Prabhu vs State
2011 Latest Caselaw 5453 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

                                            DECIDED ON: NOVEMBER 14, 2011

+                              CRL.A. 183/1998


       PRABHU                                         ..... Appellant
                               Through: Mr. Raj Shekhar Rao and Mr. Karan Lahiri,
                                        Advocates/Amicus Curiae.

                      versus

       STATE                                         ..... Respondent

Through: Mr.M.N.Dudeja, APP.

CORAM:

MR. JUSTICE S. RAVINDRA BHAT
MS. JUSTICE PRATIBHA RANI

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

2.     To be referred to Reporter or not?          YES

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


MR. JUSTICE S. RAVINDRA BHAT (OPEN COURT)
%

1. The present appeal is directed against the judgment and order of the learned Addl.

Sessions Judge dated 12.09.1997 in SC No.144/95 whereby the Appellant (hereafter

referred to as Prabhu) was accused of having committed the offence punishable under

Section 302 IPC.

2. The prosecution alleged that Prabhu used to reside in a room which was part of

the premises of Laxmi Timber Store at Prem Nagar, Kirari, Delhi. The store was owned

by Raj Singh (PW-16). Prabhu was apparently employed by Raj Singh in that store. He

used to ply a rikshaw and work in the store for daily wages. It was alleged that Prabhu

was on visiting terms with Munni Devi @ Ali Munisha (hereafter referred to as the

deceased). It was further alleged that on 26.06.1993 at about 10:15 AM, Vijay (PW-2)

was present in his shop near Raj Timber Store, he heard the screaming of a woman from

a neighbouring room of Raj Timber Store. On hearing the scream, he came out of the

premises, rushed to the spot and saw that Prabhu was stabbing the deceased with a knife.

He stated during the course of investigation that Prabhu repeatedly gave knife blows to

the deceased. PW-2 Vijay claims to have apprehended Prabhu but the latter managed to

free himself and flee from the spot. PW-2 thereafter took the injured Munni Devi in his

auto rikshaw to the hospital and narrated the incident to the police.

3. After registration of the case and recording the statements of some of the material

witnesses, the police claims to have arrested Prabhu on 05.07.1993, near the same place

of occurrence. It was alleged that the accused's disclosure statement led to the recovery

of the weapon of offence i.e., the knife, from the bushes behind the Timber Store. It was

also alleged that the accused's disclosure led to the recovery of other incriminating

articles such as blood splattered clothes including the T-Shirt etc. On the basis of all

these, the Appellant, Prabhu was charged with the offence of committing the murder of

the deceased. He denied the plea of guilt and claimed trial. The prosecution relied upon

the testimonies of as many as 20 witnesses besides several material exhibits. After

considering these, the Trial Court concluded on the basis of testimonies of PW-3 and

PW-18 (latter being Ruksana, the minor daughter of deceased Munni) that Prabhu was

guilty as charged and sentenced him to undergo life imprisonment besides directing him

to pay a fine of Rs.500/-. Aggrieved with his conviction, the Appellant has preferred the

present appeal in this Court.

4. The present appeal had been admitted by this Court and the records disclose that

during the pendency of the appeal sometimes in the month of March, 2000, the sentence

of the Appellant was suspended. When the appeal was taken up for hearing, the Appellant

was not present; despite repeated efforts he remained untraceable and, therefore, Mr. Raj

Shekhar Rao, Advocate was appointed as Amicus Curiae for assisting this Court in

hearing and disposing of the appeal finally.

5. It was argued on behalf of the Appellant that the Trial Court ought not to have

returned the conviction in this case. Learned counsel emphasized that the testimony of

PW-2 as well as that of PW-18 established that a large number of other neighbours had

gathered in the immediate aftermath of the incident and many of them apparently would

have even witnessed some part of the incident, particularly Prabhu's flight from the spot.

