CRL.A./1241/2013 of ZAFAR ALAM Vs STATE NCT OF DELHI

*IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Decision: 15" May, 2015

CRL.A. 1241/2013

ZAFAR ALAM

.....Appellant

Through:Mr M. Hasibuddin, Adv.

Versus

STATE NCT OF DELHI

.....RespondentThrough: Mr O.P. Saxena, Additional PublicProsecutor for the State alongwith SI ArnitSharma Police Station Santa Vihar, NewDelhi

CORAM:

HON'BLE MS. JUSTICE SUNITA GUPTA

JUDGMENT

SUNITA GUPTA, J.

For order, see Crl.A.1042/2013.

(SUNITA [j ]uPTA)JUDGE

MAY 15 20151,.d

IN THE HIGH COURT OF DELHI AT NEW DELHIIN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Decision: 15th May, 2015+CRL.A. 1042/2013AKILAKIL

RespondentThrough:Mr O.P. Saxena, Additional PublicProsecutor for the State alongwith SI AmitSharma Police Station Santa Vihar, NewDelhi

CORAM:

HON!BLE MS. JUSTICE SUNITA GUPTA

JUDGMENT

UNITA GUPTA, J.

1. Vide this common judgment, I shall dispose of two appeals bearing Cr1. AppealNos. 1042/2013 and 1241/2013 filed by the appellants/accused Akil and Zafar Alamchallenging the impugned judgment dated 10.07.2013 and order on sentence dated22.07.20 13 in Sessions Case No.93/20 10 arising out of FIR No.346/2006 Police StationSanta Vihar, New Delhi whereby the appellants were convicted under Section 392/34Indian Penal Code and were sentenced to undergo rigorous imprisonment for period offour (4) years and fine of Rs.5,000/- each, in default to undergo simple imprisonment fora period of two (2) months.

2.On 29.06.2006 an intimation through wireless message was received PoliceStation Santa Vihar regarding commission of dacoity by five persons in House No.673, DB Block, Pocket - II, Jasola Vihar, Delhi on which DD No. 25A (Ex.PW6/A)was recorded and was entrusted to Sub Inspector Bhanu Pratap, who alongwith constableAbbas reached the spot and recorded statement of the complainant - Smt. Shahin and gotthe FIR (Ex.PW9/A) under Sections 379/356 IPC registered.

3.On 13.12.2006 accused Zafar Alam, Akil and Khalid were called to office OfSpecial Staff by serving notice under Section 160 Cr.PC where they were interrogated byInspector - Naresh Kumar. They. made disclosure statements Ex.PW8/A, PW8/B andPW8/C regarding their involvement in the present case as such vide DD No.7Ainformation was sent to Police Station Santa Vihar. ASI Chaman Singh(PW7) came tothe office of Special Staff where he was handed over copies of the arrest memos and thedisclosure statements. Chaman Singh (PW7) interrogated the accused persons andarrested them vide arrest memos Ex.PW5/A, PW5/B and PW5/C. He got conducted thetest identification proceedings in which accused persons - Zafar and Akil refused toparticipate whereas the complainant could not identify accused - Khalid and accordinglyaccused - Khalid was discharged. After completing investigation, charge-sheet wassubmitted under Section 356/379/397/34 IPC. Vide order dated 06.09.2010 charge foroffence under Sections 392/34 and 397 IPC was framed against the accused persons towhich they pleaded not guilty and claimed trial.

4.In order to substantiate its case, prosecution in all examined as many as 10witnesses. All the incriminating evidence was put to the accused persons while recordingtheir statements under Section 313 Cr.PC wherein they denied the case of prosecutionand pleaded false implication in this case.

5.Vide the impugned judgment both the appellants were convicted for offencesunder Section 392/34 IPC and were sentenced as mentioned hereinbefore. However, theywere acquitted of the offence under Section 397 IPC Feeling aggrieved, the presentappeals have been preferred by them.

