Naresh @ Bahadur vs State (Govt. Of Nct) Of Delhi
2012 Latest Caselaw 3542 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                                Decided on: 28.05.2012

+                                CRL.A. 20/2011
       NARESH @ BAHADUR                               ..... Appellant
                   Through : Mr. Ajay Verma, Advocate.

                                 versus

       STATE (GOVT OF NCT) OF DELHI               ..... Respondent

Through : Ms. Richa Kapoor, APP.

CORAM:

MR. JUSTICE S. RAVINDRA BHAT MR. JUSTICE S.P. GARG

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

1. This appeal is directed against the judgement dated 31.10.2009 and order on sentence dated 18.11.2009 passed by learned ASJ (Dwarka) whereby the appellant was convicted of offences under section 302, IPC read with section 34, IPC and sentenced to rigorous imprisonment for life in addition to an imposition of fine.

2. The prosecution alleged that on receipt of DD No. 5A to the effect that opposite B-12, Shyam Vihar, 25 foot road, the wife of accused Raju was stabbed with a knife and the assailant fled after snatching of `.20,000, the police reached the spot. Inspector Mahender and members of the staff also reached there and upon inspection of the spot they found that gate of the House B-12, Shyam Vihar, Phase I, was lying open. Inside the house a dead body of a female (Mamta, accused Raju's wife) was lying near the diwan (bed). The bed sheet was blood stained and a blood stained kitchen knife too was found. An iron cupboard in the room was open but no item was found outside. A clump of hair was also found lying near the left side of the body. During enquiry, it was found

Crl.A.20/2011 Page 1 out that the deceased had returned to her house at around 8:30/9:00 P.M. after purchasing vegetables. It was also revealed that Neelam, the deceased's daughter aged seven years was injured by a knife. Neelam was removed to the RTRM Hospital from where she was later shifted to DDU Hospital. The crime team was summoned, photographs of the scene were taken. From the spot the exhibits i.e. blood, hair, blood stained bed sheet etc were seized. Inspector prepared the rukka (first intimation) and sent the same to the P.S. Najafgarh. A case was registered as FIR no. 251/08 under section 302/307, IPC. During investigation, the statement of one Pappu was recorded who stated that on 23.4.2008, accused Raju, husband of deceased who used to cook sweets at weddings, had left for Kashi Ram's house to prepare sweets; and that after working till 7 P.M., Raju asked his workers to bring a fan from his house, and that at 8:15 P.M. these two workers found that Lalit was standing outside his (Raju's) house along with two other boys. Later Lalit and his two associates went to Kashi Ram's house and were seen talking to the accused Raju. At about 9:30 P.M. Raju left the marriage without telling anyone and returned at 11:30 P.M. At about 11:15 P.M., they left the marriage site and on reaching the house, they heard the cries of children; upon opening they found that Mamta was smeared in blood and Neelam was bleeding from her neck, and the two children were weeping.

3. Based on Pappu's statement, Raju was interrogated. He disclosed that the people of the locality had complained to him that in his absence someone used to visit his house; that he was very agitated about this and hatched a conspiracy with Lalit, Omi and the appellant to kill Mamta. Neelam remained unfit to give a statement till her death on 5.5.2008. On the basis of the disclosure statement of Raju, on 25.05.2008, Lalit, Naresh @Bahadur were apprehended from Ganda Nala, Goyala. At the pointing out of Lalit, a mobile phone and a knife were recovered. The accused Omi absconded, and was declared a proclaimed

Crl.A.20/2011 Page 2 offender. The case was committed for trial to the Court of Session. The accused were charged under section 302/120-B, IPC; they denied guilt and claimed trial. During trial the prosecution examined 31 witnesses, and presented other documentary evidence. After considering the evidence before it, the Trial court acquitted accused Raju and Lalit but convicted the appellant, Naresh under Section 302, IPC, awarded him sentence of life imprisonment and also imposed a fine of `.10,000/.

ARGUMENTS

4. It was urged by Counsel that since the FIR was registered against Lalit, Raju and the appellant, and co-accused were acquitted, the prosecution version was disbelieved, and thus the appellant should also have been acquitted. Learned counsel further contended that the conviction was unsustainable as it was based mainly on the uncorroborated version of a child witness which was inconsistent. In this regard he pointed out that the child once stated that it had been dark at the time of the stabbing, but later stated that there had been light from outside. Counsel also argued that the child was 4 years old at the time of the incident, and that his identification of the appellant for the first time in court (no Test Identification Parade having been conducted) cannot be relied upon in the absence of any corroborative material. He asserted that the child witness was tutored as he admitted during his cross examination that he had been told by his nani (maternal grandmother) that Lalit Chacha had stabbed. Moreover, that the child's testimony was not even consistent as he once stated that there was light at the time of the stabbing, and in the very next answer deposed that it had been dark at that time.

