Delhi District Court
Satish Kumar S/O Roshan Lal vs State on 10 September, 2015
IN THE COURT OF SH. RAJ KAPOOR, ADDITIONAL SESSIONS JUDGE -
03 , PHC NEW DELHI DISTRICT
Criminal Appeal No.79/14
IN THE MATTER OF :
Satish Kumar s/o Roshan Lal
A-40, Indira Nagar,
Lucknow, UP - 226016.
..............Appellant
Versus
1. State.
2. Smt. Mamta Dhamija
w/o Pramod Kr. Dhamija
r/o H. No.-1608, Outram Lane
Kingsway Camp, Delhi.
.....Respondents
10.09.2015
JUDGMENT:
1. This appeal petition has been filed u/s 374 (3) (a) Cr. PC against the judgment of conviction dated 13.03.2014 and order on sentence dt. 26.06.2014 passed by Ld. MM, in case FIR no.205/93 u/s 365 r/w 120-B IPC and 384/ 120-B IPC r/w 511 IPC , PS Connaught Place. Appellant has been sentenced to undergo SI of three years u/s 365 r/w 120B IPC each and SI of one year u/s 384/120 B r/w 511 IPC each along with a fine of Rs. 10,000/--, in default of payment of fine further SI of three months.
2. Briefly facts of the case are that on 09.03.1993 one Pramod Dhamija was abducted from outside Volga restaurant in Connaught Place and was wrongly confined for 2 days at House Number C-110, Krishna Nagar, Safdarjung Enclave and during the period period of his wrongful confinement victim Pramod Dhamija as well as his family members put under fear of the 1 victim being subjected to instant hurt of instant death in the attempt made by the abductors to extort a sum of Rs.30 lacs from the members of the family of victim Pramod Dhamija. It is the case of prosecution that the accused Pushpender Gulati, Jagan Nath Pandey, Satish Kumar and Dinesh Thakur had in pursuance to a criminal conspiracy entered into between themselves abducted Pramod Dhamija from outside Volga Restaurant in Connaught Place and kept him in wrongful confinement in the basement of an under construction house situated at C-110, Krishna Nagar, Safdarjung Enclave for the purpose of collecting ransom from his wife Mamta Dhamija as well as from other family members of the victim and at the time of the rescue of Pramod Dhamija on 11.03.1993 from the above mentioned under construction house, accused Satish Kumar and Jagan Nath Pandey were found guarding him to prevent his escape from the confinement. Accordingly, a the present case was registered against all the four accused persons namely Jagan Nath Pandey, Pushpender Gulati, Satish Kumar and Dinesh Thakur. During the course of investigation, accused Jagan nath Pandey and Satish Kumar were arrested vide personal search memos Ex.PW4/1 and Ex.PW4/2. Victim Pramod Dhamija was rescued vide recovery memo Ex.PW4/E and was identified by his brother Harish Kumar. The rope used by the accused persons to physically restrain the victim was seized vide seizure memo Ex.PW4/G and the Maruti Van bearing no. DL 3 CA - 6384 used by accused Dinesh Thakur for collection of ransom was seized vide seizure memo Ex.PW4/J. 2
3. During the course of trial, accused Purshpender Gulati was discharged vide order dated 24.04.1995. Accused, Jagan Nath Pandey was declared P.O. and accused Dinesh Thakur has expired.
4. Ld. Trial court after following the due course of law convicted the appellant Satish Kumar for the vide judgment of conviction dated 13.03.2014 u/s 365 r/w 120-B IPC and 384/ 120-B IPC r/w 511 IPC , PS Connaught Place. Further, appellant Satish Kumar has been sentenced to undergo SI of three years u/s 365 r/w 120B IPC each and SI of one year u/s 384/120 B r/w 511 IPC each along with a fine of Rs.10,000/-, in default of payment of fine further SI of three months, vide order on sentence dated 26.06.2014. Feeling aggrieved with the impugned judgment dated 13.03.2014 and order on sentence dated 26.06.2014 the present appeal has been filed by the appellant.
