Rohit Kumar Dubey vs State
2012 Latest Caselaw 605 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+                              CRL.A. 454/1997

                                           DECIDED ON : 30.01.2012

       ROHIT KUMAR DUBEY                                     ..... Appellant
                    Through :              Mr.Simon Benjamin, Advocate.

                      versus

       STATE                                                 ..... Respondent

Through : Ms.Richa Kapoor, APP for the State.

CORAM:

.      HON'BLE MR. JUSTICE S. RAVINDRA BHAT
       HON'BLE MR. JUSTICE S.P.GARG


S. RAVINDRA BHAT, J. (Open Court)

1. The Appellant has preferred the present appeal against the judgment and order of the Ld.Additional Sessions Judge dated 31.05.1997 in SC No.46/1996 by which the Appellant was convicted for the offence punishable under Section 302 read with 307 IPC and was sentenced to undergo imprisonment for life together with fine.

2. During pendency of the present proceedings, the Appellant was enlarged on bail. When the Appeal was taken up for hearing, neither he nor his Counsel were present. Consequently, Bailable Warrants were

issued to secure his presence on 24.08.2011. On 22.11.2011, after service of the warrant, the Appellant presented himself in the Court and requested that he should be provided legal assistance. Accordingly, Mr.Simon Benjamin was appointed as Amicus Curiae to assist the Court on his behalf.

3. In brief, the prosecution case is that the Appellant Rohit Kumar @ Gopal was employed as a domestic help by PW-1 and PW-2. PW-1 Reena Sahni is the wife of PW-2 Sanjeev Sahni. On the day of the incident, i.e., 14.09.1993, the couple was living at house No.66, 2nd floor, South Patel Nagar along with Motiya Sahni (i.e. PW-1's Mother-in-law). PW-1 stated that at around 8.55 A.M., when she came out of the bathroom, she saw Gopal with a dagger. At that time, her husband (PW-2) was not at home since he had gone to Bombay in connection with his work early that morning. PW-1 was in the premises with her two infant children and the deceased Motiya Sahni. PW-1 further stated that the Appellant entered the bathroom and started pushing her, intending to molest her. She started screaming, when the Appellant took out a knife from his trouser and started stabbing her. The witness claims to have put up some resistance and foiled his attempt to stab her in the abdomen but could not avoid some injuries on the left cheek and left arm. Consequently, she fell down. Her screaming attracted Motia Sahni to the place of incident. Upon seeing her, the accused turned his attention towards her and attacked her with a dagger. PW-1 also stated that the accused was convinced that since the witness had fallen down, she did not survive. She started screaming from the bathroom for help as the window opened towards the street. Apparently, their neighbours gathered. She

further stated that in the meanwhile, the Appellant escaped through the roof of the premises. The same evening, the statement of PW-2 was also recorded; apparently, he received the news of his mother's death as well as of the injuries sustained by his wife and rushed back to Delhi. PW-1 was hospitalized and according to the prosecution, her statement was recorded the same evening when she was conscious and in a position to make a statement to the police.

4. The prosecution further alleged that the Appellant was arrested on 22.09.1993 from the house of one Dr.D.K.Gupta, with whom he had allegedly secured employment after the incident, and pursuant to the disclosure statement made by him the same day, recoveries were made, of blood stained clothes and a dagger, on 27.09.1993. After concluding the investigation, the Appellant was charged with committing the offence; he denied guilt and claimed trial. By the impugned judgment, the Trial Court, after considering the materials on record as well as depositions of witnesses, held that the prosecution was able to establish the Appellant's guilt beyond reasonable doubt and sentenced him in the manner described previously.

