State vs Kamlesh Kumar & Anr.
2010 Latest Caselaw 5555 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI

+             Crl. M.A. No. 14096/2010 & Crl. LP No. 304/2010


%                        Date of Decision: 07.12.2010

State                                                         .... Appellant
                       Through Mr. Jaideep Malik, APP

                                  Versus

Kamlesh Kumar & Anr.                                        .... Respondent
                 Through Nemo

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR.JUSTICE S.L.BHAYANA

1.       Whether reporters of Local papers                   YES
         may be allowed to see the judgment?
2.       To be referred to the reporter or not?              NO
3.       Whether the judgment should be                      NO
         reported in the Digest?



ANIL KUMAR, J.

* Crl. M.A. No. 14096/2010

This is an application by the appellant/applicant seeking

condonation of delay in filing the petition for leave to appeal on the

ground that the impugned judgment was pronounced on 28th January,

2010 and considerable time was taken in procuring the certified copy of

the judgment.

The applicant has given the details as to who has considered the

file to decide whether a petition for leave to appeal is to be filed or not.

The applicant has relied on Collector of Land Acquisition Vs.

Katiji, (1987) 2 SCC 107 and State of Nagaland Vs. Lipok Ao, 2005 (3)

SCC 752 holding that sufficient cause should be considered with

pragmatism in justice oriented approach rather than a technical

defection of sufficient causes for explaining every days delay having

regard to considerable delay of procedural red tape in the decision

making process of the government, certain amount of latitude is

permissible and should be given. The applicant has contended that the

State Government is the impersonal machinery working through its

officers or servants- hence it cannot be put on the same footing as an

individual.

The petitioner/applicant, in the circumstances, has contended

that there is sufficient cause for condoning the delay of 102 days in

filing the petition for leave to appeal.

Considering the averments made in the application, it is apparent

that the petitioner has been able to make out sufficient cause for

condonation of delay in filing the petition for leave to appeal.

Consequently, the application under Section 5 of the Limitation

Act, seeking condonation of delay in filing the petition for leave to

appeal is allowed and delay is condoned.

Crl.L.P.No. 304/2010

The petitioner has sought leave to appeal against the order dated

28th January, 2010 passed by the Sessions Court in Sessions Case No.

108/2008 titled as State Vs. Kamlesh Kumar and Avdesh arising out of

FIR 207/2006 under Section 498A/302/34 of IPC, at P.S. Kapashera

acquitting the accused persons on all charges.

The case of the prosecution is that Priyanka, was admitted in

Safdarjung hospital by her husband Kamlesh, while she was

unconscious, on 31st May 2006. On receipt of information from the

hospital to this effect at 9:20 pm police reached there and it transpired

that Priyanka and Kamlesh were married only last year, however

Priyanka was not in a position to make any statements. On 1st June

2006 crime team had come to inspect the spot and photographs were

taken. It was on 3rd June 2006 that information was received from the

hospital that Priyanka had died and DD No. 17 B was recorded in this

regard.

Since the death of Priyanka had occurred in suspicious

circumstances, and during the second year of marriage itself,

information was given to the SDM, who recorded statement of Surinder,

father of deceased, who was called and came to Delhi on 6th June

2006. He alleged harassment, cruelty and demands of dowry at the

hands of husband Kamlesh. He also stated that after marriage a

buffalo and a gold chain was given when demanded and he raised

suspicion for the death of his daughter Priyanka, on accused Kamlesh

as well as the brother of Kamlesh. Directions to register an FIR were

given by the SDM on 6th June 2006. The site plan of the place of

incidence was prepared vide Ex. PW15/A.

It is also the case of the prosecution that post mortem on the

dead body of Priyanka was conducted on 7th June 2006 and doctor

gave the cause of death, being shock due to hypoxic encephalopathy

produced by ante-mortem constriction of neck by ligature and gave the

time of death to be about three days.

As per charge sheet, the FIR in view of post mortem report was

registered u/s 498A and 304B of IPC and accused Kamlesh was

arrested on 8th June 2006. After recording of statement of witnesses,

accused Avdesh Singh was also interrogated on 10th June 2006, who

made a disclosure statement admitting to having committed the murder

of Priyanka and Section 302 of IPC was also added in the FIR against

accused Avdesh Singh. Subsequently at his instance a key and a

handkerchief used while throttling the deceased was also recovered.

