CRL.A.--696/2012. Case: DINESH KUMAR MATHUR Vs. STATE. High Court of Delhi (India)
| Case Number | CRL.A.--696/2012 |
| Citation | NA |
| Judgement Date | August 16, 2017 |
| Court | High Court of Delhi (India) |
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* IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Reserved on 01st
Judgment Pronounced on 16th August, 2017 + CRL.A. 696/2012
DINESH KUMAR MATHUR ..... Appellant Through : Mr.Neeraj Chaudhari, Advocate versus
STATE ..... Respondent Through : Mr.Rajat Katyal, APP
+ CRL.A. 180/2013
RAJ KUMAR @ RAJU ..... Appellant
Through : Ms.Rakhi Dubey, Advocate versus
STATE ..... Respondent Through : Mr.Rajat Katyal, APP
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI HON'BLE MR. JUSTICE CHANDER SHEKHAR
G.S.SISTANI, J.
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Both the appeals have been filed under Section 374 of the Criminal Procedure, 1973 („Cr.P.C.‟) against the judgment conviction dated 22.05.2012 and the order of sentence dated 29.05.2012 passed by the Trial Court in SC 88/2010 arising out of FIR No. 49/2010 PS Geeta Colony by which the appellant in Crl.A. 696/2012 Kumar Mathur (hereinafter referred to as „appellant Dinesh‟) has convicted under Section 411 of the Indian Penal Code, 1860 („IPC‟)
has been sentenced to undergo rigorous imprisonment for three
and also fine of Rs.5,000/-, in default of payment of fine to simple imprisonment of six months; and the appellant in 180/2013 Raj Kumar @ Raju (hereinafter referred to as „
Raju‟) has been convicted under Section 302/392 read with Section 397 IPC and sentenced to life imprisonment and fine of Rs.10,000/- offence under Section 302 IPC, and seven years rigorous imprisonmen and fine of Rs.5,000/- for the offence under Section 392 IPC read Section 397 IPC.
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The case of the prosecution is that on 18.02.2010, fo information was received at Police Station Geeta Colony vide DD 20-A: “Gali No. 1, Shiv Market Khureji Petrol Pump ke saamne lady jiske pair bandhein hain va ghar ka samaan loot ke le (infront of Street No.1, Shiv Market Khureji Petrol Pump, an old legs have been tied and household items have been looted.) Satvinder Singh was informed about the call. He proceeded to the spot with Ct. Abodh. The SHO and PSI Niranjan Pathak were also informed about the call. They also proceeded to the spot and on reaching they found that an old lady named Nirmal Arora („deceased‟)
on the bed with injuries from a sharp weapon on her face, neck and feet. Lot of blood was lying on the bed. The bed sheet, pillows and were soaked in blood. The feet of the deceased were lying tied wire of the press. Crime team was called at the spot. Chance were lifted. The body was sent to the mortuary. Statement of Nath Arora, husband of the deceased, was recorded wherein he that on 18.02.2010, he left the house for his office at about 9:30 and his wife was alone in the house. At about 2:20 PM, he informed by his sister in-law Madhu Dang that she was informed by the
maid that his wife was bleeding on the bed. Within 15-20 minutes, reached at his house where he found his wife lying dead.
lying in the drawer of the TV cabin were also missing.
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On the statement of the husband of the deceased, FIR was under Sections 397/302 IPC. After post-mortem, the body of deceased was handed over to the legal heirs of the deceased. supplementary statement under Section 161 Cr.P.C, Som Nath stated that mobile phone, Rs.10,000/- and gold chain of his wife also missing from the house. During investigation, police collected CDR of the mobile phone. It was found that the said mobile was being used with number 9871240643 which was in the name of Dinesh Kumar. Appellant Dinesh was arrested under Section 412 The mobile phone was recovered from him. Appellant Dinesh gave disclosure statement that he had purchased the said mobile for Rs. 500/- from Raj Kumar @ Raju. On the pointing out of appellant Dinesh, appellant Raju was arrested. There was injury on the finger of right hand of appellant Raju. A new mobile phone Nokia 1209 was recovered from his right pocket regarding which stated that he had purchased the said phone from the looted Rs.1,200/- out of the looted amount were also recovered from possession. Another mobile phone “Classic Reliance” and a tablet Nitrabet-103 were also recovered from appellant Raju. interrogation, appellant Raju gave disclosure statement. Pursuant to the said disclosure statement, appellant Raju got recovered his stained jacket and pant and blood-stained darati (sickle) polythene from the kabristan of Sarojini Park. The recovered and darati were kept in separate pullandas and were seized and
into possession by the police. Site plan of the place of recovery also prepared. The looted jewellery could not be recovered.
