3 Dec 2022 5:54 AM GMT
Over 19 years after the appeal was admitted, the Delhi High Court has set aside the conviction and sentence awarded to a man in 2003 for culpable homicide not amounting to murder — as the trial court record could not be found or re-constructed despite repeated efforts.Justice Jasmeet Singh allowed the appeal filed by one Ramesh Kaushik challenging the conviction and order of sentence passed...
Over 19 years after the appeal was admitted, the Delhi High Court has set aside the conviction and sentence awarded to a man in 2003 for culpable homicide not amounting to murder — as the trial court record could not be found or re-constructed despite repeated efforts.
Justice Jasmeet Singh allowed the appeal filed by one Ramesh Kaushik challenging the conviction and order of sentence passed by the trial court in October 2003.
"I am of the view that in order to affirm the conviction of the appellant, the perusal of the Trial Court Record is the essential element of hearing of the appeal. Every appellant has a right to satisfy the Appellate Court that the material evidence available on record did not justify his conviction and this is a valuable right which cannot be denied to an appellant," said the court
Kaushik was held guilty of charges under Sections 304 - Part II and 34 of IPC and was sentenced to 6 years rigorous imprisonment along with Rs. 25,000 fine, which was paid by him. He was however acquitted of the charges under Section 201 of IPC by the trial court.
"In the present case, the impugned judgment is dated 20.10.2003 and the order of sentence is dated 23.10.2003. The appeal was filed immediately thereafter and was admitted. Despite the repeated efforts of this Court, the Trial Court record has not been re-constructed. The material documents including the depositions of the witnesses are not available despite the best efforts," said the court.
On the appeal being admitted, the High Court in 2003 had called for the trial court record and the nominal roll. As the same was not received, the court on February 9, 2009 called for a report from the Registry regarding tracing out of the trial court record.
In July 2009, the concerned Deputy Registrar was directed to hold an enquiry as to why despite repeated directions, the trial court record was not being placed before the court and also to make every effort to produce the same.
Thereafter, in November 2009, the court recorded that the counsel for the parties will make endeavour to re-construct the record and place it before the concerned Registrar to facilitate its re-construction.
On September 30, 2010, the court recorded that whatever the Trial Court record could have been reconstructed was re-constructed. In July this year, the appeal was directed to be listed for hearing.
Justice Singh said that Kaushik was entitled to get the entire trial court record in accordance with the High Court procedures. The counsel appearing for Kaushik submitted that the paper book as compiled is incomplete in almost all aspects.
The documents which could not be filed due to their non-availability with the Police included Inquiry Report of ACP, Final Inquiry Report of SDM, D.D. entries, seizure and arrest memos, list of witnesses, post mortem report, FSL report, MLC, inquest report and roznamcha.
"Besides the above documents, it is also an admitted case that even the depositions of the witnesses, both prosecution and defence, have not been re-constructed and are not available on the Court record," the court said.
Agreeing with the submission made by Kaushik's counsel on merits that the witnesses had already turned hostile and the impugned judgment was based upon preponderance of probabilities, Justice Singh said:
"In addition, re-trial is also not in the interest of justice as the material documents such as Inquiry Report of the ACP, Final Inquiry Report of the SDM, Seizure Memos, Post-Mortem Report, FSL/Viscera Report, Inquest Report, MLC and depositions of the witnesses are not available."
The court further said that as per the settled principles of criminal jurisprudence, every accused carries with him the presumption of innocence even at the appellate stage.
"For the aforesaid reasons and as per the guidelines laid down in the judgment titled "State of UP v. Abhay Raj Singh and Anr.", the appeal is allowed and the order of judgment dated 20.10.2003 and order of sentence dated 23.10.2003 are hereby set aside," the court ordered.
Title: RAMESH KAUSHIK v. STATE OF DELHI
Citation: 2022 LiveLaw (Del) 1141
Click Here To Read Order