Mahender Singh vs State (Govt. Of Nct Of Delhi)
2010 Latest Caselaw 1140 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                             Judgment reserved on: January 12, 2010
                             Judgment delivered on : February 26, 2010


+     CRIMINAL APPEAL NO.96/1997


      MAHENDER SINGH                          ..... APPELLANT
                  Through:          Mr. Bhupesh Narula, Advocate/
                                    Amicus Curiae

                    Versus

      STATE (GOVT. OF NCT OF DELHI)      ..... RESPONDENT
                    Through: Mr. Sunil Sharma, Advocate

      CORAM:
      HON'BLE MR. JUSTICE A.K. SIKRI
      HON'BLE MR. JUSTICE AJIT BHARIHOKE


1.    Whether Reporters of local papers
      may be allowed to see the judgment?                 Yes

2.    To be referred to the Reporter or not ?             Yes
3.    Whether the judgment should be
      reported in Digest ?                                Yes

AJIT BHARIHOKE, J.

1. This appeal is directed against the impugned judgment dated

16.10.1996 in Sessions Case No.198/95, FIR No.247/86, P.S. Sarai

Rohilla holding the appellant guilty for the offences punishable under

Section 302 IPC and Section 324 IPC respectively for having committed

the murder of Ms. Neeru and causing simple injuries with a sharp

weapon to Bhagwati Devi PW1 and Litesh Kumar PW4, respectively, as

also the consequent order on sentence of the even date.

2. Briefly stated, case of the prosecution is that the appellant

Mahender Singh was running a hosiery factory in a portion of House

No.L-2/54, Shastri Nagar, Delhi. Ms. Neeru (hereinafter called as the

„deceased‟) was living with her parents in the other portion of the said

house. On 07.07.86, the appellant accosted the deceased and her

sister Asha Devi while they were coming from the market and teased

the deceased, to which she objected. The deceased told this fact to

her mother Bhagwati Devi, who also reprimanded the appellant.

3. On 08.07.86 at around 8:00 am, PW1 Bhagwati Devi was sitting

outside her house along with her daughter Asha Devi, PW14 when the

deceased came out of the house to call her mother for having tea. The

appellant suddenly came there and stabbed the deceased on her back

with a blade of scissors, saying that it was a lesson for complaining

against him. Because of the impact of the blow, the deceased fell

down on the cot and when she tried to get up, the appellant stabbed

her again. When PW1 Bhagwati Devi tried to intervene, the appellant

stabbed her on her left wrist. PW4 Litesh Kumar, brother of the

deceased was also standing nearby and when he tried to intervene,

the appellant stabbed him on his shoulder and fled away.

4. PW1 Bhagwati Devi took the deceased to Hindu Rao Hospital

where she was declared brought dead vide MLC Ex.PW15/A. MLCs of

injured Bhagwati and Litesh Kumar Ex.PW7/A and Ex.PW15/C were also

prepared.

5. On 08.07.1986 at about 8:12 a.m., some unknown persons

telephonically informed the police about stabbing of the deceased

Neeru by the appellant Mahender, which information was recorded in

the Daily Diary at entry No. 3 (Ex.PW18/A) and entrusted to SI Gopi

Chand for verification, who proceeded to the spot alongwith SI Sunil

Kumar, Constable Chander Bhan and Constable Sahib Singh in a police

vehicle driven by driver Constable Jagdish. The SHO, P.S. Sarai Rohilla

PW18 Raghunath Singh also left for the spot on receipt of the said

information after noting his departure at entry No. 4 (Ex.PW18/B) at

8:15 a.m. on 08.07.1986 in the Daily Diary.

6. On reaching the spot of occurrence, the Investigating Officer,

Raghunath Singh PW18 learnt that the injured Neeru had already been

removed to the hospital. So, he went to Hindu Rao Hospital after

leaving SI Gopi Chand to protect the spot of occurrence. At the

hospital, he came to know that injured had been declared brought

dead. He collected the MLC of the deceased Ex.PW15/A as also the

MLC of mother of the deceased Bhagwati Devi Ex.PW7/A and the MLC

of the brother of the deceased PW 4 Litesh Kumar Ex.PW15/C. He

recorded the statement of PW1 Bhagwati Devi Ex.PW1/A and sent it to

the police station alongwith his endorsement Ex.PW18/C for the

registration of the case and on the basis of the said rukka, formal FIR

Ex.PW18/D under Section 302/324 IPC was recorded at the Police

Station Sarai Rohilla.