6.While assailing the findings of the learned Additional Sessions Judge, Ms RakhiDubey, Advocate appointed by Delhi High Court Legal Services Committee for theappellant - Akil submitted that in the initial statement [Ex.PW1/A] made by thecomplainant, which forms the basis of registration of FIR, the complainant stated that shewas standing at the gate of her house then 2/3 persons came and snatched her mobile,cash and chain. However, at that time, she did not give the description of any person.Subsequently, on 08.0 1.2007, supplementary statement of complainant was recordedwherein she gave different version that five persons entered her house armed with kattaand knives and committed dacoity. Thereafter, another supplementary statement wasrecorded on 26.09.2008 wherein she stated that she had earlier identified the accusedpersons meaning thereby that since the accused were shown to this witness earlier,therefore, they were justified in refusing to join the test identification proceedings. Whenthe complainant appeared in the witness box, she gave an entirely different version. Theprosecution case hinges upon the solitary testimony of the complainant which suffersfrom material improvements and, thus, it is not safe to convict the accused on her soletestimony. It was further submitted that as per the prosecution case, disclosure statementswere made by accused person before the Special Staff where the accused had not giventhe FIR number or the Police Station, however, information was given to the PoliceStation vide DD No.7A Ex.PW7/A mentioning the FIR of this case as well as the PoliceStation. Two different calls were made to the Police Station giving different versions assuch it was submitted that prosecution has failed to bring home the guilt of the accusedbeyond reasonable doubt.. Alternatively, it was submitted that the appellant/accused is notinvolved in any other case and he has already undergone half of the sentence as such aliberal view be taken.

7.The learned counsel for the appellant - Zafar Alam supported the submissionsmade by learned counsel for the appellant - Akil. It was submitted that although thisappellant has already been released from jail after completing his sentence but since hehas been falsely implicated in this case as such he is contesting the case on merits.made by learned counsel for the appellant - Akil. It was submitted that although thisappellant has already been released from jail after completing his sentence but since hehas been falsely implicated in this case as such he is contesting the case on merits.

8.Rebutting the submissions of learned counsel for the appellants, it was submittedby learned Additional Public Prosecutor for the State that the first information given toby learned Additional Public Prosecutor for the State that the first information given to

CH. Appeal Nos.1042-2013 & 1241-2013.Page 3 of 15

the PCR vide Ex.PW4/A was regarding commission of dacoity by five persons armedwith katta and knives and snatching of chain, money and mobile of the complainant aftertying her. Subsequently, similar version was given by her in her deposition. If there is aslight discrepancy or improvement in her statements same is inconsequential as on thebasic substratum of the case she has supported the case of the prosecution. The accusedpersons refused to join test identification proceedings hence adverse inference is liable tobe drawn against them. They were duly identified by the complainant in the court as suchthe impugned judgment does not suffer from any infirmity which calls for anyinterference as such appeals are liable to be dismissed.

9.I have given my considerable thoughts to the respective submissions of thelearned counsel for the parties and have perused the record.

10.The star witness of prosecution is PW1 - Sint. Shahine, the complainant herself.This witness has unfolded that on 29.06.2006 at about 8.30 pm her children were playingoutside the house. She came out of the house in order to take them inside as it wasevening. They came inside and by that time one person whose name later on she came toknow as Zafar came inside and inquired from her whether it is house of washerwoman.She replied in negative. That person went out. She enquired from her children as to whythey had not locked the door and when she again reached the door at that time accused -Zafar Alam alongwith four/five persons entered her house - one was armed with pistolwhile another was having knife in his hand. Accused - Zafar intimidated her not to raisealarm and to sit quiet. She was having two and half month baby in her lap. The accusedwho was having knife put the knife on her baby. The accused having pistol put the pistolon her elder daughter. Her children started weeping. During this period accused - ZafarAlam went out and came twice - thrice. Thereafter, at the insttuctions of accused - ZafarAlam the other persons started searching her house. She was having three suitcases; theyopened all the suitcases and scattered them. However, the big suitcase could not beopened by them so one of them asked her to open the same or else they would break it soshe opened the suitcase herself. The accused persons took out her jewellery from thesuitcases. She took out her chain which she was wearing and put the same under themattress but accused Zafar asked her to produce the same. They also took out her purse

CH. Appeal Nos.1042-2013 & [1241-2013]

