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Mulkh Raj Des Raj Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtPunjab and Haryana High Court
Decided On
Judge
Reported in1969CriLJ94
AppellantMulkh Raj Des Raj
RespondentThe State
Cases ReferredMulk Raj v. The State of U.P.
Excerpt:
.....poor man. (iii) it will not be safe to convict the appellant on the evidence of solitary witness, gian chand p. 2 in his statement deposed that immediately before stabbing the deceased, the appellant told the witness that 6/7 days prior to the fateful day, the appellant and the deceased had taken liquor together and that the appellant complained to the witness at that time that the deceased had insulted him and that he wanted to teach him a lesson. 2, a good deal of stress was laid on the plea that conviction could not be founded on the testimony of the solitary eye-witness. the indian legislature ba9 not insisted on laying down any such exceptions to the general rule recognized in section 134, which by laying down that no particular number of witnesses shall, in any case be required..........along the canal near the bridge, the deceased left them for easing him. self. the appellant told gian chand that the deceased had insulted him about a week ago and that he wanted to teach him a lesson. gian chand dissuaded him from that course. the deceased rejoined them and all of a sudden the appellant gave a push to gian chand, who fell down. the appellant then stabbed the deceased in the chest with a knife, which he was parrying. having inflicted the injury, the appellant ran away leaving one of the shoes exhibit p. 8 at the spot.4. gain chand then proceeded from there to panchayat ghar of the village and narrated the incident to siri kishan head chowkidar, p.w. 3. other chowkidars were also summoned. all of them went to the spot where the deceased was lying dead. shiv nath,.....
Judgment:

Gopal Singh, J.

1. This Criminal Appeal is directed against the judgment dated December 3, 1965, of Shri E.F. Barlow, Sessions Judge, Karnal convicting Mulakh Raj appellant under Section 302, Penal Code for the murder of Hanif and sentencing him to imprisonment for life. The facts of the prosecution case are as follows:

2. The appellant and the deceased were friends residing in village Kaul in the district of Karnal, They had common friend Gain Chand, P.W. 2. About a week before the date of the occurrence, which took place on May 17, 1965, the appellant and the deceased took liquor together. It is stated that the deceased in the state of intoxication used certain language which was not cherished by the appellant.

3. On the date of the occurrence at 7 P.M., Gain Chand, P.W. 2 visited the shop of the deceased, who was working as a barber in the village. The accused was also sitting with the deceased in the shop. The appellant suggested that they should go out for walk towards the Sirsa Canal Branch. When they were walking on the embankment along the canal near the bridge, the deceased left them for easing him. self. The appellant told Gian Chand that the deceased had insulted him about a week ago and that he wanted to teach him a lesson. Gian Chand dissuaded him from that course. The deceased rejoined them and all of a sudden the appellant gave a push to Gian Chand, who fell down. The appellant then stabbed the deceased in the chest with a knife, which he was parrying. Having inflicted the injury, the appellant ran away leaving one of the shoes Exhibit P. 8 at the spot.

4. Gain Chand then proceeded from there to Panchayat Ghar of the village and narrated the incident to Siri Kishan Head Chowkidar, P.W. 3. Other Chowkidars were also summoned. All of them went to the spot where the deceased was lying dead. Shiv Nath, Chowkidar P.W. 4 wag deputed to lodge the First Information Report in terms of the information supplied to him by Siri Kishan, who was given the details by Gain Chand P.W. 2.

5. Shiv Nath, P.W. 4 left village Kaul at 10 P.M. The night was a dark one. He broke his journey at village Dhareru as he apprehended trouble on the way from the appellant and also because the night had fallen and ha had to travel at odd hour. He proceeded to police station, Pundri in the morning. He reached the police station at 7.80 A.M. The report was lodged at 7.45 A.M. on May 18, 1965.

6. Swarn Singh, A.S.I. P.W. 13 accompanied by Shiv Nath, P.W. 4 reached the spot at 8.80 AM. After preparation of the inquest report, he recorded the statement of Gain Chand, P.W. 2. He recovered from the spot shoe P. 8 and collected blood-stained earth from the plane where the dead body of the deceased was lying.

