Juglal Mehto vs State (Delhi Administration)
1995 Latest Caselaw 50 Del

JUDGMENT

P.K. Bahri, J.

(1) Appellant Junglal Method has been convicted of an offence of murder punishment under Section 302 read with Section 34 of the Indian Penal Code having caused the death of Rajinder Nath Malhotra and also has been convicted of offence punishable under Section 307 read with Section 34 of the Indian .Penal Code of having caused injuries to Smt. Mahindra Rani Malhotra with intent to cause her death, vide judgment dated February 28, .1989, of an Additional Sessions Judge by the order of the even date, he has sentenced to undergo life. imprisonment and to pay a fine of Rs. 2,000.00- and in default to under go rigorous imprisonment for six months more for the first offence of murder and and.ergo rigorous imprisonment for ten years and. to pay a fine. of Rs. 2,000.00 and in default to undergo rigorous imprisonment tor six months for the offence of attempt to murder, He has filed appeal challenging his convictions and sentences.

(2) The co-accused, who was tried Along with the appellant. namely. Ram Parikrama has been acquitted. The third co-accused namely.. Musafir Ram was declared as proclaimed offender and evidence against him has been recorded under Section 299 of the Code of Criminal Procedure.

(3) SRNT. Mahindra Rani Malhotra, Public Witness 16, Along with her husband Rajinder Nath Malhotra were living at the relevant time in house No. 23A- DDA. Flats. Munirka. New Delhi. Her husband had been working in the Reserve Bank of India and had retired from the service about two years before the present occurrence and Ram Parikrama was working as a Peon in the Reserve Bank of India with him and was visiting their place off and on as her husband used to render some financial assistance to Ram Parikrama. the nature of the financial dealings between Ram Parikrama and the deceased Rajinder Nath Malhotra has not been brought out clearly in investigation. Most probably Smt Mahindra Rani Malhotra. being- a house wife, had perhaps not been apprised of the details of financial dealings being indulged in between her husband and Ram Parikrama.

(4) On January 8. 1985- one Ramesh Tanwar had on telephone intimated the Police Control Room that two unknown persons had badly injured a couple at 23/A, Munirka and had fled away. The Police Control Room had conveyed this message to Police Station : Vasant Vihar which was recorded in Daily Diary at serial No. ; 8A at 11.45 A.M. Shri Jai Narain Public Witness 17 being "deputed to inquire into the matter had reached the spot Along with constable Kamruddin and found the dead body of Rajinder Nath Malhotra Iying in a pool of blood on the carpet in the drawing room and ' learnt that Smt. Mahindra Rani Malhotra, who was injured in ' the occurrence, had been already removed to the Safdarjang Hospital and thus. leaving Constable Kamruddin to guard the spot he reached the hospital and he moved the application Ex.. PW17jA seeking the permission of the doctor to record the statement of the lady. The doctor declared the injured lady fit to make the statement and thus, Smt. Mahindra Rani's statement was recorded which is Ex. Public Witness 16/A on the basis of which the Fir was registered. The Investigating Officer, after preparing the inquest papers, had sent the dead body of Rajinder .Nath Malhotra for post-mortem and had lifted the blood and other material from the spot lying at different places and converted the same into sealed parcel and prepared the recovery memos Exs. Public Witness 17/C to PW17/K in that respect. Dr. R. K. Sharma Public Witness 10 had conducted the post-mortem of the dead body of Rajinder Nath Malhotra and he found four fatal incised wounds on different parts of the body including the skull, neck and the mouth. The death was due to shock as a result of multiple injuries and injuries 1 to 3 on vital parts of the body were found sufficient to cause death in the ordinary course of nature. The injuries were opined to have been caused by a sharp edged weapon.

