Jogender @ Jogeshwar vs State
2011 Latest Caselaw 5252 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                         RESERVED ON: 16.09.2011
                                                       PRONOUNCED ON: 31.10.2011

+                     CRL.A. 489/2011, Crl. M. (Bail) 644/2011

       JOGENDER @ JOGESHWAR                                                    ..... Appellant
                      Through: Sh. A.J. Bhambhani and
                      Ms. Nisha Bhambhani, Advocates.

                      versus

       STATE                                                                  ..... Respondent

Through: Sh. Sanjay Lao, APP.

CORAM:

       MR. JUSTICE S. RAVINDRA BHAT
       MR. JUSTICE G.P. MITTAL

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

2.     To be referred to Reporter or not?          YES

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


MR. JUSTICE S.RAVINDRA BHAT
%

1. The present appeal is directed against a judgment and order of the learned Additional Sessions Judge, Delhi dated 27-11-2010 in SC No. 116/08, convicting the Appellant for the charge of committing the offence punishable under Section 302, IPC and sentencing him to undergo life imprisonment, with fine.

2. The prosecution allegations are that on 18.04.2005, SI Teg Bahadur was informed (through DD No. 23A), that one Mahesh, (the deceased) resident of Rajeev Nagar, Begampur, Delhi, was taken to the SGM Hospital by one Parsuram in injured condition, and had been declared brought dead. On receipt of this information, SI Teg Bahadur along with Ct. Surender reached the hospital and obtained Mahesh's MLC. The informant Parsuram was also present; his

CRL.A. 489/2011 Page 1 statement (Ex.PW-6/A) was recorded and made the basis of the FIR that was subsequently registered. PW-6 stated that he was residing at H.No.A 48, Rajeev Nagar, Begampur, Delhi for two years, with Mahesh, resident of Bega Thana, Dist Nalanda, Bihar, on rent. He used to be engaged in sewing work in Rajeev Nagar; Mahesh was working at Prahladpur in a factory and used to work during the night shift. He used to stay at home, during the day. PW-6 said that on that day, at 09:00 AM, he left for his work and around 10.00 AM, Mahesh went to his place of work took the house key and left. He also stated that during the day, at around lunch time, Manoj, who had rented the adjoining room, went to him and told him that the room was locked from outside and he could hear Mahesh's cries from inside the room. On hearing this, he went along with Manoj to his room, and also heard Mahesh crying out in pain. Thereafter, Manoj brought pliers and screw driver from his factory and broke open the room door. They found Mahesh on the floor in injured condition. He told them "mujhe Jogeshwar @ Jogender, jo ki mere gaon ka hi rehne wala hai, ne muje mara". They took Mahesh in their landlord's car to SGM Hospital. Mahesh became unconscious during the journey and was declared brought dead in the hospital. Subsequently, on 20.04.2005, Jogender @ Jogeshwar was arrested at the instance of the complainant and interrogated. He made a disclosure statement pursuant to which, a knife, used in the incident was recovered from his jhuggi, as well as his blood stained shirt, which he was wearing at the time of the incident. Both were seized separately.

3. The Appellant was charged with committing the offence; he pleaded not guilty, and claimed trial. The prosecution relied on the testimony of 22 witnesses, and also produced other materials. Based on appreciation of these, the Trial Court delivered the impugned judgment.

4. The learned amicus, Mr. Bambhani, submitted that PW 2 & PW 6 deposed that when they broke open the room door, with the help of screw driver and pliers, the deceased was alive and was speaking; he disclosed to them that he had been killed by the Appellant. However, PW- 21 Arun Yadav, their landlord, who had taken the deceased to the hospital along with PW2 & PW 6, deposed in his cross examination that the deceased was unconscious at that time and was not able to speak anything. This, according to counsel, was a major inconsistency that had not been explained at all by the prosecution, which falsified its story.