5. During the course of arguments ld. Additional PP for the state submitted that appellant Satish Kumar has been convicted in this case for the offence punishable under Section 365 IPC r/w Section 120-B IPC and u/s 384/120-B IPC r/w 511 IPC. He further submitted that there were four accused persons in this case out of which Jagan Nath Pandey was declared PO, accused Pushpender Gulati was discharged vide court order dated 24.08.1995 and accused Dinesh Thakur has died. Ld. Additional PP for the state further submitted that Section 364 A IPC was not invoked and it was subsequently added in the IPC vide Criminal Amendment by Act 42 of 1993. sec. 2 (w.e.f. 3 22.5.1993) and therefore the same could not be invoked against the accused persons. He further submitted that the prosecution has proved its case beyond reasonable doubt on the strength of the deposition of PW4 Inspector J. K. Sharma, PW 10 SI Sushil Kumar, PW 11 HC Devinder and PW7 Harish Kumar. He further submitted that consequent upon the conviction of the appellant Satish Kumar, he has been sentenced to 3 years SI for having committed offence punishable under Section 365 IPC r/w Section 120B IPC each and SI of one year U/s 384/120B r/w Section 511 IPC each along with a fine of Rs.10,000/-. He further submitted that the complainant Mamta Dhamija was issued notice by this court but the report has been received that she is not traceable and has left her place of abode for the last about more than 20 years and at request of Ld. Additional PP arguments have been heard in her absence. On these grounds he submitted that the appeal is liable to be dismissed.
6. Ld. counsel in the appeal has submitted that there was no public witness to the arrest of the accused persons or other proceedings in the present case. He further submitted that there is no incriminating evidence against the appellant for any offence and the appellant is innocent. He further submitted that the entire case of the prosecution is based on the circumstantial evidence in which the standard of proof as has been required is that the every chain must be complete beyond reasonable doubt to convict a person which has been time and again held by the Hon'ble Apex Court in many cases. He further submitted that there is no public witness to the recoveries 4 effected by the police of either rescue of victim Pramod Dhamija ; presence of the appellant at the spot; and recovery of car and thus these facts itself creates a doubt over the story of prosecution. Ld. counsel for the appellant again submitted that the best evidence available to the prosecution is the victim himself but he did not appear before the ld. trial court to depose against the appellant. This fact itself makes the case of the prosecution unbelievable. Ld. counsel for the appellant again submitted that ld. trial court did not appreciate the evidence of two material witnesses i.e. PW6 Mamta Dhamija and PW7 Harish Dhamija , who happens to be relative of the victim and they have turned hostile and have failed to identify the appellant to be one of the person who had abducted victim Pramod Dhamija. On these grounds, ld. counsel for the appellant submitted that in these circumstances, appellant could not have been held guilty merely on the basis of the testimonies of the police officials , in particular the IO i.e. PW4 J K Sharma. Ld. counsel for the appellant again submitted that PW5 is the hear say witness to whom incident was told by Mamta Dhamija about abduction and also about the demand of ransom.
7. Ld. counsel for the appellant again submitted that ld. Trial Court has made contradictory observations in the judgment itself since on the one hand in para '25' ld. trial court has relied on the testimonies of PW5, PW6 and PW7 while in para '30' of the judgment ld. trial court himself observed that:-
".................It is true that none of the three witnesses named above, that is, PW5 Pooran Chand Dhamija, PW6 Mamta Dhamija and PW7 Harish Dhamija have deposed that accused Satish Kumar was one of the persons who had either abducted victim Pramod Dhamija or had demanded ransom from the wife of the victim, 5 namelly Mamta Dhamija. The witnesses named above have also not identified accused Satish Kumar to be the person from whose custody victim Pramod Dhamija was rescued by police officials on 11.03.1993.................."