7. From the Hospital, Investigating Officer, Raghunath Singh came

back to the spot of occurrence. He prepared the rough site plan

Ex.PW18/E. At the spot, he found two pairs of chappals stated to be of

the deceased and PW1, a blood-stained strap (patti) of brassier and a

cot having blood stains and he took into possession the blood-stained

portion of the cot and the above referred articles after converting them

into sealed packets. The Investigating Officer also lifted the blood-

stained earth as well as the control earth from various spots. He also

conducted the inquest proceedings and sent the dead body of the

deceased for post mortem examination.

8. On 13.07.86, appellant Mahender Singh was arrested. On

14.07.86, the appellant made a disclosure statement Ex.PW18/K

stating that he could get the blade of scissors used for stabbing

recovered. Pursuant to that disclosure statement, the appellant got

recovered both the blades of scissors; one from choti gali and other

from his factory, i.e., L-2/54, Shastri Nagar, Delhi. The Investigating

Officer took both the blades into possession after preparing their

sketches. The Investigating Officer also seized the clothes of the

appellant at the time of his arrest, which were stained with blood.

9. During the course of investigation, weapon of offence, i.e., a

blade of scissors was sent to the Doctor who conducted the post

mortem examination for his opinion and the Doctor concerned opined

that injury received by the deceased could be caused by the said blade

of scissors. Investigating Officer also arranged for sending of the

various incriminating articles and the clothes of the deceased to CFSL

for chemical analysis and obtained the result of serological

examination. On completion of the formalities of investigation, challan

against the appellant was filed.

10. The appellant was charged for offences punishable under Section

302 IPC and Section 324 IPC. He pleaded innocence and claimed to be

tried.

11. In order to bring home the guilt of the appellant, the prosecution

has examined 18 witnesses. For the purpose of decision of this appeal,

it would be useful to have a look at the testimony of some of the

important witnesses.

12. PW1 Smt. Bhagwati Devi is the mother of the deceased and eye

witness to the occurrence. She has stated that on 07.07.86, the

appellant had teased her daughter Neeru. She was told about this fact

by her daughter and on this, she rebuked the appellant on the same

evening, on which the appellant retorted that he would continue to

behave in similar manner and nobody could do anything against him.

She also stated that on 08.07.96 at around 8:00 am, she was stitching

the hooks to the brassieres and her daughter Achla, PW3 was also

sitting there. The deceased came to call her for tea and at that very

moment, the appellant suddenly came from behind and inflicted a stab

blow on the person of the deceased with a scissor which resembled a

knife. When she intervened to save her daughter, the appellant

attacked her also. Her son Litesh, PW4 also reached there and the

accused attacked him also. On sustaining the injuries, the deceased

fell on the cot. When she and Litesh were trying to lift the deceased,

the appellant ran away saying that he would kill two or more persons

and nobody could take any action against him. Thereafter, she took

her daughter to the hospital. She further stated that at the hospital,

she was medically examined and her statement Ex.PW1/A was

recorded. The witness identified the scissor used for stabbing Ex.P-1

and also identified the clothes of the deceased which she was wearing

at the time of occurrence as Ex.P-2 (salwar) and Ex.P-3 (shirt). She

further identified the strap (patti) of brassiers Ex.P-4 and blood-stained

portion of cot Ex.P-5.

13. PW3 Kumari Achla, sister of the deceased and PW4 Litesh Kumar,

brother of the deceased, were also the eye witnesses. They have also

deposed to more or less similar effect. Both of them also stated that

while stabbing the deceased with a blade of scissor, the accused

uttered "Is saali ko kal ki shikayat ka maza chakhata Hoon".

14. PW14 Smt. Asha Devi, sister of the deceased, deposed that on

07.07.86, she and her sister Neeru had gone to the market and when

they were returning back, the appellant teased her sister by saying

"Tumanay mera sath jo vada kar rakhay ha nibhanay paragay". On

this, they objected and told the appellant not to utter such words.

They narrated the incident to their mother Bhagwati Devi and in the

evening, Bhagwati Devi and the deceased had an exchange of hot

words with the appellant.

15. PW7, Dr. Umesh Chandra Verma examined PW1 Bhagwati Devi at

the hospital and had opined the nature of her injuries to be simple,

caused by a sharp object. He proved her MLC Ex.PW7/A.

16. PW15, Dr. Devender Kr. Seth prepared the MLC of the deceased

Neeru Ex.PW15/A and also the MLC of PW4, Litesh Kumar Ex.PW15/C,

wherein he opined the stab injury on PW4 Litesh as simple, caused by

a sharp object.

17. PW10, Dr. Bharat Singh conducted post mortem on the body of

the deceased and he found following injuries on the dead body:

"(i) One incised wound over the left dealtwife size ½" X ¼".