5. It was urged that the entire prosecution story hinged around the testimony of PW-6, who allegedly heard the deceased telling him, from behind a locked door, about the attack, and the

CRL.A. 489/2011 Page 2 identity of the assailant. It was urged that this witness could not be characterized as supporting the "last seen" theory, because he in fact did not see the deceased and the Appellant together, at any point of time. Arguing that the entire testimony of this witness, is riddled with improbabilities, it was pointed out that the witness claims to have first gone to fetch PW-2, and then again, gone to inform PW-21. These, submitted the amicus would have entailed considerable loss of time, further rendering the chances of survival of the injured extremely remote. Learned counsel also highlighted an inconsistency between the testimonies of PW-2 on the one hand, and PW-21 on the other, stating that the former mentioned that the injured Mahesh made a dying declaration, implicating the Appellant, on the way to the hospital in PW-21's car, whereas the latter did not mention any statement, and in fact deposed that Mahesh was unconscious and unable to speak.

6. It was next argued that, pursuant to the Appellant's disclosure statement, no key was recovered at his instance, to establish his complicity in the crime. The key was a crucial circumstance in the prosecution story. In its absence, it could not be alleged that the Appellant had locked the room, after stabbing the deceased. Further, according to the amicus, there was no need for breaking open the lock (by PW 2 & PW 6), as the former (PW 2) admitted in his cross- examination that PW 6 also had the key to the room in question, where he used to reside with the deceased as co-tenant. PW 6 was not interrogated by the I.O on this question about the key, as his interrogation would have revealed, why he did not use his key to open the room. This showed that PW 6 could also be a suspect in the murder of deceased Mahesh, as he had opportunity to open the door of the room and to lock it later, after committing the deed. It was also argued that the evidence of PW-2 and PW-6 was to the effect that only the two of them were present, when the lock was forced; however PW-21 claimed to have witnessed that episode, which contradicted the prosecution story.

7. The Amicus urged that the prosecution story is unworthy of belief, since it is unclear why PW 2 Manoj, instead of calling PW6 Parsuram from his factory did not immediately inform the house owner (PW 21 Arun Yadav), about the cries, he heard. Arun Yadav could have opened the door of the said room, instead of PW 6 returning to the room. He further argued that from the testimony of PW 2, it is apparent that other persons used to visit the deceased Mahesh and few others resided in the nearby rooms, who could also be suspect, for murdering Mahesh, an angle

CRL.A. 489/2011 Page 3 which was not investigated. Both PW-2 & PW-6 were interested witnesses, submitted the counsel, as both were related to the deceased, and therefore were interested in getting the Appellant convicted. The amicus also urged that the Appellant's finger prints were not found on the door or from the deceased's room, which points to his innocence. Counsel next emphasized that the recovery (relied on by the prosecution) in the present case is unworthy of credence, since no independent public witness was joined at the time of recovery of knife from the Appellant's Jhuggi, nor were any blood stains found from the place, where the said recovery was allegedly made. It was further submitted that the recovery of blood stained clothes of the deceased does not mean anything, as the clothes did not belong to the Appellant, as the prosecution could not prove it by making the accused to wear them. Further, the blood stains on the said clothes were not linked to the Appellant, as his blood sample was not taken during the investigation. The Appellant was a labourer. Therefore, the presence of blood stains on his clothes cannot be unnatural or could be said to be belonging to him.

8. The APP for the state submitted that the impugned judgment does not call for any interference. He argued that the testimony of PW-2 Manoj, made it apparent that he had last seen the accused coming from the side of the room of the deceased, where the latter, along with PW 6 used to reside as co-tenants. PW-6's testimony proved that the deceased used to work during the night shift, and rest in the room, during the day. The evidence also showed that the deceased had taken the key from him, while he (PW-6) was working in the factory, at around 10-00 AM. Upon PW 2 returning to his room, (which was adjacent to Mahesh's room), during the lunch time, he heard Mahesh crying. This explained why the key was not with the PW 6 and the reason why PW 2 & PW 6 had to break open the lock with the help of screw driver and pliers.

