Delhi High Court
Suraj Jit Chaudhri vs Cbi on 29 September, 2008
Author: B.N.Chaturvedi
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl. Misc.(Bail) No.730/2008
in
Crl.A.No.456/2008
% Date of Decision : 29th of September, 2008
# SURAJ JIT CHAUDHRI ......Appellant
! Through: Mr.D.C.Mathur,Sr.Adv.with
Ms.Manisha Bhandari &
Mr. Onkar Srivastava, Advs.
versus
$ CBI .....Respondent
^ Through: Mr. R.M.Tewari, Adv. for CBI
Mr. Arun Jaitley, Sr. Adv.
with Mr. Hari Shankar, Adv.
for the complainant.
* CORAM:
HON'BLE MR.JUSTICE B.N. CHATURVEDI
HON'BLE MR.JUSTICE P.K. BHASIN
1. Whether the Reporters of local papers
may be allowed to see the judgment? __
2. To be referred to the Reporter or not? __
3. Whether the judgment should be
reported in the Digest? YES
: B.N.CHATURVEDI, J.
1. Instant application, under Section 389 Cr.P.C.
made by the appellant, seeks suspension of sentence
inflicted on him vide impugned order of sentence dated
3.5.2008 under Sections 302 IPC and 3/4 of the
Explosive Substances Act, 1908.
2. Facts relevant for disposal of the application, as
gathered from the record, disclose that the appellant, a
Lt. Colonel in the Indian Army, was married to one
Smt.Rani Chaudhary on 31st of March, 1971. Their
marital ties suffered a set back when in May, 1976
Smt.Rani Chaudhary left the appellant's company and
started living separately with her parents. She filed a
divorce petition under Section 13(1)(1.a) of the Hindu
Marriage Act on 1st of September, 1979 in the Court of
District Judge, Delhi, wherein an ex parte decree of
divorce was granted in her favour on 6th of December,
1979. The appellant filed an appeal before this Court
on 5th of March, 1980 for setting aside the ex parte
decree. At the same time, he also filed a petition on 7 th
of March, 1980 before the Court concerned of learned
Additional District Judge, Delhi for setting aside the ex
parte decree. The application for setting aside ex parte
decree was eventually dismissed on 6th of January,
1981 by the Court concerned of learned Additional
District Judge, Delhi. The appeal for setting aside ex
parte decree, filed on 5th March, 1980, was dismissed
by this Court on 17th of March, 1981. The appellant,
in the meantime, filed another appeal against the
order dated 6.1.1981 of the learned Additional District
Judge, whereby his application dated 17.3.1980 for
setting aside ex parte decree was dismissed. Allowing
the appeal so filed, the ex parte decree dated
6.12.1979 was set aside by this Court on 14th of
September, 1981. Aggrieved by the order, Smt.Rani
Chaudhary went in appeal before the Supreme Court
on 12th of October, 1981. The Supreme Court, allowing
the appeal, set aside the order dated 14.9.1981 and
restored the ex parte decree of divorce passed in
favour of Smt.Rani Chaudhary. A review petition filed
by the appellant on 25th of September, 1982 before the
Supreme Court resulted in dismissal thereof on 9th of
December, 1982.
3. Smt.Rani Chaudhary, while her litigation with
the appellant was still on, came into contact with
Kishan Sikand, deceased in October, 1979. Their
acquaintance, in a course of time, developed into
friendship. Smt. Rani Chaudhary decided to get
married to Kishan Sikand, deceased on a decree of
divorce being finally granted in her favour. Smt.Rani
Chaudhary towards the end of October, 1980 shifted
to the house of Kishan Sikand, deceased, at 98,
Sunder Nagar and kept on staying with him there till
his death on 2nd October, 1982. The appellant did not
like Smt.Rani Chaudhary staying with Kishan Sikand,
deceased, in his house. He could also not digest the
prospect of Kishan Sikand, deceased, and Smt.Rani
Chaudhary getting married to each other at any later
point of time. He wanted the deceased to make
Smt.Rani Chaudhary move out of his house, which, of
course, never happened.
