* IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision:
29. h January, 2014 + CRL.A. 393/1998 SOHAN LAL @SURESH @ SODA ..... Appellant Through: Mr.M.L.Yadav, Advocate versus STATE Through: ..... Respondent Mr.Sunil Sharma, APP % CORAM: HON'BLE MR. JUSTICE KAILASH GAMBHIR HON’BLE MS. JUSTICE SUNITA GUPTA
JUDGMENT: SUNITA GUPTA, J.
1. This appeal has been preferred against the judgment and order dated 14th August, 1998 and 17th August, 1998 in Sessions Case No.82/1997 arising out of FIR No.484/1997 u/s 302/34 IPC registered with PS Seelampur whereby the appellant was convicted under Section 302 IPC and was sentenced to undergo imprisonment for life and pay a fine of Rs.25000/- and in default of payment of fine, to further undergo rigorous imprisonment for a period of 36 months. In case of deposit of fine, an amount of Rs.20,000/- is to be paid to the father of the deceased while the remaining amount shall go the State as cost of the proceedings.
2. The facts and circumstances giving rise to this appeal are that on receipt of DD-18A (Ex. PW7/C), SI Devender Singh (PW16) along with constable Yograj (PW11) went to GTB Hospital where he collected the MLC of injured Rakesh Kumar who was declared „unfit for statement‟ and was later on declared as „dead‟. PW3 Subhash Pal met SI Devender Singh in the hospital who gave the statement Ex.PW3/A alleging, inter alia, that on 23rd June, 1997 at about 8:00 pm, he along with his father and other family members were present at the roof of the house. At about 8:00 pm his brother Rakesh Kumar came to the house crying. He and his father went down stairs on hearing his noise and saw him in a pool of blood and he informed that he had been inflicted knife blows by Soda, Hakim and Shokeen in the street near the temple. Immediately he along with his father removed Rakesh Kumar in a TSR to GTB hospital where after about 1½ hours he expired. The real name of Soda is Suresh, who is the son of Roshan Lal and is resident of House No.K-355/56, New Seelampur. Shokeen and Hakam are friends of Soda who were well known to him from before. There was a quarrel between his brother Rakesh and Suresh @ Soda and Shokeen and they were having inimical relation and in order to take revenge, they have murdered his brother. He prayed for an action against them. After making endorsement Ex.PW-7/A, Rukka was sent to Police Station through Constable Yograj (PW11) on the basis of which FIR Ex. PW7/B was registered. The duty constable handed over the clothes of the deceased in a sealed parcel which was taken into possession vide Ex. PW-11/A. SI Devender thereafter reached the spot along with Constable Yograj where they met PW Madan Pal. His statement was recorded. Scene of crime was got photographed. Site plan was prepared. Blood stained brick and earth control were taken into possession. T.shirt of purple colour and pant of brown colour containing blood stains of the deceased and belonging to PW3 Subash Pal were also taken into possession.
3. It is further the case of prosecution that on 24 th June, 1997, the accused persons were arrested. They were interrogated. They made disclosure statements. They pointed out the place of occurrence and also the places where the weapon of offence and the blood stained clothes were thrown, however, nothing could be recovered. Postmortem on the dead body of Rakesh was conducted. During the course of investigation, exhibits were sent to FSL. After completing investigation, charge sheet was submitted against the accused.
4. Charge for offence under Section 302/34 IPC was framed against the accused to which they pleaded not guilty and claimed trial.
5. In order to substantiate its case, prosecution examined 19 witnesses. The case of accused was one of denial simplicitor. They alleged their false implication in this case.
6. After hearing learned counsel for the parties and examining the material available on record, vide impugned judgment dated 14th August, 1998, the learned Additional Sessions Judge acquitted accused Hakim and Shokeen by granting them benefit of doubt while accused Sohan Lal was convicted under Section 302 IPC and was sentenced as mentioned above.
7. Feeling aggrieved by the aforesaid judgment, the present appeal has been preferred by the accused Sohan Pal.
8. We have heard Mr. M.L. Yadav, learned counsel for the appellant and Mr. Sunil Sharma, learned Additional Public Prosecutor for the State.