9. The APP highlighted that PW 2 & PW6 clearly deposed that, when they had broken open the door of the deceased room, he told them that it was the Appellant, who knifed him, and there is no contradiction in their testimonies in this regard vis-a-vis the testimony of PW 21 Arun Yadav. Firstly PW 2 & PW 6 entered the deceased's room, where he lay injured and had talked to him. This evidence of the injured was crucial, as he was badly injured, since his intestines were coming out from his abdomen. It was natural that he would have told the name of the assailant to PW 2 & PW 6, before PW 21 came there and shifted him in his car to the hospital.

CRL.A. 489/2011 Page 4

10. It was further argued that PW 7 and PW 8 deposed, that both the Appellant and the deceased belonged to the same village and they had a quarreled over money due to which a panchayat was held at the village, in which the accused had openly threatened the deceased that he would teach him a lesson in Delhi. This clearly pointed to motive on the part of the accused to eliminate the deceased. It was urged that recovery of the knife and blood stained clothes at the instance of the Appellant, pursuant to his disclosure statement leads assurance to the prosecution story that it was only the accused, who had committed the murder of deceased Mahesh. Further FSL Report also supported this hypothesis, as PW 22 has stated that the cut marks on the clothes of the deceased were possible with the knife, recovered at the instance of the Appellant and similarly the autopsy surgeon has opined that the injuries, mentioned in the postmortem report were possible with the such knife or similar weapon. Consequently, APP argued that the prosecution evidence irrefutably pointed to inference that it was the Appellant, who had stabbed the deceased to death. Counsel also submitted that the so called discrepancies and inconsistencies were not substantial to render the entire prosecution story fatal.

11. It is evident from the above discussion that according to the prosecution, the appellant and the deceased were co-tenants in a room which was part of premises owned by PW-21. PW-6 too was a co-tenant. According to his testimony, the deceased used to work often in night shifts. On the fateful day, when the incident occurred, i.e. 18-04-2005, the deceased Mahesh went to PW-6's factory, borrowed the key to the premises and went back. He further testified that around lunch time i.e. 01:00-2:00 P.M., the other co-tenant, PW-2 went to him and told him that he went to the premises for having lunch; while approaching the room, he saw the Appellant going out from the side of the same room in which PW-6 and the deceased used to stay. PW-2 also heard Mahesh crying for help; on being asked, the former told PW-2 that he should call PW-6 immediately. PW-6 rushed to the room with PW-2; he heard Mahesh crying out. The premises were locked; since he did not have the key, PW-2 went and brought a screw-driver and a pair of pliers, from his factory. They broke open the lock, and saw Mahesh injured. He informed them that the Appellant had stabbed him. They took Mahesh in their landlord's car, to the hospital. In cross examination, the Appellant's counsel tried to elicit the distance of the premises; it turned out to be about 30-35 meters away from PW-6's place of work. Similarly, PW-2's place of work was also around the same distance. He also stated that the keys of the room used to be with the deceased or with him (i.e. PW-6 himself). He then went on to recount how the deceased was

CRL.A. 489/2011 Page 5 taken to the hospital, and the circumstances under which the Appellant was arrested. He further stated that PW-21, the landlord had accompanied him and PW-2 to the hospital. PW-2 deposed having gone to the premises, in the manner described by PW-6, seeing the Appellant coming out from the side of the room, hearing the cries of the deceased, rushing to PW-6, their both returning to the room, finding it locked, his getting a screw driver and pliers, their breaking open the lock and entering the premises. He also corroborated PW-6's version regarding Mahesh telling them about the identity of his attacker, i.e. the present Appellant.