Page 4 of 15

from the suitcase comprising Rs.12,500/-; one silver made tabiz. They also took hermobile phone kept on the table. After committing robbery, the accused persons tied herhands and legs with dupatta and also tied her elder daughter with another [dupatta. ][They]threatened her not to raise alarm as they were going to nearby house. She further deposedthat she had given the aforesaid statement to the police, but the Investigating Officer -Bhanu Pratap distorted her statement (Ex.PW1/A) and wrote different version andobtained her signatures. She asked him as to why he is not taking her correct version onwhich he said that "hamari badnami hoti hai ki hamare time to dacoily kaise ho gayi ".She further deposed that her correct version was not contained in Ex.PW1/A and thecorrect version was written subsequently by the police. After the accused wereapprehended, another police officer, namely, Chaman Singh came and offeredRs.10,000/- and asked her to keep mum and get chain prepared for Rs.10,000/- andidentify the same in the court. She was also told that she should listen to them otherwiseshe will have to run from pillar to post. None of her robbed articles have been recoveredtill date. She identified both the accused who committed robbery in her house. In crossexamination, she reiterated that the correct version of the incident was not recorded in hercomplaint by the Investigating Officer - Bhanu Pratap. However, she did not make anycomplaint against the Investigating Officer for not recording her correct version as shewas not advised to this effect. On 08.0 1.2007, she came to know that accused personshave been apprehended. She further deposed that she had given the description of theaccused persons but the police did not record the same. She denied the suggestion that nosuch incident ever, took place in her house or that the accused along with their associatesnever entered her house.

11. As regards the first limb of argument that the prosecution case hinges on thesolitary testimony of the complainant, the Court can act on the testimony of singlewitness provided he/she is wholly reliable. There is no legal impediment in convicting aperson on the sole testimony of single witness. That is the logic of Section 134 of theEvidence Act, 1872. In fact it is not the number, the quantity but the quality that ismaterial. The principle is that the evidence has to be weighed and not counted. The test iswhether the evidence has ring of truth, is cogent, credible and trustworthy otherwise.

Therefore, the Courts can fully and completely rely on the testimony of solitary witnessand record conviction. [Vide Vadivelu Tlievar v. The State Of Madras, AIR 1957 SC614, Namdeo v. State of Maharashtra, (2007) 14 scc 150; and [Kunju ]@Balachandran v. State of Tamil Nadu, AIR 2008 sc 1381.

12.Reverting to the submissions made by learned counsel for the appellants that thecomplainant has given different versions at different stages, perusal of record goes toshow that her testimony finds substantial corroboration from the material available ohrecord and also depicts clear picture as to how the Investigating Officer of the case triedto dilute the gravity of the offence.

13.The initial statement of complainant [Ex.PW 1/A] recorded by the InvestigatingOfficer Sub Inspector Bhanu Pratap is confined to snatching of mobile phone, chain andRs. 10,000/- belonging to her while she was standing outside her house. However, in herdeposition before the Court she has explained as to how and why the InvestigatingOfficer distorted her statement by stating that in case her correct version is recorded thenthat would affect the reputation of the police that dacoity has taken place and they areunable to maintain law and order situation. The factum of distortion of statement ofcomplainant by Investigating Officer - Sub Inspector - Bhanu Pratap and diluting thegravity of the offence is manifest from the fact that immediately after the incident aninformation was given to Police Control Room at about 21.48 pm by the complainantwhich was received by PW4 - HC Bhagat Singh whereby the complainant informed thatfive persons armed with kattas and chaku had entered her house bearing number 673,Pocket - II, Block, Okhla Vihar, Jasola and that they had tied her and had taken themobile phone, Rs. 10,000/- and the chain. HC Bhagat Singh reduced the said informationin PCR form, photocopy of which is Ex.PW4/A and passed on this information to theconcerned officials on the basis of which DD No.25A Ex.PW6/A was recorded and theDD was entrusted to Sub Inspector Bhanu Pratap.

I. 14. Her version that subsequently her correct version was recorded by the police alsofinds corroboration from her supplementary statement dated 08.01.2007 wherein shestated that on 29.06.2006, five boys entered her house - one of them was armed with

CO. Appeal Nos.1042-2013 & 1241-2013Page 6 of 15

katta and another was armed with knives. They robbed her of her mobile phone makeNokia, chain and purse containing Rs.10,000/- and tied her and escaped, whichcorroborates with her initial complaint made by her to the PCR.

