Delhi District Court
State vs . Mukesh @ Happy on 11 September, 2009
1
IN THE COURT OF SHRI SANJEEV AGGARWAL: ASJ-V: OUTER:
ROHINI: DELHI
SC NO. 52/08
FIR No. 595/04
P.S. Sultan Puri
U/s 307/302/34 IPC
State Vs. Mukesh @ Happy
S/o Sh. Jagdish Parsad
R/o D-200 Tripathi Enclave, Prem Nagar-II
Sultan Puri, Delhi.
Date of Institution in Sessions Court: 23.12.2004
Date of transfer to this Court: 22.11.2008
Date of Judgment: 11.09.2009
JUDGMENT
In brief, the prosecution story is that on 31.5.04 a DD No. 14 was received at Police Station Sultan Puri and on the receipt of said DD SI Yashpal Singh alongwith constable Suresh Kumar reached at Sanjay Gandhi Memorial Hospital (hereinafter referred to as SGM Hospital) and obtained the MLC of injured Daya Nath, who had been admitted to the hospital with the alleged history of assault and stab injury over chest and abdomen. The injured was found unfit 2 for statement and there one eye witness to the incident one Bulan Paswan met SI Yashpal and got recorded his statement, who narrated that he was resident of Bihar and he was working with his master Daya Nath Mishra for the last two years, who was electricity contractor in the area of Janaki Vihar and Tripathi Enclave.
2. He further narrated that one Jagdish Pardhan who was resident of Tripathi Enclave area was also having his electricity connection through his Master and the said Jagdish Pardhan was not paying the electricity dues for the last 5/6 months and he was running arrears of Rs. 78,000/- which he was not paying and due to the said reason his master Daya Nath Mishra had disconnected his electricity supply and regarding which one court case was also pending and 4/5 days ago son of aforesaid Jagdish Pardhan namely one Mukesh @ Happy had come to the office of his master at W-222Janaki Vihar, Prem Nagar-II and had asked him to restore his electricity connection and to this his master had told him to pay the entire dues of electricity outstanding against him and only then his electricity will be restored.
3
3. And on 31.5.04 at around 2 p.m, when his master was sleeping in the office mentioned above and he was working outside office, at that time two young boys came on a motorcycle, one of which was Mukesh @ Happy and another was Ravinder @ Lala and he knew both of them very well previously. Both the aforesaid persons parked their motorcycle outside the office and entered into the said office and Ravinder @ Lala puled down the shutter a little bit and accused Mukesh @ Happy took out a knife from his pocket and from the said knife he started assaulting his master who started crying and raised alarm. At this Ravinder @ Lala caught hold of him and the other person Mukesh @ Happy gave him 3-4 stab injuries on his abdomen and chest and on raising of alarm by his Master , some persons had gathered there and on hearing the commotion both the said accused persons ran away from the spot by starting their motorcycle parked outside and thereafter he alongwith his neighbour Sh. C.P. Tripathi took his Master to SGM Hospital for treatment.
4. On the said statement, a rukka was written by SI Yashpal and 4 he sent the said rukka through constable Suresh to the P.S. Sultan Puri for the registration of the case. On the basis of said rukka an FIR U/s 307/34 IPC, bearing No. 595/04 was registered at PS Sultan Puri and SI Yashpal thereafter went to the spot and got prepared the site plan of the spot and got the scene of crime photographed and also seized the bed sheet and the clothes of the injured from the hospital and recorded the statement of witnesses, including Sh. C.P. Tripathi.
5. Thereafter, DD No.9 was received through Ct. Vinod from SGM Hospital that the injured Daya Nath Mishra, who had been admitted in the hospital had died and thereafter section 302 IPC was added to the FIR and inquest papers was prepared and the investigation was handed over to Inspector Preet Singh and the accused was searched thoroughly but he could not be found.
6. On 08.06.2004, on the information of a secret informer, accused Mukesh @ Happy was apprehended near Nangloi railway phatak and at that time he was found riding the motorcycle No. DL 4SA-G-4138 which was also seized. The disclosure statement of 5 accused was also recorded. The scaled site plan was also got prepared from SI Manohar Lal, the draftsman. The other accused Ravinder @ Lala could not be apprehended and the weapon of offence could not be recovered. The doctor, who conducted the postmortem on the body of the deceased, opined that the cause of death was due to hemmoragic shock as a result of stab injuries, which was sufficient to death in ordinary course of nature. The proclamation under section 82/83 Cr.P.C was obtained against the against the accused Ravinder @ Lalla. After completion of investigation(s) a charge sheet under section(s) 302/307/34 IPC was filed in the court.
7. Upon committal of the case to the court of Sessions, a charge under section(s) 302 r.w. Sec. 34 IPC was framed against the accused Mukesh @ Happy vide order dt. 17.2.05, to which he pleaded not guilty and claimed trial.
8. The prosecution in order to prove its case has examined 19 witnesses.
PW1 is Dr. Deepak Kumar, CMO of SGM Hospital, who has 6 proved the MLC of the deceased Dayanath Mishra, prepared by him which is Ex.PW1/A. PW2 is Inspector Preet Singh, who had taken over the investigation(s) from SI Yashpal on 1.6.2004 and who had got conducted the postmortem and inquest proceedings of the deceased and had obtained certain exhibits from the hospital. PW3 is SI Manohar Lal, the draftsman, who has proved the scaled site plan prepared by him, Ex.PW3/A. PW4 is Ct. Shamsher, who has proved the DD No.9, received at PS Sultan Puri, regarding the expiry of the injured D.N. Mishra on 1.6.2004, the said DD is Ex.PW4/A. PW5 is BhullanPaswan, the star witness of the prosecution. PW6 is Sh. C.P. Tripathi, another eye witness of the incident, but he has turned hostile and has not supported the prosecution case.
