rajdeep kumar 1 year ago

rajdeep

On April 16, 2025, the Delhi High Court, in Radha Kushwaha v. State (NCT of Delhi) (CRL.M.C. 1075/2025), dismissed a petition under Section 482 of the Code of Criminal Procedure, 1973 (CrPC) and Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), challenging the Trial Court’s order dated February 10, 2025. The Trial Court had rejected the petitioner’s fourth application under Sections 306/307 CrPC seeking a tender of pardon to become an approver in a murder case (FIR No. 130/2012, under Sections 302/201/34/120B IPC). The High Court found the Trial Court’s dismissal justified, citing the petitioner’s contradictory affidavits, self-exculpatory statements, and potential prejudice to the prosecution’s case. This blog analyzes the case details, the court’s reasoning, and its implications for pardon applications in criminal trials.

Case Background

The petitioner, Radha Kushwaha, faced trial alongside her husband, Mohd. Khalid, and co-accused Jeetu and Dinesh in a case arising from FIR No. 130/2012, registered at P.S. Chhawla, Delhi, for the murder of Sanjay Kumar Rohilla. On June 13, 2012, police discovered a mutilated, decomposed body in a locked house (House No. B-12, Shyam Vihar, Najafgarh), following reports of a foul smell. The body, identified as Rohilla’s, had severed limbs and head, found in polythene packets. The prosecution alleged that Radha, under Khalid’s coercion, lured Rohilla to the house suspecting an extramarital affair, where the co-accused killed and dismembered him in pursuance of a conspiracy.

The trial, pending since 2012, had seen 44 of 45 prosecution witnesses examined by February 2025. Radha, granted bail on January 16, 2018, filed multiple applications to become an approver:

• First Application (withdrawn on December 7, 2023, with liberty to file afresh).
• Second Application (dismissed on July 5, 2024; liberty granted by High Court on August 9, 2024, in CRL.M.C. 6202/2024).
• Third Application (dismissed on November 29, 2024; liberty granted by High Court on October 7, 2024, in CRL.M.C. 7791/2024).
• Fourth Application (dismissed on February 10, 2025, challenged in this petition).

Radha’s fourth application, supported by an affidavit dated November 8, 2024, claimed she acted under Khalid’s threat to harm her 1½-year-old daughter and was ready to make a full disclosure. The Trial Court rejected it, citing contradictions in her affidavits, self-exculpatory statements, and opposition from the prosecution. Radha sought to set aside this order, arguing the Trial Court erred in comparing affidavits and dismissing her application.

Key Arguments

Petitioner’s Submissions

Represented by Mr. Joginder Tuli and others, Radha argued:

1. Coercion and Bona Fides: Radha acted under Khalid’s threat to kill her daughter, compelling her to lure Rohilla. Her affidavit dated November 8, 2024, outlined her intended testimony, demonstrating her willingness to disclose all facts as an approver.
2. 
   
3. Affidavits Not Evidence: The Trial Court wrongly treated her prior affidavits as evidence under Section 3 of the Indian Evidence Act, 1872 (IEA) or Section 296 CrPC. These affidavits, filed to show bona fides, should not have been compared for contradictions, as they were not formal evidence.
4. Trial Court’s Error: The dismissal was arbitrary, ignoring her coercion claim and the affidavit’s outline. The court should discard prior affidavits, reconsider the November 8, 2024 affidavit, and grant pardon afresh.
5. Precedents: Cited Narayan Chetanram Chaudhary v. State of Maharashtra (2000), Rahul Yadav v. State (2023), and Jayalakshmi Jaitly v. CBI (2013), where pardon was granted, arguing her case warranted similar relief.

Respondent’s Submissions

Represented by Mr. Ajay Vikram Singh, Additional Public Prosecutor, the State argued:

1. Trial Court’s Discretion: The Trial Court’s subjective satisfaction, based on contradictory affidavits and prosecution opposition, justified the dismissal. The affidavits were self-serving and damaging to the prosecution’s case.
2. 
   
3. Contradictory Affidavits: Radha’s affidavits contained inconsistencies on key details (e.g., dates of calls, sequence of events, witnessing the crime, and body disposal), undermining her credibility as an approver.
4. Prosecution Opposition: Unlike the cited precedents, the prosecution opposed Radha’s application, citing prejudice to its case, as her testimony contradicted evidence like the recovery of body parts from the house, not a loader.
5. Late Stage: With 44 witnesses examined, granting pardon at this stage risked derailing the trial, especially given Radha’s untrustworthy statements.