15.Not only the initial Investigating Officer— Sub Inspector - Bhanu Pratap distortedthe version given by the complainant and diluted the gravity of the offence. Even afterarrest of accused persons, the subsequent Investigating Officer - Sub Inspector ChamanSingh offered Rs. 10,000/- to her to get chain prepared and identify the same in the

Court. The entire sequence of events goes to show that the witness is trustworthywitness on which implicit reliance can be placed. Moreover, absolutely no enmity, ill-will or grudge is being alleged by any of the accused against the complainant for which.reason she will falsely implicate them in this case.witness on which implicit reliance can be placed. Moreover, absolutely no enmity, ill-will or grudge is being alleged by any of the accused against the complainant for which.reason she will falsely implicate them in this case.

16.Although it is true that while appearing in the witness box, the witness hasdeposed that she was also robbed of various other jewellery articles which was notdisclosed by her in any other statement but that itself is not sufficient to discard hertestimony which otherwise is trustworthy version of the entire incident. Exaggerationper se do not render the evidence brittle. Mere partial variations in the statement ofwitness cannot be duped as improvement as the same may be elaboration of the statementmade by the witness earlier. The omission which amounts to contradiction in materialparticulars i.e. go to the root of the case / materially affects the trial or core of theprosecution case, renders the testimony of the witness liable to be discarded. Minorcontradictions in the deposition of the witness are bound to be ignored.

17.In State of Karnataka vs. Suvarnnamma, (2015) 1 SCC 323, the Hon'bleSupreme Court dealt in detail and referred to various decisions by observing that muchimportance cannot be attached to minor discrepancies. Some of the judgments cited in thesaid case are reproduced as under:-

"Bharwada Bhoginbhai Hirjibhai vs. State of Giijarat (1983)3SCC 217:

115We do not consider it appropriate or permissibleto enter upon reappraisal or re-appreciation of theevidence in the context of the minor discrepanciespainstakingly highlighted by learned Counsel for the

appellant. Overmuch importance cannot be attached tominor discrepancies. The reasons are obvious

"(1) By and large witness cannot be expected to possessa photographic memory and to recall the details of anincident. It is not as if video tape is replayed on themental scteen.

(2) Ordinarily it so happens that witness is overtaken byevents. The witness could not have anticipated theoccurrence which so often has an element of surprised.The mental faculties therefore cannot be expected to beattuned to absorb the details.

(3) The powers of observation differ from person toperson. What one may notice, another may not. An objector movement might emboss its image on one person'smind, whereas it might go unnoticed on the part ofanother.

(4) By and large people cannot accurately recall aconversation and reproduce the very words used by themor heard by them. They can only recall the main purport ofthe conversation. It is unrealistic to expect witness to bea human tape-recorder.

(5) In regard to exact time of an incident, or the timeduration of an occurrence, usually, people make theirestimates by guess-work on the spur of the moment at thetime of interrogation. And one cannot expect people tomake very precise or reliable estimates in such matters.Again, it depends on the time sense of individuals whichvaries from person to person.

(6) Ordinarily witness cannot be expected to recallaccurately the sequence of events which takes place inrapid succession or in short time span. witness is liableto get confused, or mixed up when interrogated later on.

(7) witness, though wholly truthful, is liable to beoverawed by the court atmosphere and the piercing cross-examination made by counsel and out of nervousness mixup facts, get confused regarding sequence of events, or fillup details from imagination on the spur of the moment.

The sub-conscious mind of the witness sometimes sooperates on account of the fear of looking foolish or beingdisbelieved though the witness is giving truthful andhonest account of the occurrence witnessed by him -Perhaps it is sort of psychological defence mechanismactivated on the spur of the moment."

