Govt. Of Nct, Delhi vs Dinesh Kumar
2010 Latest Caselaw 5149 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+            Crl. M.A. No. 13852/2010 & Crl. LP No. 299/2010


%                         Date of Decision:12.11.2010


Govt. of NCT, Delhi                                      .... Petitioner

                       Through Mr. Jaideep Malik, APP


                                 Versus


Dinesh Kumar                                            .... Respondent
                       Through Nemo


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

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. 13852/2010

This is an application by the petitioner/applicant seeking

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

ground that the certified copy of the impugned judgment dated 30th

October, 2009 was applied and was received by the petitioner on 3rd

December, 2009 and thereafter the matter was considered by different

officials and it took some time because of which the petitioner for leave

to appeal could not be filed within time.

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

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

The petitioner has also relied on the decision of the Supreme Court in

the State of Nagaland Vs. Lipok Ao, (2005) 3 SCC 752 and on Collector

Land Acquisition Vs. Katiji 1987 (2) SCC 107 is support of their plea for

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

petitioner/applicant, in the circumstances, has contended that there is

sufficient cause for condoning the delay of 193 days in filing the petition

for leave to appeal in law and in the facts and circumstances.

Considering the averments made in the application and the

precedent relied on by the petitioner, 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, read with section-482 of the Crl. Procedure Code seeking

condonation of delay in filing the petition for leave to appeal is allowed

and delay is condoned.

Crl. LP No. 299/2010

The petitioner has sought leave to appeal against the order dated

30th October, 2009 passed by the Sessions Court in Sessions Case No.

88/2008 titled as State Vs. Bhola Bhagat and Dinesh arising out of FIR

192/2008 under Section 363/367/370/34 of IPC, however, acquitting

the accused Bhola Bhagat and other accused of the offence punishable

under Section 367/370/34 of the IPC on the ground that there is no

evidence on record that the child Anima was disposed of or that she was

subjected to slavery and the accused had kidnapped her or had

purchased her for the purpose of slavery, however, convicted accused

Bhola Bhagat under section 363 of Indian Penal Code.

The case as was put up by the prosecution is that an FIR No.

192/2008 was registered against accused Bhola Bhagat for committing

an offence under Section 363 of IPC on the basis of complaint made by

Smt. Runia Urao, alleging that her ten year old daughter named

Aneema was kidnapped by him.

On the basis of the investigation and the disclosure statement,

made by the accused Bhola Bhagat, respondent/accused Dinesh was

also interrogated, who was in Rohini Jail at that time, in another case.

After investigation both the persons were charged for commission of

offence punishable under Section 367/370/34 of IPC on 10th December,

2008. Both the accused pleaded not guilty and claimed trial. During

the trial, prosecution examined 13 witnesses. The accused were also

examined under Section 313 of the Crl. Procedure Code.

From the evidence on record, the Trial court inferred that the

daughter of the complainant Smt. Runia Urao, namely, Aneema was

taken by the accused Bhola Bhagat without her and her husband's

consent and had brought her to Delhi from the village. The

whereabouts of the daughter of the complainant could not be

ascertained and she has not been recovered so far.

The accused Bhola Bhagat had stated that he had handed over

the girl to accused Dinesh. Though, he had stated that he had sold the

girl for Rs.20,000/- to Dinesh Kumar, owner of Virsa Bhagwan

Placement Agency. However, no evidence has been led to establish that

Dinesh had purchased the girl for Rs.20,000/- from Bhola Bhagat.

Rather the accused Dinesh had led the police to different places at

Delhi but the girl Aneema could not be traced. Though, on search of

the house of Dinesh, photocopy of acceptance form of the girl Aneema

which was Ex. P-7/A was recovered. However, the Trial Court has

inferred that on the basis of the photocopy of the acceptance form, it

cannot be held that the accused Dinesh had purchased the girl and had

put her to slavery in view of the statement of other witnesses who had

deposed that the girl worked as maid for a few days and later on she

had left the service.

The Trial Court has also noticed that though the girl was taken by

accused Bhola Bhagat in 2005, however, the FIR was registered against

him on account of intervention of Bachpan Bachao Andolan in 2008. In

the circumstances, the Trial Court has convicted Bhola Bhagat for the

offence punishable under Section 363 of Indian Penal Code.

The Trial Court has also noticed that though the kidnapped child

has not been recovered but that will not entitle the accused Bhola

Bhagat of any benefit and it cannot be held that he had not kidnapped

the said girl. According to the prosecution/petitioner Bhola Bhagat has

not challenged his conviction under Section 363 of Indian Penal Code

as no appeal has been filed on his behalf.

