Delhi High Court
State vs Praveen & Anr on 19 March, 2025
$~25
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 19th March, 2025
+ CRL.L.P. 290/2018 & CRL.M.A. 8121/2018
STATE .....Petitioner
Through: Mr. Aashneet Singh, APP
for the State
SI Amit Kumar, PS-
Dwarka South
versus
PRAVEEN & ANR .....Respondent
Through:
CORAM:
HON'BLE MR. JUSTICE AMIT MAHAJAN
AMIT MAHAJAN, J.
1. The present petition is filed under Sections 378 of the
Code of Criminal Procedure, 1973 (hereafter ‘CrPC‘), for setting
aside the judgement dated 22.09.2017 (hereafter ‘impugned
judgement’) passed by the learned Additional Sessions Judge
(ASJ), Special Judge (NDPS), Dwarka Courts, Delhi, in FIR No.
240/2011 registered at Police Station Dwarka South for offences
under Sections 392/394/308/323/342/34 of the Indian Penal
Code, 1860 (hereafter ‘IPC‘).
2. By the impugned judgement, the learned ASJ acquitted the
respondents of the offences charged under Sections 308/34 of the
IPC, holding that the prosecution failed to prove the allegations
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against the accused beyond reasonable doubt, as there were
contradictions in the statement of the complainant and the
independent witnesses. The learned ASJ observed that there were
severe inconsistencies in the depositions of the two injured
persons and the evidence adduced by the prosecution in respect
to consumption of liquor, recovery of the weapon of offence as
well as the conduct of the investigation. It held that there was
nothing on record to show that the injury caused to the injured
persons was inflicted upon them by the respondents.
3. The FIR was registered at the instance of Dev Raj / PW3,
alleging that on 22.08.2011 at about 8:35 pm, he received a call
from Respondent No. 1, who invited the complainant to his
birthday party at Snooker Point, Ramphal Chowk, Sector-7,
Dwarka, New Delhi (hereafter ‘place of incident’), where the
complainant went along with his cousin brother namely- Ram
Singh/ PW9. It is alleged that there were already 4-5 boys at the
place of incident and later 3-4 more boys were called by
Respondent No. 2.
4. It is alleged that a quarrel took place when Respondent No.
1 started taunting the complainant for not having lent him Rs.
20,000/- and thereafter inflicted beatings on the complainant with
hands and legs. It is stated that Respondent No. 2 hit the
complainant with an iron stool and when Ram Singh came to
rescue the complainant, he was also beaten by a ‘danda’. It is
further alleged that Respondent No. 1 also took away a gold
chain from the neck of the complainant. It is stated that the
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complainant along with Ram Singh escaped from the place of
incident in order to save their lives.
5. It is stated that the injured persons refused to give their
statements on 22.08.2011 as they were in pain and therefore the
Daily Diary Entry was kept pending, and the FIR was thereafter
registered on 24.08.2011, when the complainant appeared before
the Police Station to give his statement.
6. It is the case of the prosecution that based on the statement
of the complainant, on 24.08.2011 itself, both the respondents
were arrested and the iron stool was seized. The danda was also
seized on 26.08.2011, from the house of Respondent No. 1 at
WZ-800, Village Palam New Delhi.
7. Chargesheet was filed in the present case, whereafter the
matter was committed to the learned Court of Sessions. The
learned ASJ vide order dated 29.10.2013, discharged the
respondents under Sections 392/394/323/342 of the IPC and
framed charge under Sections 308/34 of the IPC.
8. The prosecution examined 11 witnesses, including the
injured persons, the medical officials as well as the investigating
officers. The defence examined one witness namely- Prashant
Sharma, who was present at the place of incident on 22.08.2011.
9. As noted above, the learned ASJ vide the impugned
judgment, acquitted the respondents of the offence under
Sections 308/34 of the IPC.
10. The learned Additional Public Prosecutor (‘APP’) submits
that the learned ASJ failed appreciate the testimony of PW3 and
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PW9 which are clear and categorical with regard to the
occurrence of the offence, and that both these witnesses have
been duly cross-examined.
11. He submits that the learned ASJ erred in relying upon the
MLC, which reflects consumption of liquor by the injured
persons, to note that the possibility of the injured persons falling
and sustaining injuries cannot be ruled out, without such defence
ever being led by the respondents. He places reliance on the
judgement passed by the Hon’ble Apex Court in State of
Maharashtra v. Ramlal Devappa Rathod : (2015) 15 SCC 77
and Bipin Kumar Mondal v. State of W.B. : (2010) 12 SCC 91
to state that the sole testimony of the injured witnesses is
sufficient to base the conviction of the accused.
