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 NON-REPORTABLE    

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1895 OF 2010

Virender Singh Rawat … Appellant versus

Rakesh Kumar Gupta               … Respondent

J U D G M E N T

Jagdish Singh Khehar, J.

1. Through the impugned order passed by the High Court, the charges framed

against  Rakesh Kumar Gupta,  respondent herein,  were ordered to be set aside.

The order passed by the High Court  dated 18.09.2009,  is  the subject  matter  of

challenge, at the hands of the complainant.

2. The  incident,  as  it  emerges  from  the  First  Information  Report,  was  of

13.02.2003.  The actual occurrence is stated to have taken place at around 10.15

p.m.  The factual information reflected in the First Information Report was, that the

accused in the case - Mukesh Gupta, desired the deceased and his brother – the

complainant Virender Singh, to vacate the shop let out to them, by him.  The shop in

question was located at A-690, New Ashok Nagar, Delhi.

3. Despite the aforesaid occurrence having taken place at around 10.15 p.m.,

it is apparent that the First Information Report came to be registered with the Police

Station, New Ashok Nagar at 12.20 a.m.       In the First Information Report the

complainant  –  Virender  Singh  named  three  persons,  namely,

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Parmohan, Mukesh and Rakesh @ Ballu.  It is therefore obvious, that the above

three names were disclosed, at  the very first  opportunity.  The complaint  further

indicated, that some other persons were also involved in the incident.  The names of

the other persons, were not disclosed.

4. In  examining  the  prayer  made  at  the  hands  of  the  respondent  –  Rakesh

Kumar Gupta, the High Court recorded the following factual position, in paragraph

24 of the impugned order.  The same is extracted herein below:

“24. A careful reading of the supplementary statement shows that Virender Singh had come to the police station on 23.3.2003.  In the compound of the police station, he saw a person in police custody and Virender Singh informed that  the  person  in  police  custody  was  one  of  the  persons  involved  in assaulting his brother and it was only on enquiry that he came to know his name.  This statement would, thus imply that Virender Singh did not know the name of the petitioner till he was told.  While as per the complaint filed on 10.01.2003, Virender Singh had not only named the petitioner in the complaint but had also ascribed him a definite role.  Thus, the supplementary statement of Virender Singh would have little or no value.”

5. On the basis of the narration recorded in paragraph 24, it was sought to be

inferred by the High Court, that the respondent – Rakesh Kumar Gupta came to be

identified for the first time on 23.03.2003, when the complainant – Virender Singh

had gone to the police station, where the respondent – Rakesh Kumar Gupta was

already in police custody.  It is therefore, that the High Court set aside the order

framing charges against the respondent – Rakesh Kumar Gupta.  The High Court

recorded the following observations in paragraph 28:

“28. In this case, three other family members have been named in the FIR and who are facing trial.  The petitioner herein was neither named in the FIR nor was any description given therein which could connect the petitioner with the crime.  In the FIR lodged by none other than Virender Singh himself, he has stated that there were two other unknown persons, who assaulted his brother (Balbir Singh).  There is material on record which clearly spells out that Virender Singh (complainant) knew the petitioner beforehand, and had he seen the petitioner assaulting his  brother, he would have named him in the FIR itself.  I am further fortified in my view by the fact that as per the FIR itself,

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both  the  complainant  and  Karan  Singh  were  present  at  the  spot.   If  the complainant had been unable to see the petitioner, then Karan Singh, who as per the State witnessed the entire incident, would have surely disclosed the name of the petitioner to Virender Singh, at the spot itself.  In my considered opinion, no strong/grave suspicion is made out against the petitioner on the basis of the material on record.  In view of the aforestated reasons, I find that the  order  dated  02.06.2004  passed  by  the  learned  ASJ  contains  material irregularity  and  impropriety.   Accordingly,  the  present  revision  petition  is allowed.   The  order  dated  02.06.2004  passed  by  the  learned  Additional District and Sessions Judge, Delhi, framing charges against Rakesh Kumar Gupta (petitioner herein), is set aside, qua the petitioner only.”

6. Learned counsel for the appellant vehemently contended, that the High Court

seriously erred by not taking into consideration a fax message which was sent by

one of the witnesses to the occurrence – Karan Singh, on the date of the incident

itself – on 13.02.2003, at 11.25 p.m.  It would be relevant to record here, that the

above fax message was sent by Karan Singh to the Commissioner of Police, even

before the recording of the First Information Report, at 12.20 a.m. on 14.02.2003.  It

is necessary for us, for the determination of the present controversy, to extract the

aforesaid fax message:

“To, The Commissioner of Police Police Head Quarters, I.T.O. New Delhi-110 001.

