Delhi High Court
Mahender Singh vs State (Govt. Of Nct Of Delhi) on 26 February, 2010
Author: Ajit Bharihoke
Bench: A.K. Sikri, Ajit Bharihoke
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: January 12, 2010
Judgment delivered on : February 26, 2010
+ CRIMINAL APPEAL NO.96/1997
MAHENDER SINGH ..... APPELLANT
Through: Mr. Bhupesh Narula, Advocate/
Amicus Curiae
Versus
STATE (GOVT. OF NCT OF DELHI) ..... RESPONDENT
Through: Mr. Sunil Sharma, Advocate
CORAM:
HON'BLE MR. JUSTICE A.K. SIKRI
HON'BLE MR. JUSTICE AJIT BHARIHOKE
1. Whether Reporters of local papers
may be allowed to see the judgment? Yes
2. To be referred to the Reporter or not ? Yes
3. Whether the judgment should be
reported in Digest ? Yes
AJIT BHARIHOKE, J.
1. This appeal is directed against the impugned judgment dated 16.10.1996 in Sessions Case No.198/95, FIR No.247/86, P.S. Sarai Rohilla holding the appellant guilty for the offences punishable under Section 302 IPC and Section 324 IPC respectively for having committed the murder of Ms. Neeru and causing simple injuries with a sharp weapon to Bhagwati Devi PW1 and Litesh Kumar PW4, respectively, as also the consequent order on sentence of the even date. Crl. A.No.96/1997 Page 1 of 17
2. Briefly stated, case of the prosecution is that the appellant Mahender Singh was running a hosiery factory in a portion of House No.L-2/54, Shastri Nagar, Delhi. Ms. Neeru (hereinafter called as the „deceased‟) was living with her parents in the other portion of the said house. On 07.07.86, the appellant accosted the deceased and her sister Asha Devi while they were coming from the market and teased the deceased, to which she objected. The deceased told this fact to her mother Bhagwati Devi, who also reprimanded the appellant.
3. On 08.07.86 at around 8:00 am, PW1 Bhagwati Devi was sitting outside her house along with her daughter Asha Devi, PW14 when the deceased came out of the house to call her mother for having tea. The appellant suddenly came there and stabbed the deceased on her back with a blade of scissors, saying that it was a lesson for complaining against him. Because of the impact of the blow, the deceased fell down on the cot and when she tried to get up, the appellant stabbed her again. When PW1 Bhagwati Devi tried to intervene, the appellant stabbed her on her left wrist. PW4 Litesh Kumar, brother of the deceased was also standing nearby and when he tried to intervene, the appellant stabbed him on his shoulder and fled away.
4. PW1 Bhagwati Devi took the deceased to Hindu Rao Hospital where she was declared brought dead vide MLC Ex.PW15/A. MLCs of injured Bhagwati and Litesh Kumar Ex.PW7/A and Ex.PW15/C were also prepared.
Crl. A.No.96/1997 Page 2 of 17
5. On 08.07.1986 at about 8:12 a.m., some unknown persons telephonically informed the police about stabbing of the deceased Neeru by the appellant Mahender, which information was recorded in the Daily Diary at entry No. 3 (Ex.PW18/A) and entrusted to SI Gopi Chand for verification, who proceeded to the spot alongwith SI Sunil Kumar, Constable Chander Bhan and Constable Sahib Singh in a police vehicle driven by driver Constable Jagdish. The SHO, P.S. Sarai Rohilla PW18 Raghunath Singh also left for the spot on receipt of the said information after noting his departure at entry No. 4 (Ex.PW18/B) at 8:15 a.m. on 08.07.1986 in the Daily Diary.
