RANI MISHRA vs. STATE & ORS.

$~10 & 11
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision : August 20, 2014

+ CRL.A. 1410/2013
UDEY KANT MISHRA ..... Appellant
Represented by: Mr.Mukesh Kalia, Advocate with
Mr.Bharat Kapoor and Mr.Karan
Sachdeva, Advocates with Appellant
in person

versus

STATE ..... Respondent
Represented by: Ms.Aashaa Tiwari, APP
Insp.Rajesh Kumar Mishra, SHO and
SI Mahender, Sultan Puri

CRL.A. 187/2014
RANI MISHRA ..... Appellant
Represented by: Mr.R.K.Thakur, Advocate

versus

STATE & ORS. ..... Respondents
Represented by: Ms.Aashaa Tiwari, APP
Insp.Rajesh Kumar Mishra, SHO and
SI Mahender, Sultan Puri
Mr.Mukesh Kalia, Advocate with
Mr.Bharat Kapoor and Mr.Karan
Sachdeva, Advocates for R-2 to R-4
with R-2 to R-4 in person

CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE MUKTA GUPTA
Crl.A.Nos.1410/2013 & 187/2014 Page 1 of 8

PRADEEP NANDRAJOG, J. (Oral)

1. Rani Mishra, wife of Kamlesh Mishra is aggrieved by the fact that
vide impugned decision dated October 04, 2013, the learned Trial Judge has
acquitted Uday Kant Mishra, his wife Rekha and one Janak Ram for the
offence punishable under Section 302/34 IPC. She is further aggrieved by
the fact that Rekha and Janak Ram have been acquitted of the offence
punishable under Section 201/304 IPC.

2. She challenges the decision in Crl.Appeal No.187/2014.
3. Uday Kant Mishra lays a challenge to the same decision vide
Crl.Appeal No.1410/2013, being aggrieved by the fact that he has been
convicted for the offence punishable under Section 201 IPC.
4. We may note at the outset that only Uday Kant Mishra and his wife
Rekha were charged for the offence punishable under Section 302/34 IPC.
Janak Ram was not charged for the said offence. Thus, Rani Mishra raising
any grievance concerning the impugned decision relating to Janak Ram qua
the murder of her husband is obviously misdirected.
5. Learned counsel for Rani Mishra would urge that the view taken by
the learned Trial Judge in acquitting the accused for the offence
punishable under Section 302/34 IPC is misplaced for the reason four
incriminating circumstances have been overlooked; and cumulatively
considered, the same are sufficient to nail the guilt of Uday Kant Mishra and
his wife Rekha Mishra. The four circumstances pointed out are : (a) the
place where dead body of Kamlesh Mishra was recovered is at a distance of
about 150 meters from the residence of Uday Kant Mishra and his wife
Rekha Mishra; (b) the two absconded after the dead body was discovered;
Crl.A.Nos.1410/2013 & 187/2014 Page 2 of 8

(c) wire Ex.P-5 recovered at the instance of Uday Kant Mishra was the
counter part of the wire Ex.P-4 which was the ligature material to
strangulate the deceased; and (d) motive emanating from the testimony of
Sumant Kant Jha PW-2, Rani Mishra PW-5 and Prashuram Mishra PW-9.
Learned counsel urged that there was a serious contradiction in the
impugned decision because concerning the wire Ex.P-5 recovered at the
instance of Uday Kant Mishra the learned Trial Judge has accepted that it
was the counter part of the remainder wire Ex.P-4 which was the ligature
material with which the deceased was strangulated and in relation whereto
Uday Kant Mishra has been convicted for the offence punishable under
Section 201 IPC, ignoring that if a wire is used to strangulate somebody
and it breaks, on proof that one broken part was recovered at the instance
of the accused which matched the other broken part found around the
neck of the dead body, the only logical conclusion would be that unless the
accused explained as to how he had knowledge of one broken part and got
the same recovered, the accused was the person who strangulated the
deceased.
6. There being considerable logic in the submission advanced
concerning the wire Ex.P-5 and its alleged counterpart Ex.P-4, we consider
the evidence relating to Ex.P-4 and P-5 at the first instance.
7. The scientific expert who had examined the wire Ex.P-4 and Ex.P-5,
Sh.Parshuram Singh PW-32 in his cross-examination deposed as under:-
“It is correct that Ex.P4, is broken piece of Ex.P5 and it was
not separated by any cutting instrument It depends on the
body strength of the person as to whether this black wire can
be broken with physical strength or any cutting instrument is
required to make out a piece from the same. Without any
Crl.A.Nos.1410/2013 & 187/2014 Page 3 of 8

