* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl.M.B.No.1045/2008 in Crl. Appeal No.669 of 2008
% Date of Decision: 16.12.2008
Mahilal .... Appellant
Through Mr.Vikas Padora, Advocate
Versus
State (NCT) of Delhi .... Respondent
Through Mr.M.N.Dudeja, APP for the State.
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE V.K. SHALI
1. Whether reporters of Local papers may be YES
allowed to see the judgment?
2. To be referred to the reporter or not? NO
3. Whether the judgment should be reported in NO
the Digest?
ANIL KUMAR, J.
* Crl.M.B.No.1045/2008 This is an application by the appellant/applicant seeking suspension of his sentence and his release on bail on the ground that he has a good prima facie case in his favour and he has already spent almost six-and-a-half months in jail after his conviction and he has undergone a total sentence of about five years and eleven months.
Learned counsel for the applicant has very vehemently contended that the only motive imputed to him is by the wife of the deceased, Crl. Appeal No.669 of 2008 Page 1 of 5 Smt.Anita, who had deposed that the applicant and the co-accused had a quarrel with her husband on the point of white washing and money. According to him, this does not constitute sufficient motive. He has also challenged the last seen evidence based on the testimonies of the wife and the sister of the deceased. Learned counsel has also contended that the discovery of the shoes of the deceased, at the instance of the applicant is doubtful, as a normal person would not have removed the shoes of the dead person and left them in the bushes to be recovered by the police.
Regarding the recovery of the muffler at the instance of the applicant, it is contended that the same cannot be relied on, as sister of the deceased and the wife of the deceased has given different versions about the muffler.
Learned counsel for the applicant has also challenged the judgment on the ground that though the recovery memos and arrest memos were prepared in presence of one Pitu, however, the same are signed by PW4, Shri Bansi Lal and not by Mr. Pitu. Learned counsel has also emphasized that though the shirt of the applicant was seized by the police, however, no blood stains were found on the same.
The deceased was lastly seen on 18th February, 2003 at around 12.30 PM in the company of the applicant. The testimony of the wife of the deceased, PW1 - Anita, cannot be doubted in this respect and is trustworthy. From the testimony of PW15,Dr.Ashok Jaiswal, who had Crl. Appeal No.669 of 2008 Page 2 of 5 performed the autopsy on the deceased, the time of the death appears to be around 6.30 PM on 18th February, 2003 with a possible variation of two/three hours. Consequently time of the death could be between 3.30 PM to 9.30 PM on 18th February, 2003. In the circumstances the plea of the applicant that there is no proximity between the time of death of the deceased and the time the deceased was last seen with the applicant cannot be accepted. Considering the last seen evidence and the autopsy report and the time of death, there is close proximity between the time of the homicidal death and the time the deceased was last seen in the company of the applicant. The applicant had been silent in his statement under Section 313 of the Criminal Procedure Code as to when he had left the company of the deceased after he was seen with the deceased at about 12.30 PM on that date.
Though PW4 had turned hostile, however, the testimony of PW1, Anita, who had categorically deposed that there had been disputes between the deceased and the applicant on account of money and on the point of white washing, cannot be ignored. Regarding the muffler, it has been established that it was found around the neck of the deceased though PW2, Asha Rani, has identified the muffler to be that of co- accused, Prem Pal, whereas the brother of the deceased, PW4 - Bansi Lal, who had turned hostile, had stated that the muffler was of the deceased. The shoes of the deceased which were recovered at the instance of the applicant had also been identified by the widow of the Crl. Appeal No.669 of 2008 Page 3 of 5 deceased, Anita, who appeared as PW1. The recovery of shoes at the instance of the applicant cannot be doubted on the premise that a normal person would not take off the shoes of a deceased person and leave them in the nearby bushes to be recovered later on by thepolice. Though PW4, Bansi Lal, had deposed that the shoes were recovered from the applicant, who was wearing them, however, there is also another testimony according to which Mahilal/applicant got the shoes recovered from the place of incidence. Shri Bansi Lal, PW4, had turned hostile and on the basis of his deposition that the shoes were recovered from the applicant, who was wearing them, the other testimonies which are cogent and reliable cannot be discredited.
From the perusal of the record, it is apparent that the deceased was last seen in the company of applicant at about 12.30 PM on 18th February, 2003 and there is proximity between the time of death and the time when the deceased was last seen with the applicant. The shoes of the deceased were recovered at the instance of the applicant and the muffler tied around the neck of the deceased was identified to be that of co-accused, Prem Pal.
The applicant was in custody from 20th February, 2003 till 20th November, 2007 as under trial and he was convicted on 29th November, 2007 and he has been in custody since then. As per the nominal roll dated 29th October, 2008 he has undergone sentence of 5 years and 11 months and 17 days including the remission period of three months Crl. Appeal No.669 of 2008 Page 4 of 5 and seven days. The appeal of the applicant is likely to be taken up within the measurable distance of time as in the category of regular matters, the matter of convicts whose sentence is not suspended is given preference.
In the totality of facts and circumstances, this Court is, therefore, not inclined to suspend the sentence of the applicant and release him on bail. The application is therefore, dismissed. It is, however, clarified that anything stated hereinabove is not the final expression on the merits of the case.
ANIL KUMAR, J.
December 16, 2008 V.K. SHALI, J.
'Dev'
Crl. Appeal No.669 of 2008 Page 5 of 5