6. On reaching the spot of occurrence, the Investigating Officer, Raghunath Singh PW18 learnt that the injured Neeru had already been removed to the hospital. So, he went to Hindu Rao Hospital after leaving SI Gopi Chand to protect the spot of occurrence. At the hospital, he came to know that injured had been declared brought dead. He collected the MLC of the deceased Ex.PW15/A as also the MLC of mother of the deceased Bhagwati Devi Ex.PW7/A and the MLC of the brother of the deceased PW 4 Litesh Kumar Ex.PW15/C. He recorded the statement of PW1 Bhagwati Devi Ex.PW1/A and sent it to the police station alongwith his endorsement Ex.PW18/C for the registration of the case and on the basis of the said rukka, formal FIR Ex.PW18/D under Section 302/324 IPC was recorded at the Police Station Sarai Rohilla.
Crl. A.No.96/1997 Page 3 of 17
7. From the Hospital, Investigating Officer, Raghunath Singh came back to the spot of occurrence. He prepared the rough site plan Ex.PW18/E. At the spot, he found two pairs of chappals stated to be of the deceased and PW1, a blood-stained strap (patti) of brassier and a cot having blood stains and he took into possession the blood-stained portion of the cot and the above referred articles after converting them into sealed packets. The Investigating Officer also lifted the blood- stained earth as well as the control earth from various spots. He also conducted the inquest proceedings and sent the dead body of the deceased for post mortem examination.
8. On 13.07.86, appellant Mahender Singh was arrested. On 14.07.86, the appellant made a disclosure statement Ex.PW18/K stating that he could get the blade of scissors used for stabbing recovered. Pursuant to that disclosure statement, the appellant got recovered both the blades of scissors; one from choti gali and other from his factory, i.e., L-2/54, Shastri Nagar, Delhi. The Investigating Officer took both the blades into possession after preparing their sketches. The Investigating Officer also seized the clothes of the appellant at the time of his arrest, which were stained with blood.
9. During the course of investigation, weapon of offence, i.e., a blade of scissors was sent to the Doctor who conducted the post mortem examination for his opinion and the Doctor concerned opined that injury received by the deceased could be caused by the said blade Crl. A.No.96/1997 Page 4 of 17 of scissors. Investigating Officer also arranged for sending of the various incriminating articles and the clothes of the deceased to CFSL for chemical analysis and obtained the result of serological examination. On completion of the formalities of investigation, challan against the appellant was filed.
10. The appellant was charged for offences punishable under Section 302 IPC and Section 324 IPC. He pleaded innocence and claimed to be tried.
11. In order to bring home the guilt of the appellant, the prosecution has examined 18 witnesses. For the purpose of decision of this appeal, it would be useful to have a look at the testimony of some of the important witnesses.
12. PW1 Smt. Bhagwati Devi is the mother of the deceased and eye witness to the occurrence. She has stated that on 07.07.86, the appellant had teased her daughter Neeru. She was told about this fact by her daughter and on this, she rebuked the appellant on the same evening, on which the appellant retorted that he would continue to behave in similar manner and nobody could do anything against him. She also stated that on 08.07.96 at around 8:00 am, she was stitching the hooks to the brassieres and her daughter Achla, PW3 was also sitting there. The deceased came to call her for tea and at that very moment, the appellant suddenly came from behind and inflicted a stab blow on the person of the deceased with a scissor which resembled a Crl. A.No.96/1997 Page 5 of 17 knife. When she intervened to save her daughter, the appellant attacked her also. Her son Litesh, PW4 also reached there and the accused attacked him also. On sustaining the injuries, the deceased fell on the cot. When she and Litesh were trying to lift the deceased, the appellant ran away saying that he would kill two or more persons and nobody could take any action against him. Thereafter, she took her daughter to the hospital. She further stated that at the hospital, she was medically examined and her statement Ex.PW1/A was recorded. The witness identified the scissor used for stabbing Ex.P-1 and also identified the clothes of the deceased which she was wearing at the time of occurrence as Ex.P-2 (salwar) and Ex.P-3 (shirt). She further identified the strap (patti) of brassiers Ex.P-4 and blood-stained portion of cot Ex.P-5.