This, according to the counsel, was very crucial, as this would have corroborated the

identity of Munni's assailants. The Trial Court, according to the counsel, fell into error in

overlooking this material aspect. Elaborating on this, learned counsel sought to highlight

the contradictions between PW-2 and PW-18 in their testimonies. It was first emphasized

that PW-18, who was a minor at the time of alleged incident and continued to be so

during the trial, was never examined during the investigation and her statement was not

recorded under Section 161 Cr.P.C. Therefore, she was introduced in the trial mainly to

corroborate those aspects of the prosecution which in its opinion were weak.

Furthermore, counsel argued that whereas PW-2 claims to have taken the deceased

Munni to the hospital, this fact has not been so recorded in the MLC Ex.PW-10/A. That

document recorded that PW-20 Hari Kishan had in fact taken the deceased in injured

condition to the hospital on 26.05.1993 at about 11:40 P.M. It was further argued that

PW-2 never made mention of the fact that the testimony of the deceased having been

recorded by the police at any stage. PW-18 clearly mentioned that one such statement

was recorded by the police. This aspect was crucial and the prosecution's inability to

even produce that statement or make a mention of it in any of the testimonies of its

witnesses fatally undermined its case.

6. Learned counsel sought to highlight, what according to him, was another serious

contradiction in PW-18's statement. This witness had stated that before the injured was

taken to DDU hospital, she was first taken to a private clinic/ hospital. However, this was

not mentioned either by PW-2 or by any other witness. These discrepancies were serious

enough to cast a cloud of suspicion upon the prosecution's version, and the Trial Court,

therefore, ought not to have uncritically or blindly believed the testimonies of PW-2 and

PW-18. Furthermore, it was submitted that PW-18 contradicted PW-2 as regards the

manner in which he is alleged to have seen the incident. The latter, i.e., PW-18, stated

that after witnessing the stabbing incident she came crying outside. On coming outside

she had met Ajay @ Vijay and had told him about the incident. On the other hand, PW-2

claims to have reached the spot himself after he heard the voice of a woman in pain.

Further PW-18 contradicted PW-2 about the alleged apprehension of the Appellant

Prabhu; according to her, besides PW-2, others had joined in nabbing Prabhu, whereas

PW-2 claims to have nabbed Prabhu single handedly. It was submitted that the Trial

Court, in this case, disregarded the prosecution evidence altogether in respect of Prabhu's

arrest as well as the recoveries alleged. Learned counsel, on this aspect, highlighted the

findings recorded by the Trial Court at Paragraphs 26 to 30 of the impugned judgment. It

is submitted that according to the prosecution, PW-2 was a witness to the arrest as well as

the recoveries. However, this witness did not support the prosecution on this score.

Furthermore, the counsel contended that the entire falsity of the prosecution stood

exposed by its assertion that the accused was arrested from near the same premises, i.e.,

Timber Store and further that the recovery of a knife from behind the bushes was not only

an improbability but also blatantly false. Having disregarded this evidence altogether, the

Trial Court ought to have exercised greater caution and scrutinized the testimony of

PW-2 and PW-18, which the Trial Court did not do in the present case.

7. Learned Addl. Public Prosecutor, on the other hand, argued that the Trial Court's

reasoning cannot be faulted with. It was submitted that in a case entirely based on the

testimony of an eye witness, the deposition of PW-2 stood the test of credibility. Despite

cross-examination, his account of the events, particularly with respect to the time, the

place of attack, the identity of the assailant and the manner in which the injuries were

inflicted, remained unshaken. The intimation to the police and the subsequent registration

of the FIR was on time, which finds corroboration in the MLC Ex.PW-10/A which

mentions the time of Munni Devi's admission into the hospital as 11:40 PM on

26.06.1993. It was submitted that, even though the Trial Court disbelieved some part of

the prosecution evidence detailing that the manner of accused's arrest, as well as the

recovery of murder weapon and his clothes, it did not in any way drag from the core

issue of this case, i.e., that the Appellant was responsible for the murderous attack upon

Munni Devi. Lastly, it was urged that in a case entirely based on ocular testimony, motive

recedes into the background and despite the lack of evidence or the vagueness of the

materials on the record with regard to the motive, the Court should nevertheless uphold

the conviction recorded by the Trial Court in the impugned judgment.

