Merely because benefit of doubt has been extended to appellant, cannot be a ground to allow application u/s 340 CrPC: Delhi HC dismisses appeal of father accused of murdering his son suffering from Down Syndrome
Justice Anoop Kumar Mendiratta [01-02-2024]

Read Order: DAVESH KUMAR v. GAURI @ SUPRIYA & ORS [DEL HC- CRL.A. 963/2023]

Tulip Kanth

New Delhi, February 14, 2024:In a case of paternal filicide where the appellant-father was accused of murdering his disabled 6-yr-old son,the Delhi High Court has rejected his appeal challenging the order passed by the Special Judge whereby his application u/s 195 r/w Section 340 Cr.P.C. for initiating proceedings against the respondents(wife and other relatives) was dismissed.

The appellant had approached the Delhi High Court with an appeal filed under Section 341 of the Code of Criminal Procedure, 1973 (Cr.P.C).

The factual background of this case was that the appellant faced trial for commission of offences under Section 302/201 IPC on the allegations of murder of his disabled son ‘D’ aged about six years at his residence, who was suffering from ‘Down Syndrome’. The child was alleged to have been throttled by the appellant and cremated the dead body, thereby causing the evidence of commission of offence to disappear. Appellant also allegedly criminally intimidated his wife (respondent No.1).

It was the appellant’s case that he had faced trial and incarceration on the basis of false accusations and deposition made by the respondents with regard to commission of murder of his son ‘D’. It was vehemently submitted that after investigation, the police did not find any case against the appellant but the proceedings were continued by way of complaint case by respondent No.1.

“It is well settled that merely because a witness may make contradictory statements in two different stages in judicial proceedings, it may not by itself be sufficient to justify their prosecution for perjury, unless and until it is established that the witness intentionally made a false statement or fabricated the evidence for the purpose of use in judicial proceedings. Further, the Court is still required to form an opinion that it is ‘expedient in the interest of justice’ to initiate an inquiry into the ‘offences of false evidence’ and ‘offence against public justice’, having regard to overall factual matrix”, the Single-Judge Bench of Justice Anoop Kumar Mendirattasaid.

Noting that the imperative for initiating action under Section 340 Cr.P.C. is the concern for sustaining the purity of process of administration of justice, the Bench referred to K.T.M.S. Mohd. and Another v. Union of India [LQ/SC/1992/363] and AmarsangNathaji v. Hardik Harshadbhai Patel and Others, [LQ/SC/2016/1479] .

As per the Bench, the parameter in an inquiry under Section 340(1) Cr.P.C. is whether a prima facie case is made out, which if unrebutted, may have a reasonable likelihood to establish the specified offence and whether it is also ‘expedient in the interest of justice’ to take such action. The Court is required to keep overall factual matrix in consideration, and only in case the Court is of the opinion that it is ‘expedient in the interest of justice’, such permission needs to be granted.

“The tragedy in the instant case is awful to comprehend, since allegations of paternal filicide have been leveled by respondent No.1 (wife of appellant) against her own husband/appellant. The disability of child itself was motive, as the appellant found it difficult to cope with the profound stress faced in upbringing the disabled child”, the Bench asserted.

The complaint was lodged after a considerable delay and the testimony of the complainant had been disbelieved by the Trial Court to be insufficient to convict the appellant, since despite being witness to the alleged incident of murder she failed to report the same to the police. Further, there was no other evidence after cremation of body of deceased, to corroborate that deceased was throttled to death.

The Bench noticed that the appellant had been extended the benefit of doubt by the Trial Court in absence of incriminating evidence and contradictions in the testimony of witnesses.

The Bench made it clear that it may not be unnatural for the complainant wife to be in a shock and unable to take the expected course of action pitted against her husband. The complainantwith passage of time, gathered the courage to report the incident, being pinched by her conscience. Even the maid employed by the appellant appeard to be an independent witness to the event which unfolded after the incident.

“In the facts and circumstances, merely because benefit of doubt has been extended to the appellant in view of inconsistencies which crept in evidence of witnesses during different stages of trial, cannot be a ground to allow the application under Section 340 Cr.P.C”, the Bench held while dismissing the appeal.