State vs Mukesh & Anr.
2010 Latest Caselaw 5083 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI

+       Crl. M.A. No. 14194/2010 & Crl. LP No. 309/2010

%                         Date of Decision: 09.11.2010

State                                                      .... Petitioners

                       Through Sanjeev Bhandari, ASC (Crl.)

                                   Versus

Mukesh & Anr.                                             .... Respondent
                       Through Nemo

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR.JUSTICE MOOL CHAND GARG

1.       Whether reporters of Local papers may             YES
         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. 14193/2010

Allowed subject to all just exceptions.

Crl. M.A. No. 14194/2010

This is an application seeking condonation of delay of 109 days in

filing the petition seeking leave to appeal.

The applicant has contended that the copy of the judgment dated

14th December, 2009 was applied on 18th March, 2010 which was

delivered on 20th March, 2010.

The learned counsel has asserted that the certified copy of the

judgment was applied after the expiry of period of limitation, however,

considering the averments made in the application, there is sufficient

cause for condonation of delay. The applicant has sought condonation

of 65 days delay, however, on computation, it is apparent that there is a

delay of 109 days in filing the petition for leave to appeal.

Considering the facts and circumstances, there appears to be

sufficient cause for condoning the delay of 109 days in filing the petition

for leave to appeal. The application for condonation of delay is,

therefore, allowed and delay of 109 days in filing the petition for leave to

appeal is condoned.

Crl. L.P. No. 309/2010

The petitioner has sought leave to appeal against the order dated

14th December, 2009 passed by the Additional Sessions Judge in

Session Case No. 03/2008 titled as State v. Mukesh and Anr., arising

out of FIR 334/2008, PS Najafgarh under Section 498A/304B/302/34

of Indian Penal Code acquitting the respondents.

The case of the prosecution was that on 11th June, 2008, Jai

Devi, wife of respondent No. 1 Mr. Mukesh and daughter of Sh. Kanta

Prasad was found dead. Deceased Jai Devi was married to Mukesh

about six years prior to her death and was residing with her husband

and mother-in-law and other relatives at her matrimonial home. From

her marriage with respondent No. 1, Mukesh, she did not have any

children.

On 11th June, 2008 when she was found dead, her parents were

informed who reached Delhi at about 5:00 PM from Badaun, U.P. and

their statements were recorded by Special Executive Magistrate. In the

statement, before the SEM, the parents of the deceased Jai Devi had

stated that no demand for dowry was made by the respondents and

other in-laws of the deceased. It was, however, asserted that

respondent No. 2, mother-in-law of the deceased used to beat her as

she was suffering from some disease and used to have fits. The parents

before the Special Executive Magistrate expressed their suspicion that

their daughter was murdered by her mother-in-law and her husband

and consequently, the case was registered against the respondents and

they were arrested. After investigation, charge sheet was filed against

them and the case was committed to the Court of Sessions. The charges

under Sections 498A/304B IPC and in the alternative charge under

Section 302/34 IPC were framed against the respondents. The

respondents pleaded not guilty and claimed trial. During the trial, the

prosecution had examined 17 witnesses and the statements of accused

persons under Section-313 of Crl. Procedure Code were recorded who

denied incriminating evidence against them and pleaded innocence.

The respondents, however, did not examine any witnesses in their

defense.

After considering the evidence, the Trial Court noted that the

parents of the deceased had not disclosed before the Magistrate

regarding any demand for dowry. The demands for dowry, as has been

alleged by the parents and other witnesses, were also found to be

omnibus and no specific date, time or place or incident regarding

alleged demands had been made out. It was also considered that during

the six years of marriage, no complaint of demanding dowry was made

by the parents of the deceased or by the deceased nor from the

evidence any harassment or cruelty allegedly inflicted upon the

deceased in order to meet the demands of dowry could be made out.

The Trial Court also noticed that the prosecution has failed to produce

any evidence that the deceased was alone with the accused in the house

on the fateful night as the house has many other rooms. The witnesses,

who appeared before the Trial Court, also deposed that the relation

between the accused/respondents and the deceased were cordial. The

statement of the father of the deceased, Shri Kanta Prasad , PW-5 was

held to be reliable as there were material contradictions and

improvements made by him and other witnesses.

The Trial Court has also taken into consideration that no

evidence had been collected and had been produced by the prosecution

from which it could be inferred that on the fateful night the deceased

was alone in the house with the accused persons. The prosecution also

failed to investigate the persons or other inmates of the house, about

their respective roles and conduct in the house when the deceased was

alleged to have died. In the circumstances, the Trial Court has inferred

that on the basis of the testimonies, the accused/respondents cannot

be inculpated.