PW7 is Dr. Ashish, from S.G.M. Hospital, who had conducted the postmortem on the body of the deceased. He has proved his postmortem report as Ex.PW7/A. 7 PW8 is Ct. Vimal Kumar, who was working as duty constable at SGM Hospital on 31.5.2004, who had handed over the blood stained clothes of the deceased along with the sample seal to the I.O vide Ex.PW8/A. PW9 is Ct. Suresh, who had accompanied the SI Yashpal on receipt of DD No.14 on 31.5.2004.
PW10 is Sh. Ranjit Mishra, the son of the deceased and another eye witness cited by the prosecution.
PW11 is Sh. Raghunath Mishra, the brother of the deceased, who had identified the dead body of the deceased on 1.6.04. PW12 is HC Bajrang Lal, who has proved the copy of FIR as Ex.PW12/A. PW13 is Sh. Pashupati Nath Mishra, the brother of the deceased who has also been cited as eye witness by the prosecution.
PW14 is Dr. Suresh Kumar, who was also posted at SGM Hospital on 31.5.04 and who had medically examined the deceased on the said date at the said hospital and he has proved his findings 8 on the MLC Ex.PW1/A from point X to X and opinion given by him at point Y. PW15 is H.C. Yashvir Singh, who was working as MHC(M) at P.S. Sultan Puri. During the relevant period,with whom various sealed parcels were deposited by the IO, for safe custody and preservation.
PW16 is H.C. Sudesh Kumar, who was the police witness to the arrest of the accused on 8.6.04 from Railway Phatak Nangloi, Delhi.
PW17 is SI Yashpal, the initial IO, who had went to he spot and to the hospital and who had got recorded the statement of Bhullan Paswan and who had carried out the important initial investigation(s) in this case. PW18 is Sh. V. Sankar Narayanian, Sr. Scientific Asstt. (Biology), FSL Rohini, who has proved his reports as Ex.PW18/A and Ex.PW18/B respectively.
PW19 is Inspector Sukhvinder Singh, the IO of this case, who has deposed regarding the investigation(s) as was carried out by him during the course of the present case.
9
9. Thereafter the statement of the accused under section 313 Cr.P.C was recorded, in which the defence of the accused was that his father was Pardhan of D Block, Prem Nagar II Delhi and the deceased Daya Nath Mishra who was dealing in supply of electricity on the basis of Thekedari System was to supply electricity only in W Block in Janki Vihar and because of cruel and adamant behaviour of deceased he wants to encroach the area of D Block for supply of electricity, although, he was not having any permission from the electricity department to supply electricity in D Block. His father and other members of D Block objected to the said conduct of deceased and meetings were also held in D Block in connection with the conduct of the deceased because of the objections raised by his father for not allowing deceased to supply electricity in D Block the deceased and his family started having grudge against him and his family and thus they falsely implicated him in this case. His father was President of Yuva Sangathan Tripathi Enclave D Block Prem Nagar II and being President had filed civil cases against the deceased in relation to electricity and 10 several other civil matters were filed. He and his family members had never used any electricity of the deceased as he was not having any supply in D Block Prem Nagar II. He had no connection of any kind in the alleged incident of murder of Daya Nath Mishra.
10. He also chose to lead defence evidence in support of his case and has examined two witnesses.
DW1 is Sh. Ranjeet Sharma, the mama/uncle of the accused Mukesh @ Happy.
DW2 is Sh. Jagdish Parshad, the father of the accused.
11. I have heard the Ld. Defence counsel Sh. Sanjay Suri and Sh. Sanjay Rathi and Ld. Addl. PP Sh. G.S. Guraya for the state.
12. The Ld. Defence counsel has argued that none of the eye witnesses cited by the prosecution in this case, namely, PW5 Bhullan Paswan, PW10 Sh. Ranjit Mishra and PW13 Sh. Pashupati Nath Mishra were actually present at the spot at the time of alleged occurrence and all of them were introduced by the prosecution in this case in order to fortify their case, which had otherwise no legs to stand and further all the aforesaid witnesses have made material 11 improvements in their testimony(s) which affects their credibility and therefore he prays that their testimonies have to be discarded in this case, he has further argued that PW5 Bhullan Paswan had stated in his cross-examination that deceased Daya Nath Mishra was first taken to PS and thereafter he was taken to hospital and he has argued that this shows that there were lot of deliberations in the PS to falsely implicate the accused in this case. Though, at that time, the accused was away to Hisar (Sirsa) as per the testimony of DW1 and DW2.
13. He has further argued that at the time of incident only C.P. Tripathi, PW6 was present at the spot and as per the MLC he was the person who had got admitted the injured Daya Nath Mishra in the hospital and all the other eye witnesses were later on added by the prosecution and the cross-examination of all the aforesaid material prosecution witnesses shows that none of them were actually present at the time of incident, therefore, they were not eye witnesses to the incident and no recovery of weapon i.e knife had been made in this case and the motive put forth by the prosecution 12 for murder of the deceased Daya Nath Mishra is very weak and as per the admission of PW17 SI Yashpal and PW19 IO Inspector Sukhvinder Singh, no investigation had been carried out by them at all to collect any evidence with regard to the motive and which shows that no fair investigation had been carried out by the I.O in this case, nor he had collected any documentary evidence regarding the dispute of electricity charges to the tune of Rs. 78,000/- as per the prosecution story.
14. He has further argued that there is a delay of three hours in lodging the FIR, as the incident allegedly took place at 2:00 p.m, whereas the FIR was got lodged at 5:00 p.m, and therefore, this three hours gap was utilized by the prosecution to make deliberations and to falsely implicate the accused in this case due to previous enmity with the father of the accused Jagdish Pardhan.