9. It was submitted by the learned counsel for the appellant that PW1 Madan Pal is alleged to be the solitary eye witness of the incident. He is closely related to the deceased being his uncle. His presence at the spot is highly improbable and doubtful in view of his conduct at the time of occurrence and even thereafter. Had he been present at the spot and seen the occurrence, he must have supported the injured at the time of occurrence or even thereafter. According to him, he saw the occurrence while standing 15 ft. away but neither he attempted to intervene nor thereafter helped the injured. As per his deposition, he followed the injured up to the place where he fell down and PW2 and PW3 met him there, still he neither disclosed the names of the assailants nor claimed that he had seen the place where it had happened. In his deposition, at one place he deposed that he accompanied PW2 and PW3 to GTB Hospital along with injured but on the same breath he denied the same. The suggestion given by the defence that the witness was not present at the spot at the time of occurrence and he had not seen the occurrence is more reasonable and acceptable version. Had he been present at the spot, he must have helped PW2 and PW3 while they were putting the injured in TSR and would have accompanied them to the hospital and in that process clothes should have been stained with blood. Furthermore, in DD18A Ex. PW7/C the place from where the injured was taken to the hospital has been mentioned as “Seelampur bus stand” and not from Takhat lying outside the house of PWs 2&3. This document also cast a doubt regarding presence of PW1 at the spot. PW4 also denied the presence of PW1 at the time of occurrence at his shop, as such, his presence at the spot is doubtful.
10. Furthermore, as per the deposition of PW1, there was no electricity at the time of occurrence, so it was not possible for him to see the faces of the accused persons and to identify them from such a long distance. No test identification parade of the accused has been conducted so the identification of the accused persons in the Court for the first time has no value. PW1 is the solitary eye-witness and is wholly unreliable as his testimony has been disbelieved by the Trial Court regarding co-accused while acquitting them by granting them benefit of doubt. On the same set of evidence, the appellant could not have been convicted.
11. It was further submitted that the alleged oral dying declaration made before PW2 and PW3 is most suspected piece of evidence as both the witnesses have not deposed the actual words spoken by the deceased. Even otherwise, injuries received by the deceased as mentioned in the MLC and post-mortem report goes to show that after receiving such severe injuries, a person cannot move what to talk of running from the place of occurrence towards his house. No independent piece of evidence has been placed on record regarding his running up to his house except oral evidence of PW1, PW2 and PW3 that injured fell upon the Takhat near his house. No blood was found on Takhat nor trail of blood was found from the spot to the place where injured fell upon the Takhat. Had the deceased made an oral dying declaration, same would have been mentioned in DD-18A which is silent about the same. These circumstances go to show that no dying declaration was made by the deceased. PW2 and PW3 are most interested witnesses being father and brother of the deceased and concocted this oral dying declaration at the behest of the Investigating Officer and named the accused persons as assailants due to enmity.
12. Place of occurrence has not been conclusively fixed as in DD18A, the place from where the injured was removed to the hospital has been mentioned as Seelampur bus stand while in oral dying declaration, place has been mentioned as „the gali near the temple near the house of deceased‟ while in statement of PW-1 the place of occurrence has been mentioned as „gali opposite Saini Panchayat Mandir, New Seelampur‟. The FIR is ante timed and attempt has been made to show its prompt recording.
13. Further the enmity which has been proved on record between the accused persons and the deceased always plays a role of double edged weapon and in such circumstances, false implication of the appellant cannot be ruled out. As such, it was submitted that the appellant is entitled to be acquitted.
14. Reliance was placed on Dahyabhai Chhaganbhai Thakkar vs. State of Gujarat, AIR1964SC1563and Suraj Mal vs. State (Delhi Administration), 1980 SCC (Crl.) 159, Malempati Pattabi Narendra vs. Ghattamaneni Maruthi Prasad & Ors., 2000 (2) JCC [SC].
