Delhi District Court
V. K. Saxena vs State Nct Of Delhi on 12 October, 2021
IN THE COURT OF SHRI ANUJ AGRAWAL,
ADDITIONAL SESSIONS JUDGE-05, SOUTH EAST DISTRICT,
SAKET COURTS, NEW DELHI
REVISION PETITION NO. 204175 of 2016
CNR No.DLSE01-000285-2014
IN THE MATTER OF:
V. K. Saxena
S/o Sh. Brij Kumar Saxena,
R/o 1B4569, ESI Hospital Road,
Sharda Nagar, Saharanpur,
Uttar Pradesh. .......Revisionist
Versus
State NCT of Delhi
........Respondent
Instituted on : 10.11.2014
Reserved on : 27.09.2021
Pronounced on :12.10.2021
JUDGMENT
1. By way of the instant revision, revisionist (father of deceased) takes exception to the order dated 13.07.2012, passed by Ld. Metropolitan Magistrate, South District, New Delhi in case bearing FIR No.293/2008, under section 302 IPC, Police Station Defence Colony, whereby Ld. Magistrate dismissed the Protest Petition filed by the Crl Rev. No. 204175/2016 V K Saxena Vs State NCT of Delhi Page No. 1 of 8 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date:
2021.10.12 17:04:36 +0530 revisionist/complainant and accepted the cancellation report filed by the concerned Investigating Officer.
2. Brief facts, crime scene and expert opinions as noted by Ld. Magistrate in the impugned order are not in dispute and same are being reproduced for the sake of convenience :-
" Brief Facts The factual matrix of the case is that on 10.09.2008 an information was received regarding lying of dead body of a girl at premises no. 69 E/1 Gautam Nagar, New Delhi for which DD No. 14 was recorded at Police Post Gulmohar Park. On the receipt of this information Inspector O P Sharma, SHO Defence Colony reached the spot i.e. 69 E/1 Gautam Nagar, New Delhi where SI Arvind, ASI Tulsi Bahadur, SE Sangwar and constable Gurdeep were already present. At the first floor of that house there are rooms on the right side of entrance floor. In the extreme last room there was one table, one bed (diwan) lying opposite to the gate. On the right side of the room two beds (diwan) were lying adjacent to each other. Two tables were also lying adjoining to the diwan in different directions. On these adjoining diwan dead body of a young girl was lying, who was identified as Ms. Shalini Sexana. A charger wire was found tied around her neck where as the other edge was found struck/tied around one of leg of the table, lying adjacent to the said bed. Some scratch marks were seen on the neck of the deceased.
On physical inspection of dead body some blood found to have oozed out from the private part and spread upto the underneath of the bed sheet. Some words were found writtin on the left palm of the deceased. Deceased was found wearing brown colour underwear and a white top. One blue colour multishade dupatta around the belly and one golden colour chain on the neck of the deceased were also found present. One Ms. Shakshi was present at the spot and her statement was recorded. Ms. Shakshi in her statement stated that in one flat five girls were residing in one room she, one Razzi and Shalini were residing and in other room one Beloroi and Priyanka were residing. There was one main door for both these rooms and all of them were having key of the main door. At about 9.15 she left for her institute. Shalini was sleeping at that time and in the adjoining room Priyanka was sleeping. At about 4.00 pm she came to her room, opened it, came inside and saw Shalini lying on the bed Crl Rev. No. 204175/2016 V K Saxena Vs State NCT of Delhi Page No. 2 of 8 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date:
2021.10.12 17:04:45 +0530 covered with the bed sheet. She asked Shalini to get up but she did not move. She removed the bed cover and found that the body of Shalini was stiff. She was terrified and ran out and informed the landlord. The matter was reported to the police and a case under section 302 IPC was registered.
Crime scene:
There was only one entry/exit gate to have excess to both these rooms from staircase. The gate has an inbuilt lock and all the above five occupants were having their separate key of the said lock and the sixth key has been kept by the landlord namely Sh. Sanjay Sharma. During the course of investigation all the suspected persons were interrogated and their call details were analyzed. On scrutiny of mobile phone of deceased it surfaced that she was in frequent touch with two boys namely Avinash Kumar and Dushyant. Accordingly, they were thoroughly interrogated.
