State vs Gajender
2010 Latest Caselaw 4300 Del

*                IN THE HIGH COURT OF DELHI AT NEW DELHI

+             Crl. L.P. No. 252/2010 & Crl. M.A. No. 12818/2010

%                       Date of Decision: 15.09.2010

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

                                   Versus

Gajender                                                    .... Respondent
                     Through Nemo

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE SURESH KAIT

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. 12818/2010

This is an application seeking condonation of delay of 122 days in

filing the leave petition to appeal.

For the reasons stated in the application it is allowed and the

delay in filing the petition for leave to appeal is condoned.

Crl. L.P No. 252/2010

1. The state has sought leave to appeal against the order dated 21st

October, 2009 passed by the Additional Sessions Judge in S.C. No.

516/2006 titled State Vs. Gajender Kumar Mehta in FIR 485/2005, PS

Adarsh Nagar under Section 302/34 and 376(2A) of IPC acquitting the

respondent/accused of the said charges.

2. The case in brief of the petitioner is that a sweepress got

electrocuted on 20th September, 2005 in House No. C-60, First Floor,

Rajan Babu Road, Adarsh Nagar, Delhi from electric wire hanging in the

bathroom which had fallen down on the floor. After the sweepress was

injured by electrocution Sushil Kumar, younger brother of the accused

called Dr. Ajay Kumar Aggarwal, PW-2 who advised him to remove her

to some Government hospital. On the advice of said doctor, brothers of

the accused/respondent, namely Sushil Kumar and Rupesh @ Rinku,

who were present in the house went to a nearby Govt. school to call

Smt. Meena, PW-4 another sweepress who came with another sweeper

Santosh, PW-5 and removed Babbal, who had been electrocuted, to

Dharmatma Hospital from where she was removed to BJRM hospital,

however, she was declared brought dead at the said hospital.

3. Information regarding the death of Babbal was sent to police

station, Adarsh Nagar and after preliminary investigation, a case for the

offence under Section 304A of IPC was registered and thereafter

Gajender, alleged owner of the house where the sweepress Babbal was

electrocuted, was arrested. Since Section-304A of IPC is a bailable

offence, Gajender/respondent was released on bail. The post mortem of

the body of the sweepress Babbal, however, revealed 18 external

injuries on her body, out of which 14 were electric contact wounds and

her body also had injuries on the inner surface of left side and also on

right side of labia majora which were ante mortem. The injuries on labia

majora, injury no. 17 and 18 were found to be on account of blunt force

being used being consistent with forcible sexual intercourse prior to her

death. The multiple electric contact injuries were suggestive of electric

torture and the death was thus opined to be homicidal in nature.

4. Certain hairs were also found on the chest of the dead body which

were taken into possession by the doctors. The cloths of the dead body

as well as scalp hair sample besides the vaginal swap from orifice and

walls were also taken. On the basis of the postmortem examination

report, the initial offence under Section 304A of IPC was replaced by

offence under Section 302/376 of IPC and the respondent/accused was

re-arrested.

5. On committal of the case to the Court of Sessions, charge for

offences under Section 302/376 IPC was framed, however,

respondent/accused pleaded not guilty and claimed trial. During the

trial, prosecution examined 30 witnesses whereas after the statement of

the accused/respondent under Section 313 of Crl. Procedure Code, four

witnesses were also examined by the accused/respondent in his

defence.

6. After considering the testimonies of the witnesses and the

documents established on record, the Trial Court has held that the

factum of Babbal being electrocuted and dying in the house of the

respondent is not disputed. The report of the autopsy surgeon that the

deceased Babbal was also raped has also not been disputed. What has

been disputed is whether the respondent has done it or not. In the

circumstances, the learned Sessions Judge considered two points, i.e.,

whether the respondent was the owner of the premises in question

whether the offense was committed and whether he was present in the

house at the time of the incident.

7. The Trial Court noticed that the prosecution witnesses namely,

PW-4 Meena, PW-5 Santosh, PW-7 Kalawati, PW-13 Naveen, PW-14

Deepak Jain and PW-19 Vishal Goel have not supported the case of the

prosecution about the presence of the respondent/accused at the time

of incident. The Trial Court rejected the plea of the prosecution that

under Section 106 of the Evidence Act, the burden to explain that the

respondent was not present at the time of incident was on the

respondent. Instead the trial Court reiterated that it was for the

prosecution to prove the same.

8. The evidence of the respondent's witnesses was also considered

whose testimonies supported the plea of the respondent that he was

admitted to BSA Hospital at the time of incident. Reliance was placed

on the deposition of the record clerk of BSA hospital, DW3 Raj Kumar,

regarding the record of the respondent as well as of his mother-in-law,

namely Smt. Sudesh Chopra, who were admitted in the said hospital

from 19th September, 2005 to 21st September,2005 whereas the

deceased Babbal had been electrocuted on 20th September, 2005.

