Full Text
HIGH COURT OF DELHI
JUDGMENT
THE STATE (GNCT OF DELHI) .....Petitioner
For the Appellant: Mr. Ritesh Bahri, APP with Ms. Divya Yadav and
Mr. Vinesh Kumar, Advocates For the Respondents: Mr. K.K. Manan and Mr. R.S. Malik Senior
Advocates with Ms. Uditi, Mr. Karmanya Singh, Mr. Lavish Chandra, Ms. Rakshi, Ms. Tanya Tyagi, Ms. Shivani Varun, Ms. Nirali Vashisht, Ms. Sajili, Mr. Angad Singh, Mr. Shashank and Ms. Savita Seth, Advocates. for R-1
Mr. N. Hariharan, Senior Advocate with Mr. Rajeev Mohan, Mr. Nishant Madan, Mr. Shivender Gupta, Ms. Punya Rekha Angara, Mr. Aman Akhtar, Ms. Vasundhara N. Ms. Bana Singh, Ms. Vasundhara Raj Tyagi, Mr. Aijan Singh Mandla & Ms. Gauri Ramachandran, Advocates for R-2
HON'BLE MR. JUSTICE MANOJ JAIN
1. A petition seeking leave to appeal has been filed under Section 378 Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.) by the State.
2. It needs to be seen whether delay in filing the same can be condoned or not; and if yes, whether leave needs to be given or not.
3. Since the case pertains to sexual assault upon a minor girl and her murder, she would be referred to as „S‟ in the present order. „S‟ had one friend who was also minor and he shall be referred to as „N‟.
4. Incident is of 20th December, 2016.
5. At about 9.25 PM, police received information from Ayushman Hospital, Dwarka that a girl („S‟) had been „brought dead‟ at their hospital and that her death was due to suspected gunshot injury.
6. Police team reached the hospital where they met mother of „S‟ and one of the accused i.e. Yogesh Bhardwaj@ Sonu (respondent No.2 herein). „N‟ was also present at the hospital.
7. FIR was registered on the basis of statement made by mother of „S‟ next morning.
8. Both the accused i.e. Yogesh Bhardwaj @ Sonu and Shubham Gupta were arrested and chargesheeted for commission of offences under Sections 302/363/34 Indian Penal Code, 1860 (hereinafter referred to as IPC), 25/27/30 Arms Act & 77 Juvenile Justice Act,
2015.
9. The conclusion given in the charge-sheet unfolds the story as under: - “From the investigation conducted so far it has been found that on 20.12.2016 accused Shubham and Yogesh Bhardwaj took deceased „S‟ alongwith them in Mercedes car No. UK-07BW-0002. They all took drinks and smoke Hooka. In the mean time, „S‟ received a call from her mother. Her mother asked her about her whereabout. „S‟ replied that she is with „N‟. After some time „S‟ received call from „N‟. Shubham asked her about „N‟ to which she replied that „N‟ is her friend. This statement made Shubham angry. „N‟ was making repeated calls to „S‟ after that Shubham asked Yogesh Bhardwaj @ Sonu to take car towards home. On the way to „S‟ house, they met Yashish who is brother of „S‟ and „N‟ on Scooty. „N‟ asked „S‟ that where was she for whole day. Thereafter, Yashish and „N‟ went away on their scooty and Mercedes also followed them. „N‟ and Yashish (brother of „S‟) stopped at crossing near „S‟ house. Mercedes also stopped at crossing. Shubham and Yogesh Bhardwaj @ Sonu alighted from Mercedes car and started talking with „N‟. Shubham started arguing loudly with „N‟ after which Yogesh Bhardwaj advised Shubham to put end to root cause of arguments i.e „S‟ and also handed over his pistol to him. Thereafter Shubham went to Mercedes car, opened left side door of the car and shot „S‟ who was sitting in rear seat of the car and fled way from scene of crime. Both accused persons namely Shubham and Yogesh Bhardwaj @ Sonu connived with each other and murdered „S‟.”