On the basis of such averments the learned sessions judge

framed charges on 14th December 2006, against accused Kamlesh u/s

498 A IPC for subjecting her to cruelty in order to get unlawful

demands of dowry fulfilled and a charge u/s 302 IPC was framed

against accused Avdesh Singh for causing murder of Priyanka on 29th

May 2006 at an unknown time at house No. 840, Near Appu Ghar,

Kapashera, Delhi.

The Trial Court has concluded that the death of Mrs. Priyanka was

clearly on account of homicide and not suicide, relying on the

deposition of PW-13 Dr. Yogesh Tyagi. He has categorically stated in his

post mortem report Ex. PW13/A that there were two ante mortem

injuries in the shape of contusion over left thenar region of palm 5x5

cm. and faint ligature narks in the form of scabbed abrasion present in

front of the neck, starting from mid line front where the mark was 2.5

cm broad and 7 cm below chin and cm above supra sterna notch. From

there it goes over to both angle of mandible. Beyond that it is not

present. Over right side of the neck, it is 2.5 cm wide and 3.5 cm below

right angle of the mandible where it just disappears few cm. Back. Total

length of the ligature was 14 cm. and it is absent over back of the neck

for a distance of 18 cm. The cause of death as deposed by him is due to

hypoxic encephalopathy produced by ante mortem constriction of neck

by ligature.

As for the allegations made against the accused Kamlesh u/s 498

IPC the Trial court held that they weren't successfully proved by the

prosecution. The main witnesses on whose testimony reliance has been

placed by the prosecution are PW-14, PW-5 and PW-8, which are

fraught with glaring inconsistencies.

The father of deceased, PW-14 Surinder Prakash is the one on

whose statement the FIR had been registered u/s 498A/304 B. PW-14

had deposed about the alleged dowry demands made by the accused's

father. As per his deposition Priyanka was married with Kamlesh on

22nd May 2005 and an exorbitant amount was demanded by the father

of Kamlesh, however, on intervention of family members the amount

was reduced to 31,051 which was duly paid in cash. Also further

demands of a gold idol of Hanumanji, a gold chain and a buffalo were

made. Even though a gold idol of Hanumanji weighing 5 gms. was

given, the father of deceased could not make good on the demand for

the gold chain and the buffalo. Henceforth PW-14 had informed his son

Sanjay, PW-5 to pay the amount towards gold chain. Thereafter the

buffalo too was send to the village Toria, where the parents of the

accused Kamlesh used to reside.

Trial court however observed that these demands were specifically

made by the father of the accused and not the accused himself and also

that PW-14 had not deposed any instances of the deceased being

harassed or pressurized for meeting the dowry demands. It is further

observed that he wasn't even aware of the exact amount paid by PW-5

to the in-laws of the deceased.

As per the deposition of PW-5 Sanjay Kumar, the brother of the

deceased he had stated that the accused was responsible for the death

of his sister since on many occasions he used to consume liquor and

quarrel with his sister, which he used to tell him not to do. He further

deposed that he paid a total sum of Rs. 4000/-, i.e 2000/- each on two

occasions. However in his entire deposition there is no mention of any

demands of the gold chain and buffalo or that his father, PW-14 had

asked him to pay cash to the accused nor does he specifically state that

his sister was beaten by the accused Kamlesh or was harassed or

tortured in any manner which negates the basic requirement of treating

with cruelty.

PW-8 is the only witness who has made an assertion as to the

demands for dowry being made by the accused Kamlesh and accused

Avdesh and the beatings given to the deceased in view of the demands.

However his deposition is contrary to the depositions of PW-14 and PW-

5 as neither have stated any instances of beatings being given to the

deceased nor have they imputed any demands of dowry being made by

the accused persons. Also even though PW-8 had leveled allegations of

demanding dowry against accused Avdesh, in his cross-examination he

has stated that prior to the incident he did not know of Avdesh, nor had

he seen or met him. This clearly goes to show that the averments made

by PW-8 are not true and the Trial court has rightly not relied on it in

view of the various inconsistencies and contradictions in the

statements of witnesses. In the circumstances the inferences of trial

Court cannot be held to be un-sustainable or perverse nor any such

perversity has been pointed out from the Trial Court record which will

entail grant of leave to the petitioner against the impugned judgment of

acquittal of the respondents.