12. He submits that the learned ASJ erred in not appreciating
the medical evidence in respect of the injuries sustained by the
injured persons. He submits that the rest of the discrepancies
noted by the learned ASJ are in the nature of conjectures and
surmises, which are not sustainable in the eyes of law.
13. He further places reliance on the judgement passed by the
Hon’ble Apex Court in Yogesh Singh v. Mahabeer Singh :
(2017) 11 SCC 195, wherein it was observed that minor
contradiction and inconsistencies should not affect the core of the
prosecution case and should not be a ground to reject the
prosecution evidence.
Analysis
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14. It is trite law that 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
Maharashtra v. Sujay Mangesh Poyarekar: (2008) 9 SCC 475
held as under:
“19. Now, Section 378 of the Code provides for filing of
appeal by the State in case of acquittal. Sub-section (3)
declares that no appeal “shall be entertained except with the
leave of the High Court”. It is, therefore, necessary for the
State where it is aggrieved by an order of acquittal recorded
by a Court of Session to file an application for leave to
appeal as required by sub-section (3) of Section 378 of the
Code. It is also true that an appeal can be registered and
heard on merits by the High Court only after the High Court
grants leave by allowing the application filed under sub-
section (3) of Section 378 of the Code.
20. In our opinion, however, in deciding the question
whether requisite leave should or should not be granted,
the High Court must apply its mind, consider whether a
prima facie case has been made 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.”
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15. In the present case, the prosecution’s allegations are
sought to be proved on the basis of statements of the witnesses,
recovery of the iron stool and wooden danda as well as the
medical evidence.
16. The learned ASJ while taking note of all the statements of
the prosecution witnesses as well as the evidence placed on
record, held that there are material inconsistencies in the case of
the prosecution, some of which are broadly discussed hereunder:
Contradictions in the case of the prosecution
17. The injured complainant/ PW3 has stated in the complaint
that he along with PW9 somehow escaped from the alleged
incident to save their lives. In his examination in chief, though he
stated that he fell unconscious due to the injuries sustained by
him during the quarrel, and when he regained his consciousness,
he called the police and was taken to DDU Hospital.
18. PW2 Ct. Vijay Singh, who is a formal witness, has stated
that on receiving a call, he along with the IO reached the place of
incident, where they came to know that the injured persons were
already admitted in DDU Hospital.
19. A combined reading of these statements creates a doubt
upon the credibility of the story of the prosecution that the delay
of 2 days in registering the FIR was owing to the fact that the
injured persons were in pain and not in a position to give their
statement on the day of the alleged offence. The inconsistency in
the statements of the injured complainant and the delay in
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registering the FIR prima facie reflects to be an afterthought, to
implicate the respondents.
20. Another contradiction in the case of the prosecution is that
PW2 has stated in his examination in chief that the accused
persons/ respondents were arrested on 24.08.2011 from the place
of incident. During cross-examination, he stated that Respondent
No. 1 was arrested from Village Palam and Respondent No. 2
was arrested from Naseerpur on 24.08.2011, and thereafter
recovery of the stool was made at his instance.
21. Consequently, the learned ASJ reasonably observed that
there are discrepancies in regard to the place of arrest of the
accused persons/ respondents. The learned ASJ has further noted
that only the recovery of the stool and danda are not enough to
convict the respondents of the alleged offence, in the absence of
any scientific evidence in respect of the same being the weapon
of the alleged offence.
22. The observations made by the Hon’ble Apex Court in
Krishnegowda v. State of Karnataka : (2017) 13 SCC 98 are
relevant to note here. The Hon’ble Court while noting the
inconsistencies in the statements of the prosecution witnesses and
lapses in the investigation, held as under:
“26. Having gone through the evidence of the prosecution
witnesses and the findings recorded by the High Court we feel
that the High Court has failed to understand the fact that the
guilt of the accused has to be proved beyond reasonable doubt
and this is a classic case where at each and every stage of the
trial, there were lapses on the part of the investigating agency
and the evidence of the witnesses is not trustworthy which can
never be a basis for conviction. The basic principle of criminal
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jurisprudence is that the accused is presumed to be innocent
until his guilt is proved beyond reasonable doubt.
27. Generally in the criminal cases, discrepancies in the
evidence of witness is bound to happen because there would be
considerable gap between the date of incident and the time of
deposing evidence before the court, but if these contradictions
create such serious doubt in the mind of the court about the
truthfulness of the witnesses and it appears to the court that
there is clear improvement, then it is not safe to rely on such
evidence.”