13. PW3 Kumari Achla, sister of the deceased and PW4 Litesh Kumar, brother of the deceased, were also the eye witnesses. They have also deposed to more or less similar effect. Both of them also stated that while stabbing the deceased with a blade of scissor, the accused uttered "Is saali ko kal ki shikayat ka maza chakhata Hoon".
14. PW14 Smt. Asha Devi, sister of the deceased, deposed that on 07.07.86, she and her sister Neeru had gone to the market and when they were returning back, the appellant teased her sister by saying "Tumanay mera sath jo vada kar rakhay ha nibhanay paragay". On this, they objected and told the appellant not to utter such words. Crl. A.No.96/1997 Page 6 of 17 They narrated the incident to their mother Bhagwati Devi and in the evening, Bhagwati Devi and the deceased had an exchange of hot words with the appellant.
15. PW7, Dr. Umesh Chandra Verma examined PW1 Bhagwati Devi at the hospital and had opined the nature of her injuries to be simple, caused by a sharp object. He proved her MLC Ex.PW7/A.
16. PW15, Dr. Devender Kr. Seth prepared the MLC of the deceased Neeru Ex.PW15/A and also the MLC of PW4, Litesh Kumar Ex.PW15/C, wherein he opined the stab injury on PW4 Litesh as simple, caused by a sharp object.
17. PW10, Dr. Bharat Singh conducted post mortem on the body of the deceased and he found following injuries on the dead body:
"(i) One incised wound over the left dealtwife size ½" X ¼".
(ii) One incised wound over the left arm outer middle part sized 2½" X 1" X through and through.
(iii) Three super vicial incised wound on the front of left elbow.
(iv) One incised wound on the left index figure size / ¼" X muscle deep.
(v) One incised wound on the left middle finger sized ¼" X muscle deep.
(vi) Two incised wound over the left palm size of each wound was ½" X 1/10" X muscle deep.
(vii) One incised stabed wound over the left brashed size 1" X ½" X ?.
(viii) One incised stab wound over the left breast on the outer side size of the wound was 1" X ½" X?
Crl. A.No.96/1997 Page 7 of 17
(ix) One stab incised wound on the left side Epigestic area size 11/2" X ½" X ?
(x) One incised stab wound on the left side of abdomen 2"
above iliac crest size 1" X ½" X.
(xi) One incised wound over the left ancle size 1" X ¼" X muscle deep.
(xii) One incised wound on right deltoid area sized 1 X ½" X ½".
(xiii) One incised wound on the right elbow sized 1" X ¼" X ¼".
(xiv) One incised wound on the web of right thumb and index finger size ½" X ½" X muscle deep.
(xv) One incised wound on the left side back of lower part chest size 1¼" X ½" X ?. "
18. PW10, Dr. Bharat Singh opined that all the injuries were ante mortem caused by a sharp object and that the injuries No. 7, 9, 10 and 15 were individually sufficient to cause death in the ordinary course of nature. He also stated that he handed over the sample blood as also the clothes of the deceased to the police and proved his report Ex.PW10/A. Dr. Bharat Singh deposed that on 18.09.86, one sealed packet duly sealed with the seal of „RC‟ containing one side blade and handle of scissors was produced before him by the police for his opinion and on examination, he found that the injuries described in the post mortem report might have been caused by the aforesaid part of the blade of the scissors.
19. The appellant, when confronted with the incriminating evidence, denied the prosecution story. He set up a defence of alibi by explaining that he had gone to "Vaishno Devi" on 07.07.86 and returned on 12.07.86. On his return, he was told that the police was Crl. A.No.96/1997 Page 8 of 17 after him and, therefore, he himself went to the police station and surrendered. The appellant also explained that PW1 Bhagwati used to take socks from his factory for cutting threads. She had taken some advance money also. She neither returned the money nor accounted for the same, therefore, he stopped giving work to her, which caused annoyance to PW1 Bhagwati. He further explained that the family of the complainant was also annoyed with him because of the noise created due to running of machines in his factory and that the deceased was not having good character and he had apprised PW1 Bhagwati Devi about the same, which was a further cause of annoyance to her and because of that reason, perhaps he has been falsely implicated.