9. The Trial Court also based its inference of respondent not being

present at the place of incident on account of the mobile phone record

of the respondent which was proved by DW-4 Anuj Bhatia, the Nodal

Officer. The mobile phone record unequivocally reflected that the cell

phone of the accused/respondent was in the area of Rohini where BSA

hospital is situated. For relying on the testimonies of the defence

witnesses the Trial Court relied on the observation of the Supreme

Court in the case of Budh Nath Pandey Vs. State of UP, AIR 1981 SC

911 and thus inferred that the prosecution has not been able to

establish that the accused was present in the house when the deceased

Babbal was electrocuted and allegedly raped.

10. The Trial Court also noticed that the brothers of the accused,

namely, Sushil Kumar and Rupesh could not be arrested by the police

and are still absconding but since the accused has been able to

establish that he was not present at the time of incident and the

prosecution has failed to establish his presence, it cannot be held that

the respondent had raped the deceased and murdered her.

11. The learned Sessions Judge has also held that no ownership

document of the House No. C-60, First Floor, Rajan Babu Road, Adarsh

Nagar, Delhi has been produced by the prosecution. However, even if it

is established that the respondent/accused is the owner, mere fact that

he is the owner would not lead to the conclusion that the respondent is

guilty of offence of rape and murdering the deceased Babbal. The mere

statement of PW-6 Charan Pal that his wife told him a few days ago that

people in the house bearing No. C-60, First Floor, Rajan Babu Road,

Adarsh Nagar, Delhi were having an evil eye on her, does not point to

the guilt of the accused/respondent nor on the basis of such a

testimony any culpability can be inferred against the respondent.

12. The Trial Court has also noticed that though the hair found on

the chest of the deceased were found to be human in origin but they did

not match with the hair of the accused. Besides the report of FSL, no

further examination or comparison was done which could have shown

whether the hair found on the chest of the deceased were the same as

that of the accused/respondent.

13. The learned counsel for the prosecution is unable to point out any

findings of the Trial Court which can be held to be unsustainable or

perverse. On perusal of the evidence from the record of the Trial Court

and the documents on re-appreciation of the evidence and documents,

this Court does not find any evidence on the basis of which it can be

established that the respondent was present at the time of incident on

20th September, 2005 in the said house where the deceased Babbal was

electrocuted.

14. It is no more res integra 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 accepting

those grounds and not subscribing to the view of the trial Court that

the accused is entitled to acquittal.

15. This also 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 favour 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 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 (11) SCC 394, 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.

16. The learned counsel for the petitioner is unable to show any

ground on the basis of which the defence evidence can be ignored. The

Nodal Officer DW-4 Anuj Bhatia has produced the records of the mobile

phone of the respondent which categorically reflects that the phone of

the accused was present in the area of Rohini where the BSA hospital is

situated. Nothing has been pointed out by the learned public prosecutor

on the basis of which said record can be held to be not admissible or

not reliable or not credible. The plea of the defendant that he was in

the hospital admitted from 19th September, 2005 to 21st September,

2005, therefore, has to be accepted. If that be so and if on the basis of

the testimonies produced on behalf of the prosecution, it cannot be held

that the accused/respondent, Gajender, was present at the time of the

incident at the address where the deceased was electrocuted, then the

acquittal of the respondent cannot be held to unsustainable of that the

findings of the trial Court to be perverse. The star witnesses of the

prosecution regarding alleged presence of the respondent had turned

hostile and had not supported the plea of the prosecution regarding the

presence of Gajender. From their cross-examination also, it could not

be elicited about the presence of Gajender at the place where the

sweepress Babbal was electrocuted. It has to be held in the facts and

circumstances that the prosecution has failed to establish that

Gajender, respondent/accused was present at the place of incident. If

he was not present, he could not have raped the sweepress nor could

have murdered her. The learned counsel for the State is unable to show

any evidence which is admissible and which has been ignored by the

trial Court. The judgment of the trial Court cannot be termed to be

unreasonable, irrelevant and based on convincing material which has

been ignored or unjustifiably eliminated.

17. The FSL result also does not implicate Gajender,

respondent/accused as the hair found on the chest of the deceased

does not match with the hair of the respondent. In the circumstances,

there is no evidence which can implicate the respondent. The findings of

the Trial Court in acquitting the respondent cannot be framed

unsustainable or perverse or that the Trial Court has ignored the

material evidence in arriving at the findings of innocence of the

respondent.

18. No other grounds have been raised by the learned counsel for the

petitioner. The Trial Court has also held that since the accused Sushil

Kumar and Rupesh @ Rinku have been declared as proclaimed

offender, liberty has been granted to the petitioner to get the

proceedings revived against them, as and when the absconding accused

persons are apprehended. In the circumstances, there are no grounds

to interfere with the judgment of the Trial Court acquitting the

respondent of the charges under Section 376(2A) and 302/34 of IPC.

19. The petition for leave to appeal of the petitioner is therefore

without any merit and there are no grounds to interfere with the

judgment dated 21st October, 2009. The petition is, therefore,

dismissed.

ANIL KUMAR, J.

SURESH KAIT, J.

SEPTEMBER 15, 2010 'rs'