8. Ld. counsel for the appellant again submitted that Hon'ble Supreme Court time and again has held that if two views are possible from the appreciation of evidence and facts of the case then the view supporting the accused has to be given effect. In support of his contention he has relied upon the following judgments:-
i) Sharad Biradichand Shara v. State of Maharashtra - 1984 (4) SCC 116, in this case it has been observed :-
"HELD: 1:1. Normally, the Supreme Court does not interfere with the concurrent findings of the fact of the courts below in the absence of very special circumstances or gross errors of law committed by the High Court. But, where the High Court ignores or overlooks the crying circumstance and proved facts, or violates and misapplies the well established principles of criminal jurisprudence or decision rendered by this Court on appreciation of circumstantial evidence and refuses to give benefit of doubt to the accused despite facts apparent on the face of the record or on its own finding or tries to gloss over them without giving any reasonable explanation or commits errors of law apparent on the face of the record which results in serious and substantial miscarriage of justice to the accused, it is the duty of this Court to step in and correct the legally erroneous decision of the High Court. [174E-G] 1:2. Suspicion, however, great it may be, cannot take the place of legal proof. A moral conviction however, strong or genuine cannot amount to a legal conviction supportable in law. [174H] 1:3. The well established rule of criminal justice is 'fouler the crime higher the proof'. In the instant case, the life and liberty of a subject was at stake. As the accused was given a capital sentence a very careful cautious and meticulous approach necessarily had to be made by the Court. [175A] 2:1. The Indian law on the question of the nature and scope of dying declaration has made a distinct departure from the English law where only the statement which directly relate to the cause of death are admissible. The second part of cl.(1) of s. 32, viz, "the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question" is not to be found in the English Law. [107F-G]............."6
ii) Hanumant Govind Nargundkar v. State of M.P. AIR 1952 SC 343, in this case it has been held that :-
"...........27. It was further held that the evidence of experts was corroborated by the statements of the accused recorded under section 342. The accused Patel, when questioned about this letter, made the following statement :
"Exhibit P-31 was typed on the office typewriter article B. Exhibit P- 24 being my personal complaint letter was typed by my Personal Assistant on one of the typewriters which were brought in the same office for trial, with a view to purchase. As this was my personal complaint no copy of it was kept in the Correspondence Files Exhibit P-34 and Exhibit P-35 just as there is no copy in these files of my tender Exhibit P-3A........ In the month of September, October and November, 1946, several machines were brought for trial from various parties in our office till the typewriter article A was purchased by National Industrial Alcohol Ltd. Company."
28. If the evidence of the experts is eliminated, there is no material for holding that Exhibit P-24 was typed on article A. The trial magistrate and the learned Sessions Judge used part of the statement of the accused for arriving at the conclusion that the letter not having been typed on article B must necessarily have been typed on article A. Such use of the statement of the accused was wholly unwarranted. It is settled law that an admission made by a person whether amounting to a confession or not cannot be split up and part of it used against him. An admission must be used either as a whole or not at all. If the statement of the accused is used as whole, it completely demolishes the prosecution case and, if it is not used at all, then there remains no material on the record from which any inference could be drawn that the letter was not written on the date it bears.
29. For the reasons given above we hold that there is no evidence whatsoever on the record to prove that this letter Exhibit P-24 was antedated and that being so, the charge in respect of forgery of this letter also fails. Read as a whole, this letter cannot be said to have been written with the intention of causing any injury to Amarnath or for the purpose of creating a defence in respect of the second charge. The letter read as a whole is an innocuous document and its dominant purpose and intent was to safeguard the interests of accused Patel and to protect him against any underhand or unfair act of his rival contractors. We cannot infer any intent to defraud or any intention to injure Amarnath, though in order to protect himself accused Patel made certain allegations against him. We therefore set aside the conviction of both the appellants under the third charge and acquit them.
30. The result is that the consolidated appeal is allowed, the judgments of all the three courts below are set aside and the appellants are acquitted.
31. Appellants acquitted."
7
iii) State of UP v. Ashok Kumar Srivastava 1992 (2) SCC 86, in this case it has also been observed that:-
(xiii) false explanation or statements were made to explain away their conduct.
PWs 1 and 4 had no reason to falsely implicate the accused persons. The suggestion that they had implicated them at the behest of Inspector, Vijay Pratap Singh, is too far-fetched to be accepted. Even according to the evidence of PW 2, the father of Meera, he did not know them prior to the incident. This unfortunate father came to the scene of occurrence after he was informed about the death of his young daughter. He naturally went to the place of occurrence, contacted the people there and talked to PWs 1 and 4. He went back and lodged a complaint, Ext. Ka-1, in which he did mention the presence of the house owner though he did not name them this is quite natural because he had not enquired of their names having regard to the strain, stress and tension in which he was at the relevant point of time. We are afraid the High Court was not justified in coming to the conclusion that they had been set up at the behest of Inspector Vijay Pratap Singh who was their pattidar. We see no reason to disbelieve any part of the version given by PWs 1 and 4 except to say that perhaps the evidence of PW 4 that Meera's tongue was not protruding when she was removed to the smaller room and the same was found protruding when she brought back may be an exaggeration based on medical testimony. We, therefore, find it difficult to agree with the High Court that these two witnesses have been falsely set up at the instance of Inspector Vijay Pratap Singh to give false evidence against the accused persons. So far as the complainant and his son are concerned they have not tried to exaggerate or introduce false material to support the prosecution case. Their testimony regarding the quarrels which took place on account of insufficiency of dowry stands corroborated by the evidence of PWs 1 and 4 and can be accepted without hesitation.