20. In defence, appellant has examined his wife Pushpa Devi, DW1. She deposed that on 07.07.86, her husband Mahender Singh had gone to „Vaishno Devi‟ by the night train at 11:00 pm and he returned back to Delhi on 12.07.86. In his absence, the police had visited their house and asked about her husband and she told the police that he had gone to „Vaishno Devi‟. Thus, SHO instructed her to bring her husband to the police station as and when he returned from „Vaishno Devi‟. She stated that immediately after the return of her husband, she took him to the police station. The witness also placed on record a receipt and a slip mark „A‟ and „B‟ purported to have been issued by „Dharmarth Trust Jammu & Kashmir‟ and „Shridhar Sabha(Regd.) Katra (Vaishno Devi)‟ issued to her husband during his visit to „Vaishno Devi‟. Crl. A.No.96/1997 Page 9 of 17
21. The learned trial Judge, relying upon the eye witness account given by the ocular witnesses and other accompanying circumstances, found the appellant guilty for the offences punishable under Section 302 IPC and Section 324 IPC and convicted him accordingly.
22. The conviction of the appellant is essentially based upon the eye witness account of the occurrence given by PW1 Bhagwati Devi, the mother of the deceased, PW3 Achla, sister of the deceased and PW4 Litesh Kumar, brother of the deceased. The first contention on behalf of the appellant is that the above referred witnesses ought not to have been relied upon by the learned trial Judge because they fall within the category of interested witnesses, being the close relatives of the deceased.
23. We do not subscribe to the view propounded by the learned amicus curiae. In the matter of Dalip Singh Vs. State of Punjab, AIR 1953 SC 364, the Supreme Court laid down the law relating to the evidentiary value of a related witness by observing thus:
"26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."Crl. A.No.96/1997 Page 10 of 17
24. In a subsequent judgment, in the matter of Surinder Singh Vs. State of U.P., (2003) 10 SCC 26, the Supreme Court, on the issue of the credibility of a related witness observed thus:
"10. ...Relationship is not a factor to affect the credibility of a witness. It is more often than not that a relation would not conceal the actual culprit and make allegations against an innocent person. Foundation has to be laid if a plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse the evidence to find out whether it is cogent and credible.
13. We may also observe that the ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon, has no substance. ..."
25. From the above enunciated principles of law, it is clear that the testimony of a related witness cannot be rejected only on the ground of his relationship and it has to be appreciated like the testimony of any other witness and, if found reliable, conviction can be based upon such testimony.