The Trial court has also observed that the aspect of motive

attributed to the accused Avdesh, of being involved in an illicit

relationship with the deceased has not been successfully proved by the

prosecution. The only witness supporting the case of the prosecution is

PW-5 who has deposed that he was having the impression that accused

Avdesh had illicit relations with Priyanka and had even told her

husband Kamlesh about the same. However he had not paid any heed

to it nor did he take any measures to prevent Avdesh from having

access to the house. Even PW-12 Daya Chand the landlord of the

premises where the accused Kamlesh and Priyanka were residing has

not supported the case of the prosecution with respect to the motive,

stating that he had never suspected any illicit relations between

Priyanka and Avdesh. In the circumstances no such cogent evidence

has been pointed out by the Learned Public prosecutor on the basis of

which it can be inferred about the illicit relations between the deceased

and accused Avdesh nor any evidence has been pointed out which has

not been considered by the Trial Court.

The Trial Court has disbelieved that accused Avdesh visited the

place of occurrence on the day of incident as PW-12 categorically

deposed that none of his family members had seen the accused

entering the premises. From the cross examination of the said witness

and other material on record it cannot be held that the deposition of

said witness Pw 12 is unreliable. Also the version of the incident told by

the lady tenant to PW-12, asserting the presence of the accused Avdesh

cannot be believed as she has not been examined and on this account

PW-12 is only a hearsay witness and due reliance cannot be given to

his deposition.

The trial court has rightly disbelieved the photocopy of the

attendance sheet, Ex PW9/B which reflects that from 26th May 2006

itself, accused Avdesh was absenting himself from duty, as it cannot be

connected to the incident which occurred on 30th May 2006. The

accused has made a statement under Section 313 of Cr.P.C that he had

taken leave as he was ill and had gone to Loni and had come back only

on hearing about the death of Priyanka. When he attended the

cremation he was arrested by the police. The link of leave taken on

26th May 2006 and the incident of 30th May 2006 seems to be too far-

fetched and the benefit of doubt has been given to the accused by the

Trial court.

This is settled law that in reversing the finding of acquittal the

High Court has to keep in view the fact that the presumption of

innocence is still available in favor of the accused which is rather

fortified and strengthened by the order of acquittal passed in his favor.

Even if on fresh scrutiny and reappraisal of the evidence and perusal of

the material on record, if the High Court is of the opinion that another

view is possible or which can be reasonably taken, then the view which

favors the accused should be adopted and the view taken by the trial

Court which had an advantage of looking at the demeanour of

witnesses and observing their conduct in the Court is not to be

substituted by another view which may be reasonably possible in the

opinion of the High Court. Reliance for this can be placed on 2009(1)

JCC 482=AIR 2009 SC 1242, Prem Kanwar v. State of Rajasthan; 2008

(3) JCC 1806, Syed Peda Aowlia v. the Public Prosecutor, High Court of

A.P, Hyderabad; Bhagwan Singh and Ors v. State of Madhya Pradesh,

2002 (2) Supreme 567; AIR 1973 SC 2622 Shivaji Sababrao Babade &

Anr v. State of Maharashtra; Ramesh Babu Lal Doshi v. State of

Gujarat, (1996) 4 Supreme 167; Jaswant Singh v. State of Haryana,

2000 (1) JCC (SC) 140. The Courts have held that the golden thread

which runs through the web of administration of justice in criminal

cases is that if two views are possible on the evidence adduced in the

case, one pointing to the guilt of the accused and the other to his

innocence, the view which is favorable to the accused should be

adopted. The paramount consideration of the Court is to ensure that

miscarriage of justice is prevented. A miscarriage of justice which may

arise from acquittal of the guilty is no less than from the conviction of

an innocent.

The High Court has the power to reconsider the whole issue,

reappraise the evidence and come to its own conclusion and findings in

place of the findings recorded by the trial Court, if the findings are

against the evidence or record or unsustainable or perverse. However,

before reversing the finding of acquittal the High Court must consider

each ground on which the order of acquittal is based and should record

its own reasons for not accepting those grounds and not subscribing to

the view of the trial Court that the accused is entitled to acquittal.

