State vs Sukhlal
2010 Latest Caselaw 5803 Del

*                IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           Crl. L.P. No. 441/2010

%                       Date of Decision: 21.12.2010

State                                                     .... Petitioner

                        Through Mr. M.N.Dudeja, APP for the State.

                                  Versus


Sukhlal                                                 .... Respondent
                        Through Nemo


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

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


ANIL KUMAR, J.

*

Crl. M.A. No. 18024/2010

This is an application by the petitioner seeking condonation of

delay in filing the petition seeking leave to appeal.

The applicant has contended that the copy of the judgment dated

25th March, 2010 was ready on 16th April, 2010 and on receipt of the

copy, the same was given to the legal department for its opinion and

thereafter it was considered at various levels. The record was finally

received by the counsel for the appellant on 20th October, 2010. The

counsel for the appellant also took time to go through the records and

prepare petition seeking leave to appeal and by the time, the petition

seeking leave to appeal was filed, the delay of 161 days had already

taken place. The applicant has contended that delay of 161 days is

neither intentional nor deliberate and grave loss, irreparable harm and

injury shall occasion if the delay of 161 days is not condoned.

The applicant has relied on Collector, Land Acquisition, Anantnag

and Anr. Vs. Mst. Katiji and Ors., (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 day's 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.

In the facts and circumstances as contended by the applicant and

the law relied on, there is sufficient cause for condoning the delay.

Therefore, the application seeking condonation of delay in filing the

petition for leave to appeal is allowed and the delay is condoned.

Crl.L.P.No. 441/2010

This is a petition by the State against the judgment dated 25th

March, 2010, acquitting the respondent Sukhlal of the charge of

murdering his wife Sundra in Sessions Case No. 145/2007 arising out

of FIR No. 1369/2007, PS Sultan Puri, under Section 302/201 of IPC.

Brief facts as put up by the prosecution are that

respondent/accused was residing at house bearing No. Y-76, Gali No.

III, Prem Nagar, Delhi with his wife Sundra. A neighbour of the

respondent, namely, Kamlesh, wife of Balwan Singh, on 30th August,

2007 heard noises outside the house of the accused and saw accused

quarreling with his wife Sundra. The neighbour of the accused,

Kamlesh, however, went to the market and when she came back she

noticed blood coming from the drain (nali) of the house of the accused.

Therefore, the neighbour Kamlesh went to Daya Ram Chandela,

Pradhan of Resident Welfare Association, Y-Block, Adarsh Enclave to

inform him that the wife of Sukhlal was lying naked in the house and

blood was flowing out of the house. The police was informed and the

Pradhan of the Resident Welfare Association also reached the house of

the accused.

Constable Rajbir was on patrolling duty and reached the house of

the accused and the door of the house was found closed from inside.

The door was pushed open and Sukhlal/accused was found in the

courtyard. The door of the room in the house was also found closed

and when it was opened, constable Rajbir found a dead body of a female

aged about 60-65 years. The dead body was naked and covered with

chunni, which was identified as that of Sundra, wife of the

accused/respondent.

During the investigation five wooden planks (phattis) of different

sizes burnt at some places with blood stains were recovered. The

Investigating Officer also lifted blood, earth having blood and earth

control from the spot. Chunni lying on the dead body and a blood

stained knife was also taken into possession and the disclosure

statement of the respondent/accused was also recorded disclosing that

Sundra, wife of the respondent had refused to hand over the papers of

the property registered in her name. The Investigating Officer also

seized six papers from the courtyard, one white sari and mehendi

colour blouse with blood stains and kurta and pajama of grey colour,

which were allegedly worn by the accused at the time of the incident.

The charge for the offences punishable under Sections 302/201

of IPC was framed against the respondent/accused, to which he pleaded

not guilty and claimed trial. During trial, prosecution examined 18

witnesses and the statement of the accused/respondent under Section

313 of the Crl. Procedure Code was also recorded.

