Dinesh Kumar vs State
2010 Latest Caselaw 1542 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                             Date of Decision :19th March, 2010

+                   CRL. APPEAL NO.673/2004

        DINESH KUMAR                                   ..... Appellant
                          Through:      Mr.Anurag Jain, Advocate.

                     versus

        STATE                                     ..... Respondent
                          Through:      Mr.M.N.Dudeja, A.P.P.

         CORAM:
         HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
         HON'BLE MR. JUSTICE SURESH KAIT


     1. Whether the Reporters of local papers may be allowed
        to see the judgment?
     2. To be referred to Reporter or not?                 Yes
     3. Whether the judgment should be reported in the Digest?Yes

PRADEEP NANDRAJOG, J. (Oral)

1. Arguments had been concluded in the afore-noted

matter and we had reserved the matter for pronouncing

decision.

2. While dictating judgment, it transpired that no

incriminating circumstance whatsoever, save and except one

or two, have been put to the accused when he was examined

under Section 313 Cr.P.C.

3. The statement of the accused under Section 313

Cr.P.C. reads as under:-

"Q1: It is in evidence against you that on

9.8.2002, Satnam Singh lodged a complaint with the police which is Ex.PW-1/A. His statement regarding identification of the body was recorded, same is Ex.PW-1/B. Also, statement of Ravinder Singh regarding identification of the dead body was recorded, same is Ex.PW-15/E. SI Dinesh Kumar on receipt of DD No.16, reached the spot along with Constable Ashok. SI Dinesh Kumar prepared rukka Ex.PW-4/A. On the basis of the rukka, FIR No.288/02 was registered. Carbon copy of the same is Ex.15/A. What have you to say?

       A1:         I do not know.

       Q2:         It is in evidence against you that after

reaching the spot, SI Dinesh Kumar, lifted the blood stains lying on the stair case and took in possession vide memo Ex.PW-1/C. Cloth and chappal were seized and taken into possession vide memo Ex.PW-1/D. Hawai chappal for stair case, another hawai chappal from the lobby Exs.P4, green colour chunni Ex.P-5 , cream colour towel Ex.P1, a sofa seat bearing the impressions of shoe marks, one broken knife in two parts blade Ex.P-2 and handle of knife Ex.P-3 were taken into possession vide memo Ex.PW-1/F. A sealed pulanda containing sample seal and clothes of Dinesh were taken into possession vide memo Ex.PW-1/E. What have you to say?

       A2:         I do not know.

       Q3:        It is in evidence against you that IO

prepared the sketch of knife, same is Ex.PW-1/F and same was taken into possession vide memo Ex.PW- 1/G. Your disclosure statement was recorded vide memo Ex.PW-1/H. Your shoes were got recovered and taken into possession vide memo Ex.PW-1/J. Blood was lifted from the place of incident and was taken into possession vide memo Ex.PW-1/K. What have you to say?

A3: I do not know about the preparation of knife sketch. I never gave any disclosure statement. The shoes Ex.PW-1/J were planted upon me. I don't know about Ex.PW-1/K.

Q4: It is in evidence against you that Dr.Shamal Sarkar prepared the post mortem report of the deceased Amarjeet Kaur, same is Ex.PW-3/A. What

have you to say?

       A4:       I don't know.

       Q5:        It is in evidence against you that SHO

Insp.Ashok Kumar seized the pulanda pertaining to deceased Amarjeet Kaur vide memo Ex.PW-6/A. Also, Dr.Abhishek Jha prepared the MLC No.CS-77956/02, same is Ex.PW-8/A. What have you to say?

       A5:        I don't know.

       Q6:        It is in evidence against you that on

10.9.2002, Draftsman Madan Pal prepared rough notes and on the basis of rough notes, he prepared the scaled site plan, same is Ex.PW-9/A. What have you to say?

       A6:        I don't know.