(5) The lady had a sharp incised wound on the right side check. and extending to the neck involving the right ear and size of the said wound was 12 cms x 8 cms x 2 cms and there were three other incised wound on her right ear cervical region and on the right thumb. She was discharged from the hospital only on January 14, 1985. The weapon of offence, which has been allegedly used, was "daranti" (a sharp edged weapon in the shape of halt moon used for cutting). In her statement to police which is the basis of the F.I.R. she had narrated about Ram Parikrama being given financial help by her husband on some occasions and Ram Parikrama visiting her house for such financial help on a number of occasions and further disclosed that Ram Parikrama had also started coming Along with another short statures man aged about , 30-35 years having wheatish complexion and stout body, whose ' name she did not know. She also disclosed that on January 7, 1985. Ram Parikrama had come accompanied with another man aged about 35-40 years having shallow complexion, tall and thin, who spoke Bihari language and inquired about her husband who was not at that time present in the house and they had left and on January 8, 1985, both the persons mentioned by her by their physical descriptions, as indicated above, came to the house at about 10 or 11 A.M. and had started talking with her husband while sitting in the drawing room. Ram Parikrama had not come Along with them. She found that they had learnt from their husband the various ingresses and out gresses of the house while she prepared the tea and served the same to her husband and the said two persons. Her daughter's son aged about one and a half years was also present in the drawing room at that time and she had gone to the drawing room for bringing out the. child but was asked not to enter the drawing room and the said two persons wanted her to open the main door so that they could go and when she was opening the door the persons who was tall and thin and was wearing a dhoti inflicted sickle blows on her neck and as she warded off the third blow it struck on her hand and both the assailants then opened the back door and make good their escape. She also mentioned that short statures man was speaking in Hindi and immediately she found her husband lying dead in the pool of blood on the carpet in the drawing room. She also mentioned about some dispute being there with Ram Kishore, her husband's younger brother, over partition of the property and she expressed suspicion that he might be at the back of this gruesome assault. She made it clear that these two assailants and earlier come with Ram Parikrama.

ONJanuary 9, 1985, Public Witness 17, Sub Inspector accompanied by the Sho and other police officials had come to house No. 15/76-C and arrested appellant Juglal Mehto who had been earlier apprehended at that place by Head Constable Chander Pal and Constable Hari Om.

(6) On January 8, 1985, Si Sher Singh, who was working as Asi in Police Station Vasant Vihar, had under the directions of. Investigating Officer gone to the Reserve Bank of India, Parliament Street and had joined Ram Parikrama co-accused for interrogation purposes and had learnt about Juglal Mehto appellant the co-accused, also working in the Reserve Bank of India and was found absent from duty since January 7, 1985. He took Ram Parikrama Along with the Constable to the house of appellant Juglal Mehto and Head Constable Chander Pal and Constable Hari Om were put on duty for surveillance purposes for apprehending Juglal Mehto appellant. He had also gone in search of the other accused Musafir Ram but failed to arrest him and proceedings under Sections 82 and 83 of the Code of Criminal Procedure were taken against Musafir Ram who was later on declared proclaimed offender.

(7) Shri Brahm Dev Tyagi Public Witness 23, the then Sho of the Police Station Vasant Vihar, had investigated the case and recorded the statement of different witnesses and had arrested the appellant and other accused Ram Parikrama and certain letters were recovered from the house of the appellant which were taken into possession vide recovery memo Ex. P17/M. We need not refer to the contents of the said letters because the Additional Sessions Judge for good reasons had not relied upon the said documents. Even the contents of the said documents were not sufficient to show that the appellant was involved in the commission of this crime. A police remand of the appellant was taken for two days and thereafter he was sent to judicial custody and an application Ex. Public Witness 19/A was moved before the Metropolitan Magistrate for holding test identification parade of the appellant. The appellant had declined to participate in any test identification parade on the plea that he had been already shown to the witnesses and his photograph and identity card had been seized by the police earlier.

