The State Govt. of NCT of Delhi v. Sonpal @ Sonu

1. The present appeal under Section 378 of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.’) assails the impugned judgment and order dated 08.05.2017, rendered by the learned Trial Court in Sessions Case No.45016/2015, arising out of FIR No.237/2015, under Sections 307/34 of the Indian Penal Code, 1860 (for short ‘IPC’) Police Station- New Usman Pur, whereby Sonpal @ Sonu, the respondent-accused was acquitted of the charge framed against him 2019:DHC:4606-DB under Section 307 read with Section 34 IPC.

2. Briefly encapsulated, the case of the prosecution was that, on 22.02.2015, complainant Lalit Vajpayee was taken to Jag Pravesh Chandra Hospital by SI James PW-8 at 06:00 p.m. The medical examination of Lalit Vajpayee revealed that, he had one 10cm x 6 cm lacerated wound over left side of his neck. Lalit Vajpayee, whose statement was recorded by ASI Mahinder Pal (PW-13) stated that, he was a TSR driver and had a quarrel, a year and half prior to the date of the incident with the respondent and had slapped him on that occasion. Lalit Vajpayee further stated that, on that day i.e. 22.02.2015 at about 05:00 p.m. when he was repairing the clutch wire of his TSR, opposite the shop of one Babloo (DW-1), the respondent came there along with two boys, one of whom was mentioned as Gunda and the other has remained unnamed; and after asking him as to why he had slapped the respondent earlier, stabbed him with “an iron sword type object”, on his neck while his associates caught hold of him.

3. It is further the case of the prosecution that Lalit Vajpayee’s brother, Amit Vajpayee (PW-10) reached the spot within 10-15 minutes of the incident and called the Police Control Room at No.100. It is further the case of the prosecution, as reflected in DD No.35A that at 06:40 p.m. the Police Control Room received a call from Amit Vajpayee (PW-10), brother of Lalit Vajpayee to the effect that ‘भाई क े गले ˜ Ʌ चाक ू मार Ǒ‘™ ȡहै’.

4. Upon these allegations, subsequent upon investigation a charge sheet was filed and thereafter charges under Section 307 read with Section 34 IPC were framed against the respondent. The accused pleaded not guilty to the charge and claimed trial.

5. In order to establish its case against the respondent, the prosecution examined as many as 13 witnesses. Pursuant to the recording of statement of the respondent under Section 313 Cr.P.C. and the examination of (DW-1) Shiv Kumar, in support of his defence, the trial court returned the finding, as aforestated, aggrieved whereby the State has assailed the impugned judgment and order dated 08.05.2017.

6. In order to appreciate the submissions made on behalf of the State in the present appeal, it is considered appropriate and necessary to elaborate the findings arrived at by the trial court, and the same are reproduced in extenso as follows:- “38. From the submission of the Ld. Counsels, the following points for determination arise in the present case: a) Whether any incident of stabbing or cutting took place in front of shop of Babloo i.e. Shop near Nala, 4½ Pusta, South Gamri, Delhi? b) Whether it was accused who caused injury to the complainant?

39. MLC Ex.PW5/A does show that injured Lalit had received injury. One lacerated wound was noticed on left side of neck. Although the size of injury is mentioned differently at two places on the same MLC. AT one place, it is mentioned as 15cm x 3 cm and at another place, it is mentioned as 10cm x 6cm. Variance in the size does create some doubt. However, the common fact is that there was injury. The injury has been opined as ‘grievous’.

40. The important question, however, is as to how Lalit received this injury and who caused this injury. This question has already been noted above.

41. The MLC shows that Lalit was drunk at the time of his examination. The noting of ‘Alcohol +ve’ is there in the MLC. This is very relevant observation. Time of examination is 06:00 p.m. In the column of Brought by, the name of SI James is mentioned. According to SI James (PW- 8), he had received PCR call at 06:30 p.m. and thereafter he went to the spot and from there he took injured Lalit to hospital. If PW-8 received information at 06:30 p.m., how come the MLC was prepared at 06:00 p.m.

42. PW-1 says his brother had reached at the spot and made call at 100 number. PW-10 i.e. brother of PW-1 says he had received information at about 5 – 5.15 p.m. about quarrel of accused with his brother and he reached there. He must have reached within 5/10 minutes as he was not far away. If it is so, why PW-10 waited till 06:30 p.m. to make the call to PCR.”

7. A plain reading of the above extracted finding reflects that, the trial court observed that Lalit had received one lacerated wound on the left side of his neck. The trial court, however, was doubtful about the size of the injury received, as well as, the opinion that it was ‘grievous’. The trial court thereafter proceeded to determine the question as to how Lalit had received this documented injury and who had caused it.

8. Having appreciated the testimony of the star witness, examined on behalf of the prosecution, the trial court observed that, although the information regarding the commission of the offence had been received by SI James (PW-8) from Amit Vajpayee (PW-10), brother of the injured victim Lalit, only at 06:40 p.m., how could he, in these circumstances, have accompanied the victim, when the latter was examined at the concerned hospital at 06:00 p.m. Further, the trial court observed that, although it was the prosecution’s case that Amit Vajpayee (PW-10), brother of the injured Lalit, received information of the incident at about 5 – 5:15 p.m. and reached there within 10/15 minutes thereafter, there is no explanation forthcoming as to why he waited till after 06:30 p.m. to make the relevant call to the Police Control Room, as evidenced by DD No.35A.

9. Further, the trial court observed that, PW-10 had made the said call purportedly from the telephone of a passer-by, who has not been examined by the prosecution; and had also testified that he had made another call on the 100 number earlier as well, of which no record has either been produced or proved in evidence. In addition, the trial court took note of the critical testimony of Babloo (DW-1), opposite whose furniture shop Lalit the victim is stated to have been assaulted in broad day light by Sonpal @ Sonu and his two associates, who have not been tried in the present case. Babloo DW-1, who was then examined on behalf of Sonpal @ Sonu in his defence, categorically testified that, no such incident/quarrel, as asseverated by Lalit, the complainant and the prosecution had occurred in front of his shop on the date asserted. In this behalf, it was also found that the respondent was not mentioned by name in DD No.35A, despite the circumstance that both the injured victim and his brother knew him well. Finally, it was noted by the learned trial court that, the MLC of Lalit, the injured victim, prepared at Jag Pravesh Chandra Hospital, Shastri Park, Delhi, where he was taken by SI James PW-8 on 22.02.2014 at 06:00 p.m., clearly recorded that he was ‘alcohol +ve’ at the time of his examination at the hospital.

10. The injured victim also testified that Sonpal @ Sonu attacked him with the ‘sword like object’ while his two associates caught hold him. This testimony of the injured victim is belied by the circumstance that, admittedly he has suffered a lacerated injury on his neck, which could not have been the outcome had he been attacked by either a ‘sword like object’ or knife, as testified by his brother PW-10 and recorded in DD No.35A.

11. It was in this backdrop of the appreciation of the evidence that, the trial court arrived at the conclusion that the respondent was deserving of the benefit of doubt, since the prosecution had been unable to establish that, Lalit received the injury present on his person, at the hands of the respondent.