8. It is evident from the preceding discussion that the prosecution banked heavily on

the ocular testimony of PW-2 and PW-18. Nevertheless, the independent material on

record is PW-10/A i.e. MLC, reveals that the time of deceased's admission to the hospital

is 11:40 PM. According to the prosecution, this fact is entirely supported by PW-2; the

timing of the attack was about 10:15 PM. PW-2 completely supported the prosecution

about the manner of the attack in the Timber Store. He claims to have heard the deceased

screaming in pain while being attacked, upon which he rushed to the place of occurrence.

He also claims to have seen the Appellant stabbing the deceased. He further went on to

depose that he could nab the Appellant but the latter managed to slip through and fled

from the spot. Though his name is not recorded in the MLC, this Court finds no merit in

the submission that such circumstance belies this story altogether. The Doctor who

attends on a patient in such circumstances cannot reasonably be expected to record and

narrate the names of all those who accompanied the injured persons. What is important is

that the testimony about having taken the deceased to the hospital after informing the

police almost remained unshaken despite cross-examination on this aspect. No doubt,

during the course of hearing, counsel for the Appellant was able to highlight some

contradiction between the testimonies of PW-2 and PW-18 with regard to whether the

deceased was first taken to a private clinic and also the manner of apprehending the

accused/Appellant. Even though PW-18 deposed that her mother had made a statement

which was recorded by the police. We are not inclined to attach much importance to this.

It is stated on behalf of the Appellant that the statement of this witness was not recorded

during the course of investigation assumes some significance in our opinion.

Furthermore, PW-18 nowhere states that a fact also emerging from the scrutiny of

PW-2's evidence is that she accompanied the injured to the hospital. In such

circumstances, it would be doubtful to attach much significance to whether she had in

fact heard her mother making any statement to the police. Even if this Court were to go to

the extent of disregarding the statement of PW-18 altogether, what remains is the nearly

unshaken deposition of PW-2 which supports the prosecution almost entirely.

9. As far as the Appellant's submission that the Trial Court should not have believed

the prosecution story in view of the skepticism expressed and given effect to vis-à-vis

their recovery and the manner of the Appellant's arrest, we are of the opinion that these

pertain to entirely different incidents. The ocular testimony pertains to the attack and its

immediate aftermath on 26.06.1993. The arrest and the recoveries, however, took place

almost 10 days later i.e. on 05.07.1993. Therefore, the Trial Court in our opinion, adopted

a correct approach in not attaching any importance and disregarding the later part of the

prosecution evidence and its finding which are entirely based on the ocular testimony of

PW-2 to a great extent and to a lesser extent to the testimony of PW-18. As far as the

counsel's submission that the prosecution failed to join others who were apparently

present in the vicinity or in the neighbourhood after the attack is concerned, we notice

that such infirmity cannot be fatal to the prosecution having regard to these facts, the

attack which occurred in the late evening, possibility of securing other eye witnesses may

well be remote. Furthermore, the prosecution, no doubt, has the duty to unravel all the

facts before the Court . The Public Prosecutor has the discretion of weighing what kind of

evidence is best presented before the Court. Nothing was brought to our notice from the

Trial Court's records pointing out to the statements of other witnesses which, according

to the Appellant, were deliberately withheld from the Trial Court. In these circumstances,

it would be idle to speculate that others who were not joined by the prosecution during

the investigation, would possibly have unraveled some other facts during the trial. It has

been observed in some cases that there is no rule of thumb that a conviction cannot be

based on the deposition of a single eye witness.

10. Having regard to all these circumstances, we are of the opinion that the Trial

Court's reasoning convicting the Appellant cannot be faulted with. The appeal, therefore,

has to fail. It is accordingly dismissed. Trial Court records be transmitted forthwith which

shall take out appropriate proceedings under Section 82/83 Cr.P.C. to ensure that the

Appellant is arrested and made to serve the remainder of his sentence.

S. RAVINDRA BHAT (JUDGE)

PRATIBHA RANI (JUDGE) NOVEMBER 14, 2011 dc