5. Mr.Simon Benjamin, Learned Amicus Curiae on behalf of the Appellant, urged that in this case, the prosecution could not conclusively establish the identity of the accused. It is urged that the Appellant had refused TIP on 25.09.1993. The Counsel urged that there were many discrepancies in the testimonies of the PW-1 and PW-2, and highlighted that whereas the latter had stated that they were taken to Tihar Jail on three separate occasions for the purpose of identifying the Appellant, the former (his wife) was silent on this. The Counsel also urged

that the prosecution failed to examine Dr.D.K.Gupta and his wife Mrs.Veena Gupta, the Appellant's employer at the time of his arrest. Counsel emphasized that the omission to examine these two witnesses also undermined the prosecution story. It was further urged that PW-9 and PW-10, the Appellant's previous employers contradicted the testimonies of the PW-1 and PW-2. PW-9 and PW-10 i.e. Poonam Malik and her husband Girdhari Lal Malik acknowledged that the Appellant had been working with them since 1987 from the time he was aged about 9-10 years and that he left them and had started working for the Sahnis (i.e. PW-1 and PW-2). However, they both consistently stated that they were not acquainted with the Sahnis. Learned Amicus Curiae stated that PW-1 and PW-2 on the other hand, had stated that they knew the Maliks. This constituted a major contradiction which ought to have been considered by the Trial Court.

6. Learned Counsel further submitted that the recoveries allegedly made by the police in this case were highly suspicious. It was emphasized that the accused made his disclosure statement on 22.09.1993, however, the dagger was recovered on 27.09.1993. It was also submitted that the statement about the recovery of the blood stained clothes from the Gupta's residence on 22.09.1993 was highly improbable because the IO i.e. PW-26 in his deposition deposed that the Guptas had informed him that the Appellant used to live somewhere else. Learned Amicus Curiae also submitted that it was also highly improbable that the Appellant assisted in the recovery of blood stained shoes a week after the incident as was alleged in this case.

7. Learned Amicus Curiae urged lastly that the prosecution was unable to establish any motive on the part of the Appellant; It was submitted that, PW-1 was silent, whether he had committed any assault on her to outrage her modesty. Equally neither PW-1 nor PW-2 reported any loss of property or valuables. Having regard to these facts, Counsel submitted that the prosecution could not be stated to have established its case.

8. Learned Addl.PP submitted that the Trial Court findings ought not to be interfered with and the prosecution has established the Appellant's guilt beyond reasonable doubt. It was submitted that so far as recoveries are concerned, even the Trial Court did not believe them. The underlying legal position is that when there is conclusive eye witness testimony about the identity and nature of assault, motive is immaterial. The learned Counsel submits that PW-1's testimony was absolutely categorical about the role played by the Appellant. Learned Add.PP submitted that the Appellant was employed by PW-1 and PW-2 just a few days before the incident. PW-1 had deposed before the Court that she saw some "ill motive" on the part of the Appellant. However, she did not elaborate on this aspect but was nevertheless clear about the sequence of events that took place on the day of the incident. Her husband had left for Bombay early in the morning at around 5.30 A.M. PW-1 was criminally assaulted with a dagger and upon hearing her screaming, her mother-in- law tried to aid her and was in turn attacked. She received fatal injuries.

9. Learned Add.PP submitted that the identity of the Appellant was proved beyond reasonable doubt. She relied upon the TIP proceedings conducted on 23.09.1993; a copy of the order-sheet was

produced during the trial as Ex.PW-27/A. The Counsel submitted that since the Appellant was confused on that day, the proceedings were adjourned to 25.09.1993 when he refused the TIP claiming that since the Sahnis had employed him, there was a possibility of his false implication. This was produced as Ex.PW-27/D and Ex.PW-27/E.

10. Learned Add.PP submitted that so far as motive and the recoveries are concerned even though the prosecution had relied upon the recovery of the dagger and blood stained clothes, during the trial, the prosecution could not link the dagger with the blood of the deceased nor could the blood stains on the clothes yield any more clues.