The trial Court has also disbelieved the recovery of the keys of the

room of the deceased from the drain at the instance of the accused

Avdesh as none of the witnesses have specifically stated the place at

which the recovery was made. Now nala (drain) being an open and

accessible place does not inspire any confidence as to the recovery of

the keys. Also none of the witnesses have deposed that Avdesh too had

the keys to the room in his possession and it's has not been disputed

before the Trial court that he used to reside in altogether different

premises. On perusal of deposition of these witnesses from the Trial

Court record which was called by this Court and perused it cannot be

held that the findings of the Trial Court are un-sustainable and not

based on evidence or has been arrived at by ignoring any evidence.

As per the deposition of PW-12, on the day of the incident at about

6:00 pm the accused Kamlesh had opened the locked door with a key in

his possession and in his presence had given water and food to

Priyanka and taken her to the doctor. It has been noted by the Trial

Court that the lock which was opened by accused Kamlesh on the day

of the incident has not been identified by PW-12 in whose presence the

lock was opened. The recovery of the key of the lock from the nala

(drain) has not been proved. The fact that clearly draws further

suspicion is that Priyanka had ample opportunity to name Avdesh on

being found by her husband subsequent to opening the door, however

she does nothing of the sort and remains silent on as to who has

throttled her. Also the Ex.PW8/E is dated 8th June 2006 while it is the

case of the prosecution itself that accused Avdesh was arrested on 10th

June 2006. Hence the recoveries described in Ex. PW8/E were rightly

not believed by the Trial Court.

The recovery of the handkerchief which was allegedly used to

strangle the deceased, from the house of accused Avdesh has also not

been relied on as it was never shown to the doctor for his opinion as to

whether it could be used for the purpose of throttling nor was it sent to

the FSL for seeking opinion or collecting DNA of deceased Priyanka.

Furthermore the seal on the pullanda of handkerchief was also found

to be a damaged one when it was firstly opened during the testimony of

PW-8 in the Court. Thus the trial court was of the opinion that none of

the circumstances were proved beyond reasonable doubt against the

accused. The learned public prosecutor has not been able to raise any

such ground which will entail any interference by this Court in the

facts and circumstances.

On perusal of the Trial Court record and the evidence of all the

witnesses, it is apparent that there is no allegation against the accused

Kamlesh for demanding dowry or even treating his wife, the deceased

with cruelty. PW-14 has merely stated one occasion on which Priyanka

had told him on the phone that the accused Kamlesh was demanding

dowry. However he does not seem able to tell the exact date on which

this demand was made nor has he stated that he took any action on

account of this demand nor asked his daughter to come to Bihar or

himself make a trip to Delhi nor does he even talk to the family

members of Kamlesh. This does not seem to be the normal conduct of

the father from whose daughter dowry is demanded and she is allegedly

harassed. Other than this there are no allegations of any demands

being made by the accused or that Priyanka was perturbed because of

any such demands made by the accused either prior to the marriage or

with respect to the demands that remained unfulfilled. Rather as per

PW-14 himself the accused and the deceased shared a very normal

husband and wife relationship. The inconsistencies in the depositions

of PW-14, PW-5 and PW-8 are also too glaring to be ignored and the

trial court has rightly disbelieved them. This court finds no perversity

or illegality in the finding of the Trial Court.

On perusal of the testimonies of the other witnesses also, this

Court is unable to find any cogent evidence against the accused Avdesh

on the basis of which it can be inferred that he had committed the

murder of Priyanka. The recoveries of the key and the handkerchief

have been carefully scrutinized and have not been sufficient in

imputing guilt against the respondent Avdesh. The trial court too has

observed that so far as the charge u/s 302 of IPC is concerned, the

evidence against the accused is circumstantial in nature and hence

requires to form a link that would beyond all reasonable doubt lead to

the inference of guilt, which the prosecution was unsuccessful in

proving.

In the circumstances, the petitioner has failed to make out a

case of cruelty and murder against the accused persons. Thus, there

are no grounds to grant leave to appeal to the petitioner and the

decision of the Trial Court dated 28th January, 2010 cannot be faulted.

The learned counsel for the State Mr. Malik is also unable to

point out any illegality or perversity in the said order, which would

require any interference by this Court.

The petition for leave to appeal, in the facts and circumstances,

is without any merit and therefore, the prayer of the petitioner to grant

leave is declined and the petition is dismissed.

ANIL KUMAR, J.

S.L. BHAYANA, J.

DECEMBER 07, 2010