Mukesh vs State
2014 Latest Caselaw 3345 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                   Date of Decision:   28th July, 2014

+       CRL.A. 427/2014

        MUKESH                                       ..... Appellant
                          Through:       Mr. Rakesh Kumar Sharma and
                                         Mr. Rajan Kashyap, Advocates

                          versus

        STATE                                         ..... Respondent
                          Through:       Mr. M.N.Dudeja, Additional
                                         Public Prosecutor for the State
%
CORAM:
HON'BLE MS. JUSTICE SUNITA GUPTA

                          JUDGMENT

: SUNITA GUPTA, J.

1. Challenge in this appeal is to the judgment dated 18th

November, 2013 and order on sentence dated 25th November, 2013

passed by the learned Additional Sessions Judge, Dwarka Courts,

New Delhi in Sessions Case No. 84/2011 arising out of FIR

No.119/2009 u/s 397/392/307/34 IPC registered with PS Chhawla,

New Delhi whereby the appellant was sentenced to undergo rigorous

imprisonment for a period of ten years and a fine of Rs.10,000/- in

default of payment of fine, SI for a period of three months for the

offence u/s 392/34 IPC. The accused was also sentenced to undergo

RI for a period of ten years with a fine of Rs.5000/- and in default, to

undergo SI for two months for offence u/s 307/34 IPC. He was also

sentenced to undergo RI for seven years for the offence under Section

397 IPC. All the sentences were to run concurrently. He was given

benefit of Section 428 Cr.P.C.

2. Prosecution case in nutshell is that on 18th May, 2009, in the

night, Mithlesh Jha was going in Tavera No. DL 1 VB 5137

belonging to Sh. Pradeep Singh from Nangloi to Gurgaon. At about

11:45 PM, when he reached near Reliance Petrol Pump, Jhatikra

Road, he noticed one person going on the road and he was walking

like a drunkard. In order to avoid him, he took his vehicle on the side

of the road at a slow speed. When the vehicle reached near the said

person, he assaulted him on his head with a knife in the moving

vehicle. As a result of which, darkness appeared in front of his eyes

and he stopped the vehicle. When he regained full consciousness, he

found that one of them had pointed pistol towards him and the one

who assaulted him with a knife was sitting by his side. He was again

assaulted on his stomach and chest with knife. When he was trying to

prevent injury from the person carrying pistol by catching hold of his

hand, accused Mukesh inflicted knife blows on his hand and caused

cut in his vein near the wrist. As a result of which, blood started

gushing out. He tried to counter their attack by pushing them out but

he was thrown out of the vehicle in injured condition. He was tried to

be kidnapped by putting in the vehicle but he obstructed by putting

his legs in between the door of the vehicle upon which he was left and

the accused persons fled away from the spot along with the vehicle.

He informed the police from his mobile No.9818139211. He was

thereafter removed to DDU Hospital where he remained hospitalized

for 14 days.

3. It is further the case of prosecution that on receipt of DD No.

3A regarding stabbing of someone with a knife and firing of gunshot

and snatch of vehicle, Inspector Surender Sharma along with

Constable Jasbir proceeded to the spot near Jhatikara More but no one

was found at the spot. On coming to know that the injured had been

taken to DDU Hospital by PCR Van, Inspector Surender Sharma

along with Constable Jasbir went to DDU Hospital where injured

Mithlesh was found admitted. Inspector Surender Sharma tried to

record his statement but he was declared unfit to make any statement

and no eye-witness could be traced in the hospital despite efforts. As

such, rukka was sent to Police Station for registration of the case and

FIR No.119/209 u/s 392/397/34 IPC was recorded by ASI Mahender

Singh.

4. Vehicle No. DL-1VB 5137 was seized by PS Rajender Park,

Gurgaon. On coming to know about seizure of the vehicle, Inspector

Surender Sharma along with Constable Jasbir went to PS Rajindra

Park, Gurgaon and took the vehicle into possession and obtained the

examination report of crime scene. Efforts were made on 20 th May,

2009 and 23rd May, 2009 to record the statement of injured Mithlesh

but on both the occasions, he was declared unfit for statement by the

doctor. On 27th May, 2009, statement of Mithlesh was recorded.