11. We have considered the submissions of the Appellant as well as of the State. In this case, the Trial Court has based its findings primarily on the testimony of the PW-1, eye witness to the incident. As the previous discussion would reveal, on the fateful day i.e. on 14.09.1993 when the PW-1, a young mother of two infant children, was coming out of her bathroom around 8.55 A.M., the Appellant inflicted knife injuries, and she screamed out.The severity of blows resulted in her fall in the bath room. Within a moment, her mother-in-law Motiya reached the spot and believing that PW-1 had died, the accused turned his attention towards the old lady and started raining knife blows on her. The post-mortem proceedings in this case which was spoken to by PW-7, reveal that 11 knife blows were given to the deceased. Injuries Nos.4,5,6 and 11 were individually or collectively sufficient to cause death in ordinary course of nature. Death occurred instantaneously.

12. So far as the identity of the Appellant is concerned, we notice that soon after his arrest on 22.09.1993, the police had secured three days

remand. He was produced before the Magistrate. On the very next day, i.e. 23.09.1993 an application for TIP was moved. At that time, apparently, he was not fully aware or was unable to take a decision, therefore, the TIP proceedings were adjourned. On the next date of hearing i.e. 25.09.1993 as per Ex.PW-27/D, he refused to participate in TIP. Learned Amicus Curiae stated that during this time the Appellant had been shown to the Sahnis. He also sought to highlight inconsistencies or omissions in the testimonies of the husband and wife i.e. PW-1 and PW-2. However, what is apparent from Ex.PW-27/D as well as Ex.PW-27/A is that the Accused was produced with his face muffled. Furthermore, Ex.PW-27/D records that he refused to participate in the TIP stating that the Sahnis were known to him since he used to work with them. Although this is denied, PW-27, i.e., the magistrate deposed in the Court about the proceedings recorded by him. The Court cannot ignore the effect and impact of such a statement. Both PW-1 and PW-2 categorically deposed that they had employed the Appellant few days before the incident; he was even named as Chotu @ Gopal in the FIR as well as in the statement recorded by PW-

1. He was identified in the Court. However, in the statement recorded by the Court under Section 313 Cr.P.C., the Appellant denied the fact that he was employed by PW-1 and PW-2.

13. The further arguments of the Learned Amicus Curiae that PW-9 and PW-10 contradicted the statements of PW-1 and PW-2 about their acquaintanceship is not of much significance. It has been held by the authorities that TIP is useful to lend assurance to the Court that the accused is not falsely implicated. In this case, the Appellant's identity was revealed at the earliest available opportunity. Immediately after his arrest,

he was produced before the Court for TIP. He sought time to think over the matter and on the adjourned date of hearing, he refused to participate in the proceedings. The Court ought to take note of the ground of his refusal, but the fact remains that in his statement under Section 313, he completely denied his involvement in the incident as well as the fact that he was employed. The Appellant was identified in Court. That constitutes substantive evidence. The circumstances preceding and surrounding the attack are such as to leave little scope for doubt about his identity. He was a full time domestic help, employed by PW-1 and PW-2; being constantly in their premises for a week, it was natural for them to familiarize themselves about his identity. This is not a case where the assailant struck at the dead of night or in darkness, and the victims catching a fleeting glimpse, as to lead the count to reasonably doubt the identification. The Appellant's employment with the Sahnis naturally resulted in their being familiar about his identity. There was no scope for confusion or false identification. We do not find any infirmity with the Trial Court findings on this aspect. The identification by PW-1 is corroborated by her previous statement and even in the cross-examination, nothing could be elicited to shake her deposition.

14. So far as the argument concerning motive is concerned it is settled law that where eye witness testimony is relied upon by the prosecution, and is proved in the course of the proceedings, motive assumes a secondary role. Even otherwise motive is hard to establish and assumes significance if the case is based on circumstantial evidence.

15. Since the recoveries put against the Accused in this case were doubted by the Trial Court, we find no infirmity in the Trial Court's order.

16. For the above reasons, we do not find any merit in the Appeal, accordingly the same is dismissed.

17. The order of the present judgment along with the Trial Court Record shall be transmitted to the Trial Court forthwith for compliance and to ensure that the Appellant is taken in the custody to serve the remainder sentence.

S. RAVINDRA BHAT, J

S.P.GARG, J JANUARY 30, 2012 tr