5. Furthermore, it was submitted that even though the Trial Court disbelieved motive on part of the appellant, it convicted the appellant. Counsel also stressed on the absence of any TIP proceedings on Pappu to determine whether the appellant had been in the company of Lalit and one more person

Crl.A.20/2011 Page 3 who were seen talking to Raju at Kashi Ram's house, and along with whom he allegedly had left at around 9:30 P.M. Moreover, it was contended that there had been no recovery at the instance of the appellant; and that the only recovery that was made in the case had been at the instance of Lalit, who was acquitted, thus, warranting the acquittal of the appellant too. Counsel also highlighted that there were glaring inconsistencies regarding the arrest of Lalit and appellant Naresh in the testimonies of PW-25, PW-26, PW-28 and PW-30. Counsel also cast doubt on the arrest of the appellant as the information of his arrest was not given to any of his relatives but to one Somvir, son of Raja Ram, who was not related to the appellant. Counsel also reasoned that non-examination of Sanjay, at whose instance Lalit and the appellant had been apprehended, suggested discrepancy in the prosecution story. Lastly, it was urged that one of the named accused, Omi had been absconding, and that there was the possibility that he was the culprit.

6. Learned APP for the State defended the Trial Court judgment arguing that the burden of proof regarding the guilt of the appellant had been discharged; and that in the cases of Lalit and Raju, it was not discharged, the Trial Court acquitted them, but it was not necessary to set aside the appellant's conviction for merely this reason. Learned APP relied upon the identification by PW-2 Master Sandeep, of the appellant (as the assailant) he submitted that such identification which was done twice during his examination, once when the position of the accused had been shifted, showed that his version was believable.

APPRECIATION OF EVIDENCE AND CONCLUSION

7. We have gone through the impugned judgment, and have considered the evidence on record. The only circumstance which the learned ASJ held to have been proved as against the appellant was his identification by PW-2 Master Sandeep. The Trial court disbelieved motive on part of any accused to kill

Crl.A.20/2011 Page 4 Mamta. He also held that there was no evidence to establish that the three accused were involved in a conspiracy to kill Mamta. He disbelieved the recovery of the knife, allegedly been made at the instance of Lalit. Moreover, he also concluded that the prosecution had miserably failed in proving the arrest of accused Lalit and the appellant. Lastly, even the alleged recovery of mobile and knife at the instance of Lalit was not held proved, and was not held to be incriminating against the appellant. After disbelieving the above, the Court noted that the medical evidence proved that the death of Mamta and Neelam was homicidal. Having noted so, the learned Court went on to believe and rely on the testimony of PW-2 Master Sandeep, and convicted the appellant.

8. No appeal has been preferred by the State against the acquittal of accused Raju and Lalit. Thus, in this appeal, the only circumstance that the court has to consider is the testimony of PW-2. PW-2 was aged 4 years at the time of the incident, and 5 years on the date of his examination. Certain questions were put to him by the Trial court, and upon being satisfied about PW-2's competence to depose, his examination was undertaken. During the examination-in-chief, he said that he saw Lalit chacha stabbing his mother, Mamta and his sister, Neelam. However, he identified the appellant as his Lalit chacha. Twice during his examination in chief, he pointed out to the appellant as his Lalit chacha. During his cross-examination, he admitted that his nani (maternal grandmother) had told him that Lalit Chacha was the man who stabbed. Upon being asked to identify the assailant again, after the accused's position was changed, PW-2 Master Sandeep again identified the appellant as the one who stabbed her mother and sister. He was asked in two separate questions whether it was dark or sufficient light at the time of stabbing; he answered both the questions in the affirmative.

9. This Court is in agreement with the contentions of learned counsel for the appellant. The testimony of PW-2, which was the only incriminating

Crl.A.20/2011 Page 5 evidence against the appellant, does not inspire confidence. His admission that he had been told by his nani that Lalit Chacha was the attacker creates adequate doubt, to warrant disbelieving his deposition. This is coupled by his inconsistent stand on whether or not there was light at the scene at the time of the stabbing. Even more importantly, the Trial Court records, in the impugned judgment that there was absolutely no other evidence against the appellant. The fact that the other two accused were acquitted cast serious doubts on the prosecution story about Naresh since the prosecution story is that the three accused hatched a conspiracy to kill Mamta. We are mindful of the principle that a child can be a competent witness. However, there is no denying the principle that such a child's testimony must be believed only if it is consistent and inspires confidence. PW-2's testimony does not inspire confident. In this case, the appellant's conviction is overwhelmingly based on the child witness's testimony. The recoveries relied on were disbelieved. In view of these findings, the impugned judgment and order cannot be sustained.

10. The appellant is, accordingly acquitted; he shall be set at liberty unless required in any other case. The appeal is allowed in the above terms.

S. RAVINDRA BHAT (JUDGE)

S.P.GARG (JUDGE) MAY 28, 2012

Crl.A.20/2011 Page 6