Site plan Ex.PW15/D was prepared at his instance.

5. On 26th June, 2009, accused Mukesh was arrested in case FIR

No.101/2009, PS Crime Branch along with other accused persons.

He made a disclosure statement in respect of various cases including

FIR No.119/2009, PS Chhawla. As such, the concerned Investigating

Officer of the case was informed regarding arrest of the accused and

making his disclosure statement Inspector Surender Sharma of PS

Chhawla came to the office of Crime Branch on 3rd July, 2009 and

collected the copy of the disclosure statement made by the accused.

6. Further investigation was conducted by SI Sanjeev Sharma.

On 7th July, 2009, accused Mukesh was produced in Court and after

seeking permission of the Metropolitan Magistrate to interrogate him,

he was interrogated and was arrested vide memo Ex.PW14/A. His

Test Identification Parade was got conducted by Sh. Sumit Das,

Metropolitan Magistrate. Efforts were made to arrest the remaining

accused persons but they could not be traced. After completing

investigation, charge sheet was submitted against accused Mukesh.

On committing the case to the Court of Sessions, charge for offence

under Section 397/392/307/34 IPC was framed against the accused to

which he pleaded not guilty and claimed trial.

7. In order to substantiate its case, prosecution has examined as

many as 15 witnesses. The case of accused was one of denial

simplicitor and false implication in the case. He did not prefer to lead

any defence evidence. After minutely scrutinizing the evidence led by

the prosecution, the learned Additional Sessions Judge convicted the

appellant for offence under Section 392/307/34 and 397 IPC and

sentenced him as mentioned hereinbefore. Feeling aggrieved, the

present appeal has been preferred by the appellant.

8. I have heard Sh. Rakesh Kumar Sharma, Advocate for the

appellant and Sh. M.N. Dudeja, learned Additional Public Prosecutor

for the State.

9. Challenging the findings given by the learned Additional

Sessions Judge, learned counsel for the appellant submitted that the

person who removed the injured in the hospital has not been

examined. It is not clear as to how the police officials came to know

that injured has been removed to DDU Hospital as when the Sub-

Inspector along with Constable reached the spot, nobody was

available over there. Furthermore, the complainant has not supported

the case of prosecution and has admitted that he was shown the

photographs of the accused and, therefore, he identified him.

Moreover, the accused was never made to participate in the Test

Identification Proceedings, inasmuch as, his name does not find

mentioned in the list of the persons who participated in the Test

Identification Proceedings. A reference was made to two other Test

Identification Parades conducted by the Metropolitan Magistrate in

some other cases where name of the accused is included in the list of

participants which is missing in the instant case. Except for the

complainant, there is no other eye-witness to the incident. The

weapon of offence was not recovered. Under the circumstances, it

was submitted that the prosecution has failed to bring home the guilt

of the accused beyond reasonable doubt. He is entitled to be

acquitted of the offence.

10. Per contra, it was submitted by the learned Additional Public

Prosecutor for the State that the injured had completely supported the

case of prosecution. His statement was recorded thrice. His initial

statements were recorded in the year 2010 wherein he totally

supported the case of prosecution. However, he was recalled for

further cross-examination in the year 2013 and at that time he was

won over by the accused and, therefore, did not support prosecution.

11. Reliance was placed on Khujji alias Surendra Tiwari v. State

of MP, AIR 1991 SC 1853, for submitting that the statement of a

hostile witness cannot be treated to be effaced from the record

altogether. It was further submitted that the ocular testimony of the

injured finds due corroboration from the medical evidence. The

injured remained unconscious and was not fit for statement for

number of days and remained hospitalised for a period of 14 days.

The injuries were opined to be dangerous. There is no animosity

between the accused and the complainant or any of the police officials

for which reason he would be falsely implicated in this case. The

impugned judgment does not suffer from any infirmity which calls for

interference, as such, the appeal is liable to be dismissed.

12. I have given my considerable thoughts to the respective

submissions of the learned counsel for the parties and have perused

the record.