While acquitting respondent/accused Dinesh, it has been noted

that even the case of the complainant is not that accused Dinesh has

anything to do with the kidnapping of her daughter from her village.

Rather it has been established that the girl was sent as maid to the

residence of Sh. Money Vij (PW-3) and Pawan Arora (PW-4) and she

worked there for some time and later on she left the work.

The Trial Court on account of not finding any evidence against

the accused/ Dinesh that he subjected her to slavery or that he had

purchased the girl from Bhola Bhagat or disposed her as a slave had

held that the evidence produced by the prosecution does not prove that

Dinesh had disposed of the girl as a slave or had purchased her for

consideration and thus acquitted the accused of the commission of

offence punishable under Section 367/370/34 of the Indian Penal

Code. The petitioner has challenged the acquittal of accused Dinesh

and has not even challenged the acquittal of accused Bhola Bhagat u/s

367/370/34 of Indian Penal Code, though the accused Bhola Bhagat

has been convicted u/s 363 of Indian Penal Code.

This cannot be disputed that 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 is also settled law 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 learned counsel for the petitioner has candidly admitted that

in the statements of any of the witnesses, it has not even been deposed

that Bhola Bhagat had sold the girl to Dinesh or Dinesh had purchased

the girl from Bhola or had used her as a slave. On perusal of the Trial

Court record and the evidence of mother of the girl Smt. Runia as PW-9,

it is apparent that there is no allegation against the accused Dinesh

that he had purchased the girl or that Bhola had abducted her

daughter with the intention to sell her off to the accused Dinesh.

Though she had stated in her cross-examination that accused is also

from her village and his father is known to her as Mala, however, she

did not depose that Dinesh had taken the girl from Bhola Bhagat as a

slave or for consideration or that he had sold her off further.

Though, Head Constable Arun Kumar, PW-10 in his statement

and cross-examination had deposed that the accused Dinesh did not

deliberately got the girl recovered as otherwise he would have got

involved in the case, however, the said witness admitted that he did not

mention the number of houses in his statement. If the accused Dinesh

had told him that he is not getting the girl recovered as otherwise he

will get involved in the case, the Head Constable should have disclosed

this to his superior officer or should have got it recorded somewhere,

which was not done by him. In the circumstances, on the basis of

testimony of even PW-10, the accused cannot be inculpated. This is

also not disputed that pursuant to the disclosure statement, the

kidnapped girl had not been recovered though he had led the police to

different places at Delhi. Dinesh, in his statement under Section 313,

alleged that he was not running any placement agency and he was only

a servant in the placement agency, namely, Shobha Placement, Ekta

Enclave, Peera Garhi Chowk. Even the owner of the house bearing No.

C-85 and D-87, Ekta Enclave, Peera Garhi, Delhi, though deposed that

the accused had taken the premises as a tenant in July, 2005, however,

as he could not produce any ID proof, therefore, he got the house

vacated from him after 20-25 days.

The owner of the house Sh. Islamuddin Kesari only made an oral

statement about accused taking the premises on rent but did not

produce any document to show that the premises was in fact let out by

him even for a short period in July, 2005 to the accused

Dinesh/respondent. No reason for not producing any documents to

show letting out the premises had also been disclosed.

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

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

basis of which it can be inferred that the girl Aneema, which was

kidnapped by Bhola Bhagat was sold off to the accused Dinesh or that

she was treated as a slave. On the basis of the statements of the

mother and other witnesses, it also cannot be inferred that the accused

Dinesh had kidnapped the girl along with Bhola Bhagat from the

village. There is no evidence on record to infer that the girl was

kidnapped by the accused Dinesh in conspiracy with Bhola Bhagat.

The learned counsel for the State is also unable to point out any

cogent evidence on the basis of which it can be inferred that Dinesh

along with Bhola Bhagat with common intention had kidnapped Kumari

Aneema with the object that she may be subjected to slavery and was

disposed of.

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

of kidnapping and selling and subjecting the kidnapped child to the

slavery or disposing of the kidnapped child against the accused/Dinesh.

The accused/Bhola Bhagat has already been convicted for kidnapping

the child Ameena under section 363 of Indian Penal Code. Thus, there

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

decision of the Trial Court dated 30th October, 2009 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 by reversing the inferences drawn

by the trial 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 to appeal is declined and the petition is dismissed.

ANIL KUMAR, J.

S.L. BHAYANA, J.

NOVEMBER 12, 2010 'rs'