10. It will also be worthwhile to mention that blood and semen samples of both the accused had been collected and sent to forensic laboratory for DNA profiling to assess whether those matched with DNA profile generated from the vaginal swab and other swabs of the deceased. FSL report revealed that „S‟ was sexually exploited by both the accused and, therefore, a supplementary charge-sheet under Section 6 of Protection of Children from Sexual Offences (POCSO) Act, 2012 was also filed.
11. Charges were framed accordingly.
12. Prosecution examined forty-one witnesses in support of its case.
13. Both the accused, in their statements under Section 313 Cr.P.C., denied the prosecution story.
14. During recording of such statement of accused Shubham, when asked whether he wanted to say anything else, he answered as under: - “I am innocent. PW „N‟ was friend of the child victim (deceased) for the last about 4-5 years prior to the incident. He was very possessive about the child victim (deceased) and did not like her friendship with anyone else. On the day of the incident i.e. 20.12.2016, mother of the child victim (deceased) had made a phone call to „N‟ and she enquired from him about the whereabouts of the child victim (deceased) as to whether she was with him. PW „N‟ told her that the child victim (deceased) was not with him and thereafter PW „N‟ made 10 phone calls to the child victim (deceased) and continuously threatened her to eliminate her after arrival at home. On arrival at the place of incident, PW „N‟ started abusing and fighting with me and co-accused Yogesh Bhardwaj and the child victim (deceased) got frightened and out of frustration, she committed suicide by shooting herself with a pistol lying in the car. When PW „N‟ saw that the child victim had shot herself, he fled away from the spot. It was PW „N‟, who harassed the deceased and abated her to commit suicide. After the incident, neither the family members nor PW „N‟ informed the local police. The family members of the child victim (deceased) deliberately and intentionally delayed their statements and consumed sufficient time to concoct the alleged story against me to extort money. The family members of the child victim (deceased) had not made any statement to the police at the earliest point of time as they knew that the child victim (deceased) had committed suicide.”
15. Thus, while admitting his presence at the spot, accused Shubham claimed that „S‟ had committed suicide.
16. The stand of his co-accused Yogesh Bhardwaj was, though, of complete denial and ignorance, his counsel also, however, contended before the learned Trial Court that victim had shot herself dead and in order to corroborate the same, an argument was raised that gunpowder was found on the hands of deceased victim which clearly indicated that she was the one who had pulled the trigger. Both the accused argued before the learned Trial Court that there were umpteen infirmities in the case of the prosecution which clearly suggested that the case had been set up and that there was no reality in the prosecution version.
17. Learned Trial Court, holding death to be suicidal in nature, acquitted both the accused of offences under Sections 302/363/34 IPC 4 POCSO Act and Section 77 Juvenile Justice Act, 2015 read with Section 34 IPC.
18. Accused Yogesh Bhardwaj was, albeit, held guilty under Section 30 of Arms Act and was convicted thereunder and was, eventually, sentenced to SI for six months and to pay fine of Rs. 2,000/-. Since he had already undergone imprisonment for more than the aforesaid awarded sentence, while granting him benefit of Section 428 Cr.P.C., he was directed to be released.
19. It would be also worthwhile to mention here that learned Trial Court also observed that there was gross misconduct on the part of investigating agency as police, in a malicious manner, converted a case of suicide into that of murder and thereby falsely implicated the accused persons. It also went on to observe that there was delay in registration of FIR and the testimony of eyewitnesses was tainted and while observing that the medical report and FSL report were contrary to the ocular evidence, it held that the police, in connivance with the family members of „S‟, had set up a false case and, therefore, it recommended departmental inquiry against the erring police officials as well as enquiry under Section 340 Cr.P.C. against mother of „S‟, PW „N‟ and concerned FSL expert (PW22) for malicious prosecution and false deposition.