The Trial Court was categorical in stating that suspicion and

conjecture could not take the place of proof and also noticed that there

was no evidence to show conclusively that the respondent No.

1/accused had told anyone that the deceased had committed suicide.

The prosecution also failed to prove any motive for commission of crime

and thus, acquitted both the accused.

This cannot be disputed 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 favour.

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

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

Court which had an advantage of looking at the demeanor 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 favourable 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 accepting those grounds and not subscribing to the

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

Mr. Bhandari, learned public prosecutor has contended that

along with the petition for leave to appeal, copies of the testimonies of

all the witnesses have been annexed and the question of granting leave

to appeal to the petitioner can be considered on the basis of the

testimonies of PW-1 to PW-17 filed along with the petition and in the

circumstances, it is also contended that the Trial Court Record may not

be necessary.

This Court has heard the learned counsel for the petitioner in

detail and has also perused the testimonies of all the prosecution

witnesses. PW-2, Dr. Pravindra Singh, Junior Specialist, Department of

Forensic Medicine had stated that the death of the deceased was due to

asphyxia following combined effect of smothering and throttling. The

post mortem report No. PM87/08, vide Ex. PW2/A also reveals the

same reason for the death of the deceased Jai Devi. PW-1, ASI Suraj

Bhan, Duty Officer, had recorded the FIR on receipt of rukka from

constable Jai Prakash sent by ASI Dharmveer Singh, who had recorded

DD No. 39A regarding the death of Smt. Jai Devi due to hanging.

PW-4, Sh. Ram Asare Pathak has deposed that respondent No. 1,

namely, Mukesh was also known as Kalu, who used to live at house No.

F-30, Dharampura, Najafgarh at the time of the incident. He

categorically stated that he had never seen respondents No. 1 & 2

fighting with the wife of respondent No. 1, deceased Jai Devi. He went

on to depose that he could not say whether the respondents and the

deceased were present together at House No. F-30 on the night of 10th

June, 2008. The said witness was declared hostile, however, in the

cross-examination, he categorically asserted that he had never met the

police nor the police had recorded his statement and he denied that

respondents used to fight with the deceased Jai Devi and also denied

that he had seen the deceased Jai Devi with the accused on the fateful

night at 10:00 p.m.. He also denied that he is not deposing correctly on

account of having no sympathy with the father of the deceased who was

not a resident of Delhi but of Badayun, UP. The father of the deceased

Sh. Kanta Prasad, in his statement, alleged that dowry was demanded

from his daughter and the respondents used to beat her on this

account. He deposed that mother-in-law, respondent No. 2 of the

deceased used to demand Rs. 20,000/- for the treatment of her

daughter as she was suffering from some "Upri Hawa" and her husband

used to demand Rs. 50,000/- for starting some shop. In the cross-

examination, however, he admitted that his statement was recorded by

the SDM and his statement Ex. PW-5/A is correct. He admitted that

before the SDM, he had not stated about any demand being made from

his daughter by respondent No. 1, husband and respondent No. 2,

mother-in-law. As to how he could not depose about the dowry demand

just after the death of her daughter, before the SDM, he stated that he

was under shock and that he had forgotten. He admitted that his

daughter used to get fits. He denied that his daughter committed

suicide on account of her sickness which used to create depression in

her. This testimony of the father in the circumstances has been held to

be unreliable by the Trial Court.

Another witness PW-7, Ram Chander deposed that he was

residing near the house of the deceased and he identified the

respondents in the Court but he denied that he knows anything about

the date, month and year of death of the deceased Jai Devi. He stated

that he did not know anything else about the case except that the

respondents were living near his house and the wife of respondent No. 1

had died. The said witness was also declared hostile, however, even in

the cross-examination, the prosecution has not been able to extract any

such facts from the said witness, which would show that the

respondents can be inculpated for the charges made against them. He

stated that he leaves for his office at 6:20 a.m. in the morning and

returns back at about 10/10:30p.m. in the night. He categorically

denied that since he does not know the father of the deceased, that is

why he has no sympathy for him and he has been won over by the

accused/respondents.

Sh. Ishwar Dayal, PW-8 is the co-brother (Sadhu) of Kanta

Prasad. His statement is also regarding the torture and beatings to the

deceased on account of deceased being inflicted with "Bahri Hawa" and

"Bhoot Pret Ka Saya". He also deposed that the husband had demanded

Rs.50,000/- for opening a shop and respondent No. 2 demanded

Rs.20,000/- for getting Jai Devi treated for "Bhoot Pret Ka Saya". In his

statement about the alleged demands, no particulars have been given

as to when the demands were made. From the statement of the said

witness, it cannot be inferred that the respondents have murdered the

deceased Jai Devi. The allegation regarding demand also appears to be

omnibus. He admitted that he had not made any complaint to the

police regarding the torturing of the deceased rather he confirmed that

the statement of the parents of the deceased were recorded at PS

Najafgarh and before the SDM, however, it was not disclosed by them

that the respondents had demanded money for opening shop and for

treatment of the deceased. He was categorical that no demand was ever

made directly from him by any of the respondents nor he had informed

the father of the deceased Jai Devi through letters about the demands

allegedly made by the respondents.