(8) In court Public Witness 16 the star witness of the prosecution, whose presence at the time of the occurrence was absolutely certain, had identified the appellant as the person whose physical features she had given in the Fir as a person aged about 30-35 years, short statures, having whitish complexion and stout body, who had been visiting her house with Ram Parikrama earlier. The learned Additional Sessions Judge had believed the testimony of Public Witness 16 and had brought home the offences to the appellant. He had acquitted Ram Parikrama as no evidence was brought before the court showing his complicity in the commission of the murder of Rajinder Nath Malhotra and assault on PW16.

(9) Before us, it is, indeed, not challenged that two persons had come to the house of Public Witness 16 and had caused the murder of Rajinder Nath Malhotra and had also attempted to murder Public Witness 16. The learned counsel for the appellant, has, however, vehemently argued that it would not be safe to bring home the offence to the appellant on the solitary testimony of Public Witness 16 which is not corroborated by any other evidence. The learned counsel has taken us through the whole of the record and has pointed out certain discrepancies in the testimony of Public Witness 16 which according to her should lead this court to hold that Public Witness 16 is not wholly reliable witness. She has also criticised the investigation of this case as the Investigating Officer had not taken any prompt steps to get held the test identification parade is respect of the appellant. She has argued that identity of the appellant as the culprit for the first time by Public Witness 16 in court should not be relied upon.

(10) On the other hand, the learned counsel for the state has vehemently argued that Public Witness 16 has been insured in the occurrence by the assailants and she was very much aware about the identity of the appellant as one of the culprits inasmuch as this culprit had been visiting the house Along with Ram Parikrama on earlier occasions and thus. although she did not know the appellant by name at that time had an opportunity to know the appellant positively because of his frequent visits to the house Along with Ram Parikrama and there is no reason to doubt her testimony in court that in fact appellant was one of the assailants who accompanied the absconding accused for murdering her husband and for attempt to murder her. She has urged that Public Witness 16 has given a straight forward testimony in court and apart from some innocuous omissions in her police statement nothing has been brought out in cross-examination to show that she is not wholly reliable witness. She has urged that she had no reason to falsely implicate the appellant and let go scot free the real assailants of her husband.

(11) Coming to the version given by Public Witness 16 in court, we find that she had by and large narrated the facts as had been given by her in the Fir and she particularly identified the appellant as one of the assailants. She has deposed that this appellant has visited her house Along with Ram Parikrama on a couple of occasions earlier and one day earlier to the occurrence Ram Parikrama Along with the other culprit had visited her house and wanted to meet her husband who was not available at that time and they had told her that they would be coming again on the following day in the morning to meet her husband and on the following day she had told her husband not to leave the house as the said persons were coming to meet him and then she saw both the persons coming in the morning and having talked with her husband and she deposed that it was not the appellant who gave her injuries but the other person, whose physical features she had given in the Fir, who had given the injuries to her. It is because the other culprit, who was found to be one Musafir Ram, had the weapon of offence with which ghastly murder of her husband took place and with which she was assaulted and which the culprit had taken away and as that culprit could not be apprehended, so the said weapon of offence could not be recovered. If she wanted to falsely implicate the appellant in court, she could have easily assigned the major role to the appellant of carrying the weapon and assaulting her but in a truthful manner she disclosed in the court that it was the other culprit who assaulted her and not the appellant although she had seen some blood on the hands of the appellant when he. was leaving the house. It appears that the appellant had left the house ahead of the other contrite and the other culprit Musafir Ram had assaulted Public Witness 16 with the said weapon. The assault on her husband was not witnessed by her and she found her husband dead the moment the two assailants had left the house.

(12) It has been urged by the learned counsel for the appellant that in her statement to the police. Public Witness 16 has not mentioned that hands of the appellant were blood stained when he was leaving: the house and that. she also had not mentioned in the Fir that the appellant was also an employee of the Reserve Bank of India. We do not think that these omissions in the Fir go to the root of the matter and would show, in any manner, any deliberate attempt on the part of Public Witness 16 to give any embellishment to her version of the occurrence. An Fir is not repository of all the facts pertaining to a particular case. At the time she narrated he facts to the police she was in a traumatic condition. She had been inflicted injuries and her husband had been murdered and she was in the hospital and in her such mental state of affairs it could not be expected that every details of the occurrence should be narrated by her in her first statement to the police.