(ii) One incised wound over the left arm outer middle part sized 2½" X 1" X through and through.

(iii) Three super vicial incised wound on the front of left elbow.

(iv) One incised wound on the left index figure size / ¼" X muscle deep.

(v) One incised wound on the left middle finger sized ¼" X muscle deep.

(vi) Two incised wound over the left palm size of each wound was ½" X 1/10" X muscle deep.

(vii) One incised stabed wound over the left brashed size 1" X ½" X ?.

(viii) One incised stab wound over the left breast on the outer side size of the wound was 1" X ½" X?

(ix) One stab incised wound on the left side Epigestic area size 11/2" X ½" X ?

(x) One incised stab wound on the left side of abdomen 2"

above iliac crest size 1" X ½" X.

(xi) One incised wound over the left ancle size 1" X ¼" X muscle deep.

(xii) One incised wound on right deltoid area sized 1 X ½" X ½".

(xiii) One incised wound on the right elbow sized 1" X ¼" X ¼".

(xiv) One incised wound on the web of right thumb and index finger size ½" X ½" X muscle deep.

(xv) One incised wound on the left side back of lower part chest size 1¼" X ½" X ?. "

18. PW10, Dr. Bharat Singh opined that all the injuries were ante

mortem caused by a sharp object and that the injuries No. 7, 9, 10 and

15 were individually sufficient to cause death in the ordinary course of

nature. He also stated that he handed over the sample blood as also

the clothes of the deceased to the police and proved his report

Ex.PW10/A. Dr. Bharat Singh deposed that on 18.09.86, one sealed

packet duly sealed with the seal of „RC‟ containing one side blade and

handle of scissors was produced before him by the police for his

opinion and on examination, he found that the injuries described in the

post mortem report might have been caused by the aforesaid part of

the blade of the scissors.

19. The appellant, when confronted with the incriminating evidence,

denied the prosecution story. He set up a defence of alibi by

explaining that he had gone to "Vaishno Devi" on 07.07.86 and

returned on 12.07.86. On his return, he was told that the police was

after him and, therefore, he himself went to the police station and

surrendered. The appellant also explained that PW1 Bhagwati used to

take socks from his factory for cutting threads. She had taken some

advance money also. She neither returned the money nor accounted

for the same, therefore, he stopped giving work to her, which caused

annoyance to PW1 Bhagwati. He further explained that the family of

the complainant was also annoyed with him because of the noise

created due to running of machines in his factory and that the

deceased was not having good character and he had apprised PW1

Bhagwati Devi about the same, which was a further cause of

annoyance to her and because of that reason, perhaps he has been

falsely implicated.

20. In defence, appellant has examined his wife Pushpa Devi, DW1.

She deposed that on 07.07.86, her husband Mahender Singh had gone

to „Vaishno Devi‟ by the night train at 11:00 pm and he returned back

to Delhi on 12.07.86. In his absence, the police had visited their house

and asked about her husband and she told the police that he had gone

to „Vaishno Devi‟. Thus, SHO instructed her to bring her husband to

the police station as and when he returned from „Vaishno Devi‟. She

stated that immediately after the return of her husband, she took him

to the police station. The witness also placed on record a receipt and a

slip mark „A‟ and „B‟ purported to have been issued by „Dharmarth

Trust Jammu & Kashmir‟ and „Shridhar Sabha(Regd.) Katra (Vaishno

Devi)‟ issued to her husband during his visit to „Vaishno Devi‟.

21. The learned trial Judge, relying upon the eye witness account

given by the ocular witnesses and other accompanying circumstances,

found the appellant guilty for the offences punishable under Section

302 IPC and Section 324 IPC and convicted him accordingly.

22. The conviction of the appellant is essentially based upon the eye

witness account of the occurrence given by PW1 Bhagwati Devi, the

mother of the deceased, PW3 Achla, sister of the deceased and PW4

Litesh Kumar, brother of the deceased. The first contention on behalf

of the appellant is that the above referred witnesses ought not to have

been relied upon by the learned trial Judge because they fall within the

category of interested witnesses, being the close relatives of the

deceased.

23. We do not subscribe to the view propounded by the learned

amicus curiae. In the matter of Dalip Singh Vs. State of Punjab, AIR

1953 SC 364, the Supreme Court laid down the law relating to the

evidentiary value of a related witness by observing thus:

"26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."

