was based on conjectures and surmises and is liable to be set aside. He submits that the learned ASJ failed to take into account the fact that Respondent No. 2 was identified by PW1/Sukhbir Singh in the TIP proceedings. He further submits that the learned ASJ failed to consider that a recovery of 30 aluminium plates was made from Respondent No. 3.

9. The learned counsel for the respondents submits that the learned ASJ has rightly acquitted the respondents after duly considering the evidence of the prosecution witnesses. Analysis

10. It is trite law that the Appellate Court must exercise caution and should only interfere in an appeal against acquittal where there are substantial and compelling reasons to do so. At the stage of grant of leave to appeal, the High Court has to see whether a prima facie case is made out in favour of the appellant or if such arguable points have been raised which would merit interference. The Hon’ble Apex Court in the case of State of Maharashtra v. Sujay Mangesh Poyarekar: (2008) 9 SCC 475 held as under:

out or arguable points have been raised and not whether the order of acquittal would or would not be set aside. 21. It cannot be laid down as an abstract proposition of law of universal application that each and every petition seeking leave to prefer an appeal against an order of acquittal recorded by a trial court must be allowed by the appellate court and every appeal must be admitted and decided on merits. But it also cannot be overlooked that at that stage, the court would not enter into minute details of the prosecution evidence and refuse leave observing that the judgment of acquittal recorded by the trial court could not be said to be “perverse” and, hence, no leave should be granted. xxx

24. We may hasten to clarify that we may not be understood to have laid down an inviolable rule that no leave should be refused by the appellate court against an order of acquittal recorded by the trial court. We only state that in such cases, the appellate court must consider the relevant material, sworn testimonies of prosecution witnesses and record reasons why leave sought by the State should not be granted and the order of acquittal recorded by the trial court should not be disturbed. Where there is application of mind by the appellate court and reasons (may be in brief) in support of such view are recorded, the order of the court may not be said to be illegal or objectionable. At the same time, however, if arguable points have been raised, if the material on record discloses deeper scrutiny and reappreciation, review or reconsideration of evidence, the appellate court must grant leave as sought and decide the appeal on merits. In the case on hand, the High Court, with respect, did neither. In the opinion of the High Court, the case did not require grant of leave. But it also failed to record reasons for refusal of such leave.”

11. In the present case, in order to establish its case, the prosecution has examined 21 witnesses out of which the victims - PW1/Sukhbir, PW2/Suresh, PW8/Dhani Ram disclosed about the manner in which the alleged offence was committed, PW10/VK Vaish (store incharge), PW-11/BN Prasad (store keeper) disclosed about the items in the store and the other witnesses disclosed about the other aspects pertaining to the investigation.

12. PW1/Sukhbir, in his evidence, stated that in the intervening night of 07/08.09.2013 at about 03-03:15 AM some boys assaulted him and the other victims. He stated that those boys gave beatings to them and thereafter took the victims to a store and tied them. He stated that he heard a sound of a vehicle and that those boys thereafter took the goods kept in the store and loaded the same in a vehicle. He stated that he could identify Respondent No. 2 as he was not wearing a muffler. He further stated that he could not identify the faces of the other robbers as they were wearing a muffler. The said fact that some of the accused persons were wearing a muffler was not mentioned in the statement recorded under Section 161 of the CrPC. On being cross examined by the learned counsel for the accused, PW[1] stated that he did not see any of the robbers while entering or leaving the store. He further stated that 4-5 persons gave beatings to him in the guard room. He further stated that he did not see the accused persons taking any articles from the store.