702. 15. Per contra, it was submitted by Mr. Sunil Sharma, learned Additional Public Prosecutor for the State that mere fact that PW-1 is related to the deceased is no ground to disbelieve his testimony, inasmuch as, being close relation of the deceased, he would be the last person to falsely implicate the accused persons and to allow the real culprits to go scot free. Furthermore, his testimony finds substantial corroboration from the oral dying declaration made by the deceased before PW-2 Prem Kumar and PW-3 Subhash Pal and their testimony in regard to the dying declaration made by the deceased goes un-rebutted and unchallenged. Their testimony also find corroboration from the medical evidence. Moreover, the blood stained clothes of PW-3 Subhash Pal were taken into possession and the FSL result also proves the case of prosecution inasmuch as the blood group on the clothes of this witness matched with the blood group of the deceased. The mere fact that the weapon of offence could not be recovered is not fatal to the case of prosecution, inasmuch as, as per the disclosure statement made by the accused, it was thrown by him in „ganda nala‟ and despite efforts, the same could not be recovered. As regards the acquittal of the two co-accused, same has no bearing, so far as the role of the present accused is concerned, inasmuch as, the co-accused were acquitted because there was variance regarding the role played by them in the statement of PW-1 Madal Pal and, therefore, they were granted benefit of doubt. However, so far as Sohan Lal is concerned, there is consistent stand taken by Madan Pal that he has stabbed the deceased which injury proved fatal. Under the circumstances, it was submitted that the impugned order does not suffer from any infirmity which calls for interference and appeal is liable to be dismissed.
16. We have given our considerable thoughts to the respective submissions of the learned counsel for the parties and have perused the record. Eye witness:
17. The most material witness is PW1 Madan Pal who is the uncle of the deceased Rakesh Kumar. This witness has testified that he was sitting at the shop of Tyagi General Store in the gali opposite Saini Panchayat Mandir and had gone there to purchase „bidi‟. All the accused were present there. Accused Suresh was having knife in his hand. Hakim was having a chain. The accused persons stabbed Rakesh Kumar and had given beatings to him. He raised alarm. Thereupon, the accused ran from the spot towards „ganda nala‟. The injured was removed to the hospital by the father and brother of the deceased where he died later on.
18. As regards the submission that the case of prosecution hinges on the testimony of a sole eye witness, who is also related to the deceased, the law is well settled that there is no impediment in relying upon the sole testimony of a single witness. In Sunil Kumar vs. State of Govt. of NCT of Delhi, (2003) 11 SCC367 Hon’ble Supreme Court repelled a similar submission observing that as a general rule, the Court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Evidence Act, 1872. But if there are doubts about the testimony, the courts will insist on corroboration. In fact, it is not the number, the quantity, but the quality that is material. The time-honoured principle is that evidence has to be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise.
19. In Namdeo v. State of Maharashtra, (2007) 14 SCC150Hon’ble Apex Court re-iterated the view observing that it is the quality and not the quantity of evidence which is necessary for proving or disproving a fact. The legal system has laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence.
20. In Kunju @ Balachandran vs. State of Tamil Nadu, AIR2008SC1381a similar view has been taken placing reliance on various earlier judgments including Jagdish Prasad vs. State of M.P., AIR1994SC1251 and Vadivelu Thevar vs. State of Madras, AIR1957SC614 21. Similarly, relationship by itself is not a factor to discard the testimony of an eye-witness. On the question of appreciating the evidence of witnesses, who are related, Hon’ble Supreme Court in Dalip Singh vs. The State of Punjab, AIR1953SC364 spoke very eloquently through Justice Vivian Bose. In that case the Hon’ble Judge clearly laid down the law relating to appreciation of evidence by relations with such lucidity that it deserves to be quoted:
“26. ...Ordinarily, a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that here is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.”
