Delhi High Court

Mahavir Prasad vs State on 29 May, 2013

Author: V.P.Vaish

*               IN THE HIGH COURT OF DELHI AT NEW DELHI
+                     CRIMINAL APPEAL No.1445 of 2012

                                 Reserved on:       20th May, 2013
%                            Date of Decision:      29th May, 2013

        MAHAVIR PRASAD                                   ....Appellant
                 Through:           Mr.Ajay Verma, Advocate.

                           versus

        STATE                                             ....Respondent
                      Through:      Mr.Sanjay Lao, APP.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE VED PRAKASH VAISH
VED PRAKASH VAISH, J.

The appellant Mahavir Prasad has been convicted under Section

302 of the Indian Penal Code, 1860 („IPC‟ for short) for committing

murder of his brother Vinod and Sections 25/27 of the Arms Act, 1959

(„Arms Act‟ for short). Vide order of sentence dated 6th April, 2011, he

has been sentenced to undergo life imprisonment under Section 302

IPC and to pay fine of Rs.10,000/- , in default of which he has to

undergo rigorous imprisonment for six months. He has also been

sentenced to undergo rigorous imprisonment for three years under

Section 25/27 of the Arms Act and to pay fine of Rs.2,000/-, in default

of which, he has to undergo rigorous imprisonment for three months.

2. The case of the prosecution rests on five witnesses- Shanti @

Santosh (PW-3) and Vinod (PW-7), wife and son of the appellant

respectively and Rajeshwari (PW-1), Anil (PW-2) and Virender (PW-

4), neighbours. At this stage, we may record that the deceased Vinod

was the brother of the appellant.

3. Shanti @ Santosh (PW-3) has deposed that the deceased was her

brother-in-law and was residing with them as his wife had left him

many years ago and he was in the business of poultry. The appellant

was her husband and was not working anywhere at that time. The

appellant was in the habit of taking liquor and quarrelling. On this

account, there were frequent quarrels between the appellant and the

deceased Vinod. In the year 1999, the appellant assaulted her with

knife, while she was sleeping, but she survived. On the night of 4 th

June 2010, she along with appellant and the deceased took dinner and

then she, deceased Vinod and two neighbourers went to sleep on cots

outside their house. At about 4.00/5.00 a.m., she heard the shrieks of

the deceased Vinod, „I have been killed and save me‟ and the deceased

had also stated that he has been stabbed by the appellant Mahavir

Prasad. She saw that blood was oozing from the abdomen of deceased

Vinod. The appellant was seen with the knife in his hand. The

appellant ran away with the knife. Shanti (PW-3) has categorically

stated that the deceased Vinod had told her that his brother Mahavir

Prasad i.e. the appellant had stabbed him. Shanti (PW-3) raised alarm

and her neighbour Virender (PW-4) came and made a call at number

100. PCR van came there and took Vinod to SGMH, where he was

declared brought dead. Police recorded her statement Ex.PW3/A and

thereupon the rukka was recorded and the FIR in question was

registered.

4. Vinod (PW-7) has deposed that his father used to drink liquor

and quarrel with his aged mother and other family members as he was

not doing any work. He affirmed that the deceased Vinod was his

uncle and the appellant used to quarrel with the deceased. All of them

were residing together. At about 4.30/4.45 a.m., on 5th June, 2010, he

was called by the tenant Anil who told him that the appellant had

stabbed the deceased Vinod with a knife.

5. It is clear from the deposition of Vinod (PW-7) that he is not the

eye-witness and had not seen the occurrence. However, it is clear from

his deposition that the appellant used to drink and there used to be

frequent quarrels between the appellant and the deceased Vinod. He

has also deposed that the occurrence had taken place in the early

morning hours of 5th June, 2010. In the cross-examination, he has

accepted that he was residing in a separate house at a distance about

200/250 sq. yards. He denied the suggestion that the deceased was not

his uncle. This brings us to the statement of the neighbours.

