Delhi District Court
State vs . Aakash, on 18 July, 2018
IN THE COURT OF SH. AJAY GOEL, ADDITIONAL SESSIONS
JUDGE/SPECIAL JUDGE (NDPS),
DWARKA COURTS, NEW DELHI.
Sessions Case No. 440982/2016
State Vs. Aakash,
S/o Sh. Rajender,
R/o H.No. 84, Manglapuri Village,
New Delhi.
FIR No. : 157/2013
Police Station : Palam Village
Under : 302 IPC
Sections
Date of institution of case : 02.09.2013
Date of committal to Sessions Court : 18.09.2013
Date of assignment to this court : 06.06.2017
At the stage of prosecution evidence
Date on which judgment was reserved : 02.07.2018
Date on which judgment was pronounced : 13.07.2018
JUDGMENT:
1. The case of the prosecution is that on 05.06.2013, DD no. 24A was assigned to PSI Amrender regarding an injury with knife to a person. Thereafter, he alongwith Ct. Piplad reached at the spot i.e. H. No. 154, Gali No.2, Phase-I, Manglapuri, where PCR Van Z- 45 was already found present and injured Sudesh Kumar was going to shift in the said PCR Van. Injured Sudesh told him that his Sessions Case No.440982/2016 State Vs. Aakash Page No. 1/35 brother in law (saala), namely Aakash had hit him from behind with some sharp weapon. Thereafter, on checking, PSI Amrender found two injuries marks, one was on the back and another was between the back right and front side below the place of hand and armpit. No blood was oozing from him. PCR officials were immediately asked to take him to the hospital and house of the injured was inspected, where no blood stains were found. Thereafter, on enquiry from the family members of the injured, it was revealed that injured Sudesh was assaulted by his saala Aakash and the eye witness of the same is Aadesh, brother of injured Sudesh, who had accompanied with the PCR Van and injured to the hospital. After that, he alongwith Ct. Piplad went to DDU Hospital, where injured was declared brought dead vide MLC No. 13692/13 and dead body was shifted to the mortuary of DDU Hospital and Sh. Adesh, brother of injured was found present there. PSI Amrender collected the abovesaid MLC. Thereafter, he alongwith Sh. Adesh reached at the police station and recorded the statement of Sh. Adesh, wherein he stated that his younger brother Sudesh had got married with Monika on his own wish but the family members of Sessions Case No.440982/2016 State Vs. Aakash Page No. 2/35 Monika were not happy with the said marriage. Aakash, brother of Monika was very much annoyed with the said marriage and mostly threatened him and his family members to kill him. Earlier also 2-3 times he came to his home for quarrel. Today, on 05.06.2013, at about 5 p.m., when he was going to Manglapuri Chowk, then he saw his brother Sudesh was coming and he also saw that brother in law of Sudesh came from his behind and after assaulting upon him, he ran away. He ran towards the Aakash to catch him but due to distance he coult not. Thereafter, he saw that Sudesh had fallen and he came near to him and Sudesh told him that Aakash had assaulted upon him with a sharp weapon from behind and had ran away. Thereafter, he brought Sudesh to home and told the entire facts to his family members and made a call at phone No. 100. On his said statement, the present case was registered under Section 302 IPC against the accused Aakash. Thereafter, site plan was prepared at the instance of Sh. Aadesh, accused Aakash was arrested, interrogated, his disclosure statement was recorded and weapon of offence was recovered. After completion of all the proceedings and investigation, the charge sheet was filed against Sessions Case No.440982/2016 State Vs. Aakash Page No. 3/35 the accused Aakash.
2. Vide order dated 05.10.2013, the charge for the offences under Sections 302 IPC was framed against the accused Aakash to which he pleaded not guilty and claimed trial.
3. The prosecution examined 21 witnesses.
PW1 Sh. Prem Singh. He is the father of the deceased. He has deposed about the marriage of his son Sudesh and Monika. He has deposed that his son Sudesh and Monika got married at Nasik in some Court and the family members of the accused were not happy with the said marriage and accused Aakash was also not happy with the said marriage. He had further deposed that one day, accused and his father, threatened his son Sudesh and his family members to kill him. He further deposed about the day of incident i.e. 05.06.2013 as narrated by his son Adesh Kumar and he proved the seizure memo of documents and photographs of the marriage of Sudesh and Monika as Ex.PW1/A, attested copy of Sessions Case No.440982/2016 State Vs. Aakash Page No. 4/35 documents of the marriage as Ex.PW1/B and attested copy of photographs as Ex.PW1/C. PW2 Smt. Monika. She is the wife of the deceased and her testimony shall be considered at later stage. One important fact on which the Ld. Counsel for the accused has placed reliance is that she has stated that when Sudesh was brought to home, he was unconscious.(The same will be considered at the time of observations in the later part of the judgment) PW3 HC Ramavtar. He was the duty officer and proved the attested copy of DD No. 24A, DD No. 25A as Ex.PW3/A and Ex.PW3/B respectively, copy of FIR No.157/13 as Ex.PW3/C and his endorsement as Ex.PW3/D. PW4 Sh. Adesh Kumar. He is the complainant in the present case and younger brother of deceased. His testimony shall be considered later on.
