$~19
* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
% Date of Decision: 30 September, 2024
+ CRL.L.P. 22/2019 & CRL.M.A. 398/2019
SHAKUNTALA DEVI .....Petitioner
Through: Adv. Manika Tripathy,
DHCLSC & Adv. Barun
Dey,
versus
STATE & ANR .....Respondents
Through: Mr. Rajkumar, APP for
the State.
Mr. Roshan Lal Saini,
Adv. for R-2 through V.C.
CORAM:
HON'BLE MR. JUSTICE AMIT MAHAJAN
AMIT MAHAJAN, J. (Oral)
1. The present petition is filed seeking leave to appeal against
the order dated 07.04.2018 (hereafter ‘impugned order’) passed
by the learned Metropolitan Magistrate (‘MM’), Tis Hazari
Courts, Delhi in Case No. 511850/2016 titled Smt. Shakuntla vs.
Pushkar & Ors.
2. By impugned order, the learned MM acquitted Respondent
Nos. 2-4. The case was instituted on a complaint given by the
petitioner alleging that on 19.05.2008, at around 7:00 am,
Respondent Nos. 2-4 forcibly entered the house of the petitioner,
and caught hold of her. It is alleged that Respondent No. 2 was
having a danda in his hand which he allegedly used to hit the
petitioner on her head. It is alleged that Respondent No. 3 bit the
petitioner, and Respondent No. 4 gave fist and kick blows to the
petitioner. It is the petitioner’s case that Respondent Nos. 2-4
held a grudge against her since she had made a complaint against
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them to the electricity department.
3. Subsequently, a notice under Section 251 of the Code of
Criminal Procedure, 1973 (‘CrPC’) was served upon
Respondent Nos. 2-4 for offences under Sections 452/323/34 of
the Indian Penal Code, 1860 (‘IPC’).
4. The petitioner, in her evidence, examined herself and
repeated the facts of the complaint. The learned MM noted that
the petitioner in her statement had deposed that Respondent Nos.
2-4 had ill will towards the petitioner since she had lodged some
complaints of electricity theft against the accused persons. It was
noted that during her cross examination, at the stage of post-
charge evidence, a question was put to the petitioner that her
brother on one occasion had assaulted Respondent No. 2 with a
knife. It was noted that in place of tendering her response to the
said question, the petitioner evaded the question stating that the
same was a personal matter and she was not willing to disclose
the details before the Court. The learned MM noted that the
relations between the accused persons and the petitioner
appeared to be strained from the record thereby noting that the
probability of false implication owing to previous enmity could
not be ruled out.
5. The learned MM further noted that in accordance with the
statement of the petitioner, the incident happened at about 7:00
am at her residence situated at Mukeempura, Subzi Mandi, Delhi,
however, the MLC recorded indicated that the petitioner reached
the hospital only at 9:20 am. The learned MM further took
judicial notice of the fact that the said Bara Hindu Rao Hospital
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was situated at a walkable distance of maximum 10 minutes from
any place in Mukeempura. It was noted that the delay between
7:00 am to 9:20 am remained unexplained especially when the
petitioner had suffered severe injuries.
6. The learned MM, noting that neither any public witness
had been examined nor the delay of more than 2 hours in
reaching the hospital was explained, observed that the possibility
of false implication out of ulterior motive could not be ruled out.
Accordingly, the learned MM acquitted Respondent Nos. 2-4.
Aggrieved by the same, the petitioner has filed the present
petition.
7. It is trite law that this 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
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prima facie case has been made out or arguable points
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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.”
(emphasis supplied)
8. In the present case, while the petitioner made certain
allegations against Respondent Nos. 2-4, the same were not
corroborated by any independent witness. The learned MM noted
that the witness had failed to pass the test of being a sterling
witness, and the case was highly doubtful.
9. It was noted that while the incident took place at 7:00 am
at the residence of the petitioner at Mukeempura, Subzi Mundi
Delhi, the petitioner only reached the hospital at 9:20 am, despite
the fact that the hospital was situated merely at a distance of 5-10
minutes, and despite the fact that the petitioner had received
severe injuries.
10. The learned MM also took into consideration the
deposition of DW3 that an altercation had taken place between
Respondent No. 3, and the petitioner on 19.05.2008. DW3, in his
deposition, stated that they made a PCR call, however, by the
time the police arrived, the petitioner had run away from the
spot. DW3 further stated that they were taken to the police
station, and considering that Respondent No. 3 had suffered
some abrasions, she too was shifted to Hindu Rao Hospital where
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the petitioner was already present. DW3 had made an allegation
that the injuries caused to the petitioner were self-inflicted. The
learned MM noted that nothing had been suggested to DW3 to
establish that the petitioner had not run away or that the injuries
caused to the petitioner were not self-inflicted. The learned MM
further noted that while the petitioner claimed that Respondent
No. 3 had bitten her, the same was not medically supported. This
is because the doctor merely recorded the injury as an abrasion
whereas an injury caused by a tooth bite is easily discernible. It
was noted that the medical document further falsified the claim
of the petitioner.
11. The learned MM further noted that the petitioner resided in
a densely populated area, and the incident happened at around
7:00 am and the non-joining of any public person as witness
caste a doubt on the credibility of the case of the petitioner.
12. It is pertinent to mention that the decision of acquittal
fortifies the presumption of innocence of the accused persons,
and the Court must interfere with an order of acquittal only when
there are compelling reasons to do so. In the present case, the
case of the petitioner has not been corroborated by any public
witness. While it is true that a conviction may be effected on the
sole testimony of the eye-witness, however, in such cases the
testimony of such witness must be without any blemish. In the
present case, however, as was noted by the learned MM,
admittedly the petitioner had previous enmity with the accused
persons. Further, despite the hospital being situated at a distance
of merely 10 minutes from the place of the petitioner, there is no
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explanation why it took more than two hours for the petitioner to
reach the hospital. The absence of any public witness further
creates a doubt in the story of the prosecution. In the light of the
aforesaid, the learned MM rightly noted that the possibility of
false implication on the basis of ulterior motive could not be
ruled out, and the case was highly doubtful.
13. Upon a consideration of the facts and circumstances of the
case, this Court does not find any ground to interfere with the
impugned order and the same cannot be faulted with.
14. The present petition is accordingly dismissed. Pending
application(s) also stand disposed of.
AMIT MAHAJAN, J
SEPTEMBER 30, 2024
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