Appabhai vs. State of Gujarat, (1988) Supp. 5CC 241

"13 . ......... The court while appreciating the evidence mustnot attach undue importance to minor discrepancies. Thediscrepancies which do not shake the basic version of theprosecution case may be discarded. The discrepancieswhich are due to normal errors of perception orobservation should not be given importance. The errorsdue to lapse of memory may be given due allowance. Thecourt by calling into aid its vast experience of men andmatters in different cases must evaluate the entirematerial on record by excluding the exaggerated versiongiven by any witness. When doubt arises in respect ofcertain facts alleged by such witness, the proper course isto ignore that fact only unless it goes into the root of thematter so as to demolish the entire prosecution story. Thewitnesses nowadays go on adding embellishments to their[[version perhaps for the fear of their testimony being]]rejected by the court. The courts, however, should notdisbelieve the evidence of such witnesses altogether ifthey are otherwise trustworthy. Jaganmohan Reddy, J.,speaking for this Court in Sohrab v. State of MadhyaPradesh observed: [SCC p. 756, SCC (Cri) p. 824,para 8]

<S [[version perhaps for the fear of their testimony being]]

"This Court has held that falsus in uno falsus in omnibus isnot sound rule for the reason that hardly one comesacross witness whose evidence does not contain grainof untruth or at any rate exaggeration, embroideries orembellishments. In most cases, the witnesses when askedabout details venture to give some answer, not necessarilytrue or relevant for fear that their evidence may not beaccepted in respect of the main incident which they havewitnessed but that is not to say that their evidence as tothe salient features of the case after cautious scrutinycannot be considered."

CH. Appeal Nos.1042-2013 & 1241-2013

Lee/a Ram vs. State of [Haryana (1999) 9 SCC 525]

"9. [Be it noted that the High Court is within its jurisdiction]being the first appellate court to reappraise the evidence,but the discrepancies found in the ocular account of twowitnesses unless they are so vital, cannot affect thecredibility of the evidence of the witnesses. There arebound to be some discrepancies between the narrations ofdifferent witnesses when they speak on details, and unlessthe contradictions are of material dimension, the sameshould not be used to jettison the evidence in its entirety.Incidentally, corroboration of evidence with mathematicalniceties cannot be expected in criminal cases. Minorembellishment, there may be, but variations by reasontherefore should not render the evidence of eyewitnessesunbelievable. Trivial discrepancies ought not to obliteratean otherwise acceptable evidence. In this context,reference may be made to the decision of this Court inState of U.P. v. M.K. Anthony (1985) 1 SCC 505). [In para 10]of the Report, this Court observed:"10. While appreciating the evidence of witness, theapproach must be whether the evidence of the witnessread as whole appears to have ring of truth. Once thatimpression is formed, it is undoubtedly necessary for thecourt to scrutinise the evidence more particularly keepingin view the deficiencies, drawbacks and infirmities pointedout in the evidence as whole and evaluate them to findout whether it is against the general tenor of the evidencegiven by the witness and whether the earlier evaluation ofthe evidence is shaken as to render it unworthy of belief.Minor discrepancies on trivial matters not touching thecore of the case, hypertechnical approach by takingsentences torn out of context here or there from theevidence, attaching importance to some technical errorcommitted by the investigating officer not going to theroot of the matter would not ordinarily permit rejection ofthe evidence as whole. If the court before whom thewitness gives evidence had the opportunity to form theopinion about the general tenor of evidence given by thewitness, the appellate court which had not this benefit willhave to attach due weight to the appreciation of evidenceby the trial court and unless there are reasons weighty and

POP

formidable it would not be proper to reject the evidenceon the ground of minor variations or infirmities in thematter of trivial details. Even honest and truthfulwitnesses may differ in some details unrelated to the mainincident because power of observation, retention andreproduction differ with individuals."

10. In very recent decision in [Rammi v. State MY ][with]Bhura v. State of M.P. [(1999) 8 SCC 649) this Court]observed:

"24. When an eyewitness is examined at length it is quitepossible for him to make some discrepancies. No truewitness can possibly escape from making some discrepantdetails. Perhaps an untrue witness who is well tutored cansuccessfully make his testimony totally non-discrepant.But courts should bear in mind that it is only whendiscrepancies in the evidence of witness are soincompatible with the credibility of his versian that thecourt is justified in jettisoning his evidence. But too seriousa view to be adopted on mere variations falling in thenarration of an incident (either as between the evidence oftwo witnesses or as between two statements of the samewitness)is an unrealistic approach for judicial scrutiny."