The evidence of PWs 1 and 4 is partly corroborated by PW 3. Immediately after the fire was noticed and the smoke was seen billowing out, PW 1 ran to the nearby fire station and called the fire brigade. P.W. 3 arrived at the scene of occurrence and he too saw the three accused persons standing in the verandah totally indifferent to what was happening to Meera. He took 48 the victim Meera on a stretcher to the Hospital. Counsel for the defence tried to contend that the fact that the accused went to the hospital along with her is consistent with their innocence. We are afraid we cannot accept this submission for the simple reason that they had no alternative but to go along with the fireman since they were asked to do so. It was thereafter that Ashok's father lodged the report Ext. Kha-1. After the F.I.R. was lodged by Meera's father foul play was suspected but by then the accused had left. The investigation ultimately led to the arrest of the two accused other than Ashok on the 23rd. Ashok was still untraced and no valid explanation is to be found for his absence. He secured anticipatory bail and thereafter surrendered on 5th September, 1974. It would, therefore, appear that he had made himself scarce for over one and a half months. This is a circumstance which betrays guilty conscience. In addition thereto, a number of circumstances have been pointed out by the Trial Judge which taken together leave no room for doubt that the three accused persons were the joint authors of the 8 crime. We have no hesitation, whatsoever, in concluding that the approach of the High Court was wholly against the weight of evidence and it is impossible to approve the same. ordinarily, in an acquittal this Court is slow to interfere while exercising power under Article 136 of the Constitution but here we find that the approach of the High Court has resulted in gross miscarriage of justice. It is not possible for this Court to refuse to interfere when a gruesome crime is committed which has reassured in the extinction of a young mother to be. In the result, we allow this appeal, set aside the order of acquittal passed by the High Court and restore the order of conviction and sentence passed by Trial Court. The accused will surrender to their bail forthwith.
iv) Padala Veera Readdy v. State of AP 1989 (Supply) 2 SCC 706, in this case it has also been observed that:-
"............19. There are series of decisions holding that no one can be convicted on the basis of mere suspicion, however, strong it may be. Though we feel it is not necessary to re- capitulate a 11 those decisions we will refer to a few on this point.
20. this Court in Palvinder Kaur v. The State of Punjab 1953 SCR 94 has pointed out that in cases dening on circumstantial evidence courts should safeguard themselves against the danger of basing their conclusions on suspicions how so ever strong.
21. In Chandrakant Ganpat Sovitkar and Anr. v. State of Maharashtra , it has been observed :
It is well settled that no one can be convicted on the basis of mere suspicion, though strong it may be. It also cannot be disputed that when we take into account the conduct of an accused, his conduct must be looked at in its entirety
22. In Sharad Birdhichand Sarda v. State of Maharashtra , this Court has reiterated the above dictum and pointed out that the suspicion, however, great it may be, cannot take the place of legal proof and that "fouler the crime higher the proof".
23. We are of the firm view that the circumstances appearing in this case when examined in the light of the above principle enunciated by this Court do not lead to any decisive conclusion that either all these accused or any of them committed the murder of the deceased, Vijaya punishable under Section 302 read with Section 34 of I.P.C. or the offence of cruelty within the mischief of Section 498-A I.P.C. Hence, viewed from any angle, the judgment of the appellate Court does not call for interference.