20. The present leave to appeal has been filed by the State under Section 378 Cr.P.C. and challenge is to the aforesaid acquittal order dated 29.10.2021.
21. A combined reading of Section 378 Cr.P.C. and Article 114 of Schedule attached with Limitation Act 1963 would indicate that any such petition seeking leave to appeal is mandated to be filed within 90 days, computed from the date of order of acquittal.
22. The date of acquittal is 29.10.2021 whereas the present petition seeking leave to appeal has been filed on 31.07.2023. The State, admitting delay of 551 days in presenting the instant petition, has moved an application under Section 5 of Limitation Act, 1963 r/w Section 482 Cr.P.C. seeking condonation thereof.
23. The aforesaid application has been resisted by both the respondents, who seek its outright dismissal as it does not disclose any cause, much less a sufficient one. It is also argued that even on merits, the appeal lacks any substance.
24. Before considering the rival contentions and precedents cited at the Bar, let us take note of the reasons given by the appellant for the delay in question. Relevant paras of such application read as under: -
Counsel Criminal on 15.06.2023, as the panel of the Public Prosecutors was revised in July 2022.
10. That the file was remarked on 16.06.2023 for the purpose of drafting and filing of the present petition.
11. That firstly as per the order dated 23.03.2020 Hon‟ble Supreme Court had extended the period of limitation in Suo Moto writ petition
(Civil) No. 3 of 2020 due to covid-19 pandemic by stating that on
23.03.2020 this court directed extension of the period of limitation in all proceedings before the Courts/Tribunals including this Court w.e.f. 15.03.2020 till further orders.
12. That as per the order dated 10.01.2022 again the Hon‟ble Supreme Court had again extended the period of limitation in the context of the spread of the new variant of Covid-19 and the drastic surge in the number of COVID-19 cases across the country where in the Hon‟ble Supreme Court held that the order dated 23.03.2020 is restored and in continuation of the subsequent orders dated 08.03.2021, 27.04.2021, & 23.09.2021 it is directed that the period from 15.03.2020 till 28.02.2022 shall stand excluded for purposes of limitation as may be prescribed under any general or special laws in respect of all judicial or quasi-judicial proceedings.
13. That in the aforesaid matter, the Appellant could not file the present Appeal before the Hon'ble High Court within stipulated period as the file pertaining to the present case had to pass through the various authorities; and after passing through various channels, the file of the case along with the opinion regarding the case being fit for challenging the judgment was sent to the Department of Law and Justice and Legal Affairs.
14. It is submitted that the delay was neither intentional; nor deliberate. The present application is being filed bona fide and in the interests of justice. Severe prejudice would be caused if the delay is not condoned. It is submitted that the Appellant has a good case on merits.
15. That due to the above mentioned circumstances, administrative process and the moving of file to one table to another for requisite formalities the limitation period expired and as such there is a delay in filing the present appeal.
16. That the petition was sent to the SHO of P.S. Najafgarh on 17.07.2023 and received on 28.07.2023 for signing of affidavits and hence there was a delay in filing the present appeal.”
25. It is no longer res integra that while considering any such application seeking condonation of delay in a criminal appeal of the present nature, Section 5 of Limitation Act, 1963 would stand attracted. Reference be made to Mangu Ram vs. MCD: 1975 SCC OnLine SC 398.
26. We are also mindful of the fact that the present appeal relates to unfortunate death of a minor girl and in such a situation, the Court is required to take pragmatic approach, while also being alive to the concerns of family members of deceased.
27. The reasons assigned by the State have already been extracted above.
28. The order of acquittal is dated 19.10.2021 when the entire country was, still, reeling under the pandemic of Covid-19. Being mindful of the difficulties being faced by the litigants in approaching the Courts, Supreme Court in Cognizance for Extension of Limitation, In re: 2022 SCC OnLine SC 27 directed for extension of limitation and the period falling from 15.03.2020 to 28.02.2022 was, thus, directed to be excluded for the purpose of limitation. It was also directed that, in cases, where the limitation would have expired during the period between 15.03.2020 till 28.02.2022, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days to be calculated from 01.03.2022.