7. The dead body was sent for post mortem examination. Dr. (Mrs.) R. Bawa, who performed the post-mortem examination, found an abrasion on the right forehead and an incised wound on the right side of chest 8' X 1/10' deep in the cavity. The injuries were found to be ante mortem. There was corresponding cut on the third rib and costal cartilage right side. She opined that the death occurred due to shock and internal bleeding caused by the second injury. She stated that the injury could be caused with a sharp-edged weapon and that the injury was sufficient in the ordinary course of nature to cause death.

8. The appellant surrendered himself to Dhan Singh Lumbardar, P.W. 10 on May 19, 1965 and made extra-judicial confessional statement to the effect that he made a great mistake in killing Hanif with knife and that he should be handed over to the police. He was accordingly taken into custody by the police.

9. Apart from the second shoe of the appellant being taken in possession by the police from his house, the appellant made a disclosure statement on May 25, 1965 leading to the recovery of knife P. 10 from a place near the kitchen wall of Janta Higher Secondary School.

10. The appellant in defence pleaded that Hanif had been murdered not by him, but by Gain Chand P.W. 2 and that he had been falsely implicated because Gain Chand, the real culprit, was the son of an influential person and was let off.

11. The conviction of the appellant is based on motive which actuated the appellant to commit the offence, testimony of solitary eye-witness. Gian Chand P.W. 2, the recoveries, medical evidence and extra judicial confession.

12. After conviction, the appellant filed an appeal in the High Court on the following grounds:

I along with Shri Gian Chand eye witness and Hanif, deceased, went together for a walk. A quarrel took place between Shri Gian Chand and Hanif. Hanif was injured with his knife and died. Shri Gian Chand is a rich man and my parents are very poop. He went to the village from the place of occurrence prior to me and made a noise that Hanif bad been killed by me. He himself became an eye witness and got me convicted by leveling false accusation: against me. I had no dispute or enmity with Hanif deceased. Justice be done to me, a poor man.

13. At the time of arguments, the Counsel for the appellant urged the following points:

(i) No motive for the commission of the crime has been established ;

(ii) There was delay of 12 hours in lodging: the First Information Report without any satisfactory explanation having been given for the delay.

(iii) It will not be safe to convict the appellant on the evidence of solitary witness, Gian Chand P.W. 2.

(iv) Evidence of extra-judicial confession be discarded.

(v) The recoveries of knife and the shoes do not help the prosecution.

14. As to motive, it is contended that there was no reference about it in the body of the First Information Report. It is specific. ally mentioned in the report that 6/7 days prior to the date of the occurrence, the appellant and the deceased after taking liquor together abased each other and that the appellant stabbed the deceased with the knife on account of that grudge only. Thus it has not been correctly suggested that there is no reference of motive in the First Information Report.

15. Gian Chand P.W. 2 in his statement deposed that immediately before stabbing the deceased, the appellant told the witness that 6/7 days prior to the fateful day, the appellant and the deceased had taken liquor together and that the appellant complained to the witness at that time that the deceased had insulted him and that he wanted to teach him a lesson. The witness adds that he in reply told the appellant that such things do happen when one is drunk, but the appellant did not care for it. This was expressly stated by Gian Chand P.W. in his examination-in-chief. No information by way of cross-examination of that witness was further elicited to establish that the facts pertaining to motive-had been wrongly deposed to by him.

16. As regards the second point pertaining to delay in making the First Information Report, it may be recalled that the report was lodged by Shiv Nath P.W. 4, who was not an eye witness of the occurrence and to whom information about the occurrence had been supplied by Shri Kishan P.W. 8, who in turn absorbed the particulars of the occurrence from Gian Chnad P.W 2. Thus the knowledge of details of the occurrence as given by him to the police at the time of recording of the First Information Report could not be meticulously precise. It was contended on behalf of the appellant that there was no reference to explanation for delay in the body of the Report. That contention is not correct. It is given at the end of the report that it was out of fear from the appellant and it being odd hour that the informant could not come in the night lodging the report. Shiv Nath in his examination-in-chief while offering explanation for delay stated as under:

I came to my house to fetch the cycle and then went to the Thana. It was a dark night. I started at about 10 P.M. Then when I reached village Dhareru I became apprehensive as the accused was at large and I suspected that he may not assault me in the dark night. I stopped at night in that village. Then I went to the Thana in the morning reaching there by 7.80 a.m.