24. The appeal is dismissed accordingly."
v) C. Chenga Reddy v. State of AP 1996 (10) SCC 193, in this case it has also been observed that:-
9
"...............However, as we have agreed with the findings recorded by both the courts below with regard to the violation of the codal provisions and administrative lapses by the departmental officials, it appears to us that a departmental enquiry may be justified but in this fact situation, it would be an unnecessary exercise. Learned counsel for the appellants have been heard by us at length and they were unable to assail the findings of the courts below regarding codal violations and administrative lapse which may have caused some loss to the exchequer also. What then should be the course of action which should be followed in the facts and circumstances of the case ? While the officials deserve to be punished, should we remit the matter to the department for awarding appropriate punishment or should we impose the punishment ourselves and close the chapter, A court of equity must so act, within the permissible limits so as to prevent injustice. "Equity is not past the age of child bearing" and an effort to do justice between the parties is a compulsion of judicial conscience. Courts can and should strive to evolve an appropriate remedy, in the facts and circumstances of a given case, so as to further the cause of justice, within the available range and forging new tools for the said purpose, if necessary to chisel hard edges of the law. In our opinion in the established facts and circumstances, it would be appropriate with a view to do complete justice between the parties, in exercise of our jurisdiction under Article 142 of the Constitution of India, to direct that no departmental inquiry shall now be initiated against the departmental officials for their established administrative breaches and violation of the codal provisions, in 1979-80. Consequent upon their acquittal, the official respondent shall be reinstated in service with continuity of service for all purposes but for their established administrative lapses and breach : of codal provisions etc., they shall not be entitled to any back wages or any other type of monetary benefit for the period they remained out of service. The suspension allowance, if any, received by all or anyone of them shall however not be recovered from them. This punishment appears to us to be commensurate with the gravity of their lapses and shall serve the ends of justice. Those of the officials who may have reached the age of superannuation in. the meanwhile, will get their pensionary benefits calculated on the basis of their continuous service but they shall be entitled to draw pension with effect from the date of this order only."
vi) Geejaganda Somaiah v. State of Karnataka 2007 (3) SCC (Cri.) 135, in this case it has been observed that:-
"...............19. In the instant case also, the disclosure statements were made by the accused persons on the next day of the commission of the offence and the property of the deceased was recovered at their instance from the places where they had kept such properties, on the same day. In the same affect are the judgments in Mukund Alias Kundu Mishra & Anr. v. State of M.P. AIR (1997) SC 2622 and Ronny Alias Ronald James Alwaris & Ors. v. State of Maharashtra, AIR (1998) SC 1251 . In the latter case the Court held:
"Apropos the recovery of articles belonging to the Ohol family from the possession of the appellants soon after the robbery and the murder of the deceased (Mr.Mohan Ohol. Mrs. Runi Ohol 10 and Mr. Rohan Ohol) which possession has remained unexplained by the appellants the presumption under Illustration
(a) of Section 114 of the Evidence Act will be attracted. It needs no discussion to conclude that the murder and the robbery of the articles were found to be part of the same transaction. The irresistible conclusion would therefore, be that the appellants and no one else had committed the three murders and the robbery."
20. These aspects were illuminatingly highlighted in Sanjay @ Kaka v. State (N.C.T. of Delhi) [2001] 3 SCC 190.
21. Above being the position, the appeal is clearly without merit, deserves dismissal which we direct."
vii) Mustakeem v. State of Rajasthan 2011 (11) SCC 724 para 25, in this case it has been observed that:-
"S. 27 - Fact discovered on basis of recovery - Admissibility - Scope and ambit of - What is admissible under S. 27 is information leading to discovery and not any opinion formed on it by prosecution - However, such disclosure alone would not automatically lead to conclusion that offence was also committed by accused - Burden lies on prosecution to establish a close link between discovery of material object and its use in commission of offence, (2011) 11 SCC 724-A Recovery of alleged weapons - Witness of recovery turned hostile - Another witness admitted that signatures were obtained on memos at police station - Witnesses were residing at distance from place of recovery - Prosecution failed to establish as to why none of the local persons living close by were called to be witnesses - Overwriting on recovery memos in a different handwriting has not been explained - Held, case of prosecution appears to be extremely doubtful and concocted, to falsely implicate appellants - If recovery memos were prepared at police station itself then the same would lose their sanctity, (2011) 11 SCC 724-B Ss. 302/34 - Murder trial - Circumstantial evidence - Appreciation of evidence - Conviction reversed - Solitary star witness PW 3 turned hostile - Appellants allegedly said that it would be last visit of deceased - PW 8 had told deceased that appellants were keen to eliminate him - Weapons allegedly used in commission of offence and bloodstained clothes recovered on the basis of disclosure statements of appellants - Traces of same blood group found on clothes of deceased and sword and clothes recovered on the pointing of appellants - Material contradictions found in statements of PWs 8, 9 and 10 as they omitted to state these material facts before police - Traces of same blood on clothes of deceased and on recovered weapons cannot ipso facto lead to conclusion that latter were used for murder - No enmity could be established on record - Held, it would not be safe and proper to hold appellants guilty for commission of offence, (2011) 11 SCC 724-C."11
viii)Munna Raja v. State of MP 1976 (3) SCC 104, in this case it has been observed that:-
"........We are in full agreement with the High Court that both of these dying declarations are true. We are further of the opinion that considering the facts and circumstances of the case, these two statements can be accepted without corroboration. Bahadur Singh was assaulted in broad day light and he knew the appellants. He did not bear any grudge towards them and had therefore no reason to implicate them falsely. Those who were in the constant company of Bahadur Singh after the assault, had also no reason to implicate the appellants falsely. They bore no ill-will or malice towards the appellants. We see no infirmity attaching to the two dying declarations which would make it necessary to look out for corroboration.