In State of Punjab v. JagirSingh [(1974) 3 SCC 277) held:]

"23. criminal trial is not like fairy tale wherein one isfree to give flight to one's imagination and phantasy. Itconcerns itself with the question as to whether theaccused arraigned at the trial is guilty of the crime withwhich he is charged. Crime is an event in real life and is theproduct of interplay of different human emotions. Inarriving at the conclusion about the guilt of the accusedcharged with the commission of crime, the court has tojudge the evidence by the yardstick of probabilities, itsintrinsic worth and the animus of witnesses. Every case inthe final analysis would have to depend upon its ownfacts. Although the benefit of every reasonable doubtshould be given to the accused, the courts should not atthe same time reject evidence which is ex facietrustworthy on grounds which are fanciful or in the natureof conjectures."

The criminal trial cannot be equated with mock scenefrom stunt film. The legal trial is conducted to ascertainthe guilt or innocence of the accused arraigned. In arrivingat conclusion about the truth, the courts are required toadopt rational approach and judge the evidence by itsintrinsic worth and the animus of the witnesses. The hypertechnicalities or figment of imagination should not beallowed to divest the court of its responsibility of siftingand weighing the evidence to arrive at the conclusionregarding the existence or otherwise of particularcircumstance keeping in view the peculiar facts of eachcase, the social position of the victim and the accused, thelarger interests of the society particularly the law andorder problem and degrading values of life inherent in theprevalent system. The realities of life have to be kept inmind while appreciating the evidence for arriving at the• truth. The courts are not obliged to make efforts either togive latitude to the prosecution or loosely construe thelaw in favour of the accused. The traditional dogmatichypertechnical approach has to be replaced by rational,realistic and genuine approach for administering justice ina criminal trial. Criminal jurisprudence cannot beconsidered to be utopian thought but have to beconsidered as part and parcel of the human civilization andthe realities of life. The courts cannot ignore the erosion invalues of life which are common feature of the presentsystem. Such erosions cannot be given bonus in favour of•those who are guilty of polluting society and mankind."

18.In view of the aforesaid decisions, trivial discrepancies do not render the evidenceof complainant unbelievable, who otherwise, has been found to be truthful witness.

19.Furthermore, after arrest, test identification proceedings of both theaccused/appellants was conducted and both of them refused to join the test identificationparade on the ground that they were shown to the witnesses and that their photographswere taken in the Police Station. The learned counsel for the appellants, referred to thesupplementary statement dated 26.09.2008 wherein the complainant stated that she hadF earlier identified accused on 16.0 1.2007 for submitting that this fortifies the version ofthe accused that they were shown to the witness earlier. This submission is misconceivedinasmuch as, firstly, no such suggestion was given either -to the complainant or the

Investigating Officer of the case that accused were shown to her and, therefore, theaccused were justified in refusing to join the test identification parade. Moreover, as perthis statement, she identified them in Patiala House Courts on 16.0 1.20107. However, al.per record, the TIP was conducted much prior thereto i.e. on 08.01.2007 when theaccused refused to join the proceedings. That being so, there is no evidence on record toprove that accused were shown to the complainant before or they were justified inrefusing to join TIP proceedings. Rather refusal on their part to join the test identificationparade leads to an adverse inference against them that had they join the proceedings theywould have been identified in the test identification parade. In [Suraj Pal vs. State ]OfHaryana (1995) 2 SCC [64, Hon'ble Supreme Court in similar circumstances held that]Court would be justified in inferring that had the appellants participated in TIP, he wouldhave been identified by complainant. What can be culled out from the aforesaid decisionis that the identification of the accused by the complainant in court coupled with theirrefusal to join the TIP establishes the identity of accused as assailant of the crime20.As regards the submission that initially the FIR was registered only under Section356/379 IPC whereas the accused were convicted under Section 392/34 IPC and different( version of the complainant are forthcoming and, therefore, accused could not have beenconvicted on the basis of such material on record, as stated above, the entire materialavailable on record goes to show very defective investigation carried out by theInvestigating Officer of the case who in fact had tried to dilute the gravity of the offenceand also distorted the entire incident which is apparent from the fact that at the very firstavailable opportunity, the complainant had informed the PCR regarding commission ofdacoity at her house by five persons armed with kattas [and knives, tying them, taking]away mobile, cash and chain. DD No.25A Ex.PW6IA [was also recorded to this effect, yet]Sub Inspector Bhanu Pratap satisfied himself by recording different and distortedversion and getting the FIR registered only under Section 356/379 IPC. Even thesubsequent Investigating Officer - Sub Inspector Chaman Singh also asked thei[t complainant to keep silence otherwise she will have to run from pillar to post. All this]reflects casual and callous attitude of both the Investigating Officers. However, the fateof the case cannot depend upon the perfunctory investigation carried out by the