17. In the course of cross-examination, the -only question asked from the witness on behalf of the defence was as to whether he had told the police as to why he came late to lodge the report. His reply was that he had done so. He added that he stayed at night in village Dhareru in the house of one Shri Chand. No further cross-examination was directed in respect of the factum of apprehension and the difficulty for performing journey at odd hour in a dark night. Thus the defence did not care to challenge the correctness of the explanation given by the witness regarding delay in lodging the First Information Report.

18. As regards the evidence of Gian Chand P.W. 2, a good deal of stress was laid on the plea that conviction could not be founded on the testimony of the solitary eye-witness. Under Section 134, Evidence Act, there is no restriction or limitation as to the number of witnesses which can be produced. Convincing and consistent evidence of a solitary witness, against whose veracity no attack can be levelled, can constitute the basis of conviction. The statement made by Gian Chand does not suffer from any inherent improbabilities nor any material discrepancies in his statement have been pointed out by the Counsel appearing for the appellant.

19. Their Lordships of the Supreme Courts while considering this proposition of law, have laid down in Vadivelu Thevar v. State of Madras reported in : 1957CriLJ1000 at page 619 as follows:

The contention that in a murder case, the Court should insist upon plurality of witnesses, is much to broadly stated. The Indian Legislature ba9 not insisted on laying down any such exceptions to the general Rule recognized in Section 134, which by laying down that no particular number of witnesses shall, in any case be required for the proof of any fact has enshrined the well-recognized maxim that 'Evidence has to be weighed and not counted.' It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence where de. termination of guilt depends entirely on circumstantial evidence. If the Legislature were to insist upon plurality of witnesses, cases where the testimony of a single witness only could be available in proof of the crime, would go unpunished. It is hare that the discretion of the presiding Judge comes into play. The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or recodes. If such a testimony is found by the Court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved by the testimony of a single witness the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of wit. nesses, may be forthcoming to testify to the truth of the case for the prosecution.

20. While dealing with the evidence of Gian Chand, it was contended on behalf of the appellant that Gian Chand was not present at the spot when the police arrived and he was examined much later. The suggestion seems to be that his guilty mind did not allow him to join the police promptly when the police arrived at the scene of the occurrence. As stated above, it was Gian Chand who soon after the occurrence supplied the information about the occurrence to Shri Kishan, P.W. 3, Head Chowkidar. It was in pursuance of the information supplied by Gian Chand that Shri Kishan deputed Shiv Nath for lodging the First Information Report. He was examined by Swaran Singh, A.S.I., soon after the inquest report had been drawn up and recoveries made at the spot. No question was asked in cross-examination from Gian Chand as to whether there was any delay on his part in reaching the place of occurrence and if so what was the explanation. Swaran Singh P.W. 23 was cross-examined about the alleged delated arrival of Gian Chand at the place of occurrence. He repelled the suggestion and stated that although Gian Chand was not present at the spot at the time of the police arrival and daring the preparation of the inquest report, he was examined soon there after.

21. The conduct of Gian Chand is inconsistent with his being an assailant of the deceased. Had he killed the deceased, he would not have approached the Ghowkidar and in formed other people of the village about the occurrence of murder of the deceased by the appellant having taken place. On the other hand, the conduct of the appellant in vanishing from the village and making himself scarce from the police, who had started investigation in the morning on May 18, 1965, and surrendering himself on May 19, 1965 to Dhan Singh, Lambardar, P.W. 10, followed by making of extra judicial confession of being murderer of the deceased go a long way to suggest that he could not be an innocent person and a mere witness like Gian Chand.

