State (Gnct Of Delhi) vs Devender Singh & Ors on 25 May, 2017

$~16
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL. L.P. 324/2017
% Date of Judgment: 25th May, 2017
STATE (GNCT OF DELHI) …. Petitioner
Through: Mr. Rajat Katyal, APP
versus
DEVENDER SINGH ORS …. Respondents
Through: Nemo.

CORAM:
HON’BLE MR. JUSTICE G.S.SISTANI
HON’BLE MS. JUSTICE REKHA PALLI

G.S.SISTANI, J. (ORAL)

Crl.M.A. 8913/2017 (Exemption)

1. Exemption allowed, subject to all just exceptions.

2. Application stands disposed of.

Crl.M.A. 8912/2017 (delay)

3. Although we do not find any sufficient ground to condone delay, but
since we have heard the leave to appeal on merits, delay of 172 days in
filing the leave to appeal is condoned.

4. Application stands disposed of.

Crl. L.P. 324/2017

5. The present leave to appeal has been filed by the State under Section
378 (1) of the Code of Criminal Procedure, 1973 (in short ‘Cr.P.C.’)
seeking leave to appeal against the impugned judgment dated
27.08.2016 passed by the learned Additional Sessions Judge in

Crl. L.P. 324/2017 Page 1 of 7
Sessions Case no.17/15, FIR No.202/12, Police Station Dwarka
South, under Sections 498A/304B/34 of the Indian Penal Code (in
short the ‘IPC’).

6. The case of the prosecution is that on 15.09.2012, an information was
received from the respondent Devender Singh that his wife had
committed suicide, which was recorded vide DD No.30, ASI Satbir
Singh reached at the place of incident i.e. Flat No. B-302, Rudra
Apartments, Plot No. 12, Sector-6, Dwarka and found that the
respondents Devender Singh, Vimla Devi and Satveer Singh were
present and the dead body of the deceased Divya was lying on the
double bed in her bedroom along with a chunni. On the inspection of
the dead body, he noticed some marks on the neck of the deceased.
Crime team was called which took photographs and inspected the
spot. The chunni was seized and the dead body of the deceased was
shifted to the mortuary of DDU Hospital.

7. On 16.09.2012, the statements of the Jai Inder Singh (PW2) and
Gaurav (PW3), the father and brother of the deceased respectively
were recorded and a case under Sections 498A/304B/34 of IPC was
registered at Police Station Dwarka South.

8. To bring home the guilt of the respondents, the prosecution has
examined 25 witnesses in all. No evidence was produced by the
respondents in their defence. Statements of the respondents were
recorded under Section 313 of the Cr.P.C wherein it was stated that
they have been falsely implicated in the present case.

9. Mr. Rajat Katyal, learned counsel for the State submits that the
learned Trial Court has failed to take into consideration that PW-2 Jai
Inder Singh and PW-3 Gaurav have supported the case of the

Crl. L.P. 324/2017 Page 2 of 7
prosecution in their examination-in-chief. Counsel further submits
that the learned Trial Court has given undue weightage on the
witnesses of the prosecution, who turned hostile after December 13,
whereas all the statements made by them prior to December 13 largely
supported the case of the prosecution. Counsel submits that the
learned Trial Court failed to appreciate that in matters of offence
arising out of Section 304B IPC, the presumption is against the
accused persons and the burden of proof would shift on the accused
(respondents) herein. Counsel contends that the defence raised by the
respondents in their statements under Section 313 Cr.P.C. that the
deceased used to remain under depression as her sister-in-law was not
taking care of her mother, who had been suffering from paralysis and
had committed suicide for this reason, cannot be accepted as the
defence did not chose to lead any evidence on this aspect of the
matter.

10. We have heard the learned counsel for the State and examined the
judgment passed by the learned Trial Court and also examined the
testimonies of various witnesses, copies of which have been placed on
record by the counsel for the State. The relevant para 7 of the
impugned judgment rendered by the Trial Court reads as under:

“7. As per the case of prosecution, on receipt of
information about the death of deceased Divya, the
Executive Magistrate had recorded the statements of Sh. Jai
Inder Singh and Sh. Gaurav, the father and brother of the
deceased, which were on the same lines. Sh. Jai Inder Singh
and Sh. Gaurav have been examined by the prosecution as
PW2 and PW3. Though in their examination-in-chief, PW2
and PW3 supported the case of prosecution, but in their
cross- examination, they denied that their statements were
recorded by the Executive Magistrate. They stated that the

Crl. L.P. 324/2017 Page 3 of 7
police had obtained their signatures on blank papers and
that their deposition in the examination-in-chief was under
the influence of the investigating agency. They admitted that
the accused persons never demanded any car, gift or cash
from them nor the deceased Divya ever told them about any
dowry demand or harassment by the accused persons.

The prosecution has also examined PW4 Ms. Sushil and
PW5 Sh. Upender Kumar, who are the sister-in-law/bhabhi
and brother of the deceased. However, in their testimonies,
they have also failed to support the case of prosecution and
utter anything incriminating against the accused persons.
They were cross-examined by the APP but they denied that
they made any statement to the police.