15. he has further argued that in the present case only independent witness, Sh. C.P. Tripathi, PW6 had turned hostile and has not supported the prosecution case at all, and all the other witnesses are related witnesses who were not at all present at the place of 13 occurrence, therefore he has argued that the prosecution has miserable failed to prove its case against the accused.
16. He has further argued that in the present case three different siteplans have been prepared by the prosecution on the record namely Ex.PW17/B and Ex.PW17/C which were initially prepared by SI Yashpal PW17 who went to the spot on receipt of DD and to the hospital and who had got recorded the statement of complainant Bhullan Paswan and who had also carried out the cruicial initial investigation(s) including visit to the spot and seizure of bed sheet etc. and further the Ex.PW3/A is the siteplan prepared by the draftsman. In all these siteplans, it has been argued that three different positions of the witness Bhullan Paswan has been indicated from where he allegedly witnessed the incident. The said three different positions indicates that the prosecution has changed its version constantly as in Ex.PW17/B the position of eye witness is such that he could not have witnessed the occurrence and in Ex.PW17/C the position of eye witness is different from that of Ex.PW17/B and that in Ex.PW3/A, the position of eye witness has 14 been shown perpendicular to the door which shows that the prosecution itself is not sure, from where the witness PW5 Bhullan Paswan was actually standing at the time of occurrence, therefore, the prosecution has suppressed the true genesis of the story, the benefit of which must go to the accused and all the four essential ingredients necessary to prove the present offence namely:
i) motive ii) eye witnesses iii) recovery of weapon iv) fair investigation has not been proved by the prosecution. Therefore, it is prayed that accused deserves to be acquitted. He has also relied upon the following judgments:
1. AIR 2005 SC 2110 (Hem Raj & Ors Vs. St. of Haryana);
2. 2002 Cr.L.J 3538 SC(Mathura Yadav S. St. of Bihar);
3. 2004 Crl. L.J 654 SC(St. Of Rajasthan Vs. Taran Singh & Anr)
4. 1999 (3) CC Cases HC 129 (Sajid Ali Khan Vs. St. of Delhi)
5. 2000(3) CC Cases HC 289 PH(Shibu Vs. St. of Haryana)
6. 2008(1)CC Cases140 Delhi(Ram Kumar & Anr.Vs. St.of Delhi)
7. AIR 1974 SC 775 (Babuli Vs. St. of Orissa)
8. AIR 1994 SC 1250 (Patel Chela Viram Vs. St. Of Gujrat)
9. JT 2007(5) SC 538(Rattan Lal Vs. St. of J&K)
10. JT 2008(1) SC 569(Sambhaji Hindurao Deshmukh Vs.St of Maharashtra)
11. 1998(1) CC Cases 345PH(Hawa Singh Vs. St. of Haryana)
12. 2005(4) RCR(Cri.) 499PH(Karamjit Singh Vs. St.of Punjab)
13. 2007(3) CC Cases PH 135(Taqdir Singh & Another Vs. St of Haryana) 15
17. On the other hand ld. Addl. PP for the State has argued that the prosecution has been able to prove its case against the accused beyond all sorts of reasonable doubt and the FIR is based upon natural account of eye witness namely PW5 Bhullan Paswan and the incident took place at 2 p.m and the rukka was sent by the IO at 5.20p.m and the FIR came into existence by 5.50 p.m and in such short span of three hours, there were no chances of deliberation and in any case why would the complainant and the relatives of the deceased, would falsely implicate the accused in this case, leaving out the real culprits.
18. He has argued that from the statement of Bhullan Paswan, present FIR was got registered at PS Sultan Puri and there is no reason to discard his testimony, as he is a natural and truthful witness. He has further argued that testimony of PW5 is corroborated by the testimony of PW13 Pashupati Nath Mishra and PW10 Ranjit Mishra. He has further argued in alternative that even if the testimony of PW10 Ranjit Mishra and PW13 Pashupati Nath Mishra is discarded, even then the accused can be convicted on 16 the sole testimony of PW5 Bhullan Paswan who is the natural and truthful witness and who has fully supported the prosecution case and has with stood the test of cross-examination and his testimony is credible and there is no reason to discard the same.
19. Regarding the three different siteplans, he has argued that the same are not relevant to the decision of the present case, as there are some minor contradictions in the same. Even otherwise, he has argued that the value of the said siteplans is nothing more than that of the statement recorded U/s 161 Cr.P.C which can only be used for contradicting the witness U/s 145 Cr.P.C. which has not been done by the defence in the present case.
20. Regarding the weapon of offence, he has argued that the same is not material as in the present case, the weapon of the offence as per the disclosure statement of the accused Mukesh @ Happy is lying with the the accused Ravinder @ Lala who is absconding , therefore, the prosecution could not have got recovered the weapon of offence in this case.
21. Regarding the investigation(s) on the part of prosecution viz-a- 17 viz electricity bill of Rs. 78,000/-, he has argued that from the oral testimony of the prosecution witnesses, same is proved and even the defence admits vide document Ex.PW2/B that the relations between the father of the accused Jagdish Pardhan and deceased were inimical, therefore, accused had a motive to kill the deceased in order to settle the scores of his father.
22. I have gone through the rival contentions.
23. In the present case, PW5 Bhullan Paswan who is the star witness of the prosecution has deposed that he was employed with the deceased Daya Nath Mishra who was the contractor of electricity in the area of Prem Nagar, where he had also an office and he used to supply electricity in the area and used to give electricity connections. On 31.5.04 his employer Daya Nath Mishra was sleeping in the office and time was between 1.45p.m and 2p.m and the said office was located at Janki Vihar, Prem Nagar II, two persons came on a motorcycle and got down at the office and he assumed that they had come to talk with his employer. One of them hold his employer and other stabbed him with knife and he 18 screamed. People gathered but by the time, people would come both of them fled away from the spot and he has also stated that he can identify the persons who had stabbed his employer and thereafter, he pointed out towards the accused as the person who had stabbed his employer and he also stayed that he can identify the other person who had fled away from the spot and he also stated the name of the person who was present in the court as Mukesh @ Happy and the name of other person as Ravinder @ Lala.
