Sunil Kumar Shah vs The State (Govt. Of Nct) Delhi
2010 Latest Caselaw 3686 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                             Judgment delivered on: August 09, 2010

+      CRIMINAL APPEAL NO.59/2009

       SUNIL KUMAR SHAH                      ....APPELLANT
               Through: Mr. Rajesh Mahajan, Advocate with
                        Ms. Satsheel Sheokand, Advocate.

                          Versus

       THE STATE (GOVT. OF NCT) DELHI        .....RESPONDENT

Through: Mr. Pawan K. Bahl, APP.

CORAM:

HON'BLE MR. JUSTICE AJIT BHARIHOKE

1. Whether 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 Digest ?

AJIT BHARIHOKE, J.(ORAL)

1. This appeal is directed against the impugned judgment dated

24.09.2008 of Additional Sessions Judge in Sessions case No.96/07, FIR

No.557/07, P.S. Ashok Vihar in terms of which the appellant has been

convicted under Sections 498A/304B IPC as also against the

consequent order on sentence dated 26.09.2008.

2. The appellant was married to Kiran Devi (hereinafter referred to

as "deceased") on 08.05.2002. The deceased died an unnatural death

as a result of fire burns on 14.08.2007 i.e. within seven years of her

marriage. Information about the death of the deceased was received

at P.S. Ashok Vihar on 14.08.2007 vide DD No.24A P.S. Ashok Vihar.

On the receipt of said information, ASI Bhagat Singh along with

Constable Jaideep reached at the spot of occurrence i.e. gali in front of

House No.393, Wazirpur Village and found the dead body of the

deceased lying there and the appellant was found standing nearby with

a child in his lap. Crime Team was requisitioned at the spot of

occurrence. The Crime Team inspected the spot and also took

photographs of the scene of crime. SDM was also informed about the

incident. Since he was out of station, he directed the Investigating

Officer to preserve the dead body till his arrival. On 18.08.2007,

statement of brother of the deceased Ex.PW1/C was recorded in

presence of the Executive Magistrate Model Town wherein he claimed

that the appellant used to ill-treat and beat the deceased in relation to

demand for dowry and once a sum of Rs.20,000/- was given to him

pursuant to his demand. He further alleged in the statement that on

13.08.2007, the deceased informed him on telephone that the

appellant was beating her on daily basis and he was insisting that the

deceased should bring Rs.50,000/- and a colour TV from her parental

home failing which, he would kill her. On the basis of said statement,

formal FIR was registered against the appellant under Section 498A IPC

and Section 304B IPC. After the conclusion of the investigation, the

appellant was challaned and sent for trial.

3. Learned Additional Sessions Judge, on consideration of the

material annexed to the charge sheet, charged the appellant for the

offences punishable under Section 498A IPC and Section 304B IPC. The

appellant pleaded not guilty to the charge and claimed to be tried.

4. In order to bring home the guilt of the appellant, prosecution

examined 15 witnesses in all.

5. The incriminating evidence produced by the prosecution was put

to the appellant in his statement under Section 313 Cr.P.C. wherein he

denied the prosecution evidence in toto and claimed that he has been

falsely implicated in this case after lifting him from his house. It is

pertinent to mention that while examining the appellant under Section

313 Cr.P.C., he was confronted with the evidence that when ASI Bhagat

Singh and Constable Jaideep reached at the spot of occurrence in front

of House No.393 Wazirpur, Delhi, they found dead body of the

deceased lying in the gali and the appellant present there having a

child in his lap and also that when ASI Bhagat Singh asked the

appellant about the name of the victim, the appellant told him that she

was his wife. The appellant in his response to the said questions

denied said evidence, meaning thereby that he has by implication

denied his presence at the spot when ASI Bhagat Singh and Constable

Jaideep reached at the spot.

6. On consideration of the evidence and submissions made on

behalf of the respective parties, the learned Additional Sessions Judge

found the appellant guilty of committing the offence of dowry death

punishable under Section 304B IPC as also for the offence of subjecting

the deceased to cruelty in relation with the demand for dowry

punishable under Section 498A IPC and convicted him accordingly.

7. Learned counsel for the appellant submits that while rejecting the

stand of the appellant that he was not present at the time when the

deceased sustained fatal burn injuries, the learned Additional Sessions

Judge has referred to the MLC of the appellant purportedly prepared by

B.J.R.M. Hospital on 14.08.2007 at 7:30 pm, and observed thus:

"16. .....Further more the stand of the accused that he was not present at the spot at the time of burning by his wife Kiran is falsified from the vary fact that he has not disclosed even in his statement U/S 313 Cr.P.C. as to where he was present at the time of incident of burning of his wife and as to who informed him and when he reached at the spot. Further more from the perusal of the MLC of the accused, it is reflected that he was examined at B.J.R.M. Hospital on 14.08.2007 at 7:30 P.M. and was found having flame burn injuries on his dorsum of his right palm and lateral side of right forearm and there is no explanation in this respect from the side of accused."

8. Learned counsel for the appellant further submits that the

learned Trial Court has committed a grave error on relying upon the

testimony of the witnesses relating to dowry demand and cruelty on

the strength of aforesaid MLC of the appellant which has neither been

proved by the prosecution nor it was put to the appellant for his

explanation in his statement under Section 313 Cr.P.C. Thus, he has

strongly urged that either the appellant should be acquitted of the

charges or his matter be remanded back to the Trial Court for

recording the evidence to prove the MLC and also recording statement

of the appellant under Section 313 Cr.P.C. in the context of evidence so

recorded in order to afford him an opportunity to give his explanation.

9. Section 386 Cr.P.C. deals the powers of the appellate court and

Section 386(b)(i) reads thus:

"386. Powers of the Appellate Court.-........

(b) in an appeal from a conviction-

(i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or

10. From perusal of the aforesaid provision, it is apparent that while

hearing an appeal from an order of conviction, the appellate court is

competent to reverse the finding of sentence and direct retrial of the

case by a court of competent jurisdiction. The purpose of the above

provision is to secure the ends of justice. Object of a trial basically is to

impart justice not only to the accused but to the victim as well as the

society and justice cannot be allowed to be a casualty for witting or

unwitting lapse committed by the prosecution in failing to

produce/prove the important piece of evidence which may have

impacted on the outcome of the case. In the instant case, the MLC of

the deceased as well as the MLC of the appellant have not been proved

on record, though both the MLCs were relied upon by the prosecution

in the charge sheet. The importance of the MLC of the appellant is

obvious from the fact that the learned trial Judge, in order to support

his conclusions, has relied upon the same. Therefore, it ought to have

been proved during trial which apparently has not been done. Further,

the Trial Court though it relied upon the MLC of the appellant did not

bother to confront the appellant with the said MLC and the

observations recorded therein, while recording his statement under

Section 313 Cr.P.C. to seek his explanation. This failure on the part of

the trial Judge has caused a serious lacuna in the trial.

11. In these circumstances, I find it imperative to set aside the

impugned judgment of conviction and consequent order on sentence

and remand the case back to the Trial Court with the directions to

record additional evidence in relation to the aforesaid two MLCs and

thereafter further examine the appellant under Section 313 Cr.P.C. in

the context of the evidence so collected on record.

12. In view of the above, the impugned judgment of conviction is set

aside and the case is remanded back to the Trial Court to record

additional evidence as observed above and also to record further

statement of the appellant under Section 313 Cr.P.C. and decide the

matter afresh in the light of the additional evidence and the evidence

already available on the record.

13. Appeal is disposed of accordingly.

(AJIT BHARIHOKE) JUDGE AUGUST 09, 2010 pst