Mahilal vs State (Nct) Of Delhi
2008 Latest Caselaw 2267 Del

*             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,

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

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

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

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'