(13) We have gone through the testimony of Public Witness 16 in every detail and we find that she has given out the straight forward truthful version of the occurrence as it took place. There is no earthly reason for disbelieving her testimony which implicates the appellant in this occurrence.

(14) It has been Urged that the Investigating Officer had not taken steps for getting the test identification held of the appellant promptly soon after the appellant was arrested. So, it is urged that the possibility that the appellant might have been shown to Public Witness 16 when the appellant was in police remand for two days cannot be overlooked. It is true that where the identity of the appellant is not known to the eye witness it is incumbent upon the Investigating Officer to get such suspect identified from eye witness in a test identification parade which not only ensures that the eye witness's memory regarding the identity of the appellant is tested but also ensures that the investigation is proceeding on the right track and the person arrested is the real culprit. But mere fact that the test identification parade has not been held promptly would not lead to an inference that the prosecution version should be disbelieved particularly when eye witness had occasion to see the assailant a number of times prior to the occurrence. As a matter of fact when Public Witness 16 has clearly mentioned in the Fir that one of the assailants, whose physical features she had given, had been visiting the house earlier, the question of holding any test identification parade in respect of the said person would have been futile because the defense could have easily urged that such test identification parade is farce because the eye witness already claims to have known the said person earlier, may be not by name.

(15) But in the present case we find that the police remand of the appellant was taken for two days and Public Witness 16 was confined to the hospital at that time and there is not even a suggestion given either to Public Witness 16 or to the Investigating Officer in cross-examination that during the said period of two days the appellant has been shown to Public Witness 16. Public Witness 16 after being discharged from the hospital on January 14, 1985, possibly would not have been so well to participate in the test identification parade immediately. So mere fact that the Investigating Officer had moved the application after about twenty days for getting held the test identification parade in the present circumstances is not fatal to the prosecution case. It must be remembered that no suggestion has been given either to the Investigating Officer or to Public Witness 16 that till the application for holding test identification parade was moved, the appellant has been shown to Public Witness 16. In the application seeking holding of test identification parade it has been mentioned that since the date of the arrest of the appellant, the appellant had been asked to keep himself in fluffed face as he was To be put for test identification parade. No suggestion has been. given to the Investigation Officer that the appellant was not being kept in fluffed face during the period he remained in police custody and that any effort has been made by the Investigation Officer to bring Public Witness 16 to the Jail as long as the appellant remained in judicial custody till the date of the moving of the application for holding test identification parade. So, more fact that the appellant later on though it fit not to participate in test identification parade does not that appellant had any valid reasons for declining to participate in such a parade. We have not been able to agree with the contention of the learned counsel for the appellant that the appellant must. have been shown to Public Witness 16 before the application was moved for holding the test identification parade. The plea taken by the appellant, that his photograph had been seized by the Investigating Officer and that photograph must have been shown to Pw 16. is not established by material on the record, rather no question was put to the Investigating Officer that any such photograph had been seized during the investigation by the police. So, the refusal of the appellant to participate in the test identification parade leads us to hold that the appellant was having some guilty mind and was apprehensive that he would be correctly identified as one of the assailants by Public Witness 16 if such a parade had been held.

(16) The apex court in a recent judgment given in the case of Suraj, Pal Vs. State of Haryana, has reiterated the law with regard to holding of test identification parade as follows "THAT being so. in the very nature of things, the identification parade in such cases serves the dual purpose. It enables the investigating agency to ascertain the correctness or otherwise of the claim of those witnesses who claimed to have seen the offender of the crime as well as their capacity to identify him and on the other hand it saves the suspect, from the sudden risk of being identified in the dock by such witnesses during the course of the trial. This practice of test. identification as a mode of identifying an unknown person charged of an offence is an age old method and it has worked well for the past several decades as a satisfactory mode and a well founded method of criminal jurisprudence. It may also be noted that the substantive evidence of identifying witness is his evidence made in the Court but- in cases where the accused person is not known to the witnesses from before who claimed to have seen the incident, in that event identification of the accused at the earliest possible opportunity after the occurrence by such witnesses is of vital importance with a view to avoid the chance of his memory fading away by the time he is examined in the Court after some lapse of time."