24. He further stated that there after Braham Dev removed the injured to the hospital on his motorcycle and he held the injured, while sitting on the pillion seat and said Braham Dev was his neighbour and thereafter his statement was recorded which is Ex.PW5/A and the said Daya Nath Mishra died in the night. Though, thereafter he was declared hostile by the ld. Addl. PP for the State, on some part of his statement in which, he had not supported the prosecution case, but said part of his statement is clearly admissible in view of the judgment Khujji @ Surender 19 Tiwari Vs. State of Madhya Pradesh, AIR 1991 SC 1853, where in it has been held, "Evidence of hostile witness cannot be rejected into merely because prosecution choose to treat him hostile and cross-examined him-evidence of such hostile witness cannot be treated as affaced or washed off record altogether-same can be accepted to extent their version is found to be dependable on careful scrutiny thereof-if other evidence corroborate testimony of hostile witness same can be relied upon in reaching conclusions" which judgment is squarely applicable to the facts and circumstances of the present case and in his said cross-examination he stated that, it is correct that accused Mukesh @ Happy was visiting the office for 4/5 days prior to the incident, but he can not say with what connection he had been visiting the office of the deceased. He also identified the clothes of the deceased which he was wearing at the time of incident i.e. the shirt as Ex.P2 and Baniyan as Ex.P3 and the bed sheet which was seized by the police from the spot lateron as Ex.P4.
20
25. In his cross-examination, he has stated that several people had come to hospital and policemen had accompanied them to the hospital and he further stated that he does not remember whether the statement Ex.PW5/A bears his thumb mark and whether this statement was recorded at P.S. or elsewhere, on the night of incident and he can not say whether Ex.PW5/A was that very statement recorded on the night of the incident. However, in his further cross-examination he stated that he had put his thumb impression on paper that was written over and that was not blank and he was also shown the said Ex.PW5/A and after seeing the said document, he stated that the police may have readover Ex.PW5/A to him but he did not pay much attention. Though, he also identified the motorcycle Ex.P1 which was shown to him in the court as it was of blue colour but he failed to give any registration number of the same and he further he admitted in his cross- examination that he can not read the number of the motorcycle and the witness was even told to read the number mentioned on the court Almirah in English on the date of his cross-examination which 21 he failed to read. He further stated that he had gone to police chowki on the motorcycle of Braham Dev. From the police chowki he had gone to hospital in three wheeler and he does not remember who all sat in the three wheeler scooter and he stated that he can only say that he was holding Daya Nath Mishra. He denied the suggestion that Daya Nath Mishra was a quarrelsome person and a badmash, but he admitted that some cases were pending against him. He also stated that at the time when he had held Daya Nath Mishra, after he had sustained injuries, his clothes had been stained with blood but he threw away the clothes as the police told that they did not require those clothes. He further stated that he resided at the same very place and had no fixed hours.
26. Ld. Defence counsel has assailed the testimony of PW5 Bhullan Parshad on the ground that in his cross-examination a different story has come as said witness has stated in his cross- examination that Brahm Dev removed the injured to the hospital on his motorcycle. Whereas, in the rukka Ex.PW5/A it had been stated by this witness that he alongwith one C.P. Tripathi had removed the 22 deceased to the hospital and he has further argued that this witness has also stated in his examination in chief and cross-examination that his employer instructed him to first take him to the PS, so they went to police chowki and there they were asked to remove the injured to the hospital and in his cross-examination also he has stated that the policemen had accompanied them to the hospital, whereas the entire genesis of the prosecution case starts after the receipt of DD no. 14, which was received from SGM Hospital regarding the admission of one Daya Nath Mishra in to the hospital which clearly shows that PW5 was a planted witness.
27. He has further argued that PW5 has also not supported the prosecution on the point of motive and regarding the alleged dues of Rs. 78,000/- towards the father of accused, which were due towards the deceased and he has also argued that PW5 was even not sure, whether his statement was recorded by the police on the said date, as he was illiterate person who could not read or write anything, as when he was asked to read the numbers written on the almirah in the court he could not do so, when his cross-examination 23 was being carried out on 19.7.05.
28. I have given consideration to the aforesaid arguments of ld. Defence counsel with regard to the testimony of PW5, that he had taken the deceased to the PS first and then to the hospital, as the policemen had told him that he should be removed to the hospital immediately. The same to my mind does not effect the prosecution case at all, as apathy or lack of appropriate action on the part of police can not effect the prosecution case, rather it shows the truthfulness and spontaneousness of the witness PW5. It shows that PW5 was not a tutored witness. If that would have been so, then he would have only repeated, as per the tutoring of the prosecution and as per the averments made by him in the original rukka Ex.PW5/A. Rather, he has given the correct and true version of him, taking the injured to the hospital via police station.
29. It is not disputed that the deceased in this case was ultimately taken to the hospital. How, he was taken is not material. In any case, this argument of the ld. Defence counsel that at the police station there were deliberations regarding the name of the accused 24 and the accused had been falsely implicated thereafter, and he was not involved in the case. The incident as per the PW5 is of 2.00p.m and the deceased as per the MLC had been admitted to the hospital at 2.35p.m on 31.5.04, and the said hospital must have been at some distance away from the spot and 35 minutes time is too short a time to remove the injured from the spot to the hospital especially, when he was also taken to the hospital via police station. In such short span of 35 minutes, the chances of deliberation are next to impossible. Even otherwise, why would the relatives of the deceased would falsely implicated the accused, leaving out the real culprits. In any case the priority at that time, was to save the life of the deceased.