6. Rajeshwari (PW-1) and Anil (PW-2) were the tenants residing in

the same house where Shanti (PW-3), the appellant and the deceased

were residing. They deposed that they were sleeping on cots in front

of the house of the landlord. In early morning, they heard noise and

woke up. At that time, they saw that somebody had stabbed deceased

Vinod and he had stated that his brother Mahavir had stabbed him.

7. Two aspects have been highlighted by the counsel for the

appellant while referring to the deposition of Rajeshwari (PW-1) and

Anil (PW-2). Firstly, it is submitted that both of them have stated that

deceased Vinod and the appellant Mahavir did not quarrel with each

other. Secondly, Anil (PW-2) has stated that the deceased Vinod was

unconscious when he reached near him. Accordingly, it is submitted

that Anil (PW-2) had not heard the deceased Vinod stating that he was

injured by his brother/appellant Mahavir. In view of the above

statement, the depositions of Rajeshwari (PW-1) and Shanti (PW-3)

becomes debatable and doubtful. The depositions of PW-1, PW-2 and

PW-3 are therefore, clearly hearsay.

8. We have considered the two contentions but do not find any

merit in the same. PW-1 and PW-2 were the tenants and they may not

be aware of the quarrels or differences between the appellant and the

Vinod (deceased). But the said fact is clearly deposed by Shanti (PW-

3) and Vinod (PW-7), wife and son of the appellant. We do not think

there is any reason or ground for them to make a false accusation to the

said effect. The site plan Ex.PW23/A (unscaled site plan) and

Ex.PW11/A (scaled site plan) clearly indicate the location of the two

cots where Rajeshwari (PW-1) and Anil (PW-2) were sleeping, which

was on the other side of the 20 feet street. The deceased Vinod and

Shanti (PW-3) were sleeping on the same street in front of their house.

The distance between the place where PW 1 and PW 2 and the

deceased and PW-3 were sleeping was about 395 c.m., as per the

scaled site plan Ex.PW11/A. Shanti (PW-3) as stated by her was the

first one to notice and know that deceased Vinod had been stabbed, as

she was sleeping on the cot, next to the cot of deceased Vinod. She

has clearly deposed that when she got up, she saw that appellant was

present and he had a knife in his hand. The appellant ran away. The

blood was oozing from the abdomen of the deceased Vinod, who

informed her that his brother appellant Mahavir had stabbed him. She

raised an alarm. Rajeshwari (PW-1) has clearly stated that deceased

Vinod had stated that his brother had stabbed him and in her cross-

examination denied the suggestion that on that night Vinod was

unconscious and was not in a position to speak. Anil (PW-2) had also

stated that in his presence deceased Vinod had stated his brother

Mahavir had stabbed him. In the cross-examination, he has deposed

that the deceased was unconscious when he went near him. This

statement cannot be read so as to belie the statement of Anil (PW-2)

that he never heard the deceased stating that he was stabbed by his

brother or that the deceased became unconscious immediately upon

injuries, when PW-3 himself has testified that he heard the deceased

naming his brother as the one who had stabbed him. This statement

has to be read in the context that the deceased became unconscious but

after he had named his brother as the perpetrator of this crime. As

stated above that the cots of PW-1 and PW-2 were at a distance of 395

cm from the cot where the deceased Vinod was sleeping. It was

possible for PW-2 to have heard the deceased after waking up from the

cot itself. By the time PW-2 came near the deceased Vinod, the later

had become unconscious. We accept the assertion of PW-2 that he had

heard the deceased. PW 1 Rajeshwari has been more categorical in her

court statement.

