State vs Ameeruddin @ Ameera
2010 Latest Caselaw 4602 Del

*                  IN THE HIGH COURT OF DELHI AT NEW DELHI

+                CRL.M.A. No.14108/2009 & CRL.L.P No.250/2009

%                             Date of Decision: 30.09.2010

State                                                            .... Appellant
                            Through Mr.Jaideep Malik, APP for the State.
                                    SI Mahavir Singh, P.S.Vivek Vihar

                                        Versus

Ameeruddin @ Ameera                               .... Respondent
                Through Ms.Nandita Rao, Advocate.



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.14108/2009

This is an application under Section 5 of the Limitation Act for

condonation of delay in filing leave to appeal and seeking condonation

of 94 days delay.

The respondent had been served, however, no reply to the

application has been filed by the respondent.

The applicant has contended that on account of many factors e.g

time was taken in procuring the certified copy of the judgment and

thereafter in preparing the report and filing the appeal, delay was

caused. The applicant has detailed as to who all had considered the

case before opining filing of petition leading to delay of 94 days.

According to the applicant in the facts and circumstances there is

sufficient cause for condonation of delay in filing the petitioner seeking

leave to appeal.

The reasons stated in the application constitute sufficient cause

for condoning the delay of 94 days in filing the petition for leave to

appeal.

Therefore, the application is allowed and delay in filing petition

for leave to appeal is condoned.

Crl.L.P No.250/2009

The State has sought leave to appeal against the order dated 30th

May, 2009 acquitting the respondent of charges under Section

302/404/411 of IPC and giving him benefit of doubt and setting him at

liberty in Sessions Case No.21/2009 titled State v. Ameeruddin arising

out of FIR No.195/2006 P.S Vivek Vihar under Sections 302/383/411

of Indian Penal Code.

For grant of leave to State against an order of acquittal, it cannot

be disputed that the High Court has the power to reconsider the whole

issue, reappraise the evidence and come to its own conclusions 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 findings 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.

This also cannot be disputed that in reversing the findings 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, 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. For this reliance 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.

With this settled law regarding the scope of setting aside the order

of acquittal, we have heard the learned Additional Public Prosecutor

and the learned counsel for the respondent and have also gone through

the Trial Court record especially the testimonies of the witnesses and

the relevant documents.

The allegation against the respondent is that he is a labourer and

he committed the murder of Smt.Bhagwati Devi, a 75 year old lady by

strangulation. The FIR was registered on the statement of Sh.Subhash

Chander, son of the deceased residing at 504/12, Circular Road, Jwala

Nagar, Shahdara which he made to the police at about 5.30 AM as the

respondent had come to him and told him that his mother also known

as 'Amma' was not waking up.

The body of the deceased was sent for post mortem and the

accused was arrested after completing investigation and a charge sheet

under Section 302/381/411 of IPC was filed where the accused did not

plead guilty. During the trial prosecution examined 14 witnesses

including the son of the deceased, Sh.Subhash Chander as PW-1;

another son Tilak Raj, PW-2 and Smt.Rajni Bala, daughter-in-law as

PW-3. The statement of PW-5 Islammuddin was also recorded who

alleged that the respondent has confessed about killing the deceased in

his presence. PW-7 Mohd Rahi, is another person whose statement was

recorded who was staying in the room adjacent to the room of the

deceased with the accused.

According to the learned counsel for the State the trial Court has

not appropriately considered the recovery of money belonging to the

deceased and the ramification of extra judicial confession of the

accused which was corroborated by other evidence on record and the

fact that the accused was last seen in the company of the deceased on

the night of the incident. The learned Additional Public Prosecutor has

also emphasised that the money which was found missing in the theli

was also recovered at the instance of the respondent and that the

autopsy report confirms that the deceased had died on account of

manual strangulation.

On perusal of the evidence of the witnesses produced by the

prosecution, the trial Court had disbelieved the recovery of theli and

money from the accused as the son and the daughter-in-law of the

deceased had deposed that the theli with the money was recovered from

under the bichona at about 9 AM whereas the prosecution has stated

that after the FIR was registered the money and the theli was recovered.