testing I cannot tell how much force was required to break
this black wire into two pieces. This aspect was not examined
by me as was not asked. It is correct that remaining portion
of this particular wire Ex.P4, if any, will be having the same
characteristics as of this wire Ex-P4 in the said lot as
mentioned by me at point 1 of my report. By word „contour‟ I
mean the pattern of edges which forms at the time of
separating one wire into two pieces by force.
I did not examine both the wires Ex.P4 and Ex.P5 on
comparison microscope . I examined both the wires physically
and under microscope. It is wrong to suggest that due to
elasticity of the material, in case of breaking of wire by force
the pattern of edges cannot be fitted with each other in all
case except few cases depending upon the degree of elasticity
of material. There is a procedure to fit the pattern of edges
at the time of framing opinion as to whether one part of
material belongs to other part of the material.
It is correct that point 1A of Ex.P4 is having copper
wire till its broken point and is visible. It is correct that point
2A of Ex.P5 is having copper wire beyond its broken point
having length of 2.5 inches approximately and is visible. Vol.
There is a tendency of extraction of core wire of a cable at the
time of breaking the same by force and because of this reason,
the copper wire having length of 2.5 inches is visible at point
2A of Ex.P5. It is correct that I have not mentioned this fact
in my report Ex.PW32/A.” ( Emphasis underlined)

8. Pertaining to evidentiary reliability of an expert opinion, the Frye’s
test has three fundamental components:-
(a) It has to be satisfactorily shown that the expert evidence/opinion
relates to a scientific, technical or other specialized knowledge and that the
theory or technique applicable to the science, technology or specialized field
is based on a methodology, hypothesis or tests which has/have been
subjected to peer review and publication i.e. there exists standards
controlling the techniques’ operation and the same are generally accepted
Crl.A.Nos.1410/2013 & 187/2014 Page 4 of 8

and additionally that it has been accepted that the relationship of the
technique to methods has been established to be reliable keeping into
account known or potential rate of error.
(b) The author of the opinion qualifies to be called an expert; by
knowledge, skill, experience, training or education. It has to be kept in mind
that the level of expertise may not affect the admissibility of evidence of the
expert but certainly affects the weight to be accorded to the opinion of the
expert.
(c) The proffered experts’ testimony must reveal that the methodology,
hypothesis or techniques applicable and the theory behind the principles
applicable have been applied by the expert and that the expert is mindful of
the known or potential rate of error in the derivative of the technique or
methodology to the subject thereof.
9. The testimony of the expert would evidence that the third limb of the
Frye’s test is not met by the expert. His opinion lacks credibility because
he did not examine the wire Ex.P-4 and Ex.P-5 on comparison microscope.
It needs hardly any emphasis to bring home the point that when a wire
breaks due to tension resulting from the two ends of the wire being pulled,
the point at which the wires snaps would cause an irregular shaped cross-
section in the two faces of the snapped wire. Only if somebody examines
the two broken parts on comparison microscope would he be able to see that
one face fits into the other with such precision that it can safely be said that
one is the component of the other.
10. That apart we find a serious flaw in the truncated opinion of the
forensic expert. The flaw is that the seizure memo Ex.PW-16/D of the wire
Ex.P-5 at the instance of Uday Kant Mishra makes a mention of the
Crl.A.Nos.1410/2013 & 187/2014 Page 5 of 8

