Mukram And Ors. vs The State (Nct Of Delhi)
2001 Latest Caselaw 1533 Del

JUDGMENT

Usha Mehra, J.

1. Appellants were charged under Section 302/394/411/34 Indian Penal Code (in short IPC). The learned Add. Sessions Judge after considering the oral and the documentary evidence convicted these appellants under Section 302/394/34 IPC and sentenced them to undergo rigorous imprisonment for life under Section 302 IPC and also to pay fine of Rs. 1000/- each and in default of payment of fine to further undergo rigorous imprisonment for two months and to further undergo rigorous imprisonment for seven years and Section 394 IPC and fine of Rs.1,000/- each. In default of payment of fine, to further undergo rigorous imprisonment for two months. Both the sentences were to run concurrently.

2. The orders of conviction and sentence have been assailed by the appellants, inter alia, on the grounds that identify of the appellants were doubtful. Moreover on the basis of the disclosure statements the alleged recovered articles were never got identified. The alleged recovery was also not witnessed by an independent witness. Thus recovery having not been proved validly the accused could not be connected with the crime. Test identification Parade of the appellants was not conducted. Prosecution introduced Rakhee (PW-1) about whom nothing was said by Mangal Singh at the time of recording the FIR. Therefore, no reliance can be placed on the statement of Rakhee (PW-1) and for that matter on the testimony of Mangal Singh (PW-2).

3. In order to appreciate the challenge raised in this appeal, we may have quick glance to the facts of the case. Prosecution's case was unfolded by Mangal Singh (PW-2) son of Nathu Singh. He was the tenant in the premises bearing No.B-392, New Ashok Nagar, New Delhi. The said premises was owned by deceased Raju's parents. Mangal Singh (PW-2) was running a juice shop at Chowk, of Sector-14. On 29th August, 1991 when he came back from his village Harila at about 12.15 PM he saw that the entrance door of the house was bolted from inside. He knocked at the door. It was opened by accused Munwar whom he knew from before. After opening the door Munwar went straight towards the room of the landlord. Mangal Singh questioned him as to what he was doing there. To this accused Munwar replied that he had come on the invitation of the landlord's son Raju. After saying no he went towards landlord's room and tried to close the door of that room. There was another boy standing near the door of landlord's room. That boy was about 18-19 years of age, fair complexion, height 5'3". He was wearing pink colour Banyan like shirt. Mangal Singh was able to identify him. Munwar and that boy closed the door of londlord's room. On this Mangal Singh (PW-2) got suspicious, he therefore went towards that room and peeped inside. He saw Raju son of the landlord lying dead on the cot and two trunks in that room were lying opened and articles lying scattered. Mangal Singh tried to catch hold of Munwar but he pushed Mangal Singh aside and ran outside the house. Meanwhile the other boy also ran out. Mangal Singh tried to chase him as well but could not catch hold of that boy. Mangal Singh went to the Sarpanch, Mr. Rameshwar Dass (PW-9) of the market and narrated these facts. On hearing this, Rohtas who was also present there conveyed this information to the police. On the basis of the information fed by Mangal Singh, Rukka was prepared and the FIR was registered.

4. Smt. Sheela (PW-5) landlady and mother of the deceased furnished the details of the articles/ornaments and cash stolen from her house. Mukram was arrested from Chilla Jhar on 6th September, 1991. On his disclosure statement part of the stolen property was recovered. Appellant No.2 Munwar himself surrendered before the Court of Metropolitan Magistrate on 5th September, 1991. Munwar also made a disclosure statement and got recovered part of stolen property.

5. Prosecution examined number of witnesses but for our purpose and for determination of this appeal statement of Rakhee (PW-1), Mangal Singh (PW-2), Rajender (PW-3), Sheela (PW-5), Dr. L.K. Baruah (PW-7), Rameshwar Dass (PW-9) beside the statement of Investigating Officer are relevant.