26. The next submission advanced on behalf of the appellant is that the testimony of the eye witnesses PW1 Bhagwati, PW3 Achla and PW4 Litesh Kumar is otherwise also unreliable. In support of this contention, learned amicus curiae submitted that PW1 Bhagwati claims to be the witness of the occurrence and that she took the deceased to the hospital. Despite of that, perusal of the MLC of the deceased Ex.PW15/A reveals that in the history recorded in the MLC, it is mentioned " alleged history of being stabbed by someone". Learned amicus curiae submitted that had PW1 Bhagwati been the eye-witness Crl. A.No.96/1997 Page 11 of 17 of the occurrence, she would have given the name of the appellant as assailant while narrating the history to the doctor. Learned amicus curiae further submitted that according to PW1 Bhagwati Devi, the weapon used by the appellant was a knife, whereas the case of the prosecution is that the deceased was stabbed with a separated blade of a pair of scissors. He further pointed out that even the blood- stained clothes of PW1 Bhagwati were not seized, which also leads to an inference that she actually did not take the deceased to the hospital, otherwise her blood-stained clothes would have been seized by the Investigating Officer to substantiate the prosecution claim that she actually witnessed the occurrence and also took the deceased to the hospital. Regarding PW3 Achla, learned amicus curiae submitted that she, in her cross-examination, deposed that her statement under Section 161 Cr.P.C was recorded by the police on 08.07.1986 at 08:05 a.m in presence of her mother and brother and she also signed that statement in English, which version is belied by the fact that by 08:05 a.m., the police had not reached the spot of occurrence and also that there is no signed statement of PW3 Achla on the investigation record. From the above, learned amicus curiae has urged us to infer that she was not present at the spot and she has been falsely introduced as a witness. He further contended that the doubt against her presence is also compounded by the fact that she could not tell whether vest of her brother Litesh Kumar was stained with blood. Regarding PW4 Litesh Kumar, learned amicus curiae submitted that his testimony also Crl. A.No.96/1997 Page 12 of 17 suffers from contradictions vis-a-vis the statement of PW1 Bhagwati Devi, which makes his presence doubtful, which doubt is further compounded by the fact that PW4 Litesh could not tell in his examination as to in which direction the appellant ran away after the occurrence.
27. It is true that as per the MLC of the deceased Ex.PW15/A, the deceased was brought to the hospital by PW1 Bhagwati Devi and the alleged history recorded in the MLC is "being stabbed by someone". Non-mention of the name of the appellant as the assailant who inflicted the stab injury on the deceased, in our considered view, is of no help to the appellant. One can imagine the state of mind of a mother whose daughter has been stabbed in her presence and was fighting for life. In such a situation, her only concern could be to save the life of her daughter and if in such a state of mental trauma PW1 Bhagwati Devi failed to mention the name of the assailant while giving history to the Doctor, this by no means would affect her credibility. As regards the contradiction pertaining to the weapon of offence, we may note that PW1 in her testimony has categorically stated that her daughter was stabbed by the appellant with a blade of a pair of scissors which looked like a knife. This explains the minor contradiction regarding the description of weapon of offence, which has cropped up in the complaint statement Ex.PW1/A given to the Investigating Officer. Non-seizure of the blood-stained clothes of PW1, of course, is a lapse on the part of the Investigating Officer, but it is not Crl. A.No.96/1997 Page 13 of 17 such a serious lapse which can be taken as a circumstance to doubt the presence of PW1 Bhagwati at the time of occurrence, particularly when she herself sustained injury in the occurrence, which fact is substantiated by her MLC Ex.PW7/A. Thus, we do not find any reason to doubt the testimony of PW1. The credibility of PW3 Achla is challenged on the ground that she in her testimony gave the time of recording of testimony by the police as 08:05 a.m. on 08th July, 1986, which is an impossibility because by that time, the police could not have reached at the spot. In this regard, it is suffice to say that the time given by the witness is only approximate and she was not expected to give the time of recording statement by the police by stopwatch procedures. Learned counsel also challenged her testimony on the ground that she testified that she signed a statement made to the police whereas as per the prosecution, there is no signed statement of her‟s. This minor lapse in the evidence of PW3 Achla, in our view, cannot come in way of her credibility as it can safely be attributed to the lapse of memory because of efflux of time. We may note that the incident took place in July, 1986 whereas PW3 Achla was examined as a witness in the year 1991. As such, she was not expected to remember each and every minor detail about the incident. The so-called infirmities pointed out in the testimony of PW4 Litesh Kumar are also not so material as to cast any doubt on his credibility. PW1 Bhagwati and PW4 Litesh Kumar sustained injury in the occurrence and they were also taken to the hospital where they were Crl. A.No.96/1997 Page 14 of 17 medically examined and their respective MLCs Exhibits PW7/A and PW15/C were prepared on the same day, i.e., 08.07.86. Considering the fact that PW1 and PW4 sustained injury in the occurrence and their testimony is consistent on all material aspects of the case, we find no reason to doubt their credibility particularly when, under the natural course of circumstances, the witnesses being relatives of the deceased are not expected to falsely implicate the appellant and let the real culprit goes scot free. Thus, we are of the view that learned Trial Court has rightly relied upon the ocular evidence of PW1 Bhagwati Devi, PW3 Achla and PW4 Litesh Kumar to hold the appellant guilty.