13. PW2 Mithlesh is the star witness of the prosecution who also

sustained injuries in the incident. He has unfolded that on 18th May,

2009, he was going in Tavera No. DL 1 VB 5137 belonging to Sh.

Pradeep Singh, from Nangloi to Gurgaon. At about 11:45 PM when

he reached near Reliance Petrol Pump, Jhatikra Road, he noticed one

person going on the road and he was walking like a drunkard. In

order to avoid him, he took his vehicle on side of the road at a slow

speed. When the vehicle reached near the said person, he assaulted

him on his head with a knife in the moving vehicle. As a result of

which, darkness appeared in front of his eyes and he stopped the

vehicle. When he regained consciousness, he found that one of them

had pointed pistol towards him and the one who assaulted him with a

knife was sitting by his side. He was again assaulted on his stomach

and chest with knife. When he was trying to prevent injury from the

person carrying pistol by catching hold of his hand, the accused

Mukesh inflicted knife blows on his hand and caused cut in his vein

near the wrist. As a result of which blood started gushing out. He

tried to counter their attack by pushing them out but he was thrown

out of the vehicle in injured condition. He was tried to be kidnapped

by putting in the vehicle but he obstructed by putting his legs in

between the door of the vehicle upon which he was left and the

accused persons fled away from the spot along with the vehicle. He

informed the police from his mobile No.9818139211. He was

thereafter removed to DDU Hospital where he remained hospitalized

for 14 days.

14. Record reveals that this witness was examined on 25th

February, 2010 and was cross-examined on 24th April, 2010. Nothing

material could be elicited to discredit the testimony of this witness.

At that juncture, he denied the suggestion that no such incident, as

stated by him, ever happened or that he had identified the accused at

the instance of Investigating Officer of the case or that he was shown

to him outside the Court. He also denied the suggestion that he did

not identify the accused in the Test Identification Proceedings. The

suggestion that the accused has been falsely implicated in this case at

the instance of the Investigating Officer of the case was also denied

by him. However, in pursuance to the application under Section 311

moved by him, the witness was recalled for further cross-examination

on 30th September, 2013 and at that time, he took somersault by

deposing that he could not see the assailant due to darkness at the

time when he was inflicting injuries on his person. He further went

on to state that when he had gone to attend the Test Identification

Proceedings at Tihar Jail, he was shown the photographs of the

accused at his residence by the police officials and on that basis, he

identified the accused.

15. Learned Trial Court rightly observed that the testimony of even

a hostile witness can be relied upon so far as it supports the

prosecution story. Learned Trial Court relied upon the judgment

pronounced by Hon'ble Supreme Court in Khujji (supra), wherein it

was observed that the evidence of a witness declared hostile, is not

wholly effaced from the record and that part of evidence which is

otherwise acceptable can be acted upon. Hon'ble Supreme Court

referred to the earlier decisions rendered by the Court in Bhagwan

Singh v. State of Haryana, 1976 Cri LJ 203; Rabindra Kumar Dey v.