6. Mangal Singh (PW-2) is the author of the FIR. He was the tenant of Smt. Sheela (PW-5) mother of the deceased Raju. Mangal Singh was known to Munwar from before. As per Mangal Singh he knew both the accused persons because thy had been coming to his shop for taking juice. He reiterated his statement made to police and supported the case of the prosecution in totality. Ms. Meena Chaudhary Sharma counsel for the appellants tried to point out discrepancies in his statement made to the police and the one recorded in the Court. According to her in his statement to police he did not give the name of the second accused Mukram i.e. appellant No.1 rather reading of that statement makes it clear that he was not aware of the name of second accused. That is why he could only give his description instead of giving his name. Had he known accused Mukran from before he would not have said that he could identify that boy when produced before him. He should have given his name. However in his statement made in Court he contradicted himself by saying that he knew both the accused persons as they wee his customers. We find no material contradiction nor any force in this submission because the statement made in Court does not show that Mangal Singh had on material points contradicted himself. he said he could identify the second boy. He said it because he had seen that boy from before, and that is what precisely he said in Court. Thus there was no material contradiction in the statement of Mangal Singh so as to nullify the evidentiary value of his testimony. In fact, his statement not only appears to be natural, trustworthy and inspire confidence but also stood corroborated from other material available on record beside the statement of Rakhee (PW-1). Mangal Singh (PW-2) said that the entrance gate was bolted from inside. When the door was knocked by him, it was opened by accused Munwar. Conduct of Munwar made him suspicious hence he peeped inside the room and saw Raju son of landlord lying dead on the cot. On this material aspect there is no contradiction in his testimony. In fact his statement which implicated the accused persons remained unassailed on record. His statement that he came home at 12.15 PM. Knocked the main door which was bolted from inside and that the door being opened by Munwar and his finding Raju dead lying on the cot and that Munwar and Mukran ran out from the spot. His statement on these material aspects linking the accused persons with crime remained unrebutted and uncontroverter on record. This part of his statement was not subjected to cross-examination, rather in the cross-examination he reiterated that Munwar ran first and Mukram followed him. This in short was what he told the police as well as in the Court. He reiterated that he tried to chase them but could not apprehend them Hence we find no material contradiction in the testimony of Mangal Singh (PW-2). His statement inspires confidence and appears to be truthful.

7. Ms. Meena Chaudhary Sharma made effort to bring out another contradiction in the testimony of Mangal Singh (PW-2) when he said in his cross-examination that he knew both the accused person by face and not by name. To police he gave the name of Munwar, this according to Ms. Sharma shows that FIR was ante-dated. We find nos substance in this contention. Mangal Singh in no uncertain words said he knew both the accused persons as they had been coming to his juice shop. Accused Munwar he knew by name i.e. what he said in his Chief-examination as well as to the police at the first available opportunity. In fact, there is nothing on record where from it can be inferred that FIR was ante-dated. In the Rukka, name of Munwar was given. Mangal Singh's statement was recorded in court after a considerable lapse of time. This shows there was no question of police ante-dating the FIR which was recorded on the basis of Mangal Singh's statement. The testimony of Mangal Singh is not only corroborated by Rakhee (PW-1) but by Rameshwar Dass (PW-9) also. Rameshwar Dass (PW-9) was the Sarpanch of the market. He supported Mangal Singh (PW-2) by saying that on 29th August, 1991 while he was sitting at his shop, Mangal Singh (PW-2) came there at about 12.30 PM or 12.35 PM. Mangal Singh (PW-2) told him that the son of his landlord had been murdered by Munwar. Rohtas who was sitting at his shop on hearing this he informed the police on telephone about this incident. To Rameshwar Dass (PW-9) not even a suggestion was given that what he stated was not correct or that Mangal Singh never informed him about any such occurrence. In fact his testimony remained unrebutted and uncontroverter on record. Beside Mangal Singh's testimony being corroborated by Rameshwar Dass (PW-9) it also stood strengthened from the statement of Rajender (PW-3) son of the landlord and brother of the deceased. Rajender (PW-3) said that he had seen at about 10.00 AM both accused persons in the vicinity near his house on the date of occurrence. This part of Rajender's (PW-3) statement was not challenge.d Their presence near the house of the deceased at 10.00 AM corroborates to a great extent to what was stated by Mangal Singh (PW-2). Rajender's (PW-3) statement proves the presence of these accused persons near the house of the deceased.

8. Now turning to the evidence of Rakhee (PW-1), Ms. Meena Chaudhary Sharms's assertion that since Rakhee's name was not mentioned by Mangal Singh (PW-2) in the FIR nor while making statement in the court, therefore apparently Rakhee was a planted witness. She was introduced by the prosecution subsequently. This contention merits rejection in view of the authoritative pronouncement of the Apex Court in the case of Anil Rai v. State of Bihar and Subhash Chandra Rai and Another v. State of Bihar, 2001 (part 31) AIR SCW 2833 wherein their Lordships observed that evidence of a witness does not lose credibility because his or her name was not mentioned in the FIR. In the said judgment it was held as under:-

Held- Testimony of eye witness which is consistent and convincing - Cannot be rejected or mere existence of enmity.