(emphasis supplied)
Oral evidence contrary to documentary evidence
23. The injured complainant/ PW3 and PW9 deposed that due
to Janmashthmi festival, they had not consumed liquor, however,
the MLCs of the injured persons, that is, Ex. PW4/A and Ex.
PW5/A, indicate that they had consumed liquor on the day of the
alleged incident.
24. PW4, PW5, PW8 and PW10 are doctors, who have proved
the MLCs of the injured persons. PW10, who has proved the
MLC of the injured complainant, that is, Ex. PW5/A, admitted
during cross-examination, that the possibility of the injuries
mentioned in the MLC, being self-inflicted by the patient/ injured
complainant, cannot be ruled out.
25. The contents of the MLCs and statement of the medical
experts, prima facie reflects the possibility of the injuries being
caused to the injured persons as a result of consumption of liquor
by them. In this regard the learned ASJ rightly observed as
under:
“oral testimony is contradictory to the documentary evidence,
so Court has always to be conscious that if they had consumed
liquor, the possibility of falling after consumption cannot be
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The observation made by the learned ASJ is in conformity with
the view taken in Krishnegowda v. State of Karnataka (supra),
which is extracted hereunder:
“42. Once there is a clear contradiction between the medical
and the ocular evidence coupled with severe contradictions in
the oral evidence, clear laches in the investigation, then the
benefit of doubt has to go to the accused.
43. Going by the material on record, we disagree with the
finding of the High Court that the ocular evidence and the
medical evidence are in conformity with the case of the
prosecution to convict the accused. The High Court has brushed
aside the vital defects involved in the prosecution case and in a
very unconventional way convicted the accused.”
Lack of information from independent witnesses
26. As per the material on record, there were 6-7 more people
who witnessed the alleged incident. It is also relevant to note that
the place of incident was a guarded place, as it was in a market
area. The learned ASJ rightly highlighted that neither any
independent eye witness was produced to corroborate the
statements of the injured persons, nor any inquiry was made from
the guards present at the place of incident or from the public
present at the market. One Prashant Sharma, who was present
during the alleged witness was examined as DW1, who has
denied the alleged incident and stated that the injured persons
were in a heavily drunk condition when they came to the place of
incident and started demanding liquor from Respondent No. 1,
and thereafter they were asked to leave the place. The learned
ASJ has not relied upon his statement as the prosecution
evidence had already created doubt upon the case of the
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prosecution. In this regard, it is relevant to refer to another
observation made by the Hon’ble Apex Court in Krishnegowda
v. State of Karnataka (supra):
“32. It is to be noted that all the eyewitnesses were relatives and
the prosecution failed to adduce reliable evidence of
independent witnesses for the incident which took place on a
public road in the broad daylight. Although there is no absolute
rule that the evidence of related witnesses has to be
corroborated by the evidence of independent witnesses, it
would be trite in law to have independent witnesses when the
evidence of related eyewitnesses is found to be incredible and
not trustworthy. The minor variations and contradictions in
the evidence of the eyewitnesses will not tilt the benefit of
doubt in favour of the accused but when the contradictions in
the evidence of the prosecution witnesses proves to be fatal to
the prosecution case then those contradictions go to the root of
the matter and in such cases the accused gets the benefit of
doubt.
33. It is the duty of the Court to consider the trustworthiness of
evidence on record. As said by Bentham, “witnesses are the eyes
and ears of justice”. In the facts on hand, we feel that the
evidence of these witnesses is filled with discrepancies,
contradictions and improbable versions which draws us to the
irresistible conclusion that the evidence of these witnesses
cannot be a basis to convict the accused.”
(emphasis supplied)
27. The learned ASJ, thus, taking note of all the
inconsistencies in the prosecution evidence, held that there have
been material contradictions between the statements of the
witnesses and the material facts and therefore the prosecution
failed to prove its allegations beyond reasonable doubt.
28. It is well settled that the testimony of an injured witness is
accorded a special status in law, and should be relied upon
provided that the same is without major contradictions [Ref:
Abdul Sayeed v. State of Madhya Pradesh : (2010) 10 SCC
259]. However, from a perusal of the record, it is apparent that
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there are several inconsistencies and contradictions in the case of
the prosecution. In view of the aforesaid discussion, this Court is
of the opinion that the State has not been able to establish a
prima facie case in its favour and no credible ground has been
raised to accede to the State’s request to grant leave to appeal in
the present case.