4. It is the prosecution case that sometime after
7.30 p.m. on 25.9.1982, the appellant, with an intent
to eliminate Kishan Sikand, deceased, personally
carried a parcel containing a hand grenade and placed
the same at the second landing of the stairs leading to
first floor of 98, Sunder Nagar where the deceased
lived with Smt.Rani Chaudhary. The explosive device
in the parcel was based on a pressure release,
designed to explode on opening of the parcel. The
parcel in question was noticed by the deceased as well
as Smt.Rani Chaudhary and their friend Shri Suresh
Gopal, PW-3, and his wife at about 9/9.30 p.m. of the
same evening when they were coming down stairs from
the first floor to go out for a dinner. Noticing the
parcel, the deceased picked it up as it was addressed
to him and placed the same in a nearby window sill
enclosed by iron mesh and went out for dinner. On
return, the deceased, as also Rani Chaudhary, forgot
to collect the parcel and thus the same remained lying
in the window sill itself. It was only on 2nd of October,
1982 in the evening that PW Vijay Ram, servant of a
person occupying the front portion of the first floor of
the house as a tenant, who, noticing the parcel lying in
the window sill picked it up and finding that the same
was addressed to the deceased delivered it to him in
his bedroom. The deceased placed the parcel for a
while in the side rack of his dining-cum-drawing room
before opening the same around 5.45 p.m. when an
explosion occurred which resulted into his death.
5. The appellant was eventually arrested on 31st of
July, 1983. On his house/office search, certain
recoveries, as mentioned at pages 11-13 of the
impugned judgment, were made. Pursuant to
disclosure by the appellant, the typing establishment
wherefrom he allegedly got the address of the deceased
typed on a slip of paper pasted on the parcel was
located and the particular typewriter that was used for
typing the deceased's address was, on being pointed
out by him, seized. The expert concerned at CFSL, on
comparison of specimens and questioned typed
address, referred to him, opined the questioned
English typescript and the specimens from the seized
typewriter being from the one and the same very
typewriter.
6. Plea for suspension of sentence and release of
appellant on bail pending appeal, raised by Shri
D.C.Mathur, Senior Advocate, appearing for the
appellant, emanates from his criticism of the
impugned judgment of conviction on various counts.
To begin with, Shri Mathur contended that the
findings recorded by the learned trial court in regard
to various circumstances as firmly established are
based on conjecture and surmises rather than on
evidence. Referring to internal page 105 of the
impugned judgment, it was contended that by simply
noticing the marking on the hand grenade that had
exploded and caused death of Kishan Sikand, the
learned trial court was not justified in holding that it
was a hand grenade manufactured at a Pakistan
Ordnance Factory. Shri Mathur argued on the
strength of statement of PW-45 Maj.R.R.Gupta and
DW-3 Lt. Gen. R.M. Vohra (Retd.) that the appellant
during War with Pakistan in 1971 had to be evacuated
from the battlefield in a wounded condition and, thus,
there was no occasion for him to have had acquired
the hand grenade in question from the battlefield. He
further contended that there is no evidence that out of
the hand grenades of Pakistan origin seized during
the War and later issued to different Units of the
Indian Army, any number of such hand grenades
were made available to the particular Unit of the Army
where the appellant happened to be posted at the
relevant time. It was contended that the finding by the
learned trial court that the hand grenade in question
could have been procured by the appellant is thus
clearly unfounded. Questioning the credibility of
Mohd.Shafi, PW-7, Shri Mathur argued that
Mohd.Shafi, PW-7, claims to have had seen the
appellant coming out of the gate of deceased's house
and moving away towards Sunder Nagar Market and
that he had immediately thereafter gone upstairs to
hand over the key of the car to the deceased, but did
not notice any parcel lying at the second landing of the
staircase leading to the first floor. He pointed out that
according to Suresh Gopal, PW-3, and Smt.Rani
Chaudhary, PW-1 they came across with the parcel
placed at second landing of the stairs only at about
9/9.30 p.m. when they alongwith the deceased were
coming down stairs to go out for a dinner. Shri
Mathur contended that the statement of Mohd.Shafi,
PW-7, was recorded by the CBI only after 9 ½ months
of the incident on 16th of July, 1983, which clearly
shows that instead of being a truthful witness, he is
simply a procured one and, thus, no part of his
testimony could have been accepted to connect the
appellant with the crimes. To support his contention
in this regard, Shri Mathur, cited a decision of the
Supreme Court in "Kali Ram Vs. State of Himachal
Pradesh", AIR 1973 SC 2773(para 15).