It was further held that:

It cannot be said that because the names of some eye witnesses are not mentioned in the FIR no reliance can be placed on their testimony. The purpose of the FIR is to set the criminal law into the motion which does not require the details or the names of all the witnesses who have seen the occurrence.

9. In fact Rakhee appears to be a natural witness. She cannot be called a planted witness, in the facts of this case. She being sister of the deceased was resident of that house. She had gone to attend her school. Her school hours were from 8.30 AM to 12.00 noon. Her school was at a short distance. So naturally after finishing school at 12.00 noon she was coming back home. When she reached near her house she saw both these accused persons running out from her house. They were chased by Mangal Singh (PW-2). She knew them because they had come to her house along with her brothers. Mangal Singh (PW-2) while chasing might not have noticed her, but the fact remains that she being resident of that house after finishing school was coming back when she saw accused person running and that is what she stated. Therefore it cannot be said that she was a planted witness. She appears to be natural witness. Her testimony inspires confidence and appears to be truthful. She knew the accused person from before because they visited her house had been corroborated and confirmed by Rajender (PW-3) when he stated that accused persons were known to him form before as they had been coming to his house. No interest or motive has been pointed out on account of which Mangal Singh (PW-2) could falsely implicate these accused persons. No previous rivalry or enmity pointed out for which it cant be said that these witnesses with a malafide intention tried to implicate the accused persons. Not even a suggestion was given to Rakhee (PW-1), Mangal Singh (PW-2) and Rajender (PW-3) that these accused persons deliberately named them for any purpose, motive or interest. Accused Mukram tried to build motive for Mangal Singh (PW-2) and Rajender (PW-3) for falsely implicating him. In his statement under Section 313 Cr.P.C. for the first time he said that Rajender (PW-3) was employed by him. Rajender had taken loan to the tune of Rs.20,000/- from him for the long drawn treatment of his younger brother Raju. Similarly Mangal Singh (PW-2) had taken Rs. 2000/- from him at the time of installation of his kolhu of juice. When he demanded back his money they falsely implicated him. This defense deserve rejection for the reason this was not put to either Mangal Singh (PW-2) nor to Rajender (PW-3) when they stepped into witness box. This appears to be after thought defense. However, this supports the evidence of Mangal Singh (PW-2) and of Rajender (PW-3) that they knew that accused persons from before. The motive of falsely implicate has not been proved.

10. Beside the oral evidence implicating these appellants, prosecution proved their complicity with the crime on the basis of case property i.e. ornaments of landlady (PW-5) recovered at their instance

11. On the disclosure statement of the accused Mukram, one pair of silver Pajeb, who silver rings were recovered. Similarly on the disclosure statement of Munwar one gold ring and one silver Pajeb were recovered. Ms. Meena Chaudhary Sharma contended that these articles were of a very meagre value. For such meagre value ornaments accused person could not have killed the deceased. Moreover, it cannot be expected that accused person would keep the ornaments in their possession for days together to enable the police to recover it. He would not wear one and keep the other in his pocket till such time he was arrested. This shows alleged recovery was planted on him. Similarly, Munwar who had surrendered in Court could not have carried gold ring and silver Pajeb with him. If these were stolen property be would have hidden those somewhere and not carried these ornaments with him. This shows alleged recovery of ornaments on the staged disclosure of the accused persons was not genuine. Moreover, no identification of the ornament was got done. This argument at the first flash may appear convincing but if go through the record then such an argument deserve rejection. For the reason that even if the ornaments were of a meagre value it does not in any way alter the fact that these were stolen from the house of Sheela (PW-5). Secondly merely because Munwar himself surrendered in Court would not make his disclosure statement doubtful nor recovery of these ornaments at their instance false. He had not carried all ornaments with him. He had stated that he had concealed some of the stolen ornaments at his residence at New Ashok Nagar. Ex.PW15/A was recovered at his instance from the place pointed out by him. Therefore his surrender in court could not make the disclosure statement and recovery either illegal or false. As regard the Test Identification of these ornaments, Sheela (PW-5) and Rajender (PW-3) identified the same. Smt. Sheela(PW-5) had given details of the goods stolen to the police. As per her statement articles stolen from her boxes were on gold ring, three silver rings, six hair clips, one silver key ring, one gold chain, two kundals of gold, two Taviz made of gold, three paris of silver karas meant for children, two silver Tagries meant for children, three pairs of Pajeb of silver and Rs. 10,000/- in cash. She identified the gold ring Ex.P1, Silver Pajeb Ex.P2, silver rings Ex.P3 and Ex.P4 and Pajeb Ex.P5/1 & and Ex. P5/2. Beside two rings, two chhallas and one fair pin in the form of chain all made of silver and a Bichhua were also identified by her to be stolen property. Ring Ex.P4 she said belonged to her brother-in-law Ramesh. She identified these ornaments recovered at the instance of the accused persons. Neither Rajender (PW-3) nor Smt. Sheela (PW-5) were subjected to any cross examination on the question of identification of these ornaments. Her statement on this count remained unrebutted on record. Apex Court in the case of Gade Lakshmi Mangraju alias Ramesh v. State of Andhra Pradesh observed that when it comes to identification of the ornaments of the deceased, her female kin would be in a better position to identify the jewellery or ornaments worn by the deceased. In the case in hand ornaments in question were identified by Sheela herself belonging to her for which she had given the description to the police. She was in a better position to identify her jewellery coupled with the fact that on the question of these ornament she was not subjected to any cross-examination. Therefore, we see no reason why her statement that these ornaments belonged to her be not accepted. Her statement appears to be truthful. She did not try to exaggerate either the number of ornaments stolen or their value. She stood by her statement that is why she could not be dislodged in cross-examination.