29. Moreover, the Court, while considering a challenge to a
judgement of acquittal, in exercise of jurisdiction under Section
378 of the CrPC, is empowered to reconsider the evidence on
record and reach its own conclusions, however, it is to be kept in
mind that there is a double presumption of innocence in favour of
the accused. High Court ought to only interfere with the finding
of acquittal if it finds that the appreciation of evidence is
perverse. The Hon’ble Apex Court in the case of Chandrappa v.
State of Karnataka : (2007) 4 SCC 415 has expounded upon the
powers of the Appellate Court while dealing with an order of
acquittal:
“42. From the above decisions, in our considered view, the
following general principles regarding powers of the
appellate court while dealing with an appeal against an
order of acquittal emerge:
(1) An appellate court has full power to review,
reappreciate and reconsider the evidence upon which the
order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no
limitation, restriction or condition on exercise of such
power and an appellate court on the evidence before it may
reach its own conclusion, both on questions of fact and of
law.
(3) Various expressions, such as, “substantial and
compelling reasons”, “good and sufficient grounds”, “very
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mistakes”, etc. are not intended to curtail extensive powers
of an appellate court in an appeal against acquittal. Such
phraseologies are more in the nature of “flourishes of
language” to emphasise the reluctance of an appellate
court to interfere with acquittal than to curtail the power
of the court to review the evidence and to come to its own
conclusion.
(4) An appellate court, however, must bear in mind that in
case of acquittal, there is double presumption in favour of
the accused. Firstly, the presumption of innocence is
available to him under the fundamental principle of
criminal jurisprudence that every person shall be presumed
to be innocent unless he is proved guilty by a competent
court of law. Secondly, the accused having secured his
acquittal, the presumption of his innocence is further
reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis
of the evidence on record, the appellate court should not
disturb the finding of acquittal recorded by the trial court.”
30. From the material/ evidence as brought on record, it can
safely be said that no prima facie case is made out against the
respondents.
31. The present petition is filed with a delay of 127 days.
Apart from the usual excuses which are taken by the Government
Departments, no worthy reason has been mentioned which would
entitle the application for condonation of delay, that is, CRL.
M.A. No. 8121/2018, to be allowed. The application merely
states that the impugned judgement was pronounced on
22.09.2017 and the certified copy of the same was applied for the
same day, however it was made available to the concerned
authority on 10.10.2017, who prepared the acquittal report on
12.10.2017. It is stated that after various administrative process
for requisite formalities, the Department of Prosecution
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on 24.02.2018, whereafter it was marked to the learned APP.
32. The Hon’ble Apex Court has frowned upon following of
such practices by the Government departments. The Hon’ble
Apex Court, in the case of Postmaster General v. Living Media
India Ltd. : (2012) 3 SCC 563, had held that the Government
cannot claim to have a separate period of limitation when the
Department is possessed with competent persons familiar with
court proceedings. The delay cannot be condoned mechanically
merely because the Government or a wing of the Government is
a party before the Court. The Hon’ble Apex Court had rejected
the claim on account of impersonal machinery and bureaucratic
methodology of making several notes in view of the modern
technologies being used and available.
33. The Hon’ble Supreme Court in the case of State of M.P. v.
Bherulal : (2020) 10 SCC 654, while observing the irony that no
action is taken against the officers who sit on files and do nothing
under a presumption that the court would condone the delay in
routine, held as under:
“6. We are also of the view that the aforesaid approach is
being adopted in what we have categorised earlier as
“certificate cases”. The object appears to be to obtain a
certificate of dismissal from the Supreme Court to put a
quietus to the issue and thus, say that nothing could be done
because the highest Court has dismissed the appeal. It is to
complete this formality and save the skin of officers who may
be at default that such a process is followed. We have on
earlier occasions also strongly deprecated such a practice
and process. There seems to be no improvement. The
purpose of coming to this Court is not to obtain such
certificates and if the Government suffers losses, it is time
when the officer concerned responsible for the same bears
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action is taken against the officers, who sit on the files and
do nothing. It is presumed that this Court will condone the
delay and even in making submissions, straightaway the
counsel appear to address on merits without referring even
to the aspect of limitation as happened in this case till we
pointed out to the counsel that he must first address us on the
question of limitation.”
34. It is apparent that no explanation has been given for
condoning the delay in filing the appeal.
35. The petition is, therefore, dismissed on the ground of delay
as well as on merits.
36. Pending applications also stand disposed of.
AMIT MAHAJAN, J
MARCH 19, 2025
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