22. The principle laid down in the aforesaid passage has been subsequently reiterated in Guli Chand vs. State of Rajasthan, (1974) 3 SCC698and in Masalti vs. State of Uttar Pradesh, AIR1965SC202 the Constitution Bench speaking through Gajendragadkar, Chief Justice approved the decision in Dalip Singh (supra) and held as under:
14. ...But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. Often enough, where factions prevail in villages and murders are committed as a result of enmity between such factions, criminal Courts have to deal with evidence of a partisan type. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct.”
23. Thomas, J in State of Rajasthan vs. Teja Ram, (1999) 3 SCC507held that over insistence on witnesses having no relation with the victim will result in the criminal justice system going awry.
24. The Hon‟ble Judge further clarified;
“20. ... The prosecution can be expected to examine only those who have witnessed the events and not those who have not seen it though the neighborhood may be replete with other residents also.”
25. Substantially similar view was taken in Hari vs. State of Maharashtra, (2009) 3 SCC (Cri.) 1254; Mano Dutt and Anr. vs. State of UP, (2012) 4 SCC79 Mookkiah and Anr. vs. State, (2013) 2 SCC89 Arumugam vs. State (2012) 12 SCC434 26. In view of this legal proposition enunciated above, the mere fact that PW-1 Madan Pal is the solitary eye witness of the incident or is related to the deceased being his uncle is not in itself sufficient to discard his testimony. However, as a rule of prudence and not as a rule of law, his statement is required to be scrutinized with a little care. The witness was subjected to lengthy cross-examination by learned counsel for the accused. However, nothing material could be elicited to discredit his testimony. His testimony is consistent, reliable and has a ring of truth. In his statement recorded under Section 161 Cr. P.C. he had named all the three accused and had stated that knife blows were given on the person of the deceased. Even in his deposition before the Court, he has named the three accused, except that there was variance regarding the role assigned to accused Shokeen and Hakim, for which they were given benefit of doubt. However, so far as the present accused is concerned, his stand is consistent.
27. Much attack was made on the conduct of the witness for submitting that his presence at the spot becomes doubtful, inasmuch as, had he been present at the spot, he would have intervened and would have supported the injured at the time of occurrence or even thereafter would have informed the family members of the injured but that was not done. Nothing turns out on this submission, inasmuch as, it has come in his statement that on seeing the incident, he raised alarm, thereupon the accused ran away from the spot. In order to remove the injured to the hospital he even brought a TSR in which the injured was ultimately removed by his father and brother to the hospital. He has also deposed that he had informed PW2 and PW3 about the incident but the mere fact that he did not accompany the injured and PW2 and PW3 to the hospital does not cast any doubt regarding his presence at the spot or his witnessing the incident, more particularly, when his presence at the spot has not been challenged in the cross-examination.
28. Much emphasis has also been laid on DD-18A(Ex.PW7/C) for submitting that as per this DD, the injured was taken to the hospital having sustained injuries at Seelampur Bus Stand. The DD was recorded by Rishi Pal (PW14) posted as Duty Constable at GTB Hospital regarding the admission of a boy having been stabbed with knife at Seelampur bus stand by his father. According to PW1 Madan Pal, the incident had taken place in the street opposite Saini Panchayat Mandir, New Seelampur and even Rukka Ex. PW7/A mentions the place of incident as „Gali CPJ IInd Block, near Saini Panchayat Mandir, New Seelampur, Delhi‟. Crl. A. No.393/1998 elicited in the cross-examination of this witness as to how he has recorded „Seelampur bus stand‟ in this DD. Site plan (Ex.PW16/A) also shows the same place of incident. The blood stained earth, earth control, blood stained brick were also lifted from the same place. Under the circumstances, place of incident is not in dispute. The mere fact that in the DD, „bus stand Seelampur‟ has been mentioned does not cast any doubt either regarding the presence of the witness at the spot or the place of incident.
29. Even PW4 Subodh Tyagi, whose shop was near Saini Panchayat Mandir, although has not fully supported the case of prosecution, has deposed that on hearing the alarm, he came outside his shop and saw injured Rakesh in bleeding condition running from there towards his house. He followed the injured towards his house and then returned to his shop. As such, place of incident as deposed by PW1 is not doubtful.
