* IN THE HIGH COURT OF DELHI AT NEW DELHI
DECIDED ON: NOVEMBER 14, 2011
+ CRL.A. 183/1998
PRABHU ..... Appellant
Through: Mr. Raj Shekhar Rao and Mr. Karan Lahiri,
Advocates/Amicus Curiae.
versus
STATE ..... Respondent
Through: Mr.M.N.Dudeja, APP.
CORAM:
MR. JUSTICE S. RAVINDRA BHAT
MS. JUSTICE PRATIBHA RANI
1. Whether the Reporters of local papers
may be allowed to see the judgment? YES
2. To be referred to Reporter or not? YES
3. Whether the judgment should be
reported in the Digest? YES
MR. JUSTICE S. RAVINDRA BHAT (OPEN COURT)
%
1. The present appeal is directed against the judgment and order of the learned Addl. Sessions Judge dated 12.09.1997 in SC No.144/95 whereby the Appellant (hereafter referred to as Prabhu) was accused of having committed the offence punishable under Section 302 IPC.
2. The prosecution alleged that Prabhu used to reside in a room which was part of the premises of Laxmi Timber Store at Prem Nagar, Kirari, Delhi. The store was owned by Raj Singh (PW-16). Prabhu was apparently employed by Raj Singh in that store. He CRL.A. 183/1998 Page 1 of 8 used to ply a rikshaw and work in the store for daily wages. It was alleged that Prabhu was on visiting terms with Munni Devi @ Ali Munisha (hereafter referred to as the deceased). It was further alleged that on 26.06.1993 at about 10:15 AM, Vijay (PW-2) was present in his shop near Raj Timber Store, he heard the screaming of a woman from a neighbouring room of Raj Timber Store. On hearing the scream, he came out of the premises, rushed to the spot and saw that Prabhu was stabbing the deceased with a knife. He stated during the course of investigation that Prabhu repeatedly gave knife blows to the deceased. PW-2 Vijay claims to have apprehended Prabhu but the latter managed to free himself and flee from the spot. PW-2 thereafter took the injured Munni Devi in his auto rikshaw to the hospital and narrated the incident to the police.
3. After registration of the case and recording the statements of some of the material witnesses, the police claims to have arrested Prabhu on 05.07.1993, near the same place of occurrence. It was alleged that the accused's disclosure statement led to the recovery of the weapon of offence i.e., the knife, from the bushes behind the Timber Store. It was also alleged that the accused's disclosure led to the recovery of other incriminating articles such as blood splattered clothes including the T-Shirt etc. On the basis of all these, the Appellant, Prabhu was charged with the offence of committing the murder of the deceased. He denied the plea of guilt and claimed trial. The prosecution relied upon the testimonies of as many as 20 witnesses besides several material exhibits. After considering these, the Trial Court concluded on the basis of testimonies of PW-3 and PW-18 (latter being Ruksana, the minor daughter of deceased Munni) that Prabhu was guilty as charged and sentenced him to undergo life imprisonment besides directing him to pay a fine of Rs.500/-. Aggrieved with his conviction, the Appellant has preferred the CRL.A. 183/1998 Page 2 of 8 present appeal in this Court.
4. The present appeal had been admitted by this Court and the records disclose that during the pendency of the appeal sometimes in the month of March, 2000, the sentence of the Appellant was suspended. When the appeal was taken up for hearing, the Appellant was not present; despite repeated efforts he remained untraceable and, therefore, Mr. Raj Shekhar Rao, Advocate was appointed as Amicus Curiae for assisting this Court in hearing and disposing of the appeal finally.