29. Thus, the aforesaid judgment, in context of appeal in hand, extends limitation till 31.05.2022.
30. However, it is apparent that even thereafter, there was sluggish processing of the matter.
31. The file, though, had already been assigned on 18.01.2022 to a particular Prosecutor, the same was returned by her on 15.06.2023. The reason of returning the file was revision of the panel of Public Prosecutors, in the interregnum.
32. The concerned Prosecutor should not have retained the file for such long period. Since panel had been revised in July, 2022, there was no reason or occasion for said Prosecutor to have kept the file with her for around one year. Moreover, the assigning department should have also been watchful and vigilant and it should have, itself, requisitioned the same from her.
33. Nothing in that direction was contemplated, either.
34. Mr. Ritesh Bahri, learned APP for State though admits that there is considerable delay but supplements that such delay is neither intentional nor deliberate. He also submits that State has a very good case on merits and when the Court is required to weigh the technicalities vis-à-vis merits of the case, the preference should be given to the latter. He relies upon Urban Improvement Trust Vs. Smt. Vidhya Devi & Ors.: 2024 (15) SCALE, Sheo Raj Singh (deceased) through LRs & Ors. Vs. Union of India: AIR OnLine 2023 SC 813 and Collector Land Acquisition Anantnag and Another Vs. Mst. Katija and Others: 1987 (28) ELT 185 (SC).
35. Mr. K.K. Manan, learned Senior Counsel for respondent No. 1 and Mr. N. Hariharan, learned Senior Counsel for respondent No. 2 have, with all vehemence, contended that there is no merit or substance in the present application and no sufficient cause has been presented, necessitating condonation of delay which is, even otherwise, an enormous one. They contend that delay can be condoned when it is explained satisfactorily and not otherwise. It is argued that existence of “sufficient cause” is a condition precedent for exercising any discretion under Section 5 of Limitation Act and that Limitation Act does not create any distinction between a private litigant and State and, therefore, delay should not be condoned, merely because the appellant is State.
36. Respondent no. 1 has placed reliance upon Ram Swaroop & Ors. Vs. State of Rajasthan: 2004 (1) JCC 555, Kunju Mohammed @ Khumani and Anr. Vs. State of Kerala: JT 2003 (7) SC 114, Basawaraj and Anr. Vs. The Spl. Land Acquisition Officer: AIR 2014 SC 746, Pundlik Jalam Patil (D) By LRS v. Exe. Eng. Jalgaon Medium Project & Anr.: VIII (2008) SLT 575 and Ajay Dabra Vs. Pyare Ram & Ors.: 2023 IV AD (SC) 95.
37. Mr. N. Hariharan, learned Senior Counsel for respondent No. 2 submits that manner in which the present leave to appeal has been filed is nothing but a sheer abuse of the process of law as no cause, much less a sufficient one, has been offered by the appellant which may persuade this Court to condone the delay. Reliance has been placed upon Postmaster General Vs. Living Media India Limited: (2012) 3 SCC 563, The State (NCT of Delhi) Vs. Aarif: Crl.L.P. 322/2023 (DoD: 06.07.2023, The State (GNCT of Delhi) Vs. Mohd. Haider: Crl.L.P. 323/2023 (DoD: 06.07.2023), The State (GNCT of Delhi) Vs. Mukesh: Crl.L.P. 325/2023 (DoD: 07.07.2023), The State of Madhya Pradesh & Ors. Vs. Bherulal: SLP (C) Diary No. 9217 of 2020 and Deptt. Of Health, Govt. of NCT of Delhi Vs. Kamla Mehndiratta & Ors.: 2023 DHC 5598. It is argued that Section 5 of Limitation Act cannot be construed liberally merely because appellant is an instrumentality of the government.