30. Regarding the clothes of the deceased, PW5 has stated that he had thrown them away, as the police stated that they did not require the same. Even that is not fatal to the case of the prosecution, as firstly, an illiterate person like PW5 could not have foreseen, that the said clothes would be required later on, at the time of his cross-examination and further due to the inaction on the 25 part of the IO to seize the said clothes PW5 can not be faulted. Further PW5 was not under an obligation to keep those clothes and preserve them till the time of his cross-examination. As normal human conduct has to be seen in these cases and not that of a forensic expert or a person well versed in legal training. It has been held in judgment 2000 Vol. 8 AD SC 389 that:
"However, the defective investigation can not be made basis for acquitting the accused if despite such effects and failure of the investigation a case is made out against all the accused or any one of them".
Further it has been held in judgment Karnel Singh Vs. State of MP 1995(5) SCC 518:
"in case of defective investigation, evidence to be evaluated with circumspect but acquittal not proper on the said ground as it would amount to playing at the hands of IO."
Said judgments are complete answer to the afore arguments of Ld. Defence counsel.
26
31. Further, regarding the next contention of the ld. Defence counsel that PW5 in his examination in chief has stated that the deceased Daya Nath Mishra was removed to the hospital by him and one Braham Dev. Whereas in the rukka it has been mentioned that he alongwith, one C.P. Tripathi had removed the deceased to the hospital and PW5 had also clarified in his examination in chief, that the said Braham Dev was a different person from C.P. Tripathi and the ld. Defence Counsel has also argued that PW10 in his examination in chief has stated that deceased was taken to the hospital with the help of PW13 and C.P. Tripathi and Bhullan Paswan, whereas PW13 Pashupathi Nath Mishra has stated that deceased was taken to the Hospital with the help of his nephew PW10 and Bhullan Paswan PW5 and himself, therefore, he has argued that this is a material contradiction in their testimony, which leads to an inference that PW5 was also not present at the spot and he had not witnessed the occurrence .
32. To my mind, the said contention is without any substance as the said contradiction can only be termed as minor, as who and 27 how the injured/deceased was taken to the hospital is not relevant, because a person is not bound to remember all the vivid details of the incident, especially when the evidence of PW5 was recorded, almost after more than 1 year after the incident and testimony of PW5, has been found to be otherwise cogent and consistent and accordingly this is a minor contradiction, which does not goes into the root of the prosecution case. Regarding C. P. Tripathi PW6 , as he has turned hostile and has not supported the prosecution story therefore his evidence is not much relevant and needs no further discussion.
33. Regarding the presence of PW10 Ranjit Mishra and PW13 Pashupati Nath Mishra, at the scene of occurrence, the case of the prosecution is that they were the eye witnesses to the incident. However, same appears to be highly doubtful, as there are material contradictions in their testimony, which leads to an inference that they were lateron introduced by the IO in his eagerness to fortify the case of the prosecution. The presence of PW10 Ranjeet Mishra and PW13 Pashupati Nath Mishra at the spot on the date of 28 occurrence is very doubtful as firstly, PW10 has stated in his examination in chief that his father was taken to SGM Hospital with the help of his Tauji Pashupati Nath Mishra and Sh. C.P. Tripathi and Bhullan Paswan. Whereas, PW13 Pashupati Nath Mishra has stated that his brother was taken to SGM Hospital with the help of his uncle Ranjit Mishra, Bhullan Paswan and himself. Whereas, in the rukka it was mentioned by PW5 that he and one C.P. Tripathi had removed the injured to SGM hospital and as per the MLC Ex.PW1/A the name of the person who had admitted the deceased Daya Nath Mishra on 31.5.04 in the SGM Hospital has been mentioned as C.P. Tripathi.
34. However, as per PW17 SI Yashpal who had reached the hospital on receipt of DD No. 14, he had also recorded the statement of PW10 Ranjeet Mishra and PW13 Pashupati Nath Mishra on the said date i.e. 31.5.04. Whereas, PW10 has stated in his cross-examination that he had met a policemen in the hospital, but he can not give his name, since he was pre-occupied with his father and remained at the hospital till the following day till about 29 9.30a.m and he did not speak to any policemen during that time, though they were present. Therefore, it has come in the cross- examination of PW10 that he had never given any statement to any policemen nor he had met anyone in the hospital on the date of incident till about 9.30a.m next morning. Whereas, his statement was recorded by PW17 on 31.5.04. Similarly, PW13 Pashupati Nath Mishra has also stated in his cross-examination that police had met him at SGM Hospital, but he had not made any statement to the police as he was very disturbed at that time and similarly his statement had also been recorded by PW17 SI Yashpal on 31.5.04 itself, which is the date of incident. Though, PW13 Pashupati Nath had categorically stated that he had not made any statement to the police on the said date.
35. Judicial notice can also be taken of this fact, that normally rukka is written by the IO or the other police officials on the statement of the relatives of the deceased, if actually present at the spot. In the present case, the rukka and FIR has been recorded on the statement of PW5 Bhullan Paswan and in the rukka itself it has 30 been mentioned that PW5 and one C.P. Tripathi had removed the deceased Daya Nath Mishra to the hospital, therefore, it appears that both PW10 and PW13 were lateron introduced by the IO in order to fortify their case.