Sub: The meaning of the submission is this that I, Ch.Karan Singh do hereby inform you that  infront  of  me in A-690,  New Ashok Nagar, Delhi-96 Balbir Singh Rawat  who deals  are  Medical  Store  Shop against  which  a  case is pending  in  Karkardooma  Court.   And  temporary  stay  has  been  obtained thereon.  Today, owners of shop Mukesh, Pramohan, Rakesh Kumar, Mufti, Satish etc. have attacked fatally on the proprietor of the shop.  Wherein the police  of  the  area  is  in  collision  with  Gundas  (Scoundrels).   Who  are professional scoundrels.  Wherein several policemen are in collision with them and Balbir Singh is nearly at the edge of murder.

Hence it is requested to you that legal action may be taken immediately.

Your faithfully,

Ch. Karan Singh

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A-700, New Ashok Nagar Copy to D.C.P. – East Joint C.P. – Crime Branch, I.T.O.”

7. In  addition  to  the  above,  learned  counsel  for  the  appellant,  invited  our

attention to the first supplementary statement made by the complainant – Virender

Singh,  at  the  police  station,  on  16.02.2003.  In  the  aforestated  supplementary

statement, recorded two days after the registration of the First Information Report,

the complainant – Virender Singh indicated the names of two additional persons,

besides those named in the First Information Report, namely, Rakesh Kumar Gupta

and Satish @ Mulla.  The supplementary statement dated 16.02.2003 is reproduced

below:

“FIR No.42/03 U/S 323/341/506/34 IPC PS N A Nagar Statement of Virender Singh s/o Naval Singh r/o A/127 N A Nagar Delhi U/S 161 Cr.PC. Stated  that  I  endorse  my  previous  statement  and  further  state  that  on 13/1/2003  at  10  PM  my  brother  Balbir  Singh  was  assaulted  by  Mukesh, Parmohan, Rakesh @ Babloo and two other persons with Dandas and Saria. Today from Tribhuvan and Karan Singh I have come to know the names of two other persons as R.K. Gupta and Satish @ Mulla whom I can identify when  they  come  before  me.   You  have  recorded  my  statement  which  is correct.

Sd/- I.O. 16/2/2003 PS N A Nagar”

8. It is therefore apparent, that based on the information received from Tribhuvan

and Karan Singh, in the aforestated supplementary statement, the complainant –

Virender  Singh  disclosed  two  further  names,  of  persons  who  had  allegedly

participated in the occurrence of 13.02.2003.  It is also not a matter of dispute, that

yet another supplementary statement was recorded by the complainant – Virender

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Singh on 23.03.2003.  The said supplementary statement is also reproduced below:

“FIR No.42/03 U/S 323/341/506/302 IPC PS ANAND VIHAR

Supplementary Statement of Virender Singh s/o. Naval Singh r/o A-127 N A Nagar Delhi U/S 161 Cr.PC.

Stated that in connection with my case I have to day come to Police Station where in the compound of the Police Station I have seen one person in Police custody and I have told you that this person was also involved among those who had assaulted my brother Balbir Singh on 13/2/2003 and on inquiry his name has come to be known as Rakesh Kumar Gupta s/o Damodar Prasad. You have recorded my statement, heard and it is correct.

Sd/- SHO N A Nagar Dated:- 23/3/2003”

9. Once  the  name  of  the  respondent  –  Rakesh  Kumar  Gupta,  had  been

disclosed  in a fax message dated 14.02.2003, and in the supplementary statements

dated 10.02.2003 and 23.03.2003, it was not open to the High Court, at the stage

when the prayer for setting aside the charges was made, to determine the veracity

of the factual position.  The truthfulness or otherwise of the same could only have

been gone into, when sterling and uncontrovertible evidence is placed on record, to

establish the falsity of the allegations.  This is not such a case where the High Court

was  presented  with  such material,  as  would clearly  exculpate  the respondent  –

Rakesh Kumar Gupta, from the occurrence.  It cannot be stated, in view of the fax

message dated 13.02.2003, the supplementary statements dated 16.02.2003 and

23.03.2003, that a  prima facie  case was not made out, against the respondent -

Rakesh Kumar Gupta.

10. In view of the above, we find merit in the instant criminal appeal.  The same is

accordingly  allowed.   The  impugned  order  passed  by  the  High  Court  dated

18.09.2009 is set aside.

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11. The trial Court shall proceed with the matter, and frame charges against the

respondent  herein.   The  trial  of  the  instant  matter  is  ordered  to  be  expedited,

keeping in view the fact that the occurrence relates to February 2003, and as such,

more than 13 years have already gone by.  The respondent – Rakesh Kumar Gupta,

would not be entitled to any relief on account of delay in the completion of the trial,

as he is himself responsible for the same.

12. The Registry is directed to remit the record, to the trial Court forthwith.

.………………..……………….…....…J. (Jagdish Singh Khehar)

………………...…………………….…J. (Arun Mishra)

New Delhi; September 22, 2016.

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