State of Orissa, 1977 Cri LJ 173 and Syed Akbar v. State of

Karnataka, 1979 Cri LJ 1374, where it was observed that the

evidence of a prosecution witness cannot be rejected in toto merely

because the prosecution chose to treat him as hostile and cross-

examined him. The evidence of such witnesses cannot be treated as

effaced or washed off the record altogether but the same can be

accepted to the extent their version is found to be dependable on a

careful scrutiny thereof. In that case, the examination-in-chief of the

witness was recorded on 26th November, 1978 when he identified all

the assailants by name. His cross-examination commenced on 15th

December, 1976 and at that time he stated that appellants had their

backs towards him and hence he could not see their faces while he

could see the remaining four persons. It was observed that during the

one month period that elapsed since the recording of his examination-

in-chief, something transpired which made him to shift his evidence

on the question of identity to help the appellant. His statement in

cross-examination on the question of identity of the appellant and his

companion is a clear attempt to wriggle out of what he had stated

earlier in his examination-in-chief. The observations applies with

equal force to the present case wherein when the examination-in-chief

of the witness was recorded on 25th February, 2010 he gave a

microscopic account of the entire incident and also gave the details of

the role played by the appellant, identified him to be the person who

stabbed him in his stomach and chest and that he also identified him

during Test Identification Proceedings in Tihar Jail. When he was

cross-examined on 24th April, 2010, at that time also, he supported the

case of prosecution and the defence could not elicit anything in its

favour. After the lapse of more than three years when he was recalled

for cross-examination, at that time, he tried to wriggle out from his

earlier statement by deposing that due to darkness, he could not see

the appellant and had identified the accused during Test Identification

Proceedings from the photograph shown to him by the police officials

at his residence. The appellant is not alleging any enmity, ill will or

grudge against the injured or any of the police officials for which

reason the witness would have identified him on 25 th February, 2010

and 24th April, 2010 when he came to depose before the Court and

earlier when he identified the accused during Test Identification

Proceedings. Even no animosity is alleged against any of the police

officials for which reason they would falsely implicate him in such a

serious case by showing the photograph of the accused to the injured.

After a lapse of more than three years, he wants to wriggle out of his

earlier statements on the point of identity of accused which clearly

shows that during this long period something must have transpired

which made him shift his evidence on the question of identity to help

the appellant but there is no reason to disbelieve his statements made

on 25.02.2010 and 24.10.2010.

16. It is settled law that testimony of an injured witness stands on a

higher pedestal than any other witness, inasmuch as, he sustain

injuries in the incident. As such, there is an inbuilt assurance

regarding his presence at the scene of the crime and it is unlikely that

he will allow the real culprit to go scot free and would falsely

implicate any other persons. In Abdul Sayeed v. State of Madhya

Pradesh [(2010) 10 SCC 259], the Supreme Court held as under:

"28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness." [Vide Ramlagan Singh v. State of Bihar, Malkhan Singh v. State of U.P., Machhi Singh v. State of Punjab, Appabhai v. State of Gujarat, Bonkya v. State of Maharashtra, Bhag Singh, Mohar v. State of U.P. (SCC p. 606b-c), Dinesh Kumar v. State of Rajasthan, Vishnu v. State of Rajasthan, Annareddy Sambasiva Reddy v. State of A.P. and Balraje v. State of Maharashtra.]

29. While deciding this issue, a similar view was taken in Jarnail Singh v. State of Punjab, where this Court reiterated the special evidentiary status accorded to the testimony of an injured accused and relying on its earlier judgments held as under: (SCC pp. 726-27, paras 28-29)

"28. Darshan Singh (PW 4) was an injured witness. He had been examined by the doctor. His testimony could not be brushed aside lightly. He had given full details of the incident as he was present at the time when the assailants reached the tubewell. In Shivalingappa Kallayanappa v. State of Karnataka this Court has held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident.

29. In State of U.P. v. Kishan Chand a similar view has been reiterated observing that the testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross-examination and

nothing can be elicited to discard his testimony, it should be relied upon (vide Krishan v. State of Haryana). Thus, we are of the considered opinion that evidence of Darshan Singh (PW 4) has rightly been relied upon by the courts below.

30. The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein."

17. To the similar effect is the judgment reported in Mano Dutt

and Anr. v. State of UP, (2012) 2 SCC (Cri) 226.

18. A feeble attempt was made by learned counsel for the appellant

for challenging the Test Identification Proceedings conducted by the

Metropolitan Magistrate by submitting that in the list of under trials

mentioned in the proceedings, name of the appellant does not find

mention and, therefore, he was not made to join the proceedings. The

submission deserves outright rejection, inasmuch as, the proceedings

were conducted by PW9 Sh. Sumit Dass, Metropolitan Magistrate and

he has deposed that on 7th July, 2009, an application, Ex.PW9/A for

conducting Test Identification Proceedings of accused Mukesh was

marked to him by the Link Magistrate. On 7 th July, 2009, SI Sandeep

Sharma, Investigating Officer of the case met him outside the jail and

identified the witness Sh. Mithlesh Jha, s/o Sh. Tirpit Jha. Thereafter,

he went inside the jail where accused Mukesh, s/o Ram Kumar was

produced from custody and was identified by the Assistant

Superintendent Sh. Badri Dutt. The accused was explained the

meaning of Test Identification Proceedings. He was asked to select 8-

10 undertrials of his age group and physique for TIP. He brought ten

undertrials of his choice who were similar in age and physique as that

of accused. He noted their names and parentage at Sl.No.1 to 10 in

the proceedings. The accused and other under trials were asked to

wear white kurtas and pyjamas and the accused was asked to stand at

the position of his preference and he preferred to stand at Sl.No.8

from his left hand side and at Sl.No.4 from his right hand side.