Raju was got medically examined from SDN Hospital with the injury on his finger. The finger prints of appellant Raju and sent to Finger Prints Bureau, Malviya Nagar for opinion. exhibits were sent to FSL Rohini. The opinion of the doctor obtained with regard to the recovered darati and the doctor opinion that injuries mentioned in the postmortem report could been possible by the said weapon of offence. Statements of were recorded and on completion of investigation, chargesheet prepared under Section 302/397 IPC against appellant Raju and Section 412 IPC against appellant Dinesh.
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Charges were framed against the appellant Dinesh under Section IPC and against the appellant Raju under Sections 302 and Section read with Section 397 IPC. Both the appellant pleaded not guilty claimed trial. In order to prove its case, the prosecution examined witnesses. No evidence was led by the defence. Statements appellants were recorded under Section 313 Cr.P.C.
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After examining the evidence before it, the Trial Court convicted appellants as noticed in paragraph 1 aforegoing, which has led present appeals.
SUBMISSIONS ON BEHALF OF APPELLANT DINESH
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Mr. Neeraj Chaudhari, learned counsel appearing for the Dinesh, submitted that the findings of the Trial Court are conjectures and surmises. He also submitted that judgment is because of prejudice having been caused to the appellant and
liable to be set aside.
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It is also contended that there is no independent public witness support of the alleged recovery of the mobile phone from the possession of the appellant. Evidence of police witnesses cannot be relied upon as it is doubtful and improbable, besides being biased.
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Learned counsel for the appellant further submits that bare reading the answers to the question nos. 37, 38 and 39 in the statement recorded under Section 313 Cr.P.C. of the appellant, would show that appellant Dinesh has not denied that his mobile phone was seized him. He further submits that mobile phone was purchased by him from appellant Raju for Rs.500/-. He submits that in the absence of any other evidence on record to show that the appellant had dishonestly the stolen property and there was any reason to believe that appellant has stolen the mobile phone, the appellant could not been convicted under Section 411 IPC. It is contended that appellant did not deny having purchase of the mobile phone appellant Raju. He further did not deny that the mobile phone recovered from him.
SUBMISSIONS ON BEHALF OF APPELLANT RAJU
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Ms.Rakhi Dubey, learned counsel appearing on behalf of the Raju, submits that the judgment and order on sentence passed learned trial Court suffers from complete non-application of mind and is perverse. It is submitted that there is no direct or ocular against appellant Raju and being a case of circumstantial evidence, Trial Court has ignored the well-settled principles which are considered while recording a finding of conviction in a
circumstantial evidence. It is submitted that the Trial Court has erred in not appreciating that the prosecution has not been able to complete chain of events to prove the charge against the appellant Raju. prosecution has failed to prove the motive, which is important of circumstantial evidence. It is further contended that the testimony of Mahender Pal (PW-9) is not incriminating as the prosecution has to establish that the appellant was employed with PW-9 and testimony of PW-9 would carry no credibility.
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Learned counsel for the appellant also contends that the recovery of the part of the weapon of offence is highly unreliable and not suspicion for two reasons: firstly, for the reason that the recovery been made from an open area and visible with naked eye and as the testimonies of three witnesses to the recovery are contradictions, as PW-10 has testified that there was a chowkidar
the kabristan while PW-27 has deposed that no chowkidar
at the kabristan. With regard to the height of the wall which scaled, PW-10 has stated that the height of the wall was 7 or while PW-21 has testified that the height of the wall was 5 or whereas PW-27 goes on to testify that the height of the wall was 4½ ft.
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It is also contended before us that besides the recovery of the part of weapon of offence, there is no evidence which can connect appellant with the commission of the crime. Counsel also Sompal (PW-4) is a planted witness and his testimony cannot be upon. Ms.Dubey submits that this witness has categorically his cross-examination that it is correct that he was running his the mercy of the police and thus, his evidence cannot be relied
Similar argument has been raised with regard to the testimony Dr.Sayed Zaigham Raza (PW-11) whose evidence has been by the prosecution to show that the appellant had suffered an his little finger of the right hand while using the weapon of Ms.Dubey submits that it is highly unusual and improbable injured person to visit a Homeopathic clinic for treatment.
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Attention of this Court is drawn to the testimony of Som Nath
(PW-3), the husband of the deceased, as per which he used to leave the house at 9:30 AM and would return at around 7 PM when his remained alone in the house except during the period 12 noon to when the maid would come to work in the house. It is contended that in case the story of the prosecution is to be believed, then the would not have ventured into the house around 12 noon when aware that the maid would come at 12 PM and remained till 2 he had time between 9:30 AM and 12 noon and...
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