CO. Appeal Nos.1042-2013 & 1241-2013

Investigatin[g][ Officer of the case.]

consequences of defective investigation have been elaborated in [Dhanaj Singh v.]21.State of [Punjab ][(2004) 3 SCC 654. It was observed as follows:]

"5. In the case of defective investigation the court hasto be circumspec[t][ in evaluating the evidence. But it would]not be right in acquitting an accused person solely onaccouE'lt of the defect; to do so would tantamount toplaying into the hands of the investigating officer if theinvestigation is designedly defective. (See Karnel Singh v.State of M.P. (1995) 5 SCC 518).

22.In [Paras Yadav v. State ][of ][Bihar ][(1999) 2 scc 126 it was held that if the lapse or]omission is committed by the investigating agency or because of negligence thech omissions to find outprosecution evidence is required to be examined [de hors su ]whether the said evidence is reliable or not, the contaminated conduct of officials shouldnot stand in the way of evaluating the evidence by the courts; otherwise the designedmischief would be perpetuated and justice would be denied to the complainant party.

23. As was observed in [Ram Bihari Yadav v. State ][of ][Bihar, ][(1998) 4 SCC 517 if]primacy is given to such designed or negligent investigation, to the omission or lapses byperfunctory investigation or omissions, the faith and confidence of the people would beshaken not only in the law-enforcing agency but also in the administration of justice. Theview was again reiterated in [Amar Singh v. Baiwinder Singh, ][(2003) 2 scc 518 and]Suvarnflamma [(supra).]

24. The learned counsel for the appellants relied upon decision of learned SingleJudge of this [court in ][Shyam Sunder Pappu vs. The State ][[Cr1. Appeal No. 31120051]and Suraj @ [Rajbir vs. State ][[Cr1. Appeal No.216120051 ][wherein the appellants were]acquitted. However, the appellants do not get any benefit from this judgment as the factsand circumstances in that case were entirely different.

So far as conviction of the appellants under Section 392/34 IPC, the entire25.'[s scrutinized by the learned Trial court and thereafter the verdict of]evidence wa

Cr1. Appeal Nos. 1042-2013 & 1241-2013

Page 14 of 15

Ici

conviction has been rendered which cannot be found faulted with. That being so, thefindings of the learned Additional Sessions Judge convicting the appellants is upheld.However, as regards quantum of sentence, it was submitted that he is the only breadearner of the family having responsibility to maintain wife, children and parents who areon the verge of starvation. Antecedents of appellant - Akil are reported to be clean. Hisconduct has been reported to be satisfactory by the Superintendent Jail. That being so,while enhancing the quantum of fine of [Rs.25,000/-, ][in default to undergo simple]imprisonment for four months, substantive sentence is reduced to three years. The fine, ifrealized, sum of 1s.20,000/- be paid to complainant PW -1 Shahine. As regards theappellant Zafar Alam, no directions are called for as he has already been released fromjail after serving the sentence.

26.As result, Cr1. Appeal No. 1241/2013 filed by the appellant - Zafar Alam isdismissed. Cr1. Appeal No. 1042/2013 filed by the appellant - Akil is also dismissedexcept to the extent of modification in quantum of sentence. Pending applications, if any,also stand disposed of.

27.However, it is fit case where in view of the perfunctory investigation carried outby the Investigating Officers, action is called for against them. As such, the concernedDeputy Commissioner of Police is directed to take necessary action against theInvestigating Officers - Sub Inspector Blianu Pratap and Sub Inspector - Chaman Singhand to submit compliance report to this Court within three (3) months from the date ofthis judgment.

Trial Court record be sent back along with the copy of the judgment.

Appellant be informed through Superintendent Jail.

Copy of the judgment be sent to concerned DCP for information and compliance.

(SITAG PTA)'JUDGE

MAY 15 2015/d