22. Dhan Singh, Lambardar P.W. 10 stated that the appellant auo motu came to him and voluntarily confessed before him that be had made a great mistake in killing Hanif with a knife and that he should be produced before the police by Dhan Singh. He was accordingly produced before the police and was apprehended. Nothing was elicited in the course of his cross-examination casting doubt on the correctness of the statement made to a responsible and respectable witness of the status of a Lambardar. Neither the contents of the confessional statement were successfully assailed nor the veracity of the witness was challenged. It was contended that the extra-judicial confession of the appellant as made to the Lambardar should not be believed especially when it was made to a quasi-official witness like Lambardar. Considering the facts and circumstances of the case and the un. assailable testimony of Dhan Singh, there is no reason to discard the evidence of Dhan Singh pertaining to extra-judicial confession which lends further assurance as to the appellant being guilty of the offence of murder.

23. It was urged on behalf of the appellant that the confession of the appellant could not be voluntary or might not have been made at all or might have been made under police pressure. Only speculative attack was levelled against the testimony of the witness. No fault was found with his statement. Principles to be home in mind while accepting or rejecting an extra-judicial confessional statement have been laid down, by the Supreme Court in Mulk Raj v. The State of U.P. reported in AIR 1959 SC 902 at page 905 as follows:

An extra-judicial confession, if voluntary, can be relied upon by the Court along with other evidence in convicting the accused. The confession will have to be proved just like any other fact. The value of the evidence as to the confession just like any other evidence, depend upon the veracity of the witness to whom it is made. It is true that the Court requires the witness to give the actual words used by the accused as nearly as possible, but ill is not an invariable rule that the Court should not accept the evidence if not the actual words but the substance were given. It is for the Court having regard to the credibility of the witness, his capacity to understand the language in which the accused made the confession, to accept the evidence or not.

24. As found by the learned Sessions Judge, the recoveries of shoes do not in any way help the prosecution case. Apart from the discrepancy of witnesses attesting the recovery memo pertaining to the recovery of shoe P. 8 as to the particular point at the place of occurrence from where the shoo was recover-ed, no attempt has been made to prove that shoe P. 8 was a fellow shoe of the other shoe P. 9 recovered by the police from the house of the appellant. Nothing was done to establish by trial or otherwise that the shoes belonged to the appellant and constituted one and the same pair.

25. It was urged on behalf of the appellant that knife was recovered from a place which was visible to the passers-by and the students of the school. It was contended that it is most unlikely that the appellant should have chosen that place for the purpose of conceiling the knife. The fact that his disclosure statement led to the recovery of the knife shows that it was within the exclusive know, ledge of the appellant that he had buried the knife there.

26. According to the evidence given by Gian Chand P.W., the appellant had thrust knife into the cheat of the deceased. The testimony of Gian Chand thus stands corroborated that the fatal injury had been caused to the deceased with a knife.

27. The evidence of the eye-witness receives support from medical evidence describing the nature of the fatal injury caused to the deceased. It is stated that injury No. A could be caused with a sharp-edged weapon like knife. On examination, it was found that the knife was not an ordinary knife, which is used either for cutting paper, sharpening pencils or cutting vegetables. The length of the wound given by the doctor is 8'. The length of the blade of the knife is 4.2' which is much greater than the knives normally used for household purposes.

28. As reproduced above in the grounds of appeal forwarded by the appellant to the High Court, he has stated that he along with Gian Chand eye-witness and Hanif deceased went out for a walk. Thus he admits his own presence, the presence of the eye-witness and also that of the deceased. He further admits that the deceased was injured with a knife and consequently died. He, however, contends that there took place a quarrel between Gian Chand and the deceased. His conduct of abscissions from the village soon after the occurrence and the conduct of Gian Chand P.W. 2 in promptly giving information in the village about the occurrence and deputing Shiv Nath Chowkidar to lodge the First Information Report narrow down the point of controversy as to whether the knife was thrust in the cheat of the deceased by Gian Chand or by the appellant. The evidence led by the prosecution clearly establishes that it is the appellant and not Gian Chand, who is responsible for commission of the murder of the deceased.

29. For the reasons set out above, the appeal is disallowed.

Bal Raj Tuli, J.

30. I agree.


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