description of Ex.P-5 as follows: MODERN (R) REGD.NO.510203 CO-
AXIAL CABLE 75 OAMO. The cable wire Ex.P-5 found around the neck
of the deceased, as per the seizure memo Ex.PW-19/A makes a mention of
the description as follows: MODERN (R) REGD.NO.510203 AXIAL
CABLE 75 JHMS.
11. It is apparent that the two cable wires were manufactured by the same
manufacturer having same registration number but the difference in the two
was that whereas one was „CABLE 75 OAMO‟ the other was „CABLE 75
JHMS‟.
12. Under the circumstances it has to be held that there is no connection
between Ex.P-4 and Ex.P-5 and it cannot be said that Ex.P-5 is the broken
part of the cable, remainder part whereof is Ex.P-4.
13. The alleged incriminating circumstance premised on Ex.P-4 and
Ex.P-5 is not established.
14. It may be true that the distance of the house of Uday Kant Mishra and
his wife Rekha from where the dead body of Kamlesh Mishra was
recovered is about 150 meters, but nothing turns thereon for the reason
incrimination is sought to be urged on the ground that the residence of the
deceased was about 15 kms from the place where his dead body was noted.
The argument was that the deceased was found murdered around the house
of Uday Kant Mishra and Rekha Mishra and 15 kms away from his house.
The argument overlooks the fact that the deceased Kamlesh Mishra was the
brother of Sumant Kumar PW-2, who admitted that he was residing about
500 meters away from the place where dead body of his brother was
recovered. If the proximity of the residence to the place where dead body of
deceased was recovered is an incriminating circumstance, it would be
Crl.A.Nos.1410/2013 & 187/2014 Page 6 of 8

equally incriminating Sumant Kumar. Be that as it may, the deceased could
be on his way to meet his brother when unexpected events overtook him
causing his death.
15. On the issue of Uday Kant Mishra and his wife Rekha Mishra
absconding, there is no clear evidence that the two absconded. The only
pointer in said direction is the testimony of Sumant Kumar who said that on
inquiry from the neighbourhood he learnt that Uday Kant Mishra and his
wife were missing since the morning of November 07, 2005. We note that
as per the prosecution the deceased was murdered on November 06, 2005.
The dead body was noticed at a vacant plot near Savitri Public School at
about 10.00 A.M. on November 07, 2005. That apart, inasmuch as
perpetrators of a crime abscond to flee from justice, innocent persons
fearing falsely being arrested also flee to save themselves and thus by
itself absconsion by itself is neither here nor there.
16. On the subject of motive, the testimony of PW-2, PW-5 and PW-9
would suggest that the motive was a belief by Uday Kant Mishra and his
wife that the deceased had an hand in the murder of their son in the State of
Bihar. But we find that said motive is a probable fancy in the mind of the
three witnesses for the reason concededly the police in Bihar had
ostensibly located the assassins of the son of Uday Kant Mishra and his wife
and had the two any suspicion that the deceased was responsible for the
murder of their son, the two could have filed an application before the
concerned Court of Sessions requiring the police in Bihar to further
investigate the matter or the two could in their deposition named the
deceased. Admittedly, they did not do so.
17. It is trite that in a case of circumstantial evidence each circumstance
Crl.A.Nos.1410/2013 & 187/2014 Page 7 of 8

has to be proved beyond reasonable doubt before an inference can be
inferred from the proved circumstance.
18. Criminal Appeal No.187/2014 filed by Rani Mishra is dismissed.
19. Criminal Appeal No.1410/2013 filed by Uday Kant Mishra is
allowed. He is acquitted of the charge under Section 201 IPC. Sentence
imposed upon him is set aside. Bail bond and surety bond furnished by him
are discharged.
20. TCR be returned.

(PRADEEP NANDRAJOG)
JUDGE



(MUKTA GUPTA)
JUDGE
AUGUST 20, 2014
skb
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