PW5 Dr. Aruna Singh. She has deposed on behalf of Dr. Ritu as Dr. Ritu had left the services of the hospital and her present whereabouts were not known to the hospital. She deposed that she worked with Dr. Ritu and saw her while signing and writing. Sessions Case No.440982/2016 State Vs. Aakash Page No. 5/35 She proved the MLC No. 13692/13 dated 05.06.2013 of Sudesh s/o Sh. Prem Singh, aged 23 years, male as Ex.PW5/A. PW6 Sh. Bal Kishan. He is maternal uncle/phupha of the deceased Suresh. He has deposed that in the year 2013, at about 4 p.m., he was present at his home and he heard the noise in the gali then, Sudesh, son of the brother of his wife came to him and deposed about the beating given to him by Aakash and Sudesh kept his hand on his left side chest and thereafter, fell down in the front of his house in the gali.
PW7 HC Vishram. He is the MHC(M) and proved the road certificate No. 73/21/13 as Ex.PW7/A regarding the sending of three parcels and four sample seals to FSL Rohini through Ct. Balwan and also proved Entry No. 1147 and 1149 in register No.19 regarding deposition of receipt of FSL.
PW8 HC Ramphool. He is the MHC(M) and proved Entry at S. No.1147 in register No.19 as Ex.PW8/B regarding deposition of two sealed pulandas sealed with the seal of DFMT DDU Hospital and two sample seals of DFMT DDU Hospital by Insp. Sunder Singh, Entry at S. No. 1149 as Ex.PW8/B regarding deposition of Sessions Case No.440982/2016 State Vs. Aakash Page No. 6/35 one sealed pulanda sealed with the seal of SSY with him by Insp. Sunder Singh, copy of RC No. 71/21/13 as Ex.PW8/C regarding sending of one sealed pulanda seal with the seal of DFMT, one sealed pulanda sealed with the seal of SSY and one sample seal of DFMT DDU Hospital to DDU Hospital, RC No. 73/21/13 regarding sending of three samples sealed with the seal of DFMT hospital and four sample seals DFMT hospital to FSL Rohini as Ex.PW8/D and copy of receipt of FSL regarding the same as Ex.PW8/E. PW9 HC Sunder Lal. He has deposed that on 06.06.2013, he joined the investigation with IO Insp. Sunder Singh, SHO Palam Village. and proved the arrest memo of accused Akash as Ex.PW9/A, his personal search as Ex.PW9/B and his disclosure statement as Ex.PW9/C, seizure memo of screw driver as Ex.PW9/D. PW10 Sh. Vinod. He has deposed that on 05.06.2013, there was a function at his home and many relatives alongwith his brother in law Adesh and deceased Sudesh were present and after completion of function, he alongwith Sudesh went to bus stop to Sessions Case No.440982/2016 State Vs. Aakash Page No. 7/35 see-off his brother Sukhpal, Suresh and their wives. He further deposed that he remained with his abovesaid brothers and bhabhies at bus stand but Sudesh came back to his home. He further deposed that thereafter, he received a call from his brother in law Aadesh that accused Akash has committed the murder of his brother in law Sudesh by inflicting injuries on his person, he returned back to his home and made enquiries about the injuries and deceased Sudesh disclosed him that the injuries have been caused to him by his brother in law Aakash and after this, his neighbour made a call at No. 100. Herein, Ld.APP has submitted that this witness has deposed about dying declaration. His contention will be considered at the time of observations.
PW11 Sh. Manoj. He has deposed that on 05.06.2013, he was present at his house and heard some noise of weeping from his neighbourhood i.e. house of Adesh and Sudesh. He further deposed that after hearing the noise, he went to their house and saw that deceased Sudesh was having some injury and was fighting with life. He further deposed that at that time, Adesh Sessions Case No.440982/2016 State Vs. Aakash Page No. 8/35 (brother of deceased Sudesh) took his mobile phone No. 9210331761 and made a call at 100 number, PCR van came and removed the injured to hospital.