7. Against the finding by the learned trial court
that the appellant had a motive to commit the murder
of Kishan Sikand, Shri Mathur, referring to a letter
dated 3.3.1982 written by the appellant to Rani
Chaudhary, PW-1 contended that, as a matter of fact,
much before the Supreme Court finally allowed the
appeal of Smt. Rani Chaudhary on 24.8.1982, taking a
cue from whatever transpired in the course of hearing
on the matter, the appellant had resigned to his fate
and was left with no rancour towards her or the
deceased. It was further contended that the incident
having taken place much after the appellant had
finally written to Ms.Rani Chaudhary, PW-1 on 3rd of
March, 1982 extending his good wishes to her, his
alleged spiteful disposition in the past could not be
held as proximate motive to commit the crimes.
Learned counsel felt that the learned trial court while
concluding that the appellant had the motive to
commit the crimes unwittingly lost sight of and
completely ignored the said letter dated 3.3.1982 of
the appellant. It was lastly argued that all through the
trial period, which lasted for about 24 years, the
appellant continued to be on bail with no complaint of
misusing the liberty and that the appellant being an
old man, aged about 72 years, deserves to be released
on bail pending appeal.
8. Opposing the application, Shri R.M.Tewari,
Advocate, appearing for the CBI, relying on a decision
of the Supreme Court, in "Gomti Vs. Thakurdas &
Others", (2007) 11 SCC 160, contended that the fact
that the appellant was on bail during the trial and that
he did not misuse the liberty is not of much
significance on conclusion of trial once he has been
adjudged guilty of the offences and convicted therefor.
He argued that looking at the nature of accusation
made against the appellant and the manner in which
he committed the murder as also the nature and
quality of evidence connecting him with the crime/s,
there is no good reason for suspension of sentence and
his release on bail during the pendency of the appeal.
9. Countering the argument raised on behalf of
the appellant against the creditworthiness of testimony
of Mohd.Shafi, PW-7, Shri Tewari submitted that even
though he, while going upstairs, does not claim to
have had noticed any parcel placed in the stairs,
omission on his part in this respect could not justify a
doubt being raised about his presence outside the
deceased's premises on the relevant date and time. It
was contended that the witness had come to the house
of the deceased on his services being requisitioned to
repair his car and being a casual visitor, he could not
be expected to take note of each and everything lying
there, including the parcel placed in the stairs. Shri
Tewari, apart from the testimony of Mohd.Shafi, PW-7,
also made a reference to the evidence to the effect that
the address of the deceased pasted on the parcel
containing the hand grenade was got typed by none
other than the appellant himself from a commercial
college of typing which was identified pursuant to a
disclosure by him in that regard. He pointed out that
the specimens from the typewriter, as identified by the
appellant, used in typing the deceased's address
pasted on the parcel, were, on comparison with the
questioned typescript by the expert concerned at
CFSL, found to be from the same very typewriter
which was seized by the IO from the commercial
college. It was accordingly argued that it is not only
the statement of Mohd.Shafi, PW-7, but also the
evidence that the address of the deceased on the
parcel was got typed by the appellant himself, clearly
corroborates the statement of Mohd.Shafi, PW-7. The
fact that parcel bore typed address of the deceased
was questioned by Shri D.C.Mathur, learned counsel
for the appellant by referring to the statement under
Section 161 Cr.P.C. of Ms.Rani Chaudhary, PW-1
recorded by the local police wherein she had told that
the address on the parcel was a hand written one.