5. It was argued on behalf of the Appellant that the Trial Court ought not to have returned the conviction in this case. Learned counsel emphasized that the testimony of PW-2 as well as that of PW-18 established that a large number of other neighbours had gathered in the immediate aftermath of the incident and many of them apparently would have even witnessed some part of the incident, particularly Prabhu's flight from the spot. This, according to the counsel, was very crucial, as this would have corroborated the identity of Munni's assailants. The Trial Court, according to the counsel, fell into error in overlooking this material aspect. Elaborating on this, learned counsel sought to highlight the contradictions between PW-2 and PW-18 in their testimonies. It was first emphasized that PW-18, who was a minor at the time of alleged incident and continued to be so during the trial, was never examined during the investigation and her statement was not recorded under Section 161 Cr.P.C. Therefore, she was introduced in the trial mainly to corroborate those aspects of the prosecution which in its opinion were weak. Furthermore, counsel argued that whereas PW-2 claims to have taken the deceased Munni to the hospital, this fact has not been so recorded in the MLC Ex.PW-10/A. That document recorded that PW-20 Hari Kishan had in fact taken the deceased in injured CRL.A. 183/1998 Page 3 of 8 condition to the hospital on 26.05.1993 at about 11:40 P.M. It was further argued that PW-2 never made mention of the fact that the testimony of the deceased having been recorded by the police at any stage. PW-18 clearly mentioned that one such statement was recorded by the police. This aspect was crucial and the prosecution's inability to even produce that statement or make a mention of it in any of the testimonies of its witnesses fatally undermined its case.
6. Learned counsel sought to highlight, what according to him, was another serious contradiction in PW-18's statement. This witness had stated that before the injured was taken to DDU hospital, she was first taken to a private clinic/ hospital. However, this was not mentioned either by PW-2 or by any other witness. These discrepancies were serious enough to cast a cloud of suspicion upon the prosecution's version, and the Trial Court, therefore, ought not to have uncritically or blindly believed the testimonies of PW-2 and PW-18. Furthermore, it was submitted that PW-18 contradicted PW-2 as regards the manner in which he is alleged to have seen the incident. The latter, i.e., PW-18, stated that after witnessing the stabbing incident she came crying outside. On coming outside she had met Ajay @ Vijay and had told him about the incident. On the other hand, PW-2 claims to have reached the spot himself after he heard the voice of a woman in pain. Further PW-18 contradicted PW-2 about the alleged apprehension of the Appellant Prabhu; according to her, besides PW-2, others had joined in nabbing Prabhu, whereas PW-2 claims to have nabbed Prabhu single handedly. It was submitted that the Trial Court, in this case, disregarded the prosecution evidence altogether in respect of Prabhu's arrest as well as the recoveries alleged. Learned counsel, on this aspect, highlighted the findings recorded by the Trial Court at Paragraphs 26 to 30 of the impugned judgment. It CRL.A. 183/1998 Page 4 of 8 is submitted that according to the prosecution, PW-2 was a witness to the arrest as well as the recoveries. However, this witness did not support the prosecution on this score. Furthermore, the counsel contended that the entire falsity of the prosecution stood exposed by its assertion that the accused was arrested from near the same premises, i.e., Timber Store and further that the recovery of a knife from behind the bushes was not only an improbability but also blatantly false. Having disregarded this evidence altogether, the Trial Court ought to have exercised greater caution and scrutinized the testimony of PW-2 and PW-18, which the Trial Court did not do in the present case.
7. Learned Addl. Public Prosecutor, on the other hand, argued that the Trial Court's reasoning cannot be faulted with. It was submitted that in a case entirely based on the testimony of an eye witness, the deposition of PW-2 stood the test of credibility. Despite cross-examination, his account of the events, particularly with respect to the time, the place of attack, the identity of the assailant and the manner in which the injuries were inflicted, remained unshaken. The intimation to the police and the subsequent registration of the FIR was on time, which finds corroboration in the MLC Ex.PW-10/A which mentions the time of Munni Devi's admission into the hospital as 11:40 PM on 26.06.1993. It was submitted that, even though the Trial Court disbelieved some part of the prosecution evidence detailing that the manner of accused's arrest, as well as the recovery of murder weapon and his clothes, it did not in any way drag from the core issue of this case, i.e., that the Appellant was responsible for the murderous attack upon Munni Devi. Lastly, it was urged that in a case entirely based on ocular testimony, motive recedes into the background and despite the lack of evidence or the vagueness of the materials on the record with regard to the motive, the Court should nevertheless uphold CRL.A. 183/1998 Page 5 of 8 the conviction recorded by the Trial Court in the impugned judgment.
