Delhi High Court
Sh.Pawan Kumar vs State (Govt. Of Nct) Of Delhi on 29 September, 2010
Author: Anil Kumar
Bench: Anil Kumar, Suresh Kait
* 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 Crl.M.B.No.843/2010 in Crl.A.No.710/2010 Page 1 of 9 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 Crl.M.B.No.843/2010 in Crl.A.No.710/2010 Page 2 of 9 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, Crl.M.B.No.843/2010 in Crl.A.No.710/2010 Page 3 of 9 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 Crl.M.B.No.843/2010 in Crl.A.No.710/2010 Page 4 of 9 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 Crl.M.B.No.843/2010 in Crl.A.No.710/2010 Page 5 of 9 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 Crl.M.B.No.843/2010 in Crl.A.No.710/2010 Page 6 of 9 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 Crl.M.B.No.843/2010 in Crl.A.No.710/2010 Page 7 of 9 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 Crl.M.B.No.843/2010 in Crl.A.No.710/2010 Page 8 of 9 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' Crl.M.B.No.843/2010 in Crl.A.No.710/2010 Page 9 of 9