12. Now, there are a few inconsistencies; for instance, PW-21, the landlord of PW-2, PW-6 and the deceased, firstly corroborates having gone to the premises, and helped in taking the deceased to the hospital. However, he also added that the deceased told him during the car ride that the Appellant had attacked him. This improvement was seized upon by the amicus to dub the witness as unreliable; it was also argued that PW-21 did not corroborate PW-2 or PW-6 about the deceased having told them about the attack by the Appellant. The approach of the court in a case like the present one, has to see as to who was the first witness. PW-2 says he heard the deceased crying out, and calling PW-6, and asking that he should be brought there immediately; therefore PW-6 was informed and brought there. Both the co-tenants could not open the door; it had to be forced open with the help of a screw driver and a pair of pliers, which PW-2 brought from the nearby factory. Both these witnesses entered the premises. Significantly PW-21, does not mention having entered the room. If that is the true position, he could not have heard the deceased's account about who the attacker was (in other words the dying declaration). Equally, it was PW-2 and PW-6 who heard that statement. Once this aspect is clear, the other evidence about the manner in which the deceased was taken to the hospital (i.e. in PW-21's) car, is incidental to the narrative. The variation pointed out by the amicus is, doubtless, an inconsistency. However, it is insignificant in its effect, and cannot undermine the version of PW- 2 and PW-6 altogether.

13. Ex.PW-1/A, the MLC shows that PW-6 had taken the deceased to the hospital at 02:00 PM. The injured was declared dead. The crime team appears to have reached the spot at around 05:00 PM - evident from Ex. PW-19/B. The report does not mention the FIR particulars, but talks of the stabbing incident. The FIR in the case was registered at 6:50 PM, the same day; PW- 6's statement was the basis for it.

CRL.A. 489/2011 Page 6

14. As far as motive is concerned, the prosecution relied on the testimonies of PW-7 and PW-8 to say that the Appellant and the deceased belonged to the same village. Both had a dispute over money; the deceased had complained to the village panchayat, which asked the Appellant to give back the former's money. He allegedly refused, and threatened to teach the deceased a lesson. The trial court believed the testimonies of these two witnesses, to conclude about the existence of motive. It noticed that the Appellant admitted that he belonged to the same village as the deceased, but disclaimed any acquaintanceship. The impugned judgment noticed that the testimonies of PW-7 and PW-8 could not be impeached during cross examination. Therefore, it held that the prosecution had proved motive.

15. Apart from other arguments, the learned amicus had submitted that the testimonies of PW7 and PW-8 - as well as PW-2 and PW-6 should not be relied on, because they were relatives of the deceased, (in the case of the former) or were from the same village, and could not be considered objective. This court finds it difficult to countenance the latter argument. The mere circumstance that a witness happens to be inhabitant of the same village as a deceased, or lives in the same locality or vicinity in no manner logically entitles the court to draw an inference that he or she would perjure in court. No badge of disbelief can attach to such witnesses, who, often enough, are natural witnesses to happenings of events, and crimes. As far as the other argument, i.e. PW-7 and PW-8 being relatives of the deceased is concerned, this court recollects the decision of the Supreme Court in Darya Singh v State of Punjab AIR 1963 SC 328, to the following effect:

"There can be no doubt that in a murder case when evidence is given by near relatives of the victim and the murder is alleged to have been committed by the enemy of the family, criminal Courts must examine the evidence of the interested witnesses, like the relatives of the victim, very carefully. But a person may be interested in the victim, being his relation or otherwise, and may not necessarily be hostile to the accused. In that case, the fact that the witness was related to the victim or was his friend, may not necessarily introduce any infirmity in his evidence. But where the witness is a close relation of the victim and is shown to share the victim's hostility to his assailant, that naturally makes it necessary for the criminal Court to examine the evidence given by such witness very carefully and scrutinise all the infirmities in that evidence before deciding to act upon it.

In dealing with such evidence, Courts naturally begin with the enquiry as to whether the said witnesses were chancewitnesses or whether they were really present on the scene of the offence. If the offence has taken place as in the present case, in front of the house of the victim, the fact that on hearing his shouts; his relations rushed out of the house cannot be ruled out as being improbable, and so, the presence of the three eye- witnesses

CRL.A. 489/2011 Page 7 cannot be properly characterised as unlikely. If the criminal Court is satisfied that the witness who is related to the victim was not a chance-witness, then his evidence has to be examined from the point of view of probabilities and the account given by him as to the assault has to be carefully scrutinised. In doing so, it may be relevant to remember that though the witness is hostile to the assailant, it is not likely that he would deliberately omit to name the real assailant and substitute in his place the name of enemy of the family out of malice. The desire to punish the victim would be so powerful in his mind that he would unhesitatingly name the real assailant and would not think of substituting in his place the enemy of the family though he was not concerned with the assault. It is not improbable that in giving evidence, such a witness may name the real assailant and may add other persons out of malice and enmity and that is a factor which has to be borne in mind in appreciating the evidence of interested witnesses. On principle, however, it is difficult to accept the plea that if a witness is shown to be a relative of the deceased and it is also shown that he shared the hostility of the victim towards the assailant, his evidence can never be accepted unless it is corroborated on material particulars..."