       Q7:       It is in evidence against you that

Photographer Gir Raj took 17 photographs and developed photographs, same are Ex.PW-11/1 to 7 and Ex.PW-18 to 34, respectively. What have you to say?

       A7:       I don't know.

       Q8:         It is in evidence against you that you were

arrested vide arrest memo Ex.PW-12/B and your personal search was conducted vide memo Ex.PW- 12/A. What have you to say?

A8: I was arrested, when still in AIIMS hospital. I was getting the medical treatment.

Q9: It is in evidence against you that ASI Khazan Singh received a call on 9.8.02 from Wazir Nagar, Kotla Mubarakpur. The telephone number from where he received the call is Ex.PW-13/A. What have you to say?

       A9:        I don't know.

       Q10:      It is in evidence against you that on

9.8.2002, Dr.L.M.Darlong, prepared the MLC of deceased Amarjeet Kaur, same is Ex.PW-14/A. What have you to say?

       A10:      I don't know.

       Q11:      It is in evidence against you that on

10.8.2002, IO Ashok Kumar, prepared proforma

application for conducting postmortem, same is Ex.PW-15/C. He also prepared the death report proforma, same is Ex.PW-15/D. He recorded the statement of Ravinder Singh, same is Ex.PW-15/B. Also, dead body of deceased Amarjeet Kaur was handed over to his relatives and a receipt was executed in this regard, same is Ex.PW-15/F. The reports from CFSL were received, same are Ex.PW- 15/G and Ex.PW-15/H. What have you to say?

       A11:       I don't know.

       Q12:        It is in evidence against you that on

9.8.2002, at about 6:15 p.m., in H.N.1566A, Gali No.I, II Floor, Wazir Nagar, K.M.Pur, N. Delhi, you committed murder of Smt.Amarjeet Kaur and stabbed Smt.Amarjeet Kaur on different parts of her body. What have you to say?

A12: I deny that on 9.8.02 at about 6:15 p.m., I committed murder.

       Q13:         Why this case is against you?
       A13:         I don't know.

       Q14:       Anything else you want to say?
       A14:       I am mentally unsound and cannot
       understand things properly.      Since 1977-78, I am

being treated at AIIMS hospital regularly. On the date of incidence, I went to my brother's shop and fall from the shop's platform which is 5 feet above the ground level. When I got conscious, I found myself in AIIMS hospital surrounded by police officials.

       Q15:         Do you lead defence evidence?
       A15:         Yes."

4. It is apparent to the reader that the learned Trial

Judge has simply put to the accused the investigation

conducted and the various memos prepared and statement

recorded during investigation. Question No.1 itself proves the

same.

5. As held in the decision reported as AIR 1972 SC 535

Parichhat vs. State of Madhya Pradesh, Trial Judges must

realize the importance of the examination of an accused under

Section 313 Cr.P.C. It is the duty of the Trial Judge to question

the accused properly and fairly, bringing home to the mind of

the accused, in simple and clear language, the exact case he

has to meet and each material point that is sought to be made

against him and of affording him a chance to explain it if he

can and so desires. As held in the decision reported as AIR

2004 SC 5068 Parsuram Panday vs. State of Bihar, it is

imperative on the Court to give opportunity to an accused to

explain every incriminating circumstance proved by the

prosecution.

6. Statements of witnesses recorded during

investigation by police officer is not substantive evidence and

cannot be made basis for putting questions to accused in his

examination under Section 313 Cr.P.C.

7. It needs to be clarified that the linchpin of Section

313 Cr.P.C. are the words 'explain any circumstances

appearing in the evidence against him'. This means that every

fact from which the Court would draw the inference of guilt

against the accused has to be put to the accused. For

example, as held in the decision reported as AIR 1953 SC 468

Hate Singh vs. State of Madhya Bharat, if the Courts attach

importance to the fact that the accused absconded, the

accused should have been asked question on this point and

given a chance to explain.

