Mukesh vs State
2010 Latest Caselaw 1323 Del

R-112
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Date of Decision:10th March, 2010

+                        CRL. APPEAL NO.821/2007

         MUKESH                                    ..... Appellant
                         Through:   Ms.Shraddha Bhargava, Advocate

                                    Versus

         STATE                                      ..... Respondent
                         Through:   Ms.Richa Kapoor, Advocate

         CORAM:
         HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
         HON'BLE MR. JUSTICE SURESH KAIT

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

     2. To be referred to the Reporter or not?            Yes

     3. Whether the judgment should be reported in the
        Digest?                                   Yes

PRADEEP NANDRAJOG, J. (Oral)

1. The appeal has reached for hearing and we find

that the Amicus Curiae appointed on behalf of the appellant

namely Ms.Poornima Sethi has not appeared at the hearing.

2. Ms.Shraddha Bhargava Advocate on the panel of

the Delhi High Court Legal Services Committee who is present

in Court is accordingly appointed as the Amicus Curiae and

with assistance of the learned Amicus Curiae and counsel for

the State records have been perused.

3. Before noting submissions we place on record our

appreciation for learned Amicus Curiae who has read the

testimony of PW-11 in Court and has very ably assisted us in

pointing out facets of the evidence which have been ignored

by the learned Trial Judge.

4. We fix the fee of learned counsel in sum of

Rs.7,500/- to be paid by the Delhi High Court Legal Services

Committee.

5. With reference to the testimony of Kailash PW-11

and holding that the same is credible; finding further

incriminating evidence in the form of the knife Ex.P-1 which

was stated to have been got recovered after the appellant was

apprehended, which has been opined to be the possible

weapon of offence, further evidence being blood being

detected on the knife of the same group as that of the

deceased, the learned Trial Judge has held that the

prosecution has successfully established that the appellant

murdered Mukesh and injured Kailash, hence committed an

offence punishable under Section 302 IPC and 324 IPC.

6. The MLC Ex.PW-14/A shows that the deceased

Mukesh was got admitted at Sanjay Gandhi Memorial Hospital

by Kailash at 8:45 PM on 8.1.2004.

7. The statement Ex.PW-11/A of Mukesh has been

recorded by SI Ravi Shankar PW-19 at the hospital and the

endorsement Ex.PW-19/A beneath the statement of Kailash

shows that the statement and the endorsement was

dispatched from the hospital at 11:10 PM.

8. The stated time of the crime is 7:15 PM. There is

thus proximity of time and place evidencing that Kailash was

present when Mukesh received a single stab wound and

Kailash was also injured.

9. But, the question arises as to who committed the

crime and whether Mukesh is a witness who has to be

believed?

10. It may be noted at the outset that during cross-

examination Kailash has admitted being an accused in a large

number of FIRs. The number of FIRs in which Kailash was an

accused has been brought on record through the testimony of

HC Ashok Kumar DW-1 who filed a tabular chart Ex.DW-1/H

which shows that Kailash is an accused in as many as 19 FIRs.

The chart is an interesting reading for the reason it shows that

Kailash at whose instance the FIR was registered is an accused

in as many as 19 cases with the offences ranging from

robbery, attempt to murder, drug peddling, Arms Act and the

Goonda Act. Interestingly the instant crime relates to

something which happened on 8.1.2004 and only 8 days prior

thereto Kailash was released from prison on bail and within 8

days thereafter i.e. on 16.1.2004 became an accused for an

offence of attempt to murder.

11. It is apparent that Kailash has his roots in the world

of crime and hence his testimony has to be viewed with care

and caution and only if it is found to be of such high level of

credibility, can it be the foundation of a conviction without any

corroboration.

12. As deposed to by Kailash on 8.1.2004 at around

7:15 PM he was present at Paschimpuri Chowk and his friend

Rohtash contacted him over his mobile phone No.9810499072

and informed him that Mukesh (the accused) brother of Vijay,

was harassing Rohtash and was man handling Rohtash.

Accordingly, he i.e. Kailash reached House No.RZB-195, Nihar

Vihar where Rohtash was staying. He took along with him one

Mukesh son of Mam Chand.

13. Before further noting the testimony of Kailash we

wish to make the reader of this decision aware that there is a

reference to two persons by the name of Mukesh. The first is

Mukesh the accused and the appellant. The other is the

reference to Mukesh the stated friend of Kailash who went with

Kailash when Kailash responded to the telephone call of

Rohtash and was killed.

14. As per Kailash, when he reached house No.RZB-195

Nihar Vihar he found accused Mukesh in presence of Rohtash

and he tried to persuade accused Mukesh not to quarrel with

Rohtash. Accused Mukesh told him that Rohtash had

borrowed Rs.200/- from brother of Mukesh and was not

repaying the same. Accused Mukesh picked up a fight with

Kailash and tried to hit Mukesh, the friend of Kailash. Kailash

intervened to save his friend Mukesh and in the process

received an injury on his right hand and the left cheek.