24. In a subsequent judgment, in the matter of Surinder Singh Vs.

State of U.P., (2003) 10 SCC 26, the Supreme Court, on the issue of

the credibility of a related witness observed thus:

"10. ...Relationship is not a factor to affect the credibility of a witness. It is more often than not that a relation would not conceal the actual culprit and make allegations against an innocent person. Foundation has to be laid if a plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse the evidence to find out whether it is cogent and credible.

13. We may also observe that the ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon, has no substance. ..."

25. From the above enunciated principles of law, it is clear that the

testimony of a related witness cannot be rejected only on the ground

of his relationship and it has to be appreciated like the testimony of

any other witness and, if found reliable, conviction can be based upon

such testimony.

26. The next submission advanced on behalf of the appellant is that

the testimony of the eye witnesses PW1 Bhagwati, PW3 Achla and PW4

Litesh Kumar is otherwise also unreliable. In support of this

contention, learned amicus curiae submitted that PW1 Bhagwati claims

to be the witness of the occurrence and that she took the deceased to

the hospital. Despite of that, perusal of the MLC of the deceased

Ex.PW15/A reveals that in the history recorded in the MLC, it is

mentioned " alleged history of being stabbed by someone". Learned

amicus curiae submitted that had PW1 Bhagwati been the eye-witness

of the occurrence, she would have given the name of the appellant as

assailant while narrating the history to the doctor. Learned amicus

curiae further submitted that according to PW1 Bhagwati Devi, the

weapon used by the appellant was a knife, whereas the case of the

prosecution is that the deceased was stabbed with a separated blade

of a pair of scissors. He further pointed out that even the blood-

stained clothes of PW1 Bhagwati were not seized, which also leads to

an inference that she actually did not take the deceased to the

hospital, otherwise her blood-stained clothes would have been seized

by the Investigating Officer to substantiate the prosecution claim that

she actually witnessed the occurrence and also took the deceased to

the hospital. Regarding PW3 Achla, learned amicus curiae submitted

that she, in her cross-examination, deposed that her statement under

Section 161 Cr.P.C was recorded by the police on 08.07.1986 at 08:05

a.m in presence of her mother and brother and she also signed that

statement in English, which version is belied by the fact that by 08:05

a.m., the police had not reached the spot of occurrence and also that

there is no signed statement of PW3 Achla on the investigation record.

From the above, learned amicus curiae has urged us to infer that she

was not present at the spot and she has been falsely introduced as a

witness. He further contended that the doubt against her presence is

also compounded by the fact that she could not tell whether vest of

her brother Litesh Kumar was stained with blood. Regarding PW4

Litesh Kumar, learned amicus curiae submitted that his testimony also

suffers from contradictions vis-a-vis the statement of PW1 Bhagwati

Devi, which makes his presence doubtful, which doubt is further

compounded by the fact that PW4 Litesh could not tell in his

examination as to in which direction the appellant ran away after the

occurrence.

27. It is true that as per the MLC of the deceased Ex.PW15/A, the

deceased was brought to the hospital by PW1 Bhagwati Devi and the

alleged history recorded in the MLC is "being stabbed by someone".

Non-mention of the name of the appellant as the assailant who

inflicted the stab injury on the deceased, in our considered view, is of

no help to the appellant. One can imagine the state of mind of a

mother whose daughter has been stabbed in her presence and was

fighting for life. In such a situation, her only concern could be to save

the life of her daughter and if in such a state of mental trauma PW1

Bhagwati Devi failed to mention the name of the assailant while giving

history to the Doctor, this by no means would affect her credibility. As

regards the contradiction pertaining to the weapon of offence, we may

note that PW1 in her testimony has categorically stated that her

daughter was stabbed by the appellant with a blade of a pair of

scissors which looked like a knife. This explains the minor

contradiction regarding the description of weapon of offence, which

has cropped up in the complaint statement Ex.PW1/A given to the

Investigating Officer. Non-seizure of the blood-stained clothes of PW1,

of course, is a lapse on the part of the Investigating Officer, but it is not

such a serious lapse which can be taken as a circumstance to doubt

the presence of PW1 Bhagwati at the time of occurrence, particularly

when she herself sustained injury in the occurrence, which fact is

substantiated by her MLC Ex.PW7/A. Thus, we do not find any reason

to doubt the testimony of PW1. The credibility of PW3 Achla is

challenged on the ground that she in her testimony gave the time of

recording of testimony by the police as 08:05 a.m. on 08th July, 1986,

which is an impossibility because by that time, the police could not

have reached at the spot. In this regard, it is suffice to say that the

time given by the witness is only approximate and she was not

expected to give the time of recording statement by the police by

stopwatch procedures. Learned counsel also challenged her testimony

on the ground that she testified that she signed a statement made to

the police whereas as per the prosecution, there is no signed

statement of her‟s. This minor lapse in the evidence of PW3 Achla, in

our view, cannot come in way of her credibility as it can safely be

attributed to the lapse of memory because of efflux of time. We may

note that the incident took place in July, 1986 whereas PW3 Achla was

examined as a witness in the year 1991. As such, she was not

expected to remember each and every minor detail about the incident.