PW12 Ct. Piplad Singh. He has deposed that on 05.06.2013, he alongwith PSI Amrender Singh, reached Phase I, Manglapuri, New Delhi, where one PCR van found present and injured Sudesh was in it. He further deposed that injured was shifted to DDU hospital and he found no blood during the inspection. He further deposed that thereafter, he alongwith PSI Amrender Singh reached to DDU Hospital and collected the MLC of Sudesh. Sh. Adesh, brother of the deceased, came to PS and his statement was recorded, on which the present case was got registered and he handed over the copy of FIR and tehrir to IO Insp. Sunder Singh.
PW13 Sh. Sunil Kumar. He is the Jija of deceased Sudesh. He has deposed that on 06.06.2013, he identified the dead body of deceased Sudesh in the mortuary of DDU Hospital and after postmortem, the dead body was handed over to him. He has proved his statement regarding identification of dead body of Sessions Case No.440982/2016 State Vs. Aakash Page No. 9/35 deceased Sudesh as Ex.PW13/A and receipt of handing over of dead body to him as Ex.PW13/B. PW14 Ct. Hardeep. He has deposed that on 30.07.2013, on the directions of SHO and Sh. Aadesh Kumar, he inspected the spot, took some measurements and prepared rough notes. He further deposed that thereafter, he on the basis of said rough notes, on 31.07.2013, prepared scaled site plan and handed over the same to SHO Insp. Sunder Singh. He proved the scaled site plan as Ex.PW14/A. PW15 Insp. Amrendra Kumar. He is the initial IO of the present case. He has deposed that on 05.06.2013 after receiving DD no.24A, he alongwith Ct. Piplad went to Manglapuri, Phase-I were one PCR van was already found present and the person, who was having stabbed injuries was brought from the gali by the said PCR Official and he made enquiries from the injured about his injury, he replied that his brother in law/sala Aakash gave him blow with sharp edged weapon from his back side. He further deposed that thereafter, he conducted further investigation and made enquiries from the persons, recorded the statement of Sh. Aadesh, Sessions Case No.440982/2016 State Vs. Aakash Page No. 10/35 on whose statement, the present case was registered and collected the MLC of the injured. He further deposed that on 06.06.2013, he again joined the investigation with Insp. Sunder Singh and reached to DDU Hospital, where doctors handed over him the seized pulanda of clothes of the deceased with sample seal and he handed over the same to Insp. Sunder Singh. He proved DD no. 24A as Ex. PW3/A, statement of Aadesh as Ex.PW4/A, his endorsement as Ex.PW15/A, seizure memo of the clothes of the deceased as Ex.PW15/B. Herein, Ld.APP has submitted that this witness has deposed about dying declaration as well as suffering of two injuries by the deceased. His contention will be considered at the time of observations.
PW16 Dr. Narayan Dabas. He has proved the postmortem report No. 718/2013 dated 06.06.2013 pertaining to deceased Sudesh Kumar, male, aged about 25 years as Ex.16/A prepared by Dr. Santosh. Herein, Ld.APP has submitted that this witness has deposed about suffering of two injuries by the deceased. His contention will be considered at the time of observations. Sessions Case No.440982/2016 State Vs. Aakash Page No. 11/35
PW17 Ct. Dinesh. He has deposed that on 15.07.2013, on the instructions of the IO Insp. Sunder Singh, he had taken one sealed pulanda sealed with the seal of SSY to DDU Hospital for obtaining opinion of the doctor vide RC No. 71/21/13 after taking the same from the MHC(M) and thereafter, taking the opinion, re- deposited the same in the malkhana with MHC(M).
PW18 SI Jagdish Rathi. He has deposed that on 06.06.2013, he joined the investigation of the present case with IO Insp. Sunder Singh and HC Sunder Lal. He further deposed that after reaching at G-32, Sultanpuri and on knocking, accused opened the door and he was arrested. He further deposed that after interrogation, accused led the police party to Kabristan, Manglapuri and got recovered a screw driver from khatta of kabristhan. He proved the arrest memo of accused as Ex.PW9/A, personal search memo of the accused as Ex.PW9/B, his disclosure statement as Ex.PW9/C and seizure memo of the screw driver as Ex.PW9/D. PW19 HC Mahavir Singh. He has deposed that on receipt of a call, he reached at the spot, where injured Sudesh and his Sessions Case No.440982/2016 State Vs. Aakash Page No. 12/35 brother Aadesh were found and Sh. Aadesh stated him that Aakash, brother in law of Sudesh had assaulted on injured Sudesh with screw driver and caused injuries and he had taken Sudesh and Aadesh to DDU Hospital in the PCR Van and proved the relevant entry regarding the same in log book of the PCR Van as Ex.PW19/A. PW20 Ct. Rajesh. He has deposed that on 29.07.2013, on the instructions of the IO Insp. Sunder Singh, he had gone to the police control room, Model Town and collected the PCR Call details of 05.06.2013 and handed over the same to IO Insp. Sunder Singh.