The mother of the deceased, Moharshri, PW-10 also parroted that

the respondent No. 1 used to demand Rs.50,000/- for opening the shop

and the mother-in-law used to demand Rs.20,000/- for treatment of her

daughter as she could not conceive a child after marriage. She rather

improved her statement by stating that two months prior to her death,

her daughter had visited the village and had told about the demands of

respondent No. 1 and respondent No. 2. She also alleged that the

deceased used to be beaten with chappals and respondent No. 2 used to

burn her with hot knife. She also admitted that her brother-in-law,

namely, Ishwar resides at Sultanpuri, Delhi and he had been visiting

the deceased and no complaints were made to him by the deceased nor

he intimated about any such demands to her of to the father of the

deceased. The testimony of the said witness is not reliable as before the

SDM, it was not disclosed by her about the alleged demand made by

respondents No. 1 & 2. There are variation in respect of reason for

demand of Rs.20,000/- as the other witnesses have stated that

Rs.20,000/- was demanded for treatment of "Upri Hawa" on the

deceased whereas in her statement recorded on 19th May, 2009, it was

deposed that Rs.20,000/- was demanded for the treatment of her

daughter as she was unable to conceive. She also admitted that she had

not made any complaints to the police when the deceased allegedly told

her that she was burnt with the knife and respondent No. 1 used to

beat her with chappals.

In the circumstances, learned additional public prosecutor is

unable to show any such grounds for relying on these testimonies on

the basis of which it can be inferred that the demands were made by

the respondents from the deceased and on account of which the

deceased had committed suicide. The findings and inferences of the

Trial Court cannot be held to be illegal, unsustainable or perverse in the

facts and circumstances. The plea of prosecution that respondent no.1

had disclosed that his wife had committed suicide has not been

established and plea of alleged suicide is also contrary to the evidence

of PW-2 Dr. Pravindra Singh opining that the nature of death is

homicidal. From the testimonies of the parents of the deceased, it also

can be inferred that the deceased was having some disease for which

she was treated prior to her marriage, and even after her marriage her

condition was deteriorating instead of improving.

The learned additional public prosecutor is also unable to show

from the evidence as to what could be the motive of the respondents for

killing the deceased Jai Devi. It is also noticed that the conduct of

respondent No. 1 is not such that suspicion can be raised on him, as on

finding out about the death of the deceased, he intimated the parents of

the deceased and waited for them to come before performing her last

rites. The observation that if he had harbored any guilty intention, he

could have proceeded with the last rites of Jai Devi on the same day

without waiting for her parents till evening, cannot be held to be

unsustainable and perverse in any manner.

The Trial Court has also relied on Abdul Gani Vs. State of

Karnataka, 1995 Crl. LJ 2248 (Kant.); Hanumant v. State of MP, 1953

Cri LJ 129; M.V. Mahesh Vs. State of Karnataka, 1996 Crl. LJ 771

(Kant.) and Adikanda Das Vs. State of Orissa, 1988 Crl. LJ 1884

(Orissa) to support the reasoning adopted by it and it cannot be held

that the ratio laid down in these cases are not applicable to the facts of

the present case.

The learned public prosecutor has not been able to make out any

ground or has failed to disclose any such fact on the basis of which it

can be inferred that the decision of the Trial Court is illegal or the

findings and observations made by the Trial Court are unsustainable or

perverse in any manner on the basis of evidence produced. The view

taken by the Trial Court is permissible and even this Court is unable to

take a different view and inference as has been taken by the Trial Court.

Even if another view is possible, if the view taken by the Trial Court is

permissible, this Court does not have to substitute its view with that of

the Trial Court acquitting the respondents.

In the totality of the facts and circumstances, the petitioner has

failed to make out a case for grant of leave to appeal against the

judgment dated 14th December, 2009 passed by the Sessions Court

acquitting the respondents of the charges under Section

498A/304B/302/34 of IPC.

In the circumstances, petition for leave to appeal is without any

merit and the petitioner is not entitled for leave to appeal. The petition

is, therefore, dismissed.

ANIL KUMAR, J.

MOOL CHAND GARG, J.

NOVEMBER 09, 2010 „rs‟