Thereafter, witness Mithlesh Jha was called inside the room from

outside the Jail No. 7, Tihar and was asked to identify the accused

among the above mentioned persons. He correctly identified the

accused standing at Sl.No.8 from his left side as the person who had

snatched his vehicle and had caused injuries to him. He recorded his

statement Ex.PW9/C to this effect. The learned Magistrate also

proved the TIP Proceedings, Ex.PW2/A.

19. The testimony of the learned Metropolitan Magistrate finds

corroboration from the TIP proceedings, Ex.PW2/A which clearly

reflects that accused Mukesh was produced before the learned

Magistrate and was duly identified by the Assistant Superintendent,

Jail. Thereafter accused himself produced 10 under-trials of his own

choice whose names find mentioned from Sl.No. 1 to 10 and the

witness correctly identified the accused. There was no question of

mentioning the name of the accused at Sl. No. 1 to 10, inasmuch as,

they were the undertrials who were produced by the accused for

conducting his Test Identification Parade. In fact, the submission

made by the learned counsel for the appellant is contradictory to the

suggestion given to PW2 Mithlesh Jha on 30th September, 2013 when

it was suggested to him that the witness was shown the photograph of

the accused at his residence prior to holding Test Identification

Parade and on that basis, he had identified the accused.

20. From the foregoing, it stands proved that PW2 Mithlish Jha has

given a graphic description of entire incident. His presence at the

spot cannot be doubted as he was injured in the incident. Moreover,

the ocular testimony of this witness finds due corroboration from the

medical evidence as it stands proved that the injured was removed to

DDU Hospital where his MLC PW5/A was prepared by Dr. Kritika

Dubey who has since left the hospital and the MLC was proved by

Dr. Babita. PW5-Dr. Vikas Chaudhary has further proved that the

injuries on the person of Mithlesh were dangerous.

21. The mere fact that the weapon of offence could not be

recovered does not cause any dent on the prosecution case. In

Mohinder v. State, 2010 VII AD Delhi 645 reiterated by this Court in

Chuni Lal v. State, 2013(4) JCC 2529, it was observed that non-

recovery of weapon of offence during investigation is not such an

important factor to neutralize the direct evidence on complicity of

accused in the murder of deceased.

22. The entire evidence has been considered in right perspective by

the learned Additional Sessions Judge and no fault can be found with

the findings of the learned Trial Court vide which the appellant was

convicted for offence under Section 307/392/34 IPC and 397 IPC.

23. Even as regards quantum of sentence, learned Additional

Public Prosecutor for the State submitted that the appellant is

historysheeter of PS Chhawla. He was found involved in 10 cases of

robbery, auto lifting, cheating from area of PS Nazafgarh, Chhawla,

Punjabi Bagh, Nihal Vihar, Paschim Vihar, Dwarka, Mayapuri and

Harinagar. It was submitted that he is desperate and habitual criminal.

Reference was also made to the nominal roll for submitting that even

as per nominal roll, the appellant is facing trial in as many as 7 cases.

24. Keeping in view the seriousness of the offence coupled with

the fact that the dangerous injuries were caused on the person of the

injured resulting in hospitalization for a period of 14 days and he is

still undergoing treatment coupled with the antecedents of the

appellant, no interference is called for even regarding the quantum of

sentence.

25. The appeal, being bereft of merits, is dismissed. Information

be sent to the appellant through the Superintendent, Jail.

Copy of the judgment along with Trial Court record be sent

back.

(SUNITA GUPTA) JUDGE JULY 28, 2014 rs