30. Moreover, his testimony finds substantial corroboration from PW-2 Sh. Prem Kumar and PW-3 Sh. Subash Pal. This witness had deposed that he had brought the TSR in which the father and the brother of the deceased removed him to the hospital. Father and brother of the deceased have corroborated him by deposing that they had removed the injured to the hospital in TSR. The fact that the injured was brought to the hospital by his father is fortified by MLC of Rakesh (Ex.PW5/A) where in the column of “brought by” “father” has been mentioned. Further the police machinery was set in motion when intimation was given by duty constable Rishipal posted at GTB Hospital vide DD18 (Ex.PW17/C) regarding admission of Rakesh Kumar in injured condition by “his father Prem Kumar”.
31. As regards the submission that DD18 does not speak about the presence of PW1 at the spot, same is devoid of substance because the purpose of recording DD by the duty constable was only to give information to the concerned police station regarding admission of injured in the hospital. It is not an encyclopaedia of the narration of events which took place at the spot.
32. All the accused were well known to PW1, PW2 & PW3 from before. Under the circumstances, there was no need of conducting their test identification parade as alleged by learned counsel for appellant.
33. As regards, the last limb of argument that this witness has not been believed by the learned Trial Court as on the basis of his testimony, two of the co-accused have been acquitted, the same again is bereft of merit, inasmuch as, as regards the presence of three accused, namely, Shokeen, Hakim and the appellant Sohan Lal, testimony of the witness is consistent. In his statement recorded under Section 161 Cr.P.C.(Ex.PW1/DA), he has stated that Rakesh was assaulted by these three accused and this fact was reiterated by him when he appeared in the witness box. However, there was variance regarding the role played by Shokeen and Hakim as in his statement recorded under Section 161 Cr.P.C., he had stated that Hakim had caught hold of the deceased whereas Sohan Pal @ Suresh @Soda and Shokeen had stabbed the deceased. However, during the course of trial, he completely exonerated accused Hakim from any role in the crime and as regards Shokeen, he deposed that he caught hold of the deceased. As such, keeping in view the variance in the role assigned to these two accused, learned Trial Court granted them benefit of doubt and, as such, acquitted them but so far as accused Sohan Lal is concerned, he was consistent in his statement made before the police as well as deposition before the Court that he had stabbed the deceased with knife which proved fatal. Crl. A. No.393/1998 Chhaganbhai Thakkar (supra) and Suraj Mal (supra), relied upon by the counsel for the appellant does not help him.
34. It is settled law that where the prosecution is able to establish the guilt of the accused by cogent, reliable and trustworthy evidence, mere acquittal of one accused would not automatically lead to acquittal of another accused. It is only where the entire case of the prosecution suffers from infirmities, discrepancies and where the prosecution is not able to establish its case, the acquittal of coaccused would be of some relevancy for deciding the case of the other.
35. Reference in this regard may be made to Yanab Sheikh @ Gagu vs. State of West Bengal, 2013 I AD (SC) 189, where also one of the co-accused was acquitted and similar plea was taken. Hon‟ble Supreme Court referred to its earlier decision in Dalbir Singh vs. State of Haryana, (2008) 11 SCC425 where it was held as under:
“13. Coming to the applicability of the principle of falsus in uno, falsus in omnibus, even if major portion of evidence is found to be deficient, residue is sufficient to prove guilt of an accused, notwithstanding acquittal of large number of other co-accused persons, his conviction can be maintained. However, where large number of other persons are accused, the court has to carefully screen the evidence:
51. It is the duty of court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim falsus in uno, falsus in omnibus has no application in India and the witnesses cannot be branded as liars. The maxim falsus in uno, falsus in omnibus (false in one thing, false in everything) has not received general acceptance in different jurisdiction in India, nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a court may apply in a given set of circumstances, but it is not what may be called 'a mandatory rule of evidence'. (See Nisar Ali v. State of U.P.) Merely because some of the accused persons have been acquitted, though evidence against all of them, so far as direct testimony went, was the same does not lead as a necessary corollary that those who have been convicted must also be acquitted. It is always open to a court to differentiate the accused who had been acquitted from those who were convicted. (See Gurcharan Singh v. State of Punjab.) The doctrine is a dangerous one, specially in India, for if a whole body of the testimony were to be rejected, because witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead stop. Witnesses just cannot help in giving embroidery to a story, however, true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be sifted with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment. (See Sohrab v. State of M.P. and Ugar Ahir v. State of Bihar.) An attempt has to be made to in terms of felicitous metaphor, separate grain from the chaff, truth from falsehood. Where it is not feasible to separate truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is discard the evidence in toto. (See Zwinglee Ariel v. State of M.P. and Balaka Singh v. State of Punjab.) As observed by this Court in State of Rajasthan v. Kalki normal discrepancies in evidence are those which are due to normal errors of observations, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and these are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorised. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so.”