Shri Tewari however, pointed out that in her statement
under Section 161 Cr.P.C. recorded by the CBI after
taking over investigation from the local police, Ms.Rani
Chaudhary has refuted that she ever made any
statement to the local police that the address on the
parcel was a handwritten one. Shri Mathur, relying on
a decision of the Supreme Court in "K.Chandrasekhar
Vs. State of Kerala & Others", 1998 SCC (Cri)
1291(para 24), contended that the investigation of the
case was transferred from local police to CBI only to
carry out further investigation and in that situation it
was not open to CBI to resort to reinvestigation by
recording yet another statement under section 161
Cr.P.C. of PW-1, Ms.Rani Chaudhary afresh
contradicting the one already recorded by the local
police.
10. Shri Arun Jaitley, Senior Advocate, appearing
for the complainant, who joined the CBI counsel in
opposing the application, supplemented by contending
that unlike in the matter of bail, in the course of his
trial, where the appellant enjoyed the benefit of
presumption of innocence, the same ceases to be
available to him on his conviction and his continuance
on bail throughout the trial with no adverse report of
misusing the liberty, pales into insignificance being of
no relevant consideration in the context of the plea for
suspension of execution of sentence and release on
bail pending disposal of appeal. A decision of
Supreme Court in "Sidharth Vashisht @ Manu Sharma
Vs. The State(NCT of Delhi)", 2008 (7) Scale 321, was
relied upon by Shri Jaitely to supply support to this
contention. Shri Jaitley contended that the
circumstantial evidence proving complicity of the
appellant in commission of the crimes broadly consists
of motive on the part of the appellant, possibility of the
hand grenade that exploded to cause death of Kishan
Sikand being available to him for procurement, the
recoveries effected in the course of his house/office
search, seizure of the typewriter, pursuant to a
disclosure in that respect by him, that was used to
type the deceased's address pasted on the parcel and
the testimony of Mohd.Shafi, PW-7. Shri Jaitley
pointed out that the letter dated 3.3.1982, as re-
produced at page 144 of the impugned judgment, from
the appellant to Ms.Rani Chaudhary, PW-1, instead of
showing that he had reconciled to the expected course
of events that were likely to follow after hearing on
appeal filed by Ms.Rani Chaudhary was rather in the
nature of an outpouring of a frustrated mind and
veiled ireful manifestation of his disturbed emotions.
He added that inspite of divorce decree being granted
in favour of Ms.Rani Chaudhary, PW-1, the appellant
continued to be obsessed with her, which is evident
from the fact that even after the appeal filed by
Ms.Rani Chaudhary was allowed and ex parte decree
passed in her favour by the Matrimonial Court
restored, the appellant did not accept the same
inasmuch as he filed a review petition before the
Supreme Court on 25th September, 1982 against its
order dated 24.8.1982 restoring the ex parte decree
which was, of course, eventually dismissed on 9th of
December, 1982. It was contended that the review
petition so filed was still pending when the incident
resulting into the death of Kishan Sikand took place.
The motive on the part of appellant was, thus,
according to Shri Jaitley, writ large and the learned
trial court was fully justified in finding existence of
such a motive on his part in commission of the crime.
It was further argued that even if the evidence on
procurement of the hand grenade in question by the
appellant is taken to fall short of firmly establishing
the same, the possibility of its availability to the
appellant could not be lost sight of. It was further
submitted that it is equally important to note that an
Indian detonator was found attached to the hand
grenade and being in the Army the appellant had an
access to procure it from there. Shri Jaitley,
accordingly, contended that the incriminating
circumstances, as proved by evidence on record,
supply adequate justification for the appellant being
held guilty of murder of Kishan Sikand.