We might, however, mention before we close that the High Court ought not to have placed any reliance on the third dying declaration. Ex. P-2, which is said to have been made by the deceased in the hospital. The investigating officer who recorded that statement had undoubtedly taken the precaution of keeping a doctor present and it appears that some of the friends and relations of the deceased were also present at the time when the statement was recorded. But, if the investigating officer thought that Bahadur Singh was in a precarious condition, he ought to have requisitioned the services of a Magistrate for recording the dying declaration. Investigating officers are naturally interested in the success of the investigation and the practice of the investigating officer himself recording a dying declaration during the course of investigation ought not to be encouraged. We have therefore excluded from our consideration the dying declaration, Ex. P-2, recorded in the hospital.
The High Court was, therefore, justified in reversing the order of acquittal passed by the Sessions Court and in convicting the appellants of the offence of which they were charged. In so doing, the High Court did not violate any of the principles governing appeals against acquittal, to which our attention was drawn by the appellants' counsel from time to time In the result, we confirm the judgment of the High Court and dismiss the appeal."
ix) Narender Singh v. State of MP 2004 (10) SCC 699, in this case it has also been observed that:-
"It is now well-settled that benefit of doubt belonged to the accused. It is further trite that suspicion, however, grave may be cannot take place of a proof. It is equally well-settled that there is a long distance between 'may be' and 'must be'.
It is also well-known that even in a case where a plea of alibi is raised, the burden of proof remains on prosecution. Presumption of innocence is a human right. Such presumption gets stronger when a judgment of acquittal is passed. This Court in a number of decisions has set out the legal principle for reversing the judgment of acquittal by a higher Court. (See Dhanna Vs. State of M.P. (1996) 10 SCC 79, Mahabir Singh Vs. State of Haryana, 12 (2001) 7 SCC 148 and Shailendra Pratap & Anr. Vs. State of U.P. (2003) 1 SCC
761), which had not been adhered to by the High Court.
The entire case is based on circumstantial evidence. Pieces of circumstances, however, strong may be, it is well- known that all links in the chain must be proved. In this case a vital link in the chain, viz., possibility of the appellant No. 1 committing the offence, closing the door and then sneaking out of the room from one of the two places had not been proved by the prosecution. We, thus, having regard to the post mortem report, are of the opinion that the cause of death of Bimlabai although is shrouded in mystery but benefit thereof must go to the appellants as in the event of there being two possible views, the one supporting the accused should be upheld.
For the reasons aforementioned, we are of the opinion that the impugned judgment cannot be sustained which is set aside. Accordingly, the appeal is allowed. The appellants are on bail. They are discharged from the bail bonds."
x) Ranjit Singh Brahmajeet Singh Sharma v. State Of Maharashtra in 2005 (5) SCC 294, in this case it has also been observed that:-
"...........A change of approach was, however, found in Daubart Vs. Merryll Dow Pharmaceuticals Inc. [113 Sct 2786 (1993)] where the courts while allowing "general acceptance" stated that this might not be a precondition for admissibility of the scientific evidence, for which the Court may consider the following:
(a) Whether the principle or technique has been or can be reliably tested?
(b) Whether it has been subject to peer review or publication?
(c) It's known or potential rate of error?
(d) Whether there are recognized standards that control the procedure of implementation of the technique?
(e) Whether it is generally accepted by the Community? And
(f) Whether the technique has been introduced or conducted independently of the litigation?
In a case involving an issue as to whether on-job-exposure to the manufacturers products promoted small cell lung cancer, the U.S. Supreme Court in General Electric Co. Vs. Robert K. Joiner [522 US 139 L.Ed. 2d] following Daubert (supra), held that in cases involving the issue of expert evidence the appellate court should only consider whether there is any abuse of discretion in admitting such evidence by the trial courts and should not go into reviewing the evidence itself as it is for the trial courts to assume the "gate keeper's role" in screening such evidence to ensure whether it is not only relevant but also reliable. This was further expanded in Kumho Tire Co. Ltd. Vs. Carmichael [(1999) 119 S.Ct. 1167] whereby the 'gate keeping' obligation of the Trial Judge to ensure the relevancy and reliability for admitting the evidence extended not only to scientific but also to all kinds of expert evidence.