38. Mr. N. Hariharan, learned Senior Counsel also submits that even on merits, appellant is not entitled to seek leave. It is contended that as far as accused Yogesh Bhardwaj is concerned, none of the material witnesses supported the case of prosecution as they did not whisper anything which may even remotely indicate his complicity. On the contrary, accused Yogesh was the one who had brought the injured to the hospital from the spot. It is argued that since FSL report was, rightly, held as procured and manipulated one, learned Trial Court was compelled to initiate inquiry proceedings against those witnesses who had deposed falsely before the Court during trial.
39. Learned APP for the appellant submits that the contradictions which appear in the testimony of PW[2], PW[3] and PW[4] are trivial in nature and should not have been given any undue weightage. He contends that FSL report could not have been discarded in the manner it has been done. It is argued that as per the testimony of the concerned Ballistic Expert (PW15), gunshot residual (GSR) can find its traces on third person if there was any scuffling and such aspect has not been appropriately considered by the learned Trial Court. It is submitted that if the testimony of material witnesses is perused carefully, it would clearly indicate that it was a case of homicide and not of suicide.
40. We are fully cognizant of the fact that we are not hearing final arguments on the appeal as such.
41. Though, while hearing final arguments with respect to appeal against any acquittal, the Court can go into elaborate re-evaluation and appraisal of the evidence, at the initial stage of considering the aspect of grant or refusal of leave to appeal, the Court is merely required to find out whether any arguable case has been made out or not, and, therefore, no detailed and comprehensive appraisal is required. Reference in this regard be made to the following observations made by Supreme Court in Manoj Rameshlal Chhabriya vs. Mahesh Prakash Ahuja and Another: 2025 SCC OnLine SC 451: -
have been raised and not whether the order of acquittal would or would not be set aside.
21. It cannot be laid down as an abstract proposition of law of universal application that each and every petition seeking leave to prefer an appeal against an order of acquittal recorded by a trial court must be allowed by the appellate court and every appeal must be admitted and decided on merits. But it also cannot be overlooked that at that stage, the court would not enter into minute details of the prosecution evidence and refuse leave observing that the judgment of acquittal recorded by the trial court could not be said to be “perverse” and, hence, no leave should be granted. xxxxxxxxx
24. We may hasten to clarify that we may not be understood to have laid down an inviolable rule that no leave should be refused by the appellate court against an order of acquittal recorded by the trial court. We only state that in such cases, the appellate court must consider the relevant material, sworn testimonies of prosecution witnesses and record reasons why leave sought by the State should not be granted and the order of acquittal recorded by the trial court should not be disturbed. Where there is application of mind by the appellate court and reasons (may be in brief) in support of such view are recorded, the order of the court may not be said to be illegal or objectionable. At the same time, however, if arguable points have been raised, if the material on record discloses deeper scrutiny and reappreciation, review or reconsideration of evidence, the appellate court must grant leave as sought and decide the appeal on merits. In the case on hand, the High Court, with respect, did neither. In the opinion of the High Court, the case did not require grant of leave. But it also failed to record reasons for refusal of such leave.” (emphasis supplied)
42. Thus, at this juncture, a full-fledged hearing on merits of the appeal is neither desirable nor permissible.
43. The first and foremost consideration is whether the delay can be condoned or not.
44. Most of the precedents cited by learned Prosecutor as well as by learned Senior Counsel, are, primarily, concerning civil matters and though the underlying principle to assess existence of „sufficient cause‟ may apply in a criminal case as well, the appellate court, particularly while dealing with a case of murder, cannot keep aside the fact that a precious life has been lost and, therefore, technicalities should not be, generally speaking, permitted to override and throttle the merits of the case.