Expert opinions:
During the course of investigation the case file was submitted to the department of forensic medicine, Maulana Azad Medical College for its opinion as to whether it's a case of homicide or suicide. The matter was examined by Dr. Anil Aggarwal, Professor at MAMC who after detailed examination submitted the report to the extent that it's a case of suicide and not homicide. The amtter was also referred to the Office of Director of Medico Legal Institute, Bhopal. A detailed report was submitted by Dr. D.K. Satpathy, Director Medico Legal Institute Bhopal wherein he also opined that it is a case of suicide and not homicide. Ultimately a cancellation report was filed."
3. While accepting the Cancellation Report and thereby dismissing the protest petition filed by revisionist herein, Ld. Magistrate inter alia observed as follows:-
"It was a case of self strangulation in a lying down position. The photographs coupled with the expert opinion leaves no doubt that it was a case of suicide. The ligature mark is situated about the thyroid cartilage withobliquity incomplete with knot with evidence that body was moved downwards. The Ligature mark is oblique at the sides. The Ligature mark has slipped in an upward direction producing abrasions. The abrasions are a result of frictious due to metallic chain. As the body moved downwards Crl Rev. No. 204175/2016 V K Saxena Vs State NCT of Delhi Page No. 3 of 8 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.10.12 17:04:51 +0530 the ligature material (mobile charger cord) in the metallic chain moved upward and caused the injury. The wrinkles/folds on the bed sheet especially around the heel region occurred as the body moved downwards/pressure was exerted. On the heel region there is depression andjust below it there isheaping, again it is indicating that body have moved downwards giving this effect. The top has moved upward with wrinkling effect exposing the whole abdomen and lower part of the chest. The bed sheets do not have any other disturbance or creases which may be of indicative of involvement of other person. Accordingly, the cancellation report stands accepted. I find no merits in the protest petition and no reason to continue with the matter."
4. The revisionist is aggrieved with the said order of the Ld. Trial Court and assailed the impugned order on the various grounds which can be summarized as under :-
(i) That the impugned order is bad in law, resulting in grave miscarriage of justice;
(ii) That Ld. Magistrate ignored the material available on record while passing the impugned order;
(iii) That Ld. Magistrate failed to appreciate that there are several loopholes in the police investigation as the cancellation report was clandestinely silent on the injuries which were seen on the body of deceased;
(iv) That Ld. Magistrate failed to appreciate the fact that blood was oozing out of the private parts of deceased which suggests that she was subjected to rape before she was brutally murdered;
(v) That Ld. Magistrate failed to appreciate that the scene of crime indicated that there was violence in the room as ear phone of deceased was found broken indicating that she was subjected to physical assault;
(vi) That Ld. Magistrate failed to consider the opinion of Truth Lab,
Crl Rev. No. 204175/2016 V K Saxena Vs State NCT of Delhi Page No. 4 of 8
Digitally signed
by ANUJ
ANUJ AGRAWAL
AGRAWAL Date:
2021.10.12
17:04:57 +0530
Hyderabad which categorically indicated that deceased died a homicidal death by ligature strangulation;
(vii) That the death cannot be caused by self strangulation as the person shall lose consciousness after applying initial force;
(viii) That there was inordinate delay of 15 days in sending the samples to FSL and same were examined at FSL after more than two months;
(ix) That the investigation in the present case is completely biased as the IO attempted to scuttle the investigation into the gruesome rape and murder of deceased;
(x) That the concerned doctors who had given expert opinion, were provided with limited materials;
5. Ld. Counsel for revisionist argued on the line of grounds as mentioned in the instant revision petition. He vehemently argued that Ld. Magistrate committed grave error in passing the impugned order as the same was passed hastly ignoring the factual matrix and materials available on record. He further argued that revisionist herein was having reasonable apprehension since beginning that the Investigating Officer was not conducting the investigation as per law. He argued that impugned order is completely silent on the issues raised by revisionist in the protest petition preferred against the cancellation report. On the strength of these arguments, revisionist seeks setting aside of the impugned order.
6. Per contra, Ld Addl PP for the State vehemently argued that there is no infirmity in the impugned order and Ld. Magistrate for the right reasons accepted the cancellation report and dismissed the Protest petition.