Court’s Analysis and Decision

Justice Amit Sharma dismissed the petition, upholding the Trial Court’s order. Key findings included:

1. Trial Court’s Subjective Satisfaction: The power to grant pardon under Sections 306/307 CrPC depends on the court’s judicial conscience, assessing whether the approver’s testimony aids the prosecution. The Trial Court, after reviewing Radha’s affidavits, found them self-exculpatory and damaging, justifying dismissal.
2. Contradictory Affidavits: The Trial Court detailed contradictions in Radha’s affidavits across applications, including:

• Call Dates: Varied claims about calling Rohilla on June 3–6, 2012, or mistakenly 2017, and differing dates (June 5 or 6) for his agreement to meet.
• Sequence of Events: Inconsistent accounts of being locked in a room (asked vs. pushed), Khalid’s use of her chunni to strangle Rohilla, and Dinesh’s role.
• Witnessing the Crime: Early affidavits claimed Radha fainted and did not witness the murder, while later ones detailed Khalid, Dinesh, and Jeetu’s actions (e.g., cutting limbs, taping the body).
• Body Disposal: Earlier affidavits stated body parts were placed in a loader, contradicting the prosecution’s evidence of recovery from the house; the fourth affidavit aligned with the prosecution but was inconsistent with prior claims.

1. These contradictions, not minor, went to the root of the prosecution’s case, rendering Radha’s testimony unreliable.
2. Affidavits as Record: Radha’s argument that prior affidavits were not evidence under Section 3 IEA or Section 296 CrPC was rejected. The Trial Court correctly considered all affidavits as part of the record to assess her bona fides and consistency, as they were filed to demonstrate her readiness to disclose facts. Other accused could use these contradictions to challenge her credibility if pardon were granted.
3. Prosecution Opposition: Unlike Narayan Chetanram Chaudhary, Rahul Yadav, and Jayalakshmi Jaitly, where the prosecution supported pardon, the State opposed Radha’s application, arguing her testimony would prejudice the case. The court cited Lt. Commander Pascal Fernandes v. State of Maharashtra (1967), emphasizing that pardon requires prosecution support, as the court acts on behalf of the prosecuting agency, not independently.
4. Self-Exculpatory Testimony: Radha’s affidavit was self-serving, claiming she acted under coercion and only lured Rohilla, omitting key details (e.g., her use of a mobile number linked to a coaching center banner at the crime scene). Such testimony risked damaging the prosecution’s case, which alleged her active role in the conspiracy.
5. Trial Stage: With 44 of 45 witnesses examined, granting pardon late in the trial could disrupt proceedings, especially given Radha’s contradictory and untrustworthy statements.
6. No Interference Warranted: The Trial Court’s reasoned order, based on material evidence and prosecution opposition, did not warrant interference under Section 482 CrPC or Section 528 BNSS. The court clarified that its observations were limited to the pardon issue and did not prejudice the trial’s merits.

The petition and pending applications were dismissed, with the judgment sent to the Trial Court for compliance.

Implications of the Judgment

This ruling has significant implications for pardon applications under Sections 306/307 CrPC:

1. Judicial Discretion in Pardon: The court reaffirmed that granting pardon is a discretionary act guided by judicial conscience, requiring the approver’s testimony to advance justice without prejudicing the prosecution. Contradictory or self-exculpatory statements justify rejection.
2. Prosecution’s Role: Citing Pascal Fernandes, the court emphasized that pardon typically requires prosecution support, as the court acts on behalf of the prosecuting agency. This limits courts from granting pardon sua sponte when the prosecution opposes.
3. Affidavit Scrutiny: Affidavits filed with pardon applications, even if not formal evidence under Section 3 IEA, are part of the record and subject to scrutiny for consistency and bona fides. Contradictions can undermine credibility and justify dismissal.
4. Timing of Applications: Late-stage pardon applications, especially after most witnesses are examined, face higher scrutiny, as they risk disrupting trials, particularly when the applicant’s reliability is questionable.
5. Precedent Distinction: The court distinguished cases like Narayan Chetanram Chaudhary due to prosecution support in those instances, clarifying that pardon decisions are fact-specific and depend on prosecution stance and evidence reliability.
6. Protection Against Prejudice: The ruling protects prosecution cases from unreliable approvers whose testimony could introduce favorable facts for co-accused or create doubt, reinforcing the corroboration requirement for approver evidence.

Conclusion

The Delhi High Court’s decision in Radha Kushwaha v. State (NCT of Delhi) upholds the Trial Court’s rejection of a pardon application, emphasizing the need for consistent, reliable, and prosecution-supported testimony to grant pardon under Sections 306/307 CrPC. By affirming the Trial Court’s scrutiny of contradictory affidavits and deference to prosecution opposition, the court ensures that pardon serves justice without compromising fair trials. The ruling clarifies procedural standards for approver applications, particularly in late-stage trials, and underscores the prosecution’s critical role in such decisions.

For accused seeking pardon, this judgment highlights the importance of consistent disclosures and early applications, supported by prosecution consent. For prosecutors, it reinforces the need to assess an approver’s reliability to avoid prejudicing the case. As trials under serious offenses like murder continue, this decision strengthens judicial oversight in balancing approver testimony with prosecution integrity.