12. Ms. Meena Chaudhary Sharma then contended that no one had seen Raju the deceased being strangulated by accused persons nor motive to kill him has been proved. No doubt Raju being strangulated had not been witnessed by any one but the following circumstances clearly proves the guilt of the accused persons:-

1. Raju, deceased, a 13 years old boy was along at home. He could not have strangulated himself.

2. The entrance gate of the premises in question was bolted from inside. When it was knocked by Mangal Singh (PW-2) the door was opened from inside by accused Munwar.

3. After opening the door, Munwar went towards the room where the dead body of Raju was lying. Mukram was standing near that room.

4. Ornament sand cash wee stolen from two boxes of Sheela which were lying scattered in the room were Raju was found lying dead. These stolen ornaments were recovered at the instance of accused persons.

5. Accused persons were seen running out from her house by Rakhee (PW-1). She also saw Mangal Singh (PW-2). She also saw Mangal Singh (PW-2) chasing them.

6. They were also spotted near the house of the deceased at 10.00 A.M. by Rajender (PW-3).

13. The cumulative effect of these circumstances show the guilt of the accused persons. This shows that they were the only persons inside the house where dead body of Raju was found. Otherwise why would they bolt the main door of the premises in question from inside. This shows that they were involved in murder of Raju.

14. The motive to commit crime is obvious that is stealing the goods from the house of Sheela, the landlady. Beside the ornaments they had also stolen Rs. 10,000/- in cash.

15. In view of the testimony of Smt. Sheela (PW-5) coupled with the circumstances enumerated above clearly points towards the guilt of the accused persons and the motive also stands proved i.e. committing theft in the house of the deceased. Boxes of Sheela (PW-5) were found open and articles were lying scattered in the room. Motive to commit theft was there, therefore Raju had to be eliminated. He was alone at home, hence it was necessary to remove him in order to commit the theft.

16. Deceased Raju was strangulated to death as is apparent from Post-mortem report. Dr. Baruah (PW-7) testified that on the internal and external examination of the deceased he came to know that the linear crescentic marks resemble nail marks and those were ante-mortem, though in his opinion death was due to Asphyxia following manual strangulation. That Raju was manually strangulated to death, it was not possible for the deceased to strangualte himself. The nail marks show that there was a struggle before the unfortunate Raju a 13 years boy could be strangulated. Unfortunately no finger prints could be found on the neck of the deceased but that does not change the fact that deceased was done to death by manually strangulating him. The presence of the accused persons inside the house and recovery of stolen property from the establishes beyond doubt the guilt of the accused persons. It connect them with crime.

17. For the reasons stated above we find no merits in the appeal nor any ground to interfere with the impugned order of conviction and sentence. Appeal is accordingly dismissed but with no order as to costs. Order be conveyed to appellants through the Superintendent, Central Jail, Tihar.

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