Before the Trial Court, it was contended on behalf of the

petitioner that there was no eye-witness to the incident but the

prosecution has proved from circumstantial evidence, the guilt of the

accused beyond reasonable doubt as the accused was last seen with the

deceased at the spot by PW-3 Kamlesh, the neighbour and he was also

apprehended from the spot by PW-9 SI Dinesh Dahiya. The title

documents of the property in the name of the deceased were also

recovered at the instance of the accused and the clothes worn by the

deceased at the time of alleged incident were also recovered at the

instance of the accused.

The death of the deceased was caused by the wooden planks

(phattis) recovered at the spot according to the report, which was Ex.

PW 15/Y by Dr. Manoj Dhingra PW-6. The Trial Court noted that

except the disclosure statement of the accused, there is no other

evidence about the respondent committing the murder of his wife

Sundra. The disclosure statement Ex. PW9/F was held to be

inadmissible as it was made in police custody and the recovery of

documents Ex. P1 to Ex. P6 at the instance of accused, seized vide

seizure memo Ex. PW9/H were held to be insufficient to establish the

motive of the accused in committing the murder of his wife. The plea of

the prosecution regarding the motive was that the son of the accused

was of a bad character and 25 cases were pending against him and he

required money, so he wanted his wife to give the document of the

property so that the same could be sold and the consideration be used

for defending the cases on behalf of their son.

Regarding the last seen theory of deceased seen quarreling with

the accused, the Trial Court has taken into consideration that, even in

cases, where the time gap between the last seen account of the person

being alive and the person found to be dead is small, to exclude the

possibility of any person other than the accused being the perpetrator

of the crime, the Court should look for corroboration and relied on State

of UP vs. Satish, 2005 (3) SCC 114 and Jaswant Gir vs. State of Punjab,

(2005) 12 SCC 438. The witness deposing about the last seen theory as

per the prosecution, was PW-3 Kamlesh, however, the said witness had

turned hostile and was cross-examined. The only witness of the last

seen proposition denied that the police had recorded her statement,

rather she deposed that the police officials had never met her regarding

the case. She also denied that she had seen anything inside, as from

outside the house of the respondent nothing could be seen inside. She

deposed that she had started to reside in the neighborhood only four

days prior to the incident. She denied having seen the accused on the

date of the incident. She denied the version of the prosecution and

denied that she was deposing falsely in order to save the accused.

Sh. Daya Ram Chandela, whom Smt. Kamlesh had allegedly

informed about the quarrel between the respondent and the deceased,

was also examined as PW-5. He deposed that he had received the

information that Sundra was lying naked in the house and blood was

flowing out and thereafter, he gave information to the police chowki,

Prem Nagar. The said witness also turned hostile and was cross-

examined by the public prosecutor. He denied the suggestion that the

father of Guddu (son of the respondent) had killed his wife. He denied

that he had met the accused in the courtyard. Another witness PW-4,

Radha, who is also alleged to be a neighbour, also could not depose as

to how Sundra had expired. She was also cross-examined by the

prosecution, however, from her testimony, it could not be established

that the respondent was last seen with the deceased.

From the testimonies of PW-14 Constable Rajbir, PW-9 SI Dinesh

Dahiya and PW-15 Inspector Mohd. Iqbhal, it was noticed that when the

police official reached the spot they found the door locked from inside

and when they entered into the house, they found the accused present

inside the house. However, PW-3 & PW-5 deposed that when they

entered the house, the accused was not present. Consequently, none of

the private witnesses had seen the accused present inside the house

except the police official and in the circumstances, the Trial Court

inferred that the petitioner has failed to substantiate the last seen

theory and the presence of the accused at the time of the incident.

The next point considered by the Trial Court is about the wooden

planks (phattis)allegedly recovered at the instance of the respondent.

The Trial Court has noted that if the respondent was not present at the

spot, the wooden planks (phattis) could not have been recovered at the

instance of the respondent/accused and in the circumstances, mere

recovery of wooden planks (phattis) at the spot would not connect the

accused with the alleged offence of murder of his wife namely Sundra.