(17) In the said case also the accused had refused to participate in the test identification parade for no good reason and the Supreme Court held that this refusal made by accused was on his own risk for which he cannot be heard to say that in the absence of test parade, dock identification was not proper and should not be accepted if it was otherwise found to be reliable.

(18) In Ramanathan Vs The State of Tamil Nadu, a plea was taken by the accused that he was not kept in muffled face before holding of the test identification any parade. The Supreme Court found that the accused had not let evidence to show this fact and had not cross-examined the important witness of the prosecution in this regard. So, it was held that if the accused wanted to demolish the prosecution piece of evidence regarding the test identification parade it was for him to do so by effective ..Toss-examination of the witness and! or by examining his own witnesses in rebuttal as the accused in that case had not succeeded in doing so, it was held that it was futile to contend by him that this important peace of evidence produced by the prosecution, should be rejected merely because the prosecution had not led any evidence to prove that the appellant was kept baparada (in muffled face).

(19) SIMILIARLY. in the present case, the appellant has not succeeded in showing that he was not kept in muffled face till the application was moved for holding the test identification parade.

(20) It has been urged that prosecution had tried to make embellishment in the case by examining Public Witness 12 Satish Puri, who had taken Public Witness 16 to the hospital, in making him to depose that name of the appellant was disclosed to him by Public Witness 16. We do not see that his effort of the prosecution to embellish the case reflects adversely on otherwise truthful statement of Public Witness 16. Public Witness 16 even in court has deposed that she did not know the name of the appellant at the time of the occurrence and it is only later on she learnt the name of the appellant. So, nothing turns on this contention of the learned counsel for the appellant.

(21) Then reference is made to the statement of Public Witness 16 Smt. Shashi Madan, married daughter of Public Witness 16, who frankly did not identify the appellant as the person visiting the said house of her mother as she claimed she had not an opportunity to closely look at the physical features of the person visiting her father and thus, she could not identify the appellant. May be in police statement with which she was confronted she had mentioned about her capacity to identify the person visiting the house of her father but in court she had not stuck to that statement but that would not mean that testimony of Public Witness 16, which is otherwise straight forward and truthful, should be discarded because of some lapse on the part of the Investigating Officer or Public Witness 11 having second thoughts about the statement given by her to the police.

(22) Be that as it may, we entirely agree with the assessment of the evidence made by the learned Additional Sessions Judge for coming to the conclusion that Public Witness 16 is wholly truthful and reliable witness and it has been established beyond shadow of reasonable doubt that the appellant was on of the assailant who had caused the murder of Rajinder Nath Malhotra. We thus, maintain the conviction of the appellant for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code. However, we find that the appellant could not have been convicted to an offence punishable under Section 307 lead with Section 34 of the Indian Penal Code for attempt to murder of Public Witness 16 because it was the assailant who is proclaimed ' offender who had caused the injuries on the person of Public Witness 16 when he was making good his escape from the house whereas the appellant had already left the house ahead of him. So, the appellant could not have shared the common intention with the other assailant for causing the injuries to Public Witness 16.

(23) In view of the above discussion, we partly allow the appeal and set aside the conviction and sentences of the appellant for the offence punishable under Section 307 read with Section 34 of the Indian Penal Code while we dismiss the appeal with regard to his conviction for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code and the sentences awarded in respect of the said offence. So, in nutshell the conviction of the appellant under Section 302 read with Section 34 of the Indian Penal Code and the sentences awarded in respect of the said offence are maintained.