36. After perusal of the case diary and police file, it is apparent that SI Yashpal had recorded the statement of PW10 and PW13 after returning to the spot, where he had seized the bed sheet and got the photographs of the spot done and had also tried to search the accused. Whereas, both PW10 and PW13 have categorically stated that they remained confined to the hospital. In these circumstances, it is amply clear that the PW10 and PW13 were not actually present at the spot, at the time of incident and they were lateron introduced by the IO in his anxiety to strengthen the case of the prosecution.
37. As discussed above in the afore going paragraphs, the presence of Bhullan Paswan at the time of occurrence has been proved by the prosecution beyond any doubt, as he has been found to be a truthful and credible witness and there is no reason to discard his testimony. Therefore, the next question which needs 31 consideration, is whether conviction of the accused can be based upon the sole testimony of PW5 Bhullan Paswan. In this regard, law is well settled. It has been held in Vithal Pundalik Zendge Vs. State of Maharashtra in 2009(1) RCR(Criminal)320 that:
"Prosecution case based on evidence of single witness-There is no legal impediment in convicting a person on the sole testimony of a single witness-But, if there are doubts about the testimony the courts will insist on corroboration- It is for the court to act upon the testimony of witnesses-It is not the number, the quantity, but the quality that is material-The time-honoured principle is that evidence has to be weighed and not counted. AIR 1994 SC 1251 relied. Whether corroboration of the testimony of a single witness is or is not necessary, must depend upon facts and circumstances of each case and no general rule can be laid down in a matter like this and much depends upon the judicial discretion of the Judge before whom the case comes. AIR 1957 SC614 relied."32
38. Further it has been held in R. Parkash Vs. State of Karnatka 2004 II AD Cr. SC 164 that:
"It is a fairly well settled position in law that the evidence of a witness who is related to either the deceased or the injured is not to be automatically rejected, notwithstanding the fact that it is cogent, credible and trustworthy".
39. Further it has been held in judgment Ravi Vs. State represented by I.G of Police 2008 IX AD(SC)613 that :
"The court can and may act on the testimony of a single witness though uncorroborated, one credible witness out weights the testimony of a number of other witnesses of indifferent character"
40. In view of the aforesaid settled law, there is no doubt that the conviction of the accused can be based on the sole testimony of a truthful witness and the court will only look for corroboration, if there is a doubt in his testimony and it is not the quantity but the quality of the evidence which is material.
33
41. In the present case, as discussed above, the testimony of PW5 has been found to be truthful, especially as defence has failed to show, that he had any axe to grind against the accused and PW5 was merely a rickshaw puller employed by the deceased and it is not the case of the defence that he was having any ill will or biased attitude towards the deceased.
42. Regarding the argument of the ld. Defence counsel that three different siteplan have been proved by the prosecution on the record namely Ex.PW17/B, Ex.PW17/C and Ex.PW3/A which is a scaled siteplan, in which three different position(s) of the eye witness from where he allegedly witnessed the incident have been shown and therefore, in view of the material contradictions in the said positions of the eye witness shown in the aforesaid siteplans, the case of the prosecution itself becomes doubtful on account of said ground alone and the said material discrepancies in the siteplan have not been explained and in any case from the said position indicated in the siteplan Ex.PW17/B, which was the siteplan, prepared at the instance of PW5, the said alleged eye 34 witness Bhullan Paswan was not in any position to have witnessed the incident. Therefore, this ground itself was sufficient to merit the acquittal of the accused.
43. The afore argument of the ld. Defence counsel though appears to be attractive, but is not correct, as the siteplan(s) prepared by the police officials during the investigation(s) are on the same footing as the statement(s) of the witnesses recorded under Sec. 161 Cr.P.C and said site plan(s) could have only been used to contradict the testimony of PW5 in the same manner, as it is done to confront or contradict a witness by confronting him with his previous statement recorded by the police U/s 161 Cr.P.C, in the manner indicated under Sec. 145 Indian Evidence Act, and it is quite possible that if the said siteplans would have been put to PW5 in his cross-examination, then he would have given reasonable explanation for the said discrepancies pointed out by the Ld. Defence counsel, but the same was not done by the defence in this case, when the cross-examination of PW5 was being conducted as none of the above siteplans were put to him, for contradicting his 35 testimony or his position(s) shown in the said siteplan(s). Further, It has been held in judgment Jit Singh Vs. State of Punjab in AIR 1976 SC 1429:
"The notes on the site plan prepared by the investigating officer in accordance with the various situations pointed out to him by the witnesses are statements recorded by police officer in course of investigation and are hit by Sec. 162. These notes can be usedonly for the purposes of contradicting the prosecution witnesses concerned in accordance with the provisions of Sec. 145 of Evidence Act and for no other purposes. Therefore, where this was not done, and the witnesses were never confronted and contradicted with this record, the notes on the Site plan can not be used to contradict the account given by the witnesses in court in regard to the distance from which they said the occurrence".
44. In view of the aforesaid judgment, the aforesaid contention of ld. Defence counsel has no merits and is rejected. 36
45. The eye witness account of PW5 Bhullan Paswan is also corroborated by the medical evidence i.e. postmortem report Ex.PW7/A which has been proved by Dr. Ashish who while conducting the postmortem on the body of the deceased had found following injuries on his body External Injuries:
i). Bandage placed over upper chest by laterally, stitches moved of size 6cm. Present at left parasternal region, 5cm.
medial to nipple in third intercostal space and 5 cm. in 8th intercostal space and 8cm. over right parasternal region. On opening the stitch there is surgically distorted wound. Upper margins of which are bruised.
ii) Stitched wound of size 26cm. Is present right para umbilical region. On exploring the wound it is with surgical extortion.
iii) Stitched wound of size 4 cm. Present over left side of back surgically distorted present in mid scapular line at 10th intercostal space. On exploring wound is going into the cavity. Internal Injuries:
Head and Neck-NAD Chest: The chest was hemotoma corresponding to injuries mentioned in injury no.1. Lungs are pale.37
Abdomen and Pelvis-Large retropelvic-Hemotoma on left side contain about 1000 CCO partly clotted blood. All abdomen discharge are pale.