PW21 ACP Sunder Singh. He has deposed that on 05.06.2013, Duty Officer informed him about receiving an information about DD No. 24A and 25A. He further deposed that Duty Officer informed him that DDNo. 25A is about declaration of injured brought as dead and on this, he reached the spot i.e. near Main Gate Manglapuri, Phase-I, Palam, New Delhi at about 07.10 p.m., where PSI Amrender also reached there alongwith complainant Sh. Adesh Kumar, brother of deceased and PSI Sessions Case No.440982/2016 State Vs. Aakash Page No. 13/35 Amrender handed over him the MLC Ex.PW5/A of the deceased. He further deposed that thereafter, he taken up the further investigation of the present case and proved site plan as Ex.PW21/A, statement of dead body identification of Sh. Sunil and Sh. Adesh Kumar as Ex.PW3/A and Ex.PW4/B, From No. 25.35 as Ex.PW21/B, application for request of postmortem as Ex.PW21/C, brief facts of the case as Ex.PW21/D, seizure memo of two sealed pulandas and two sample seals as Ex.PW15/B, receipt of handing over of dead body as Ex.PW13/B, arrest memo of accused as Ex.PW9/A, his personal search as Ex.PW9/B, age memo of accused as Ex.PW21/E, disclosure statement of accused as Ex.PW9/C, seizure memo of screw driver as Ex.PW9/D, site plan of recovery of screw driver as Ex.PW21/F, application regarding subsequent opinion as Ex.PW21/G, subsequent opinion rendered by doctor as Ex.PW16/B, FSL Report as Ex.PW21/H, scaled site plan as Ex.PW14/A.
4. Vide order dated 19.04.2018, on the submission of Ld. Substitute APP, prosecution evidence was closed as all the cited Sessions Case No.440982/2016 State Vs. Aakash Page No. 14/35 witnesses were examined in the present case.
5. On 28.04.2013, separate statement of the accused under Section 313 Cr.P.C. was recorded wherein all the incriminating evidence was put to him, to which his stand was of general denial. The accused pleaded innocence and stated that he has been falsely implicated in the present case. He further stated that he was happy with the marriage of the deceased Sudesh with his sister and Sh. Adesh had deposed wrongly against him being the brother of deceased Sudesh. He further stated that prosecution witnesses have deposed falsely being the family members of the deceased Sudesh and he does not want to lead evidence in his defence.
6. I have heard Ld. Addl. PP for the State and Ld. Defence counsel for the accused.
7. The counsel for the accused had relied upon the judgments titled as follows:
(i) Vadivelu Thevar; Chinniah Servai vs State of Madras Sessions Case No.440982/2016 State Vs. Aakash Page No. 15/35 passed by Supreme Court of India in Criminal Appeal, case No. 24, 25 of 1957 .
(ii) State of Uttar Pradesh vs Ashok Kumar Srivastava passed by Supreme Court of India in Criminal Appeal, case No. 464 of 1979
(iii) Kake Sigh alias Surendra Singh vs State of Madhya Pradesh passed by Supreme Court of India in Criminal Appeal, case No. 79 of 1976.
(iv) Rasheed Beg & Ors. Vs State of Madhya Pradesh passed by Supreme Court of India on dated 20.11.1973.
(v) Laxmi vs Om Prakash passed by Supreme Court of India in Criminal Appeal, case No. 717 of 1994.
8. The material available on record alongwith the judgment placed on record by the Ld. Defence counsel have been perused.
9. It is submitted by Ld. APP that PW4 Sh. Sudesh in his examination has deposed that he had seen accused Aakash on assaulting deceased Sudesh and there is dying declaration of the Sessions Case No.440982/2016 State Vs. Aakash Page No. 16/35 deceased Sudesh in front of PW4 Sh. Adesh Kumar, PW6, PW10. It is further submitted that PW15 Insp. Amrendra Kumar has also supported the same as deceased before his death had disclosed him that accused Aakash, his brother in law/saala had assaulted upon him with sharp edged weapon from his back side. It is further stated weapon of offence i.e. screw driver was recovered at the instance of accused Aakash. It is further submitted that deceased Sudesh was married in the month of March, 2012 and murdered in the month of June, 2013. It is also submitted by Ld. APP that there is motive of killing deceased Sudesh at the hands of accused Aakash as he was annoyed due to the marriage of his sister with deceased and he mostly had given threats to the family of the deceased and deceased to kill them. It is further argued that accused Aakash is liable to be convicted for the Section 302 IPC.