45. In State of Madhya Pradash Vs. Bherulal (supra), the Supreme Court was considering delay of 663 days in filing Special Leave Petition (SLP), whereas, herein, we are concerned with first appeal in a murder case. Deptt. Of Health, Govt. of NCT of Delhi Vs. Kamla Mehndiratta & Ors. (supra) deals with condonation of delay in filing restoration application which, evidently, has to be dealt with differently. Undoubtedly, as per some precedents cited by respondent No. 2, Co-ordinate Bench of this Court had refused to condone the delay in filing leave to appeal but at the same time, each case has to be considered in the backdrop of its peculiar features and there cannot be any strait-jacket formula in this regard.
46. Here, there is nothing to indicate that there was any lack of bonafide or gross negligence as such.
47. Yes, there is huge delay but fact remains that the length of delay cannot be the lone decisive factor. The Court is required to take note of all the attendant facts and has to adopt a practical approach. Undoubtedly, appellant should have been quick in taking decision and though there is no proper explanation as to why the file was not assigned to other Prosecutor, after the panel was revised, it is also true that there is nothing to indicate any malafide either.
48. The indolence on the part of processing agency cannot, ipso facto, be labelled as driven by malice and viciousness. In State of Nagaland v. Lipok Ao: 2005 SCC OnLine SC 649, Supreme Court was considering condonation of delay in lodging appeal against acquittal in a murder case. Though delay was relatively less in that case, Supreme Court observed that when substantial justice and technical approach are pitted against each other, the former has to be preferred. It held that if the appeals brought by the State are lost for delay, no person would be affected individually but in the ultimate analysis, public interest would suffer and, therefore, expression “sufficient cause” should be considered with pragmatism in a justice-oriented approach rather than the technical detection of sufficient cause for explaining every day's delay. It also held that the court should decide the matters on merits, unless the case is hopelessly without merit.
49. In Sheo Raj Singh v. Union of India (supra), while upholding the decision of the High Court of condoning delay, Supreme Court observed that such an exercise of discretion does, at times, call for a liberal and justice-oriented approach, where certain leeway could be provided to the State. It observed that the hidden forces that are at work in preventing an appeal by the State being presented within the prescribed period of limitation so as not to allow a higher court to pronounce upon the legality and validity of an order of a lower court and thereby secure unholy gains, can hardly be ignored. Impediments in the working of the grand scheme of governmental functions have to be removed by taking a pragmatic view on balancing of the competing interests.
50. In the instant case, clearly, State has not suppressed anything. The processing of the file, though, was dull and dreary, it was, certainly, not wanton.
51. We may also hasten to add that if delay, in an appeal against acquittal in a murder case is found to be motivated and with some ulterior objective, the Court, irrespective of condonation, would, certainly, not shy away from taking stern action against the person concerned.
52. Here, we don‟t come across anything suggesting malafide or calculated inaction.
53. Indubitably, in such type of murder appeals, it is imperative to have, at least, one judicial scrutiny. It happens to be first appeal and such right cannot be permitted to be crucified on the altar of technicalities.
54. Keeping in the mind the above and also the fact that the present case relates to death of a minor girl, we are inclined to condone the delay.
55. Delay is accordingly condoned.
56. Having heard the learned counsel and on perusal of forensic evidence and testimony of material witnesses, it cannot be said that there is no prima facie case or arguable issue raised in the present appeal. Whether it was, actually, a case of suicide or homicide would become clearer when we appraise evidence in detail and hear final arguments on merits of the appeal.
57. Resultantly, we also grant leave to appeal and direct that the present petition may be registered as Criminal Appeal.
58. Both the respondents are, however, directed to submit personal bond and surety bond in a sum of Rs. 25,000/- each. Let such bonds be furnished before learned Joint Registrar (Judicial) on 25.11.2025.
59. List before us on 15.12.2025.
60. We, however, wish to clarify that the observations made hereinabove, while granting leave to appeal, are based on prima facie analysis only and shall not be construed and interpreted as final reflection on merits.
(VIVEK CHAUDHARY) JUDGE (MANOJ JAIN)
JUDGE NOVEMBER 11, 2025/dr/sa