Khushal Chand vs The State (Nct Of Delhi)
2014 Latest Caselaw 1232 Del

        IN THE HIGH COURT OF DELHI AT NEW DELHI

                          CRL.A. 109 of 2008

        KHUSHAL CHAND                            ..... Appellant
                    Through: Mr. S.C. Sagar and Mr. Pradeep
                             Sehrawat, Advocates.

                          versus

        THE STATE (NCT OF DELHI)                ..... Respondent
                      Through: Ms. Aashaa Tiwari, APP with
                               Inspector Arvind Kumar, SHO
                               Kalyan Puri.

        CORAM: JUSTICE S. MURALIDHAR

                          ORDER

07.03.2014

1. This appeal is directed against the impugned judgment dated 18th

December 2007 passed by the learned Additional Sessions Judge in

Sessions Case No. 273/06 convicting the Appellant for the offences

under Section 306/498A of the IPC and the order of sentence dated 18 th

December 2007 by which the Appellant was sentenced to undergo three

years rigorous imprisonment (RI) and a fine of Rs. 10,000 and in

default of the payment, to undergo nine months RI under Section 498A

IPC and further sentenced to undergo seven years RI and a fine of Rs.

10,000 and in default of the payment, to undergo a further nine months

RI under Section 306 IPC.

2. The case of the prosecution was that the Appellant and the deceased

were married on 25th November 1974. They did not have any children.

The sister of the deceased and the brother of the Appellant were also

married. They had a child Arun Kumar (PW-7). However, the brother-

in-law of the deceased died, and her sister of the deceased came to live

with their mother Smt. Shanti Devi (PW-4). The child PW-7 from his

childhood grew up with the Appellant and the deceased.

3. According to the prosecution about seven to eight months prior to the

date of the incident the deceased had gone to live with her mother PW-4

and underwent an operation for removal of her uterus. She returned to

the matrimonial home on 14th April 2002, i.e., one day prior to the date

of the incident.

4. The case of the prosecution was that on 15th April 2002 at around

9:00 a.m. the deceased poured kerosene and set herself afire after

locking her husband inside a room. When smoke came out of the house,

the persons in the vicinity hearing the cries of the Appellant rushed to

the house and found the door to the stairs bolted from inside. The door

was broken and they found the deceased lying in a burnt condition in

front of the kitchen, groaning with pain. The Appellant was knocking

at the door of the room which was bolted from outside. The lock was

broken and the Appellant came out. The police was informed and

reached the spot. They removed the deceased as well as the Appellant

to LBS Hospital, Khichripur, Delhi. The deceased breathed her last at

the hospital. The deceased purportedly made a dying declaration before

one Dr. Moti Lal (PW-6) stating that there used to be altercations

between her and the Appellant; that the Appellant was demanding Rs.

70,000 from her and that she was burnt by the Appellant. The Appellant

was also medically examined.

5. The autopsy of the deceased was performed by Dr. L.C. Gupta (PW-

12). The autopsy report (Ex. PW12 /A) was to the effect that the death

was homicidal since the distribution of the burn injuries was upside

down and there were multiple injuries of different durations.

6. Despite the autopsy report, the police could not reconcile the facts

since the neighbours of the Appellant and the deceased gave statements

inconsistent with a homicidal death. Incidentally PWs 4 and 7 also in

their statements to the police did not mention about any strained

relations between the deceased and the Appellant. PW-4 went to the

extent of saying that she did not suspect the Appellant and did not even

want the post-mortem to be conducted. The note prepared by the SHO,

Police Station Kalyanpuri on 1st June 2002 stated that the deceased was

in some agony which probably drove her to commit suicide. The matter

was then referred to the Assistant Commissioner of Police (ACP),

Kalyanpuri, who noted that the opinion of PW-12 was totally

unreliable. The ACP directed the registering of a case under Section

498A/306 IPC. Ultimately on 13th June 2002 an FIR was registered and

investigation was taken up.

7. The Appellant was arrested and the investigation culminated in a

charge sheet being filed against him. Charges under Section 498A and

306 IPC were framed against the Appellant to which he pleaded not

guilty and claimed trial.

8. There were 13 prosecution witnesses. Both Head Constable Veer

Sain as well as Dr. L.C. Gupta were wrongly mentioned as PW-12.

Four neighbours of the Appellant in the locality i.e. Trilok Puri were

examined as prosecution witnesses. They were Shiv Singh (PW-1),

Smt. Kishan Maya (PW2), Kanwar Pal (PW-3) and Smt. Tulsi Kundra

(PW-8). None of them spoke of any quarrel between the Appellant and

the deceased.

9. The prosecution witnesses who spoke about strained relations

between the Appellant and deceased were PW-4 Shanti Devi and PW-7

Arun Kumar. It appeared that both of them, for the first time in the

Court made several improvements to the statements earlier made by

them to the police under Section 161 CrPC. This is evident from the

cross-examination of these witnesses. As far as PW-4 is concerned,

although in her examination-in-chief she spoke about the deceased

weeping and demanding money during her visits to the house of PW-4

and about the Appellant assaulting and harassing the deceased, in her

cross-examination when confronted with her statement under Section

161 CrPC (Mark A), she denied making that statement to the police and

added that she could not recollect what statement she had made before

the IO.