Accused Mukesh inflicted a knife blow on the lower portion of

the abdomen of Kailash's friend Mukesh who started bleeding

profusely. Kailash and Rohtash took Mahesh to Sanjay Gandhi

Memorial Hospital where police recorded his statement Ex.PW-

11/A. Kailash further deposed that he joined in further

investigation and when accused Mukesh was apprehended he

made a disclosure statement Ex.PW-9/D and volunteered to

get recovered the weapon of offence. He led the police to his

house at Laxmi Chowk and from an almirah got recovered the

knife Ex.P-1 which was seized vide memo Ex.PW-9/G. He also

got recovered a pant Ex.P-2 which was seized vide memo

Ex.PW-9/H.

15. On being cross-examined, Kailash admitted being

an accused in a large number of FIRs and that he was released

on bail a week prior. He admitted that the range of cases

against him pertained to offences under Arms Act, the Goonda

Act, for gambling, for theft and robberies etc. and NDPS. On

being cross-examined he had following to depose about the

incident: 'I reached the room of incident at about 6:45 PM in

the evening. Jamna Dass was not there in the room when I

reached there. The room in incident is surrounded by the

dwelling houses. No public person was there in the room. I

saw outside the room Mukesh was holding the collar of

Rohtash. There is an open ground immediately outside the

room. I saw Mukesh holding collar of Rohtash in the gali and

Mukesh was carrying Rohtash with him. I saw Rohtash was

being dragged forcibly. At that time they were at a distance of

about 20 to 25 ft. from the room.' On being further cross

examined he stated: 'When Mukesh i.e. accused left Rohtash

the public person also left the spot and I was caught hold by

him thereafter. There was a minor scuffle between me and

the accused for about one and a half minute and thereafter I

was set free by the accused. After my reaching the spot the

quarrel continue for about half an hour at the spot but with me

the dispute lasted for 10-15 minutes only.' On being further

cross-examined as to what steps he took to render comfort to

his friend, Kailash deposed: 'I took off my shirt and try to stop

the blood by wrapping the same around the injury. Mukesh

i.e. deceased at that time was wearing shirt and with sleeves

sweater'.

16. We find it strange and indeed something which is

not to be missed, that Rohtash the person at whose instance

Kailash responded and reached the house of Rohtash, the

place where the crime took place, has not even been

examined by the prosecution as a witness. We find it worthy

of being noted that the shirt which Kailash claims to have

wrapped around the waist of the deceased has not even been

seized. The mobile phone on which Kailash claims having

received a summons to rescue from Rohtash has not been

brought before the Court as real evidence.

17. The manner in which Kailash has gone about

describing the incident during cross-examination makes it

highly suspect whether what is being spoken about by Kailash

is worthy of any belief for the reason save and except a single

stab wound on the person of the deceased we find no signs of

any injury which show a scuffle. It became important to have

examined Rohtash for as per Kailash the quarrel continued at

the spot for about half an hour. As stated in his cross-

examination accused Mukesh was not only holding Rohtash by

the collar in the gali but was forcibly dragging Rohtash and if

that be so, bruise and contusion wounds would have been on

the person of Rohtash.

18. Highlighting the fact that the place of the crime is

the house of Rohtash whose involvement in the incident has

surfaced with considerable degree of substantial measure, it

indeed is a serious issue of Rohtash not being examined as a

witness.

19. Considering the character of the person of Kailash,

who is an accused in as many as 19 crimes, further noting the

aforenoted features in the testimony of Kailash, we are of the

opinion that it would be unsafe in the instant case, as the facts

have emerged, to sustain the conviction of the appellant on

the uncorroborated testimony of Kailash.

20. As regards the recovery of the knife at the instance

of the appellant as also that the pant got recovered by him

was stained with human blood, group whereof could not be

determined, suffice would it be to state that as held in the

decisions reported as JT 2008 (1) SC 191 Mani Vs. State of

Tamilnadu, 1999 Crl. LJ 265 Deva Singh Vs. State of Rajasthan,

AIR 1994 SC 110 Surjit Singh & Anr. Vs. State of Punjab, 1977

(9) UJ 226 (SC) Narsinhbhai Haribhai Prajapati Etc. Vs.

Chhatrasinh & Ors. and AIR 1963 SC 1113 Prabhu Vs. State of

UP, recovery of ordinary object is always treated as a very

weak piece of evidence. Unlike firearms, knives etc. are only

capable of being opined as the possible weapon of offence and

not the only weapon of offence.

21. We give the benefit of doubt to the appellant. The

appeal is allowed. Impugned judgment and order dated

5.10.2007 is set aside.

22. The appellant is acquitted of the charges framed

against him.

23. Since the appellant is in jail we direct that a copy of

this decision be sent to the Superintendent Central Jail Tihar

with a direction that if not required in any other case, the

appellant be set free forthwith.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE March 10, 2010 mm