9. The statement of the said witnesses also gets corroborated from

the statement made by Virender (PW-4) who has stated that he was

sleeping in his house at about 5/5.15 a.m. on 5th June 2010, when he

heard cries of Shanti (PW-3). He came out of the house and he saw

that Vinod was lying on a cot with stab injuries in his abdomen. Shanti

(PW-3) then told him that Vinod was stabbed by her husband i.e. the

appellant Mahavir. He made a telephone call at number 100 and PCR

van came and took Vinod to the hospital. The Police Control Room

form (Ex.PW16/A) records that a telephone call was made at 5.24 a.m.

on 5th June, 2010 stating that one person while he was sleeping had

been stabbed with knife. Thereafter the PCR van reached the spot and

they had informed the control room that one Vinod had been stabbed

by his brother Mahavir. There was a quarrel after drinking liquor at

night. It is therefore, clear that the name of the appellant Mahavir as

the perpetrator of the crime was mentioned immediately after the

occurrence as recorded in Ex.PW16/A. The name of the appellant is

also recorded and mentioned in the statement of PW-3 (Ex.PW3/A)

which became a rukka and lead to the registration of the FIR in

question Ex.PW8/A, which was recorded at about 8.45 a.m. The

statement was recorded at 8.30 a.m., i.e. immediately after the

occurrence.

10. In these circumstances, we are inclined to accept the statements

of PW-1 and PW-2 that they had heard deceased Vinod stating that he

has been stabbed by the appellant. The statement made by Vinod to

Shanti @ Santosh, Rajeshwari (PW-1) and Anil (PW-2) would be

called as dying declaration in law.

11. The Supreme Court in M. Sarvana @ K.D. Saravana vs. State

of Karnataka, 2012 Crl. L.J. 3877 referred to the judgment in Laxman

vs. State of Maharashtra, (2002) 6 SCC 710 and has observed as

under:-

"3. The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope

of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on death bed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the court insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however has to always be on guard to see that the statement of the deceased was not as a result of either tutoring or promoting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and in any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a magistrate is absolutely necessary, although to assure authenticity it is usual to call a magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a magistrate and when such statement is recorded by a magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular

case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise."

12. Learned counsel for the appellant has submitted that the

testimony of Shanti (PW-3) is debatable. It is submitted that there is

no evidence with regard to the alleged past occurrence of 1999. Our

attention is drawn to the cross-examination of PW-3 to the effect that

deceased Vinod used to work as a Pimp and PW-2 used to operate a

brothel house. The said questions were no doubt asked and answered

but the said submission do not merit acceptance. These are mere

allegations without any substance. The deceased, PW-1, PW-2 and

PW-3 were sleeping on the street outside. There is no reason or cause

that Shanti (PW-3) who had continued to live and reside with the

appellant even after the incident of the year 1999, to falsely depose and

implicate her husband. PW-3 in her cross-examination has stated that

she got married to the appellant 40 years back. The deceased was her

younger brother-in-law. Rajeshwari (PW-1) and Anil (PW-2) who was

sleeping on the cot in the same street at a distance of 395 cms. have

also deposed that the deceased Vinod had stated that appellant had

stabbed him.

13. Another contention raised by the appellant was that the place

where the appellant was sleeping is not indicated in the two site plans

Ex.PW11/A and Ex.PW23/A. The said contention is correct but this

does not exonerate the appellant and does not merit his acquittal.

Shanti (PW-3) has stated that the appellant was sleeping in a STD cum

Chicken shop which was situated at a distance of 100 yards from the

place where they were sleeping. The said assertion was made in

response to questioning in the cross-examiantion and remained

unchallenged. Possibly, Inspector Gajendra Kumar (PW-23) and SI

Manohar Lal (PW-11) did not inquire and asked PW-3 to specify the

location where the appellant was sleeping. The ocular testimonies of

PW-1, PW-2 and PW-3 are clear, cogent and categorical and cannot be

rejected or ignored for this reason.