36. After referring to this decision, it was observed that the acquittal of a co-accused per se is not sufficient to result in acquittal of the other accused. The Court has to screen the entire evidence and does not extend the threat of falsity to universal acquittal. The Court must examine the entire prosecution evidence in its correct perspective before it can conclude the effect of acquittal of one accused on the other in the facts and circumstances of a given case.
37. Adverting to the case in hand, simply because two of the co- accused have been acquitted, that by itself is no ground to discard the testimony of the witness qua the appellant. PW1 had no axe to grind to falsely implicate the accused in such a heinous crime while allowing the real culprit to go scot free.
38. Furthermore, testimony of this witness finds substantial corroboration from the other material available on record. Dying Declaration :
39. PW-2 Prem Kumar and PW-3 Subhash Pal have deposed that while they were sitting on the roof of their house at about 8:15 pm, the deceased came running near the house in injured condition crying. He was bleeding from the injuries. He told them that he has been stabbed with knife by the accused persons. This is a statement made by the deceased to his family members relating to the cause of his death and, as such, is a dying declaration made by him and is admissible in evidence u/S32of the Indian Evidence Act, 1872.
40. Before we proceed to scrutinize the legal acceptability of the oral dying declaration, it will be useful to refer certain decisions in regard to the admissibility and evidentiary value of a dying declaration.
41. In Khushal Rao vs. State of Bombay, AIR1958SC22 Kusa vs. State of Orissa, AIR1980SC559 and in Meesala Ramakrishan vs. State of A.P., (1994) 4 SCC182 it has been held that the law is well settled that the conviction can be founded solely on the basis of dying declaration if the same inspires full confidence.
42. The Constitution Bench, in Laxman vs. State of Maharashtra, (2002) 6 SCC710 has laid down thus:
“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 the deathbed 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 crossexamination are dispensed with. Since the accused has no power of cross-examination, the courts 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 always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting 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 looks 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 any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite.”
43. Reference may also be made to a two Judge Bench decision in Prakash and Anr. vs. State of Madhya Pradesh, (1992) 4 SCC225wherein it has been held as follows:
“In the ordinary course, the members of the family including the father were expected to ask the victim the names of the assailants at the first opportunity and if the victim was in a position to communicate, it is reasonably expected that he would give the names of the assailants if he had recognised the assailants. In the instant case there is no occasion to hold that the deceased was not in a position to identify the assailants because it is nobody's case that the deceased did not know the accused persons. It is therefore quite likely that on being asked the deceased would name the assailants. In the facts and circumstances of the case the High Court has accepted the dying declaration and we do not think that such a finding is perverse and requires to be interfered with.”
44. Parbin Ali and Anr. vs. State of Assam, 2013 I AD (SC) 483 was again a case where the oral dying declaration made by the deceased to the family members was relied upon.