In R. Vs. Watters [(2000) All ER (D) 1469], it was held : 13
"DNA evidence may have a great significance where there is supporting evidence, dependent, of course, on the strength of that evidence."
"in every case one has to put the DNA evidence in the context of the rest of the evidence and decide whether taken as a whole it does amount to a prima facie case."
As at present advised, thus, and having regard to the fact that the prosecution did not rely upon the said report before the High Court, we also for the purpose of the present matter do not intend to place any reliance thereupon.
Mr. Manohar's contention to the effect that those officers whose conduct was not above board and who did not take any action for attaching the property of the accused and his relations in terms of the Act, have not been made accused, may also be correct. He has further brought to our notice that witnesses have also changed their stand after the Appellant was placed under arrest. At this juncture, it may not be necessary for us to go into details on the aforementioned contention.
We have referred to the aforementioned materials only for the purpose of showing that the High Court may not be entirely correct in coming to the conclusion that the Appellant prima facie committed an offence under Section 3(2) as well as Section 24 of MCOCA.
For the reasons aforementioned, we are of the opinion that the order dated 4.11.2004 granting interim bail to the Appellant should continue subject to the same conditions.
This appeal is allowed.
xi) Rajesh Ranjan Yadav v. CBI 2007 (1) SCC 70, in this case it has also been observed that:-
".............. A perusal of the FIR itself shows that it is a triple murder case, and the incident was committed in broad day light with sophisticated weapons. It is true that the appellant was not named in the FIR, but it has come in the statement before the Magistrate under Section 164 Cr.P.C. of one Ranjan Tiwari that he and other assailants had been hired by the appellant to commit this ghastly crime.
We are not inclined to comment on the veracity or otherwise of the statement of Ranjan Tiwari and other witnesses as it may influence the trial, but looking at the allegations against the appellant both in the statement of Ranjan Tiwari and other witnesses, we are of the opinion on the facts and circumstances of the case, that this is certainly not a case for grant of bail to the appellant, particularly since the prosecution witnesses have been examined and now the defence witnesses alone have to be examined. It would, in our opinion, be wholly inappropriate to grant bail when not only the investigation is over but even the trial is partly over, and the allegations against the appellant are serious.
The conduct of the appellant as noted in the decision in Kalyan Chandra Sarkar vs. Rajesh Ranjan @ Pappu Yadav & anr. 2005(3) SCC 284 (quoted above), is also such that we are not 14 inclined to exercise our discretion under Article 136 for granting bail to the appellant.
Learned Addl. Solicitor General, Shri Amarendra Sharan, submitted that the appellant himself was at least partly responsible for the delay in the conclusion of the trial because most of the prosecution witnesses were cross- examined by his counsel for several days, mostly be asking irrelevant questions, and this was deliberate dilatory tactics used for delaying the trial so that on that basis the appellant may pray for bail. It is not necessary for us to go into this aspect of the matter because we have already noted above that this is certainly not a case for grant of bail to the appellant as the facts and circumstances of the case disclose.
Learned counsel for the appellant then submitted that since the appellant is not on bail, he cannot conduct his defence effectively. In our opinion if this argument is to be accepted, then logically in every case bail has to be granted. We cannot accept such a contention.
On the facts and circumstances of the case, we find no merit in this appeal. The appeal is accordingly dismissed. We, however, make it clear that no further application for bail will be considered in this case by any Court, as already a large number of bail applications have been rejected earlier, both by the High Court and this Court.
While we dismiss this appeal, we direct that the trial court shall ensure that the defence witnesses are examined on a day-to-day basis in accordance with a fixed time schedule so that the trial is completed as expeditiously as possible and the judgment is delivered soon thereafter. No costs."
9. On these grounds he submitted that impugned judgment dated 13.03.2014 and sentence order dated 26.06.2014 be set aside precisely for the reasons that victim Pramod Dhamija has not been examined in this case, which goes to the root of the case. Besides, Smt. Mamta Dhamija, who happens to be wife of the victim and PW7 Harish, who happens to be brother of victim have also turned hostile. No public witness has been joined in this case.