The so-called infirmities pointed out in the testimony of PW4 Litesh

Kumar are also not so material as to cast any doubt on his credibility.

PW1 Bhagwati and PW4 Litesh Kumar sustained injury in the

occurrence and they were also taken to the hospital where they were

medically examined and their respective MLCs Exhibits PW7/A and

PW15/C were prepared on the same day, i.e., 08.07.86. Considering

the fact that PW1 and PW4 sustained injury in the occurrence and their

testimony is consistent on all material aspects of the case, we find no

reason to doubt their credibility particularly when, under the natural

course of circumstances, the witnesses being relatives of the deceased

are not expected to falsely implicate the appellant and let the real

culprit goes scot free. Thus, we are of the view that learned Trial Court

has rightly relied upon the ocular evidence of PW1 Bhagwati Devi, PW3

Achla and PW4 Litesh Kumar to hold the appellant guilty.

28. Coming to the plea of alibi of the appellant, the learned amicus

curiae has submitted that the Trial Court has erred in ignoring the

testimony of DW1 Pushpa Devi, which clearly establishes that the

appellant had left Delhi for Vaishno Devi on 07th July, 1986 by the night

train and returned back only on 12th July, 1986. Therefore, he could

not have been physically present in Delhi at the spot of occurrence in

the morning of 08.07.1986. Learned amicus curiae further submitted

that the Trial Court has wrongly rejected the documentary evidence

i.e. the receipt Mark A and Slip Mark B issued by the „Dharmarth Trust,

Jammu & Kashmir‟ and „Shridhar Sabha (Regd.), Katra (Vaishno Devi)‟

to the appellant which substantiate the oral testimony of DW1 Pushpa

Devi.

29. The learned trial Judge has thoroughly dealt with the aforesaid

plea of alibi of the appellant in para 48 to 52 of the impugned

judgment and we do not find any infirmity in the line of reasoning

adopted by him.

30. The appellant has tried to establish his plea of alibi on the basis

of oral testimony of his wife DW1 Pushpa Devi and on the basis of one

receipt mark "A" purportedly issued to the appellant by „Shridhar

Sabha (Regd) Katra (Vaishno Devi) on 10.07.86 and a slip mark "B"

issued to him by „Dharmarth Trust Jammu & Kashmir‟. So far as slip

mark "B" is concerned, it is of no avail to the appellant because it does

not bear his name and it could have been issued to anyone. Regarding

mark "A", it is suffice to say that this receipt was issued on 10.07.86.

Even if the receipt is taken as genuine document, then also it is of no

help to the appellant because journey from Delhi to „Katra, Vaishno

Devi‟ takes about 14 to 16 hours and a person could have reached

„Katra, Vaishno Devi‟ on 10.07.86 by leaving Delhi on the night of

09.07.86. Therefore, this circumstance does not rule out the possibility

of the presence of the appellant in Delhi on 08.07.86 when the

occurrence took place. So far as the testimony of Smt. Pushpa Devi,

DW1 is concerned, she cannot be relied upon, firstly because she is an

interested witness, being the wife of the appellant. Secondly, she has

stated that her husband had left for „Vaishno Devi‟ on the night of

07.07.86 by the night train. No tickets of night train have been placed

on record to substantiate her claim. Generally, overnight journey is

undertaken by people on sleeper class, for which a record is also

maintained at railway office. However, no such record has been

placed. Further the defence of alibi taken by the appellant appears to

be an afterthought because to none of the witnessess the appellant

suggested the aforesaid defence. Had he actually been away to

„Vaishno Devi‟ on the date of occurrence, he would definitely have put

his defence to all the eye witnesses as well as the Investigating Officer.

Thus, we are of the considered view that the appellant has failed to

establish his plea of alibi and this also is an additional circumstance

pointing towards the guilt of the accused.

31. In view of the above, we do not find any merit in the appeal. We

are of the opinion that the learned trial Judge has rightly convicted the

appellant under Section 302 IPC. Appeal is, therefore, dismissed.

32. Appellant is on bail. His bail and surety bond are cancelled. He

be taken into custody and sent to Jail to undergo the remaining period

of his sentence.

AJIT BHARIHOKE, J.

FEBRUARY 26, 2010                              A.K. SIKRI, J.
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