Stomach- empty Bladder and rectum - empty Opinion- The cause of death is hemmoragic shock as a result of stab injury.
46. The said medical evidence clearly corroborates the direct testimony of PW5 Bhullan Paswan regarding the stab injuries caused to the body of his employer by the accused Mukesh@ Happy. PW5 has categorically stated in his examination in chief that accused had stabbed the deceased with a knife, where he had stabbed is not relevant, as he is not saying that deceased was hit by some other weapon of offence, nor it is the case of defence that deceased had received injuries in some other manner and stab injury is duly corroborated by postmortem report, discussed above.
47. Regarding the motive part, though PW5 Bhullan Paswan has not supported the prosecution version, that father of the accused had an arrears of Rs. 78,000/- which were due towards deceased 38 and the accused had been repeatedly telling Daya Nath Mishra to waive off the said arrears and on refusal of the deceased to waive the said amount he had been killed, yet the testimony of PW10 Ranjeet Mishra and PW13 Pashupati Nath Mishra is relevant on this aspect. Though, the testimony of aforesaid witnesses has been discarded on the ground, that their presence on the spot at the time of occurrence is highly doubtful, but that does not mean that their entire testimony is thereby ipsofacto effaced as the doctrine of falsus in uno false in omnibus is not applicable in India. Consequently that part of the statement of PW10 and PW13 can be considered, in which they have deposed regarding the dispute between the accused and the deceased Daya Nath Mishra.
48. In this regard PW10 Ranjeet Mishra has categorically stated that accused was in arrears of Rs. 78,000/- as electricity bill and he did not want to pay the said bill and at several times visited his father for reconnecting the electricity connection, as his connection had already been cut due to non payment of said bill and his father had told him to deposit the bill but the accused did not pay any 39 heed to the said request. In the cross-examination he has stated that he had no proof with him to show that electricity was consumed by the accused Mukesh @ Happy, but he stated when his cross- examination was being conducted on 17.11.05, that he can produce the entire file. However, his cross-examination was not got deferred by the Ld. Defence Counsel asking him to produce the said file and it is quite possible that if his cross-examination had been deferred on that day, he would have produced the relevant file and record depicting the arrears of Rs. 78,000/- towards the accused, as stated by him.
49. Though, in the present case IO PW19 Inspector Sukhvinder Singh and PW17 Insp. Yashpal have admitted that they had not collected any documentary proof regarding electricity bills, but as discussed above in the judgment 2000 Vol. 8 AD SC 389 (Supra) improper investigation cannot to effect the prosecution case, if the case of prosecution is otherwise credible and trustworthy, even otherwise DW2 has himself produced and proved the certified copy of Suit No.145/04 (New No. 1237/06) which was a suit filed on 40 behalf of DW2 who is the father of the accused in the capacity of President of one Yuva Sanghthan Resident's welfare Association Tripathi Enclave against NDPL and other defendants including the deceased who was made defendant no.3 in said suit. In the said suit which was a suit for mandatory and permanent injunction, the father of the accused had pleaded that the defendant no.3 i.e. the deceased Daya Nath Mishra was charging the electricity units at the rate, which was more than the prescribed rate of electricity and he was also charging the excessive electricity charges without preparing the electricity bills for actual consumption and further that he had also requested him to give proper estimate(s) for installation of electricity connection(s) and to supply electricity bills but the deceased defendant no.3 and other defendants were extending threats to the plaintiff association that if they asked for proper estimates and proper electricity bills then their electricity connection will be disconnected.
50. In the said suit it was prayed that the defendants be directed to refund the excessive amount and to issue proper receipt of 41 electricity installation charges and further they be injuncted from illegally supplying the electricity and from illegal affixation of the meters. From the said testimony of DW2 and from the suit filed by him against the NDPL and the deceased, it has been more than amply proved that the deceased was a electricity contractor of NDPL and who was also affixing meters and was collecting electricity bills from the residents of the area in question, where the father of the accused was residing and the said suit had been filed on 16.3.04 much before the date of the incident which is 31.5.04, though, the said suit had been filed by the father of the accused in a representative capacity, but it shows that both the parties were having inimical relations with each other and also leads corroboration to the testimony of PW10 Ranjeet Mishra that some amount of arrears were indeed due towards the accused and his father, for which the accused had been going to the office of the deceased and threatening him and asking him to restore his electricity connection. This clearly provides more than ample motive to commit murder of the deceased, Daya Nath Mishra. 42
51. Regarding the arrest of the accused, PW5 Bhullan Paswan, PW10 Ranjeet Mishra, PW13 Pashupati Nath Mishra, PW17 SI Yashpal and PW19 IO Inspector Sukhvinder Singh have all stated, that accused was arrested on 8.6.04 from Railway crossing Nangloi in the presence of PW10 Ranjeet Mishra and PW13 Pashupati Nath Mishra at around 5.45p.m. Both the IO and PW17 have admitted that no public person was joined at the time of the arrest of the accused.
52. However, the same is not relevant for present controversy, as even if it is presumed for the sake of argument, that the accused had not been arrested from the said place on 8.6.04, as per the prosecution story even then the place and manner of arrest is not relevant in the present case and even if the defence version that the accused had been arrested from a different place is assumed as correct, even then as the FIR in the present case had been registered by name against the present accused, hence arrest and manner of arrest and place of arrest of the accused is not material to the present case and also no recovery was made pursuant to the 43 disclosure statement of the accused recorded in this case. Regarding the plea of alibi taken by the accused that he was not present at the spot on the date of occurrence on 31.5.04, as he had gone to Sirsa for purchasing wheat with his uncle DW1 Ranjeet Sharma, the said plea taken by the accused appears to be a very feeble plea.