10.It is the fundamental principle of law that in case of conviction of accused persons the prosecution is required to prove the guilt of accused beyond reasonable doubt. Hon'ble Supreme Court on this point has observed in a case titled as 'Vijayee Singh Vs State of UP AIR 1990 SC 1459' that: 15
'Reasonable doubt' is one which occurs to a prudent and reasonable man- The 'reasonable doubt' is one which occurs to a prudent and reasonable man. Section 3 while explaining the meaning of the words 'proof', disproved' and 'not proved' lays down the standard of proof, namely about the existence or non-existence of the circumstances from the point of view of a prudent man. The section is so worded as to provide for two conditions of mind, first, that in which a man feels absolutely certain of a fact, in other words, 'believe it to exist' and secondly in which, though he may not feel absolutely certain of a fact, he thinks it so extremely probable that a prudent man would under the circumstances act on the assumption of its existence. The act while adopting the requirement of the prudent man as an appropriate concrete standard by which to measure proof at the same time contemplates of giving full effect to be given to circumstances or condition of probability or improbability. It is this degree of certainty to be arrived where the circumstances before a fact can be said to be proved. A fact is said to be disproved when the court believes that it does not exist or considers its non-existence so probable in the view of a prudent man the fact is not proved, i.e. neither proved nor disproved. It is this doubt which occurs to a reasonable man, has legal recognition in the field of criminal disputes. It is something different from moral conviction and it is also different from a suspicion. It is the result of a process of keen examination of the entire material on record by 'a prudent man'.
11.Since, the entire case of the prosecution is based on the circumstantial evidence in which the standard of proof as has been required is that the every chain must be complete beyond reasonable doubt to convict a person which has been time and again held by the Hon'ble Apex Court in many cases. In the case in hand, there is no public witness to the effect of recoveries effected by the police of either rescue of victim Pramod Dhamija; presence of the appellant at the spot; and recovery of car and thus these facts itself creates a doubt over the story of prosecution. Further, perusal of the case file reveals that the best evidence available to the prosecution was the victim himself but he could not be examined. This fact itself makes the case of the prosecution doubtful. Moreover, two material witnesses i.e. PW6 Mamta Dhamija and PW7 Harish Dhamija , who happens to be relative of the victim have turned hostile and have failed to identify the appellant to be one of the person who had abducted victim Pramod Dhamija. In light of 16 these facts and circumstances of the case and in view of the observations made in 'Vijayee Singh Vs State of UP AIR 1990 SC 1459' discussed [supra], I am of the view that prosecution has miserably failed to prove its case beyond reasonable doubt against the appellant for the offences punishable u/s 365 r/w 120-B IPC and 384/ 120-B IPC r/w 511 IPC. Therefore, I acquit the appellant for the u/s 365 r/w 120-B IPC and 384/ 120-B IPC r/w 511 IPC. Accordingly, conviction judgment dated 13.03.2014 is set aside. Consequently, order on sentence dated 26.06.2014 is also set aside. Accordingly, appeal of the appellant stands disposed of. Trial Court record, if any, be sent back with an attested copy of the order to proceed with the case in accordance with law. Appeal petition/ proceedings be consigned to record room.
ANNOUNCED IN THE OPEN COURT ON THIS 10.09.2015 (RAJ KAPOOR) ADDL. SESSIONS JUDGE-03 PATIALA HOUSE COURTS NEW DELHI 17 Criminal Appeal No.79/14 Satish Kumar v. State 10.09.2015 Pre: Ld. APP for the State.
Appellant in person with ld. counsel.
File perused, vide separate detailed order/ judgment placed along side in the file, in light of the facts and circumstances of the case and in view of the observations made in 'Vijayee Singh Vs State of UP AIR 1990 SC 1459' discussed [supra], I am of the view that prosecution has miserably failed to prove its case beyond reasonable doubt against the appellant for the offences punishable u/s 365 r/w 120-B IPC and 384/ 120-B IPC r/w 511 IPC. Therefore, I acquit the appellant for the u/s 365 r/w 120-B IPC and 384/ 120- B IPC r/w 511 IPC. Accordingly, conviction judgment dated 13.03.2014 is set aside. Consequently, order on sentence dated 26.06.2014 is also set aside. Accordingly, appeal of the appellant stands disposed of. Trial Court record, if any, be sent back with an attested copy of the order to proceed with the case in accordance with law.
Appeal petition/ proceedings be consigned to record room.
(RAJ KAPOOR) ADDL. SESSIONS JUDGE-03 PATIALA HOUSE COURTS NEW DELHI 18