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Digitally signed
by ANUJ
ANUJ AGRAWAL
AGRAWAL Date:
2021.10.12
17:05:30 +0530
He further argued that the impugned order was passed after considering all the facts and circumstances of the present case. He argued that Ld. Magistrate rightly observed that there is no merit in the protest petition as the objections raised by revisionist were frivolous. It was submitted that the present revision petition is misconceived and therefore, same is liable to be dismissed.
7. I have heard rival contentions of the parties and perused the record.
8. In the matter of Taron Mohan v. State & Anr 2021 SCC OnLine Del 312 Hon'ble Delhi High Court has observed as under:-
"9. The scope of interference in a revision petition is extremely narrow. It is well settled that Section 397 CrPC gives the High Courts or the Sessions Courts jurisdiction to consider the correctness, legality or propriety of any finding inter se an order and as to the regularity of the proceedings of any inferior court. It is also well settled that while considering the legality, propriety or correctness of a finding or a conclusion, normally the revising court does not dwell at length upon the facts and evidence of the case. A court in revision considers the material only to satisfy itself about the legality and propriety of the findings, sentence and order and refrains from substituting its own conclusion on an elaborate consideration of evidence."
9. Further, Hon'ble Apex Court in Sanjaysinh Ramrao Chavan vs. Dattatray Gulabrao Phalke and others, 2015 (3) SCC 123 observed as under :
"14.....Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is non-consideration of any relevant material or there is palpable misreading of records, the Revisional Court is not justified in setting aside the order, merely because another view is possible. The Revisional Court is not meant to act as an appellate court.The whole purpose of the Crl Rev. No. 204175/2016 V K Saxena Vs State NCT of Delhi Page No. 6 of 8 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date:
2021.10.12 17:05:47 +0530 revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court under Sections 397 to 401 CrPC is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with decision in exercise of their revisional jurisdiction."
14. In the above case also conviction of the accused was recorded, the High Court set aside the order of conviction by substituting its own view. This Court set aside the High Court's order holding that the High Court exceeded its jurisdiction in substituting its views and that too without any legal basis."
10. Therefore, in view of the settled position of law, this court in its revisional jurisdiction, is not expected to substitute its own view with that of Ld. Trial Court until and unless the order passed by Ld. Trial Court suffers from jurisdictional error or patent infirmity/illegality. In the instant case, as evident from record, Ld. Magistrate while narrating (in detail) the facts, crime scene and expert opinion, passed a well reasoned detailed order, thereby accepting the cancellation report while brushing aside the protest petition of the revisionist and therefore, this court cannot and rather ought not substitute its own view with that of Ld. Magistrate (while exercising its revisional jurisdiction) and thereby arriving at a different conclusion.
11. Further, opinion of as many as three different experts are there, conclusively opining that it is a case of suicide by partial hanging while ruling out the possibility of any foul play. It is also evident from record that one of the experts i.e. Dr. Millo Tabin, Addl. Professor, Department of Forensic Medicine, AIIMS discarded the report of Dr. M. Narayana Reddy, MD (Forensic Crl Rev. No. 204175/2016 V K Saxena Vs State NCT of Delhi Page No. 7 of 8 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date:
2021.10.12 17:05:55 +0530 Medicine), Medico Legal Consultant, M/s Truth Labs, Hyderabad, with sound logic and reasoning. Therefore, in the facts and circumstances of the present case, I am of the view that there is no infirmity in the impugned order. Ld. Counsel for revisionist failed to point out any patent illegality/ infirmity or jurisdictional error in the impugned order and therefore, present petition is liable to be dismissed.
12. This court understands the pain of a wailing father. However, the court is not cure all. Some wounds are better left unattended to be ministered by nature with an ointment of time. The court cannot however administer placebo to the revisionist in the name of panacea.
13. With these observations, it is held that there is no patent illegality, impropriety or jurisdictional error in the impugned order. Accordingly, the revision petition stands dismissed.
14. TCR be sent back to the Ld. Trial court along with copy of this judgment. Revision file be consigned to Record Room after due compliance.
Digitally signed by ANUJ ANUJ AGRAWAL
AGRAWAL Date:
2021.10.12
Announced in the open 17:06:03 +0530
Court on 12th October, 2021 (ANUJ AGRAWAL)
Additional Sessions Judge-05,
South East, Saket Courts, New Delhi
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