53. DW1 has stated that accused who was his nephew came to him at Sirsa for purchasing wheat and continuously remained with him from 26.5.04 to 8.6.04 and on 8.6.04 Delhi Police reached there and arrested him. However, in his cross-examination he has stated that they had not purchased any wheat from Sirsa. Neither accused was having any amount either in cash or cheque for purchasing the said wheat and he further stated that they were negotiating for purchase of wheat of 4/5 quantile and they had also went to Anaz Mandi for the same for auction, but they had not made any bid for purchasing the said wheat nor they were having any licence or permit to do the same. This testimony of DW1 in support of plea of alibi of accused does not inspire confidence, as it 44 does not make any business or commercial sense to purchase 4/5 quantile of wheat from a far away place like Sirsa. Since the transportation charges for transferring the wheat from Sirsa to Delhi would be phenomenal and it would not make any commercial sense for doing the same. DW1 further admitted that he had not made any complaint to the local authorities at Sirsa, when the accused was taken away to Delhi nor he had made any Telegram or postal registration to any authority regarding the arrest of the accused by Delhi Police.
54. No reason has been given by DW1, as to why he did not make any telephone or had lodged any protest regarding the illegal arrest of his nephew by Delhi Police on 8.6.04 as stated by him, though, he has stated that he was threatened by the Delhi Police not to raise any protest. But after the Delhi police had left, he could have filed an petition in any court or could have made a complaint to higher authorities in this regard, which was not done. In these circumstances, the plea of alibi propounded by the accused appears to be an after thought and does not inspire any confidence. 45 Said plea is consequently of no value to the accused and is discarded.
55. Regarding the weapon of offence, the ld. Defence Counsel has argued that, no weapon of offence has been recovered in this case. Therefore, it effects the credibility of the prosecution case and therefore, accused deserves to be acquitted on said account. To my mind said plea also does not hold any merit, as the prosecution has given more than a reasonable explanation in this case. Regarding the non-production of weapon of offence i.e. knife, since, in the present case, other accused Ravinder @ Lala is absconding till date, therefore, the weapon of offence could be lying with him. Further there was a great time gap between the date of occurrence, which is 31.5.04 and the arrest of the accused which took place on 8.6.04 and therefore, the accused had almost 9 days with him, to destroy the weapon of offence. In any circumstance as per the settled law the non-production/non recovery of weapon of offence is not fatal to the case of the prosecution, if it is proved by eye witness account and is corroborated by other reliable evidence on the 46 record.
56. The Ld. Defence counsel has relied upon number of judgments(Supra). The proposition of law laid down in the said judgments is not in dispute. However, in the peculiar facts and circumstances, of the present case as discussed above, in my respectful view, none of the judgments cited above are applicable to the facts and circumstances of the present case.
57. The net result of the aforesaid discussion is that, prosecution has been able to make out a case U/s 302 IPC against the accused Mukesh @ Happy beyond all sorts of reasonable doubt(s). Accused stands convicted accordingly. Now, to come up for hearing on point of sentence on 16.9.09.
Announced in the open court (Sanjeev Aggarwal)
On 11.09.2009 Addl. Sessions Judge
Rohini Courts: Delhi.
47
IN THE COURT OF SHRI SANJEEV AGGARWAL: ASJ-V: OUTER ROHINI: DELHI SC NO. 52/08 FIR NO. 595/04 P.S. SULTAN PURI U/S 307/302/34 IPC State Vs. Mukesh@ Happy S/o Sh. Jagdish Parsad R/o D-200 Tripathi Enclave, Prem Nagar-II Sultan Puri, Delhi.
ORDER ON THE POINT OF SENTENCE 16.9.09 Present: Sh. Praveen Kumar Samadhiya, Ld. Substitute Addl. PP for the State.
Convict Mukesh @ Happy with Ld. Proxy Counsel Sh. Kapil Kumar Dagar.
I have heard the convict as well as his counsel on the point of sentence and also the Ld. Addl. PP for State. It is submitted by ld. Counsel Sh. Kapil Kumar Dagar that convict is not a hardened criminal and he has no previous history of involvement in any crime and that he has two minor sons and wife to lookafter, besides his old father. Therefore, he prays that a lenient view may be taken against him.
On the other hand it is submitted by the ld. Addl. PP , on 48 behalf of the State, that the convict deserves appropriate punishment for the ghastly act, he has committed in an inhuman fashion in a cold blooded manner and his conduct does not deserve any leniency and moreover the punishment in such cases should be a lesson for the society at large. He further submits that by awarding appropriate punishment the cry of the society for justice should also be met. Therefore, it is prayed that strict punishment should be awarded to the convict.
I have gone through the rival contentions. In the present case, the convict has committed the most gory act of killing an human being without any feeling for value of human life with premeditation. In these circumstances, though no ground for capital punishment is made out, as the same has not even been pressed by the State, however, a message should go to the society at large, that such kind of crimes do not pay. In these circumstances, I sentence, the convict Mukesh @ Happy to undergo rigorous imprisonment for life and I further sentence the convict to pay a fine of Rs. 10,000/- U/s 302 IPC and in case of default of payment of fine convict, shall further undergo SI for 6 months.
Both the sentences are directed to run concurrently to each other.
Copy of the judgment and that of sentence be given to the 49 convict free of cost. It is ordered accordingly. File be consigned to record room.
Announced in the open court (Sanjeev Aggarwal)
On 16.9.2009 Addl. Sessions Judge
Rohini Courts: Delhi.