Regarding the recoveries of blood stained clothes of the deceased

and the accused, it transpired that though the clothes of the deceased

had blood stains of blood group-A but the blood stains on kurta pajama

of the respondent, on examination and on analysis of the blood, were

not found to be of blood group-A, which was allegedly worn by him at

the time of the incident. The FSL report Ex. PW15/X1 did not support

the case of the prosecution. Had the accused committed the murder of

his wife with planks (phattis), her blood would have stained his clothes.

This is not the case of the prosecution that the accused had hurt

himself and so the blood stains on his clothes were that of his own

blood. Considering the testimonies of other witnesses also, the Trial

Court has inferred that their respective testimonies also do not connect

the respondent/accused with the alleged offence and in the

circumstances, has held that the prosecution has failed to prove the

guilt of the accused for the offence punishable under Section 302/201

of IPC beyond reasonable doubt and acquitted him.

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.

This Court has heard the learned Additional Public Prosecutor in

detail and has also perused Lower Court Record especially the

testimony of PW-3, PW-5, PW-14, PW-15 and PW-9. The learned

Additional Public prosecutor has contended that even the testimonies of

the hostile witnesses to the extent they support the prosecution case

can be relied on. However, perusal of the testimonies of PW-3 and PW-5

alleged to be the witness of the last seen theory who had turned hostile,

on the basis of any part of their testimonies, it cannot be held that the

accused was last seen with the deceased or that when the police

officials had come to the spot, he was found inside the house. On the

basis of the testimonies of these two witnesses, the last seen theory of

the prosecution, cannot be established nor it can be established on the

basis of the testimonies of the police officials. In these circumstances,

the learned additional public prosecutor has not been able to show

unsustainability or any perversity with the reasoning of the learned

Trial Court. This is also true that if the view taken by the Trial Court,

which has an advantage of noticing the demeanor of the witness is

possible and feasible, the High Court in appeal, will not substitute its

view, even if another view is possible, with the view taken by the Trial

Court. In the circumstances, the petitioner has failed to make out any

case to grant leave to appeal against the impugned judgment dated 25th

March, 2010.

The reasoning of the Trial Court that if the accused was not last

seen in the premises then mere recoveries of the phattis (planks) cannot

be attributed to the respondent/accused and thus, pursuant to the

alleged disclosure statement, it cannot be inferred that the wooden

planks (phatti) were recovered at the instance of the respondent, cannot

be termed to be perverse or illegal. Another glaring factor which

demolishes the prosecution version is not finding the blood of the

deceased on the clothes of the respondent which he was allegedly

wearing at the time of the alleged incident. The FSL report Ex. PW-

15/X1 has not supported the case of the prosecution. If the case of the

prosecution is that the accused has killed his wife Sundra with the

wooden planks (phattis) and that there were blood stains on the cloth of

the respondent/accused, then the blood stains should have matched

with the blood of the deceased, as the case of the prosecution was not

that the accused had also sustained injuries and that the blood stains

on his cloths were from his own blood. If the blood of the deceased was

not found on the clothes of the respondent, it creates doubt about the

involvement of the respondent in killing his wife as per disclosure

statement, stating that since his wife refused to hand over the property

papers, he killed his wife Sundra with wooden phattis. In the

circumstances, the learned additional public prosecutor has not been

able to show any evidence which has not been considered by the Trial

Court or any finding arrived at contrary to the evidence on record. The

findings of the Trial Court, in the facts and circumstances, cannot be

termed to be unsustainable or perverse so as to entail any interference

by this Court and to grant leave to appeal to the petitioner.

Therefore, in the totality of facts and circumstances, there are no

grounds to grant leave to appeal to the petitioner. The petition for leave

to appeal is without any merit and it is, therefore, dismissed.

ANIL KUMAR, J.

DECEMBER 21,2010                                S.L. BHAYANA, J.
'rs'