45. Turning to the factual matrix of the case, testimony of PW-2 and PW-3 have not been assailed at all regarding the dying declaration made by the deceased to his father and brother. They have deposed in a categorical manner that the deceased came running in injured condition and was crying. He was bleeding from the injuries and he informed them that the accused persons have stabbed him with knife. Even PW4 Subodh Tyagi has deposed that on hearing someone crying, he went outside his shop and saw deceased running towards his house in bleeding condition and that he had followed the deceased to his house. It has further come in cross-examination of PW3 that the injured was conscious uptil his reaching the hospital. MLC of the injured was prepared by Dr.R.A.Gautam and nothing has been suggested to this witness that the deceased was not in a conscious state and in a position to speak. Moreover, as per the MLC, the injured was brought to the hospital in injured condition at about 9:00 pm and as per DD No.21A (Ex.PW8/A) intimation regarding his death was sent at 10:15 pm., meaning thereby, he died after about 1¼ hours of his admission in the hospital. In this back drop, it can safely be concluded that the deceased was in conscious state and in a position to speak. Thus, it is difficult to accept that the father and the brother would implicate the accused by attributing the oral dying declaration of the deceased. That apart, in the absence of any real discrepancy or material contradiction or omission and additionally, non cross-examination of the doctor in this regard unchallenged testimony of PW2 and PW3 regarding the dying declaration made by deceased to them makes the dying declaration absolutely credible and substantially corroborate the testimony of PW-1 Madan Pal. Medical Evidence:
46. The ocular testimony of PW-1 Madan Pal and the oral dying declaration made by the deceased to PW-2 Prem Kumar and PW-3 Subhash Pal find corroboration from the medical evidence. Postmortem on the dead body of Rakesh was conducted by Dr. Anil Kohli and as per the post-mortem report (Ex.PW16H) following injuries were found on the person of the deceased:1. Incised stab wound 3.8 cm x 0.4 cm with clean cut margins and one angle more acute than other present over inner apact on dissection the track of the wound is going upwards, backwards and outwards and terminated making an exit would of 2.5 cm x 0.4 cm over the back of the right arm, placed 10 cm from the top of shoulder with clean cut averted edges. The depth of wound is 9 cm and haemorrhages are present along the track of wound. No major blood vessel cut.
2. Incised stab wound 2.6 cm x 0.3 cm present in the right axillary region placed obliquely 4.5 cm below the axillary folds in the mid axillary line, and 19 cm to the right of mid line of body. It has clean cut margins with one angle more acute then the other. On dissection the wound is going backward, medially and upwards in the soft tissues of the posterior chest wall where it terminates after a distance of 9.5 c.m. Haemorrhages present along track of wound. No major blood vessels cut.
3. Incised stab wound placed obliquely over right side front of chest placed 1 cm to the right of midline and 18.5 cm below the calavicle. It is wedge shaped with clean cut margins and measures 2.6 cm x 0.3 cm. On dissection the wound is going upwards, backwards and outwards, cutting the fifth rib arterially, entering the right pleural cavity and cutting the middle lobe of right lung through and through where it finally terminated. Depth of track is 7 c.m. Haemorrhages present along track of wound.
4. Incised wound 2.00 cm x 0.3 cm x 0.2 cm present over front of right side of chest placed 9.5 cm to the right of midline 1.3 cm above right nipple.
5. Incised stab wound 2.7 cm x 0.3 cm present over left side of chest placed 14 cm to the left of midline and 13 cm below left anterior auxiliary fold. It is obliquely placed wedged shaped with clean out margins. On dissection the wound is going upwards, medially and arterially cutting the fifth intercostals muscle entering the left pleural cavity and terminated after cutting lower lob of left lung. Depth of wound is 7 cm. Haemorrhages present along track of wound.