14. The appellant in his statement under Section 313 of the Cr.P.C.

has not indicated or stated where he was sleeping at the time of the

occurrence or he was at a different location or with somebody else. In

response to most of the questions, the appellant has stated that it was

incorrect or he did not know. In the end, he has alleged that his wife

PW-3 used to run a brothel house with the help of deceased Vinod who

was not his brother and was acting as a Pimp. This averment that the

deceased Vinod was not his brother has to be rejected in view of the

deposition made by Shanti (PW-3) and Vinod (PW-7). In the cross-

examination of PW-3 and PW-7, no such question was put and it was

not suggested that the Vinod was not the brother of the appellant

Mahavir. Shanti (PW-3) has deposed that Vinod used to stay in their

house and his wife had left him several years back. Vinod had taken

dinner with them. Rajeshwari (PW-1) and Anil (PW-2) have stated

that Vinod was brother-in-law of Shanti (PW-3). They were not cross-

examined on the said statement made by them in the examination-in-

chief. Even in the PCR form, it is recorded and mentioned that the

appellant had stabbed his brother Vinod and had absconded.

15. The MLC (Ex.PW19/A) was recorded on 5th June, 2010 at 6.10

a.m. It mentions that the patient i.e. Vinod was declared brought dead.

It also records that the deceased Vinod was son of Dal Chand. The

appellant herein is also son of Dal Chand and the said fact is

parenthesis of appellant as mentioned in the charge-sheet, charges

framed and statement under Section 313 Cr.P.C., the arrest memo and

in the memo of parties filed in the present appeal. It is, therefore, clear

that we have rightly rejected the contention of counsel for the appellant

that the deceased Vinod was not his brother.

16. Appellant was arrested vide arrest memo Ex.PW13/A on 5 th

June, 2010 at 7.45 p.m. He made purported disclosure statement

Ex.PW23/D and on the basis of the disclosure, a knife was recovered

from the terrace of abandoned room which is shown at point „F‟ in the

scaled site plan (Ex.PW11/A). The knife seized was sent to FSL. The

FSL report (Ex.PW23/G) however, records that blood could not be

detected on the knife. Learned counsel for the appellant, in these

circumstances, has submitted that the alleged knife recovered may not

be a weapon of offence. To this extent, we are inclined to accept that

the FSL report does not show or establish that the knife in question was

the weapon of offence. However, there is ample and credible evidence

that the deceased was stabbed. We have referred to the ocular

statements of PW 1,2,3 and 7 above.

17. The post mortem report (Ex.PW20/A) records the following

external injuries on the body of the deceased:-

"1. Stab wound 4.2 c.m. x 1.7 c.m. present on inner front of right upper abdomen.

3 c.m. Outer to midline point. 37 c.m. Below upper end of manubrium sternum. The wound is oblically placed with inner and obtuse and outer end acute and the margins contused. The wound is directed backward perforating the wall of small bowl through the front wall of right kidney upto the paranchyma of upper part of right kidney about 14 c.m. deep.

2. Stab wound 5.7 c.m. x 2.3 c.m. x 15 c.m. deep present on the left side of upper abdomen 13 c.m. outer to the midline point and 40 c.m. below upper end of sternum. The wound is horizontally placed with inner and acute end outer and obtuse and greater omentum coming out of the wound. The wound is directed backward and from left to the mid line upto the lumber vertibra on left side."

18. The cause of death was opined as haemorrhage and shock

consequent to penetrating injuries to the abdomen caused by sharp

stabbing weapon. All injuries were ante mortem and fresh in duration.

The aforesaid post mortem report clearly shows that the knife or a

sharp edged weapon was used. There cannot be any doubt in view of

the depositions made by Shanti (PW-3) on what she saw and what was

stated by deceased Vinod. Rajeshwari (PW-1) and Anil (PW-2) have

also deposed on similar lines and stated that deceased Vinod while

implicating the appellant Mahavir as the perpetrator had stated that he

was stabbed with the knife.

19. So far as the offence under Section 25 and 27 of the Arms Act is

concerned, it is suffice to mention that a knife is allegedly recovered