MAHESH Vs. STATE OF NCT OF DELHI

JUDGEMENT

(1.) THE appellants, Mahesh and Bhura impugn a judgment and order of the Additional Sessions Judge dated 27.08.2011 in SC No.13/2002. THE impugned judgment convicted the appellants for the offences punishable under Sections 392/302/34 IPC and also sentenced them to undergo imprisonment for life together with other sentences. All the sentences were directed to run concurrently. It was alleged that on 28.08.2002 at around 1.15 PM intimation was received in Police Station Keshavpuram with regard to murder of someone at A-1/4 Keshavpuram. Police personnel were deployed; they broke open the lock and found one Ram Chander lying face downwards, clothed only in his under-garments. THE police noted 39 knife injuries on his body; the blood had dried and congealed. A vegetable knife with its blunted blade and handle separate were lying near the body. THE deceaseds daughter Kaushalya was near the crime scene; her statement was recorded. She had five brothers and used to live with them in Trinagar with her mother. THE deceased had an estranged relationship with the family and used to live separately in A-1/4 Keshavpuram where he also carried on the business of restaurant "Sangam Restaurant". Kaushalya, PW-1 went to her father around 12.30 PM on that day to get some money. She noticed that the channel gate of the restaurant was locked but the inside door was open. Upon peeping in, she saw that her father was lying in a face downward knee bent condition with blood stained vest. She went back home and told about what she saw to her mother and brothers and returned to the restaurant with them. By then somebody informed the police who went to the spot, broke open the lock and found her fathers dead body smeared with blood and with several injuries. THE intimation (PW-16/A) was received at 1.15 PM on 28.08.2002; the statement of PW-1 was recorded and dispatched at 02:45 PM (Ex. PW1/A). THEreafter the police registered the FIR (Ex. PW-16/C).

(2.) THE police subsequently investigated and recorded the statements of other witnesses. Ram Chanders body was sent for post mortem examination. Apparently some chance prints were recovered along with other articles from the spot. Mahesh was arrested on 04.09.2002; (his arrest memo was produced as Ex. PW 30/D); Bhura on the other hand was arrested on 07.09.2002; (his arrest memo was produced as Ex. PW19/A). After completing investigation the accused were charged with committing the offence. THEy pleaded not guilty and claimed trial. During the trial, the prosecution relied on the testimonies of 32 witnesses as well as several material exhibits. After considering these materials and the submissions made on behalf of the parties, the trial court convicted the accused and sentenced them to undergo imprisonment for the terms mentioned previously.

(3.) LEARNED counsel submitted that neither PW-1 nor PW-2 identified either of the accused. Serious exception was taken to the conduct of the proceedings by the trial court in this respect. It was urged that even though in the first instance PW-1 had deposed lack of knowledge to identify either accused and had not done so the Judge who recorded the statement subsequently suo motu after hearing the arguments and reserving the matter for judgment, took great pains in putting leading questions to the witnesses in order to elicit a favorable reply. This, argued learned counsel, lead to complete miscarriage of justice and the trial court, through the impugned judgment erroneously concluded that PW-1 and PW-2 not only knew the accused (appellants) but were able to identify them and that PW-2 had heard the accused speaking to the accused when she telephoned him on the night of 27.08.2002.