10. The Court has perused the statement made by PW-4 to the police

under Section 161 CrPC (Mark A). In the said statement, there is not a

whisper about the deceased telling PW-4 about the ill-treatment meted

out to her by the Appellant or about the deceased demanding money. It

does mention that the deceased lived with PW-4 for at least 7-8 months

prior to the date of the incident during which she underwent surgery for

removal of her uterus. PW-4 had, before the police, gone to the extent

of saying that she did not want any case to be registered and that she did

not suspect the Appellant.

11. The other witness who spoke about the strained relations between

the Appellant and the deceased for the first time in Court was Arun

Kumar (PW-7). It must be recalled that he virtually grew up with the

Appellant and the deceased since childhood. He admitted that his

previous statement (Ex. PW7/A) was recorded by the IO on 15th April

2002. His entire cross-examination shows that he was confronted with

considerable improvements made by him over the said statement when

he deposed before the trial Court. For instance he did not state before

the IO that the deceased used to remain tense since she did not have a

child. He had stated before the IO that the deceased used to say that her

life was useless. He had in fact told the IO that the relations between the

deceased and the Appellant were cordial. He had denied making

statement to the IO that the Appellant was "stubborn and a duffer type

of person". He did not made any statement to the IO that the Appellant

did not have respect for elders or younger persons. He did not state

before the IO that the Appellant used to beat the deceased after

consumption of liquor almost four days in a week. He denied telling the

IO in his previous statement that the Appellant used to abuse the

deceased in a general routine or used to send her to bring cigarettes in

odd hours of night or that the deceased was treated by the Appellant in

inhumane way or about his lifting flour bin and hitting the deceased

once she returned from her mother's home on 14th April 2002 to make

her understand that it was empty or that there was an altercation

between the Appellant and the deceased on the night previous to the

incident. Importantly, PW-7 had not stated to the IO that at the hospital

the deceased told him that she was dying and that PW-7 should not

leave the Appellant unpunished.

12. It is surprising that the trial Court has based its conclusions

regarding the guilt of the Appellant for the offence under Section

306/498A IPC only on the depositions of PWs 4 and 7 which, as noted

hereinbefore, were substantial improvements over their previous

statements under Section 161 CrPC. In Sunil Kumar Sambhudayal

Gupta v. State of Maharashtra 2010 XI AD (SC) 500, the Supreme

Court again explained the legal position that "where the omission(s)

amount to a contradiction, creating a serious doubt about the

truthfulness of a witness and other witness also make material

improvements before the court in order to make the evidence

acceptable, it cannot be safe to rely upon such evidence". It was added

that in view of the "discrepancies in the evidence of eye-witnesses, if

found to be not minor in nature, may be a ground for disbelieving and

discrediting their evidence. In such circumstances, witnesses may not

inspire confidence and if their evidence is found to be in conflict and

contradiction with other evidence or with the statement already

recorded, in such a case it cannot be held that prosecution proved its

case beyond reasonable doubt".

13. In Subhash v. State of Haryana 2011 (1) JCC 41 SC, the Supreme

Court held that the statements of witnesses who made substantial

improvements over their statements under Section 161 CrPC did not

inspire confidence.

14. The trial Court has, in the present case, completely overlooked the

above factor and has committed a grave error in basing its conclusion as

to the guilt of the Appellant on the wholly unreliable evidence of PWs 4

and 7. This has also to be viewed from the context of the evidence of

the other public witnesses who are persons in the same locality and did

not speak of any altercation or quarrel between the Appellant and the

deceased.

15. What is significant is also the fact that the trial Court disbelieved

entirely the dying declaration of the deceased since it was demonstrated

that the Appellant himself had been locked inside the room from

outside at the time the incident took place. It was proved from the

evidence of the prosecution witnesses that the deceased had locked

herself in the house and the door had been broken by the persons of the

locality to go upstairs and find her in a burnt condition outside the

kitchen. The trial Court has also disbelieved the autopsy report (Ex.

PW12/A) which opined that it was a homicidal death. The trial Court

came to the conclusion that it was not a suicide. In other words, barring

the depositions of PWs 4 and 7 which were inherently unreliable there

was no substantive evidence to bring home the guilt of the Appellant.

16. In the circumstances, the Court has no hesitation whatsoever in

holding that the prosecution has miserably failed to prove the case

against the Appellant beyond all reasonable doubt.

17. The impugned judgment of the trial Court dated 18th December

2007 as well as the order on sentence dated 18th December 2007 are

hereby set aside. The bail bond and surety are discharged.

18. The appeal is allowed in the above terms.

S. MURALIDHAR, J.

MARCH 07, 2014 akg