Therefore, the intrinsic worth of such witnesses lies in what they say, and how credible it seems, rather than being fixated to who they are.

16. The arguments made regarding the key - which according to amicus, should have been with PW-2, who was a co-tenant, or PW-6, seem attractive. However, the court has to keep in mind that the tenement is a room; concededly four people resided there. The evidence of PW-6 establishes that the deceased had taken a key in the morning. What transpired between then and around 01:00 is known to none. It has been proved that the door was locked from without and had to be forced open. The prosecution's failure to recover the key from the accused no doubt adds to that mystery and fuels such speculative arguments. However, the absence of the key, or the inability to produce it during the trial, does not in any manner, detract from the centrality of the facts proved, which unerringly point to the Appellant's role in the crime.

17. The aphorism that "men may lie but circumstances cannot" has almost become a cliché in the appreciation of evidence in criminal proceedings. However, to understand a case based entirely on circumstantial evidence, courts have evolved a five-fold test in Hanumant Govind Nargundkar & Anr. v. State of M.P., AIR 1952 SC 343, that the prosecution has to satisfy, which was articulated in the following terms:

"In cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and

CRL.A. 489/2011 Page 8 they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."

Subsequent rulings have suggested refinements, never doubting the essence of the contents spelt out in the said judgment.

18. This court is alive to the fact that the Appellant was convicted by the impugned judgment, on the dying declaration given to PW-2 and PW-6 regarding the circumstances under which he was attacked. In a sense, the case is based on circumstantial evidence, as well as the dying declaration. As far as circumstances go, the presence of PW-2 who saw the Appellant leaving the premises, and heard the deceased crying out, asking PW-6 has been established. The prosecution was able to establish in the opinion of the court, the subsequent material chain of events and circumstances which implicated the Appellant. In one sense, even though PW-2 was not a direct witness, his seeing the Appellant emerging what turned out to be immediately after the attack, reveals that he witnessed the immediate aftermath of the event, something which was connected with it. As far as the dying declaration goes, the facts proved show that the deceased was taken to the hospital at around 02:00 PM; he was declared dead. In the circumstances, the testimonies of PW-2 and PW-6 about what they heard from the deceased Mahesh is crucial. Neither they, nor the doctor who conducted the post-mortem were asked anything in cross examination pointing to the deceased's inability to state what he did. Furthermore, all that Mahesh said was that he was knifed by the Appellant. In such cases, the approach of the court has been spelt out by the Supreme Court, in the decision reported as Laxmi v. Om Prakash,(2001) 6 SCC 118 where it was held that:

"One of the important tests of the reliability of the dying declaration is a finding arrived at by the court as to satisfaction that the deceased was in a fit state of mind and capable of making a statement at the point of time when the dying declaration purports to have been made and/or recorded. The statement may be brief or longish. It is not the length of the statement but the fit state of mind of the victim to narrate the facts of occurrence which has relevance. "

19. In the present case, this court finds that the materials on record disclose that the deceased had indeed made a statement as to the identity of his attacker (i.e. the Appellant); there is nothing

CRL.A. 489/2011 Page 9 significant on the record to undermine that statement, heard and proved by the testimonies of PW-2 and PW-6.

20. In view of the above discussion, this court is of the opinion that the reasoning of the Trial Court is sound and unexceptionable. Therefore, the appeal has to fail; it is dismissed.

S. RAVINDRA BHAT (JUDGE)

G. P. MITTAL (JUDGE) OCTOBER 31, 2011

CRL.A. 489/2011 Page 10