8. A perusal of the evidence shows that the husband

of the deceased, namely, Satnam Singh, who is the

complainant, has deposed in Court that he and the father of

the accused were having a civil dispute pertaining to the shop

which was in the possession of the father of the accused, to

which, the sister-in-law of Satnam Singh was laying a claim for

possession. Satnam Singh was desiring the father of the

accused to hand-over possession of the shop, which was being

resisted. As per Satnam Singh, on account of said civil

dispute, a few days prior to 9.8.2002, the accused had

threatened him. As per Satnam Singh, on 9.8.2002 the

accused had come to his shop and after taking a cold drink

left. As per Satnam Singh he sensed some problem and

immediately spoke to his wife over the intercom connecting

his shop to his wife and told her to be careful. As deposed to

by Satnam Singh, his wife told him that the accused was

already sitting with her and discussing the issue of the shop.

As further deposed to by Satnam Singh, immediately

thereafter he heard a sound of a person falling on the street

opposite his shop. He came out and saw that the accused was

on the street. He looked up and saw the window of his

residence, which was on the second floor of the same building

in which, on the ground floor, his shop was situate, was

opened. Satnam Singh has further deposed that he

immediately took the flight of steps to go up to his house and

was horrified to see his wife brutally murdered.

9. It is unfortunate that the aforesaid incriminating

evidence which has been used by the learned Trial Judge

against the appellant has not been put to the appellant when

the appellant was examined under Section 313 Cr.P.C.

10. That apart, incriminating evidence in the form of

footprints leading up to the sofa adjoining the window on the

second floor, suggestive of somebody stepping on the blood of

the deceased which had fallen on the floor and thereafter

walking up to the window which is open has not been put to

the accused.

11. We are pained once again to note that the errant

Judge is none else other than Shri Narottam Kaushal, ASJ,

Delhi, who we have repeatedly been noticing is totally ignoring

the fundamental principles of criminal law. He repeatedly

refers to and examines the accused with reference to the

narratives in the charge-sheet. We have expressed our

anguish on two earlier occasions with respect to the manner in

which trial has been conducted by the learned Judge.

12. We expressed our anguish on the earlier occasion

after condoning at least 5 or 6 prior instances which we noted.

Thinking that they were aberrations we let it pass, till it

dawned upon us that in virtually every case Shri Narottam

Kaushal, ASJ, Delhi is resorting to shortcuts.

13. Instant case is probably the 10th or 11th case we

have noted where Shri Narottam Kaushal, ASJ has short-

circuited the procedures of law.

14. We are constrained to hold that as a result of total

non-application of mind and not a single incriminating

circumstance except one or two, being put to the accused,

justice requires the appeal to be disposed of after setting aside

the impugned judgment and order dated 29.4.2004 and the

sentence dated 30.4.2004.

15. Proceedings are revived before the learned Trial

Judge who is directed to examine the accused under Section

313 Cr.P.C. and while so doing put all incriminating

circumstances to the accused.

16. Needless to state, the accused would be re-entitled

to lead defence evidence, should the accused chooses to do

so.

17. Ordered accordingly.

18. Noting that the appellant is in custody since the

year 2002, in exercise of our inherent jurisdiction, we admit

the appellant to bail.

19. We direct that on the appellant furnishing a

personal bond in sum of Rs.10,000/- with one surety in the like

amount to the satisfaction of the learned Trial Judge, the

appellant shall be admitted to bail.

20. TCR be returned forthwith.

21. We direct the Registrar General of this Court to

send a copy of this decision to the Inspecting Judges of Shri

Narottam Kaushal, ASJ, Delhi.

22. The learned Trial Judge is directed to re-examine

the accused and if the accused desires, to record defence

evidence, and complete the proceedings preferably within a

period of four months from the date of receipt of this order and

the record of the trial.

23. DASTI.

PRADEEP NANDRAJOG, J.

SURESH KAIT, J.

MARCH 19, 2010 'dkb'