11. The learned trial court enumerates the
incriminating circumstances at pages 98 to 137 of the
impugned judgment while holding the same as firmly
established. It has summed up the facts established
by evidence on record at pages 137 to 141 thereof.
Shri Mathur, appearing for the appellant, has, of
course, raised a number of points to assail the
impugned conviction but given the limitation on
making observations touching the merits of the case
with reference to the evidence on record while dealing
with an application under Section 389 Cr.P.C., it is
premature to embark upon an exercise associated with
reevaluation of the evidence on record. Needless to
say, the points of arguments raised by learned senior
counsel for the appellant cannot be appropriately
addressed to without a resort to re-appraisal of the
evidence on record. The fact of the matter is that with
his conviction by the learned court below, the
appellant continues to be guilty of committing the
murder so long as his such conviction is not set aside
in appeal. Thus, for the present, he cannot press into
service the plea of being an innocent person. Without
being expressive on merits of rival contentions, prima
facie, it does not appear to be a case of conviction
falling in the category of ones based on no evidence.
12. In a number of cases, including "Akhilesh
Kumar Sinha Vs. State of Bihar", (2000) 6 SCC 461,
"Vijay Kumar Vs. Narendra" 45 & Ors., (2002) 9 SCC
364 : JT 2004 Supp (1) SC 60, "Ramji Prasad Vs.
Rattan Kumar Jaiswal & Anr.," (2002) 9 SCC 366 : JT
2002 (7) SC 477, "State of Haryana Vs. Hasmat",
(2004) 6 SCC 175 : JT 2004 (6) SC 6, "Kishori Lal Vs.
Rupa & Ors.," (2004) 7 SCC 638 : JT 2004 (8) SC 317
and "State of Maharashtra Vs. Madhukar Wamanrao
Smarth", (2008) 4 SCALE 412 :JT 2008 (4) SC 461, the
Supreme Court has observed that once a person is
convicted, normally, an appellate court would proceed
on the basis that such person is guilty though in
appropriate cases, it still remains open to the appellate
court to suspend the sentence by recording reasons.
As ruled in Vijay Kumar (supra) in considering bail
plea in a case involving a serious offence like murder,
the court is required to take into account 'all relevant
factors like the nature of accusation made against the
accused, the manner in which the crime is alleged to
have been committed, the gravity of the offence, the
desirability of releasing the accused on bail after he
has been convicted for committing serious offence of
murder', etc. It was held in Sidharth Vashisht @
Manu Sharma(supra) that mere fact that during trial
period the accused was on bail and that there was no
misuse of liberty, does not per se warrant suspension
of execution of sentence and grant of bail. It is the
existence of reasons supplying justification to suspend
execution of sentence and grant of bail which really
guide the course of exercise of power under Section
389 Cr.P.C.
13. In the present case, as observed earlier, the
arguments advanced by learned counsel for the
appellant being of a nature, the validity whereof
cannot be tested without adverting to evidence on
record, including re-appraisal thereof, which we
refrain from doing at this juncture for obvious reason
of prejudice that may likely occur to one or the other
side, given the nature of accusation, manner of
commission of the crime and gravity of the offence, we
find it difficult to accede to the prayer made in the
application. Here, in this case, the appeal was filed
recently in May, 2008 and the same stands admitted
for hearing. Being in custody, the appellant can
expect his appeal being taken up for hearing within a
reasonable time. It is not a case where the appellant
is incarcerated for a considerably long period awaiting
hearing on his appeal. In the given facts and
circumstances, we find no adequate reasons to direct
suspension of execution of sentence and release of
appellant on bail at this stage. The application is,
therefore, dismissed.
(B.N.CHATURVEDI)
JUDGE
(P.K.BHASIN)
September 29, 2008 JUDGE
RS/