28. Coming to the plea of alibi of the appellant, the learned amicus curiae has submitted that the Trial Court has erred in ignoring the testimony of DW1 Pushpa Devi, which clearly establishes that the appellant had left Delhi for Vaishno Devi on 07th July, 1986 by the night train and returned back only on 12th July, 1986. Therefore, he could not have been physically present in Delhi at the spot of occurrence in the morning of 08.07.1986. Learned amicus curiae further submitted that the Trial Court has wrongly rejected the documentary evidence i.e. the receipt Mark A and Slip Mark B issued by the „Dharmarth Trust, Jammu & Kashmir‟ and „Shridhar Sabha (Regd.), Katra (Vaishno Devi)‟ to the appellant which substantiate the oral testimony of DW1 Pushpa Devi.
Crl. A.No.96/1997 Page 15 of 17
29. The learned trial Judge has thoroughly dealt with the aforesaid plea of alibi of the appellant in para 48 to 52 of the impugned judgment and we do not find any infirmity in the line of reasoning adopted by him.
30. The appellant has tried to establish his plea of alibi on the basis of oral testimony of his wife DW1 Pushpa Devi and on the basis of one receipt mark "A" purportedly issued to the appellant by „Shridhar Sabha (Regd) Katra (Vaishno Devi) on 10.07.86 and a slip mark "B" issued to him by „Dharmarth Trust Jammu & Kashmir‟. So far as slip mark "B" is concerned, it is of no avail to the appellant because it does not bear his name and it could have been issued to anyone. Regarding mark "A", it is suffice to say that this receipt was issued on 10.07.86. Even if the receipt is taken as genuine document, then also it is of no help to the appellant because journey from Delhi to „Katra, Vaishno Devi‟ takes about 14 to 16 hours and a person could have reached „Katra, Vaishno Devi‟ on 10.07.86 by leaving Delhi on the night of 09.07.86. Therefore, this circumstance does not rule out the possibility of the presence of the appellant in Delhi on 08.07.86 when the occurrence took place. So far as the testimony of Smt. Pushpa Devi, DW1 is concerned, she cannot be relied upon, firstly because she is an interested witness, being the wife of the appellant. Secondly, she has stated that her husband had left for „Vaishno Devi‟ on the night of 07.07.86 by the night train. No tickets of night train have been placed on record to substantiate her claim. Generally, overnight journey is Crl. A.No.96/1997 Page 16 of 17 undertaken by people on sleeper class, for which a record is also maintained at railway office. However, no such record has been placed. Further the defence of alibi taken by the appellant appears to be an afterthought because to none of the witnessess the appellant suggested the aforesaid defence. Had he actually been away to „Vaishno Devi‟ on the date of occurrence, he would definitely have put his defence to all the eye witnesses as well as the Investigating Officer. Thus, we are of the considered view that the appellant has failed to establish his plea of alibi and this also is an additional circumstance pointing towards the guilt of the accused.
31. In view of the above, we do not find any merit in the appeal. We are of the opinion that the learned trial Judge has rightly convicted the appellant under Section 302 IPC. Appeal is, therefore, dismissed.
32. Appellant is on bail. His bail and surety bond are cancelled. He be taken into custody and sent to Jail to undergo the remaining period of his sentence.
AJIT BHARIHOKE, J.
FEBRUARY 26, 2010 A.K. SIKRI, J.
pst
Crl. A.No.96/1997 Page 17 of 17