There are apparent contradictions in the version of the witnesses and

the version of the prosecution. There is yet another major contradiction

as PW-10 ASI, Charan Singh rather stated that the theli was brought by

the accused. The son of the deceased could not remember whether the

recovery of theli and the money was made before removing the dead

body and at what time it was done. The evidence of the witnesses

reflects that the recoveries were made between 9 to 10.30 AM which is

contrary to the prosecution case. The learned counsel for the State has

not been able to point out any fact which will show that these facts

which have been observed and taken note of by the trial Court are

incorrect or unsustainable. On perusal of the relevant testimonies by

this Court, it is apparent that in the facts and circumstances the

recovery of theli and money at the behest of the respondent cannot be

believed and in the circumstances the findings of the trial Court cannot

be termed to be unsustainable or perverse. The recovery of theli with

money at the instance of the respondent is also doubtful because if he

had strangulated the old woman, he will not keep the money in the

room next to the room of the deceased where he was living with another

person Mohd.Rahi. Had the respondent committed the crime of

strangulating the old woman he would not have also normally remained

present in the next room whereas the evidence categorically showed

that the accused remained present the whole day and that he had even

apprised the elder son of the deceased about the condition of the

deceased. If the autopsy of the deceased opined that she was manually

strangulated, the prosecution should have tried to take the finger

prints, however, no such attempt was made by the prosecution nor has

it been revealed as to why finger prints could not be taken. The post

mortem report opined that the death must have occurred at 12 PM

midnight. The room of the deceased was not bolted from inside and was

opened and the other persons including Mohd.Rahi were in the

adjoining room as were the son and daughter-in-law. The trial Court

has also noticed that anyone could have approached the deceased in

her room and in the circumstances it is difficult to infer that only

respondent could have had access to the deceased and he must have

committed the crime.

This has also come in the evidence that the deceased, accused

and PW-7 Mohd.Rahi were sleeping in the front rooms. The deceased

was sleeping on the cot while the accused and Mohd.Rahi were sleeping

on the floor whereas son and the daughter-in-law were sleeping in the

back portion. From these facts which emerges from the evidence of the

prosecution, the inference of the guilt of the accused only is not

possible and the findings of the trial Court cannot be termed to be

perverse. If the recovery of theli and money is disbelieved, there is no

such conclusive evidence which will show that only

accused/respondent could do it though any person could have

approached the room where the deceased was sleeping.

The trial Court has noticed that had the accused committed the

offence he would not have intimated about the condition of the

deceased to the elder son Subhash Chander and he wouldn't have

remained in the premises. Had he committed the offence then he

wouldn't have kept the theli with money in the room next to the room

where the deceased was strangulated nor would have remained present

there so that anyone could come and recover the money and implicate

him. On perusal of the evidence this Court is also of the opinion that

the reasons and inferences drawn by the trial Court are justifiable and

sustainable and there are no grounds to interfere with the same nor

this Court would come to different inferences.

The trial Court has noted that the extra judicial confession, if

voluntary and true and made in a fit state of mind can be relied upon

by the Court, however, the confession has to be proved like any other

facts. The fact that the accused who was known to Mohd.Rahi PW-7

would make an extra judicial confession about the killing of

Smt.Bhagwati Devi is doubtful. It has not been established that within

4-5 days the accused and Mohd.Rahi, PW-7 had become so intimate

and close that the accused/respondent would disclose and confess to

him such a heinous crime. It is also to be noticed that PW-7 Mohd.Rahi

was taken to the police station along with the accused PW-7, Mohd.Rahi

who had not disclosed about the alleged extra judicial confession

immediately after the son of the deceased had come. It appears that it

was also notices that the accused was in police custody. Even the trial

Court has noted that the extra judicial confession could not be said to

be voluntary when the witness was in police custody. The learned

Additional Public Prosecutor has not been able to show any such facts

or grounds on the basis of which reliance could be placed on such

alleged extra judicial confession. In the circumstances, the extra

judicial confession cannot be accepted and relied on and consequently

the findings of the trial Court also cannot be termed to be

unsustainable and arrived at by ignoring material evidence.

The finding of the trial Court that even motive has not been

proved as the motive suggested was of murmuring or some overture,

however, there is no cogent or reliable evidence about the alleged

murmuring or overtures nor could these be the motive for killing the old

lady by the accused who was living as a labourer for last 3-4 years.

Though the accused was living for last 3-4 years and in a room adjacent

to the room of the deceased, where PW-7 Mohd.Rahi also started living

only 4-5 days before accused, then why is it that only the accused who

could have committed the offence and no one else has not been

convincingly explained. In the facts and circumstances, it cannot be

held that the chain of evidence established by the prosecution is

complete so as not to leave any reasonable ground for the conclusion

inconsistent with the innocence of the accused.

This is no more res integra that the High Court should give

proper considerations to matters such as the views of the trial judge as

to the credibility of the witnesses; the presumption of innocence in

favour of the accused, a presumption certainly not weakened by the fact

that he has been acquitted at the trial; the right of the accused to the

benefit of any doubt and slowness of the Appellate Court in disturbing

the finding of fact arrived at by a judge who had the advantage of seeing

the witnesses.

No other grounds or pleas and contentions have been raised on

behalf of Additional Public Prosecutor. In the circumstances, we are

unable to hold that the judgment of the trial Court is unsustainable or

perverse or the findings are against the evidence or record so as to

entail any interference by this Court. The petitioner in the

circumstances has failed to make out any grounds to grant leave to

appeal to the petitioner against the judgment dated 30th May, 2009

acquitting the respondent by giving him benefit of doubt.

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

any merit and it is, therefore, dismissed.

ANIL KUMAR, J.

SURESH KAIT, J.

SEPTEMBER 30, 2010 'k'