The prosecution has further examined Sh. Anil Kumar
Maan, the brother-in-law of Sh. Gaurav, as PW6 to prove
that Sh. Gaurav had told him on 11.04.2012 that he
required a sum of Rs. 2 lacs for giving the same to the
in-laws of his sister Divya and that the said amount was
given by him to Sh. Gaurav on loan by withdrawing it from
his bank account. In his testimony, though PW6 admitted
that he had given Rs. 2 lacs to Sh. Gaurav but denied that
the latter had informed him that he needed the aforesaid
amount for giving to the in-laws of his sister Divya.

Besides the family members of the deceased, the prosecution
has examined Sh. Rajender Singh Chhikara (inadvertently
examined as PW3) and PW8 Sh. Dharambir Singh, who are
the acquaintances of Sh. Jai Inder Singh, to prove that they
had accompanied Sh. Jai Inder Singh to the matrimonial
home of his daughter Divya for attending a meeting wherein
it was revealed that she was being harassed by her in-laws
for the demand of a big car and gold necklace and bangles.
However, in their testimonies, both the said witnesses
denied that they had attended any such meeting or that they
were told by the family members of the deceased Divya that
she used to be subjected to cruelty by her in- laws for the
demand of dowry.”

Crl. L.P. 324/2017 Page 4 of 7

11. The deceased was married to respondent no.1 on 01.05.2011. She
died on 15.09.2012, within seven years of her marriage. The learned
Trial Court has analysed the testimonies of all the witnesses. The star
witnesses in this case are the father and brother of the deceased, being
PWs 2 and 3 respectively. The learned Trial Court has taken into
account the fact that the star witnesses have not supported the case of
the prosecution and have testified that the police had obtained their
signatures on blank papers as also their deposition in examination-in-
chief was under the influence of the investigating agency. A
categorical assertion was made that the respondents never demanded
any car, gift or cash from them, neither the deceased ever told them
about any demand of dowry or harassment at the hands of the
respondents. The learned Trial Court has also taken into account the
testimonies of Shri Rajender Singh Chhikara (PW3) and Shri
Dharambir Singh (PW8). Both the aforesaid witnesses had testified
that they had participated in a meeting which was held between the
two families on account of the deceased being harassed by her in-laws
and whether demand of car, gold and bangles were made. However,
in Court both the aforesaid witnesses did not support the case of the
prosecution and they had denied of any such meeting being held or
that they were told by the family members of the deceased that the in-
laws of the deceased used to subject her to cruelty or there was any
demand of money.

12. In the case of Kallu alias Masih and Ors. v. State of M.P. reported at
(2006) 10 SCC 313, the Hon’ble Supreme Court in para 8 held as
under:

Crl. L.P. 324/2017 Page 5 of 7

“8. While deciding an appeal against acquittal, the power
of the Appellate Court is no less than the power exercised
while hearing appeals against conviction. In both types of
appeals the power exists to review the entire evidence.
However, one significant difference is that an order of
acquittal will not be interfered with, by an appellate court,
where the judgment of the trial court is based on evidence
and the view taken is reasonable and plausible. It will not
reverse the decision of the trial court merely because a
different view is possible. The appellate Court will also bear
in mind that there is a presumption of innocence in favour
of the accused and the accused is entitled to get the benefit
of any doubt. Further if it decides to interfere, it should
assign reasons for differing with the decision of the trial
Court.”

13. The Hon’ble Supreme Court culled out five general principles for
deciding an appeal against an order of acquittal in the case of
Chandrappa and Ors. v. State of Karnataka reported at (2007) 4
SCC 415, which are as under:

“42. (1) An appellate court has full power to review,
reappreciate and reconsider the evidence upon which the
order of acquittal is founded.

(2) The Code of Criminal Procedure, 1973 puts no
limitation, restriction or condition on exercise of such
power and an appellate court on the evidence before it may
reach its own conclusion, both on questions of fact and of
law.

(3) Various expressions, such as, ‘substantial and
compelling reasons’, ‘good and sufficient grounds’, ‘very
strong circumstances’, ‘distorted conclusions’, ‘glaring
mistakes’, etc. are not intended to curtail extensive powers
of an appellate court in an appeal against acquittal. Such
phraseologies are more in the nature of ‘flourishes of
language’ to emphasise the reluctance of an appellate court
to interfere with acquittal than to curtail the power of the

Crl. L.P. 324/2017 Page 6 of 7
court to review the evidence and to come to its own
conclusion.

(4) An appellate court, however, must bear in mind that in
case of acquittal, there is double presumption in favour of
the accused. Firstly, the presumption of innocence is
available to him under the fundamental principle of
criminal jurisprudence that every person shall be presumed
to be innocent unless he is proved guilty by a competent
court of law. Secondly, the accused having secured his
acquittal, the presumption of his innocence is further
reinforced, reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on the basis
of the evidence on record, the appellate court should not
disturb the finding of acquittal recorded by the trial court.”

14. Keeping in view the aforesaid enunciation of the legal principles and
on scrutiny of the evidence available on record, we find no infirmity
in the view taken by the Trial Court. In our view, the respondents have
been righty acquitted by the Trial Court in the absence of any
incriminating evidence on record. We find no grounds to entertain this
leave to appeal. The same is accordingly dismissed.

G. S. SISTANI, J.

REKHA PALLI, J.

MAY 25, 2017
//pst

Crl. L.P. 324/2017 Page 7 of 7

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