Sh.Pawan Kumar vs State (Govt. Of Nct) Of Delhi
2010 Latest Caselaw 4593 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+             CRL.M.B. No.843/2010 In CRL.A.No.710/2010

%                       Date of Decision: 29.09.2010

Sh.Pawan Kumar                                             .... Appellant
                     Through Ms.Anu Narula, Advocate

                                   Versus

State (Govt. of NCT) of Delhi                          .... Respondent
                    Through Mr.Jaideep Malik, APP for the State.

                                                       FIR No.390/2001
                                                           U/s.302 IPC,
                                                       P.S.Punjabi Bagh

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.

*

This is an application by the appellant/applicant seeking

suspension of his sentence and to release him on bail during the

pendency of the appeal. The appellant Pawan Kumar has been convicted

under Section 302 of Indian Penal Code for allegedly murdering his

alleged friend Prem Chand by judgment and orders 23rd January, 2010

and 28th January, 2010 in SC No.51/1 titled State v. Pawan Kumar in

FIR No.390/01 P.S.Punjabi Bagh under Section 302 of Indian Penal

Code.

The applicant has contended that he is a poor person aged about

39 years having three minor children-two minor daughters aged 14

years and 10 years and one minor son aged 6 years and a wife to look

after. He has also alleged that he is the sole bread winner of his family

and he is not a previous convict and has clean antecedents. It is

asserted on his behalf that he was implicated falsely

Perusal of the nominal roll dated 16th September, 2010 also

reveals that the appellant/applicant has undergone sentence for three

years 9 months and 8 days and has become entitled for remission of 2

months 16 days and his conduct has been detailed to be satisfactory

and normal. The learned counsel for the appellant/applicant has also

contended that the applicant was released on bail by the trial Court

during trial and his bail was regularized later on and he did not exploit

the indulgence granted to him by the Court in any manner.

The learned counsel has contended very emphatically that though

it is a case of circumstantial evidence but the facts as has been

established by the prosecution do not establish the guilt of the

appellant/applicant conclusively. It is contended that the prosecution

has not excluded every possible hypothesis except the guilt of the

appellant and the chain of evidence is not complete nor does it eliminate

all reasonable doubts about the innocence of the applicant.

It is asserted that though the appellant was last seen by his wife

on 20th May, 2001, however, the suspicion is alleged to have been raised

against him on the ground that the appellant was alleged to be a good

friend of the deceased and was also allegedly having business

relationship and despite the fact that the deceased was lying injured in

the hospital, the appellant did not visit him in the hospital. According to

the mother and brother of the deceased this raised suspicion against the

appellant and the applicant was implicated.

The learned counsel for the applicant has also referred to the

testimony of PW.5 Anju, the wife of the deceased who had married the

deceased only 5-6 days before the date of incident and according to her

the deceased was called by his friend, appellant, at about 10 PM when

they had come back from her parental home. She also admitted that she

had not met the appellant earlier and she had seen him for the first time

on the night of 20th May, 2001 at 10.00 PM. She also admitted that she

had made a complaint against her husband and her in laws for

harassment and that her husband used to consume liquor everyday.

Though she admitted that as her husband did not return on the

night of 20.5.2001 and she slept in the room of her mother in law and in

the same house her brother in law, deceased's brother was also there,

however, none of them tried to ascertain the whereabouts of the

deceased, who was found lying injured in another place of residence of

the deceased. The mother in law of the wife of the deceased and

deceased's brother must have informed her about the deceased lying

injured in another house of the deceased and shifted from there to the

hospital, but the wife did not visit her injured husband which is very

unnatural conduct.

The learned counsel for the appellant has also relied on the

testimony of PW.7 Dr.Arvind, Senior Grade Chief Medical Officer who

categorically deposed that the deceased's body had a ligature mark,

however, no ligature material was supplied at the time of post mortem

examination nor was any such material recovered. About recovery of

alleged knife the alleged weapon, which was an ordinary household

knife, it is contended that it is a very weak evidence. To further augment

her submissions the learned counsel for the appellant has contended

that even this knife was not produced before the Doctors who had

conducted the post mortem to establish that the injury on the deceased

beside the ligature marks could be inflicted by the knife which was

allegedly recovered pursuant to alleged disclosure statement of the

appellant.

The learned counsel has also emphasized that there was a

complaint by the wife of the deceased Pawan Kumar regarding

harassment and this aspect has not been considered by the trial Court.

According to her the deceased was found lying injured along with one

bottle of whisky, one bottle of beer and 2-3 steel glasses were recovered.