47. It was opined that cause of death was haemorrhagic shock due to ante-mortem stab injuries to the lungs produced by a sharp edged weapon. Injury 1 & 5 were sufficient to cause death in the ordinary course of nature both independently and collectively with the other injuries. The time of post-mortem was recorded as 11:45 am on 24th June, 1997. The time of death was recorded to be 16:00 hrs. prior to conducting the post-mortem, which corroborates the prosecution case of time of incident to be around 8:00 pm. Scientific evidence:
48. SI Devender Singh, Investigating Officer of the case on reaching the spot, seized the blood stained earth, blood stained brick and earth control. After the post-mortem, the clothes of the deceased were taken into possession. When PW-3 Subash Pal removed the deceased to the hospital, his clothes were also smeared with blood, which were also taken into possession. During the course of investigation, all the exhibits were sent to Forensic Science Laboratory. As per the report Ex.PW16/J prepared by Sh.D.S. Chakotra, Sr. Scientific Officer, blood was detected on the T.shirt and baniyan of the deceased, earth control, brick and shirt and pant of PW-3 Subhash. All indicated the presence of human blood of AB Group, which was the blood group of the deceased. This is another clinching piece of evidence. Motive: The motive of crime which led to the death of the deceased was previous enmity between the accused and the deceased. PW10 HC Ranbir Singh produced the copies of the FIR Nos. 701/1996 and 702/1996, PS Seelampur (Ex.PW10/A & B). As per Ex. PW10/B, deceased Rakesh had lodged an FIR on 11th November, 1996 against Sohan Lal and Shokeen for stabbing him. A cross case was registered on the same date against deceased by Shokeen for causing injuries to him. PW2 and PW3have also deposed that earlier there was quarrel between the accused persons and the deceased. Accused were inimical to the injured and on this account they had killed the deceased. Factum of strained relations between the parties and enmity is not even disputed by accused as a suggestion was given to PW3that he has deposed falsely due to previous enmity. Although he denied false implication of accused, but fact remains that even according to the accused, there was previous enmity and that furnished the motive to eliminate the deceased.
49. Non recovery of weapon of offence in view of the disclosure statement that it was thrown in ganda nala is not fatal to the case of prosecution in view of Ram Singh vs. State of Rajasthan, (2012) 12 SCC339 Amit vs. State of Uttar Pradesh, (2012) 4 SCC107 Umar Mohammad and Ors. vs. State of Rajasthan, (2007) 14 SCC711and Joginder Singh @ Mor vs. State of Delhi, Crl. A.250/2003 and 63/2005 decided on 25.11.2013.
50. Result of the aforesaid discussion is that neither we are able to see nor the counsel appearing for the appellant has been able to point out the contradictions or discrepancies of any material nature in the statements of the witnesses. PW1 Madan Pal, uncle of the deceased has supported the case of prosecution. His statement is duly corroborated by PW2 Prem Lal and PW3 Subash Pal, to whom oral dying declaration was made by the deceased. PW1 had also informed PW2 and PW3 regarding the manner in which the deceased sustained injuries. He brought the TSR in which the injured was removed to GTB Hospital by PW2 and PW3. The factum of injured being brought to the hospital by his father finds corroboration from the MLC and DD recorded by Duty Constable posted at GTB Hospital, who flashed the message to the concerned police station where after the whole police machinery was set in motion.
51. Another very important aspect of the case is that on behalf of the accused, no question or suggestion were put to any of the witnesses to challenge their testimony. In fact, the presence of PW-1 at the spot, making of oral dying declaration to PW2 and PW3 have not been assailed in cross-examination. The fact that the relation between the deceased and the accused were inimical stands not only proved by PW2 and PW3 but also in fact admitted by the accused as per suggestion given to PW3. Except for taking a plea of false implication, no substantial plea has been taken by the accused as to why the uncle or the father or the brother of the deceased would implicate him in such a serious offence allowing real culprit to go scot free.
52. In view of the above, we have no difficulty in reaching the conclusion that the conviction of the appellant/accused Sohan Lal @ Suresh @ Soda u/s 302 IPC and the sentence imposed thereon is fully justified.
53. We, therefore, dismiss the appeal and affirm the conviction and sentence imposed on the appellant/accused. The appellant Sohan Lal shall surrender to suffer the remaining sentence as awarded by the learned Trial Court within two days, failing which, learned Trial Court to get the appellant arrested for serving the remaining sentence. Copy of the judgment along with the Trial Court record be sent back. (SUNITA GUPTA) JUDGE (KAILASH GAMBHIR) JUDGE JANUARY29 2014 rs