8. It is evident from the preceding discussion that the prosecution banked heavily on the ocular testimony of PW-2 and PW-18. Nevertheless, the independent material on record is PW-10/A i.e. MLC, reveals that the time of deceased's admission to the hospital is 11:40 PM. According to the prosecution, this fact is entirely supported by PW-2; the timing of the attack was about 10:15 PM. PW-2 completely supported the prosecution about the manner of the attack in the Timber Store. He claims to have heard the deceased screaming in pain while being attacked, upon which he rushed to the place of occurrence. He also claims to have seen the Appellant stabbing the deceased. He further went on to depose that he could nab the Appellant but the latter managed to slip through and fled from the spot. Though his name is not recorded in the MLC, this Court finds no merit in the submission that such circumstance belies this story altogether. The Doctor who attends on a patient in such circumstances cannot reasonably be expected to record and narrate the names of all those who accompanied the injured persons. What is important is that the testimony about having taken the deceased to the hospital after informing the police almost remained unshaken despite cross-examination on this aspect. No doubt, during the course of hearing, counsel for the Appellant was able to highlight some contradiction between the testimonies of PW-2 and PW-18 with regard to whether the deceased was first taken to a private clinic and also the manner of apprehending the accused/Appellant. Even though PW-18 deposed that her mother had made a statement which was recorded by the police. We are not inclined to attach much importance to this. It is stated on behalf of the Appellant that the statement of this witness was not recorded during the course of investigation assumes some significance in our opinion. CRL.A. 183/1998 Page 6 of 8 Furthermore, PW-18 nowhere states that a fact also emerging from the scrutiny of PW-2's evidence is that she accompanied the injured to the hospital. In such circumstances, it would be doubtful to attach much significance to whether she had in fact heard her mother making any statement to the police. Even if this Court were to go to the extent of disregarding the statement of PW-18 altogether, what remains is the nearly unshaken deposition of PW-2 which supports the prosecution almost entirely.
9. As far as the Appellant's submission that the Trial Court should not have believed the prosecution story in view of the skepticism expressed and given effect to vis-à-vis their recovery and the manner of the Appellant's arrest, we are of the opinion that these pertain to entirely different incidents. The ocular testimony pertains to the attack and its immediate aftermath on 26.06.1993. The arrest and the recoveries, however, took place almost 10 days later i.e. on 05.07.1993. Therefore, the Trial Court in our opinion, adopted a correct approach in not attaching any importance and disregarding the later part of the prosecution evidence and its finding which are entirely based on the ocular testimony of PW-2 to a great extent and to a lesser extent to the testimony of PW-18. As far as the counsel's submission that the prosecution failed to join others who were apparently present in the vicinity or in the neighbourhood after the attack is concerned, we notice that such infirmity cannot be fatal to the prosecution having regard to these facts, the attack which occurred in the late evening, possibility of securing other eye witnesses may well be remote. Furthermore, the prosecution, no doubt, has the duty to unravel all the facts before the Court . The Public Prosecutor has the discretion of weighing what kind of evidence is best presented before the Court. Nothing was brought to our notice from the Trial Court's records pointing out to the statements of other witnesses which, according CRL.A. 183/1998 Page 7 of 8 to the Appellant, were deliberately withheld from the Trial Court. In these circumstances, it would be idle to speculate that others who were not joined by the prosecution during the investigation, would possibly have unraveled some other facts during the trial. It has been observed in some cases that there is no rule of thumb that a conviction cannot be based on the deposition of a single eye witness.
10. Having regard to all these circumstances, we are of the opinion that the Trial Court's reasoning convicting the Appellant cannot be faulted with. The appeal, therefore, has to fail. It is accordingly dismissed. Trial Court records be transmitted forthwith which shall take out appropriate proceedings under Section 82/83 Cr.P.C. to ensure that the Appellant is arrested and made to serve the remainder of his sentence.
S. RAVINDRA BHAT (JUDGE) PRATIBHA RANI (JUDGE) NOVEMBER 14, 2011 dc CRL.A. 183/1998 Page 8 of 8