This evidence in not proximate to the finding of the deceased injured in

his another house next day on 9th May, 2001 and recovery of one bottle

of whisky, one bottle of beer and 2-3 steel glasses along with a bottle of

chemical `Climax' which enhances the sexual pleasure of a person. The

prosecution did not lift any chance prints from these material nor has

ruled out that no person other than the appellant could be in the other

house of the deceased.

The learned counsel has also referred to another complaint by the

wife of the brother of the deceased against the brother of the deceased

for harassment which has also not been taken into consideration by the

trial Court while drawing the inference of conclusive guilt against the

appellant/applicant. If there are a number of disgruntled and dis-

satisfied persons, any one could have committed the crime and it cannot

be held that no other hypothesis other than the guilt of the appellant is

feasible.

Though the basis of suspicion against the appellant is that

he did not visit the deceased in the hospital being a good friend and a

business partner, which fact has not been established, however, it has

also not been established that the appellant was intimated about the

deceased being found injured in his another house. Unless the fact that

the appellant was intimated or had the knowledge of deceased being

found injured in his other house, it could not be expected of the

appellant that he would have visited the deceased in the hospital. The

mother and brother of the deceased have not even deposed that they

tried to contact the appellant and they could not succeed for any reason.

Rather the appellant in his statement under section 313 of the Criminal

Procedure Code has stated that he had gone to visit his injured friend,

deceased, in the hospital when he was arrested whereas the version of

the prosecution is that the appellant was arrested on 25th May, 2001

from a park at 9 PM almost four days after the incident.

If the mother and brother of the deceased had expressed their

suspicion on appellant then what were the steps taken by the Police to

contact the appellant and to record his statement and/or to investigate

the allegation against the appellant has not been explained. This has not

been established nor there is any evidence that the appellant was

absconding from his house and locality from the night of 20th May, 2001

and/or from the next date 21st May, 2001. The learned Additional

Public Prosecutor is unable to explain as to what steps were taken to

apprehend the appellant prior to 25th May, 2001 except the bald

assertions that efforts were made to visit the address of the appellant.

Even this has not been disclosed as to which addresses of the appellant

were visited by the Police to apprehend him or to interrogate him

regarding suspicion shown by the mother and brother of the deceased

and if he was not found at his address, then who were found, as the

applicant is married and had been living with his family of three children

and wife and what explanation was given by the persons present at the

address of the applicant, regarding his absence.

The prosecution has also not established that the appellant and

the deceased were having any business relations. On the basis of bald

allegations of the wife of the deceased, whose conduct and whose

deposition do not appear to be credible, prima facie, it cannot be inferred

that the deceased had business relations with the accused.

The learned counsel for the appellant/applicant has also drawn

our attention to the peculiar fact that though the marriage between the

deceased and his wife was only a week old and despite this fact she did

not visit her injured husband in the hospital as is apparent from her

testimony as PW.5 and did not try to locate him and ascertain as to why

he had not come home nor did she send his brother or try to go to the

other residence of the deceased, despite knowing that he is a drunkard

and could be at his other address. At another residence of the deceased

where he was found in an injured condition, though the bottle of

chemical climax along with one bottle of whisky, one bottle of beer and

2-3 steel glasses were recovered, however, no chance prints from these

articles, had been recovered. According to the learned counsel for the

applicant this creates a very grave doubt about the culpability of the

appellant only and no one else.

Even the FSL report does not indicate that the house knife which

was allegedly recovered pursuant to alleged disclosure statement of the

appellant had blood stains. In the absence of any blood stains and the

explanation as to how the blood stains could not be on the knife, if it

was used for committing the offense, it is difficult to associate alleged

knife with the injuries which were allegedly inflicted on the deceased.

The injury, a ligature mark, on the deceased has remained un-explained

and not even a hypothesis has been propounded regarding the said

injury on the deceased.

The learned counsel for the appellant has also pleaded that the

appeal is not likely to be heard in the near future as the Court is

considering at present the appeals which are a decade old.

In the totality of facts and circumstances, this Court finds it a fit

case to suspend the sentence of the appellant/applicant and to release

him on bail. Therefore the application of the Appellant/applicant is

allowed and the sentence of the appellant/applicant is suspended during

the pendency of the present appeal. The appellant be released on bail on

his furnishing a personal bond in the sum of Rs.10,000/- with one

surety of like amount to the satisfaction of the trial Court. The

appellant/ applicant shall keep the respondent informed about any

change of his address.

Copy of the order be sent to the Superintendent Jail for

compliance forthwith.

ANIL KUMAR, J.

SURESH KAIT, J.

SEPTEMBER 29, 2010 'k'