On the other hand, the counsel for the accused stated that there are contradictions in the testimonies of witnesses as PW10 Sh. Vinod, Jija of deceased who has stated that when he came back to his house, he saw his brother in law Sudesh was lying in a pool of blood in his house whereas PW12 Ct. Piplad stated that no Sessions Case No.440982/2016 State Vs. Aakash Page No. 17/35 blood was found during the inspection as well as PW15 Insp. Amrendra Kumar had also stated that he found no blood over there. The counsel for the accused further argued that as per testimony of PW4 Sh. Adesh Kumar, brother of deceased in his examination had stated that he saw his brother Sudesh coming from the Chowk and he told him that accused Aakash and two of his cousin (sons of his Bua) one of them namely Rahul and he does not know the name of other person, had assaulted on him with a screw driver on his back and chest on left side but the prosecution has not cited those another two persons in this case anywhere. It is also argued that PW1 Sh. Prem Singh and PW4 Sh. Adesh Kumar in their testimony had deposed that accused Aakash was not happy with the marriage of deceased Sudesh and PW2 Smt. Monika and very much annoyed and he and his father threatened Sudesh and their family members to kill but they never made complaint against them anywhere. It is further argued that no chance print from weapon was taken. It is further submitted by the counsel for the accused that motive of killing deceased Sudesh has not been established by the prosecution and circumstances of Sessions Case No.440982/2016 State Vs. Aakash Page No. 18/35 last seen is doubtful and false and the prosecution has failed to prove its case against the accused beyond any reasonable doubt and as such he deserved to be acquitted.
10. Section 300 IPC says that "(i) Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or--
(ii) If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause death of the person to whom the harm is caused, or __
(iii) If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or __
(iv) If the person committing the act knows that it is so imminently dangerous that it must, in Sessions Case No.440982/2016 State Vs. Aakash Page No. 19/35 all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse of incurring the risk of causing death or such injury as aforesaid."
11. I will deal the case in order as dying declaration, motive, place of incident, recovery of weapon, deposition of Smt. Monika (wife of the deceased).
Dying Declaration To prove its case, the prosecution has examined PW-4 Adesh, (brother of deceased), PW-10 Vinod (jija of deceased), PW6 Bal Kishan (maternal uncle of the deceased) and PW-15 Inspector Amrendra Kumar.
PW4 Sh. Adesh Kumar in his testimony had stated that on 05.06.2013, he was going towards Manglapuri Chowk at around 5 p.m. and when he reached near the main gate of his colony, he saw his brother Sudesh coming from the side of chowk and told Sessions Case No.440982/2016 State Vs. Aakash Page No. 20/35 him that accused Aakash and two of his cousins (son his Bua) one of them name is Rahul and name of other do not know had assaulted on him with a screw driver on his back and chest on left side. He further stated that he did not see accused Aakash following his brother Sudesh on the day of incident as well as assaulting on his brother. He further stated that he had seen him while running from the spot along with his two cousins. As per prosecution story, he is the star witness of the present case, who had seen how the incident had happened and of the fact that deceased Sudesh stated to him how he sustained injuries. He was cross-examined by Ld. APP on this point and he in his cross- examination by Ld. APP accepted that he saw accused Aakash, brother in law of Sudesh came from behind and assaulted on Sudesh and thereafter he ran away. PW10 Sh. Vinod also deposed that on asking by him from his brother in law Sudesh as to how he sustained injuries, he told him that these injuries have been caused to him by his brother in law Aakash. Even, PW15 Inspector Amrendra Kumar has deposed that on 05.06.2013, after receiving of DD No.24A about stabbed injury to a person, he Sessions Case No.440982/2016 State Vs. Aakash Page No. 21/35 alongwith Ct. Piplad reached at the spot and made enquiry from the injured, who disclosed him that his brother in law/saala Aakash gave him blow with sharp edged weapon from his back side. At this stage, the law relied upon by the counsel for the accused on dying declaration has to be taken into account. The Ld. Counsel for the accused has relied upon judgment titled as Kake Singh vs State of Madhya Pradesh, 1982 AIR (Supreme Court) 1021, where Supreme Court has held that:
"when there is no evidence regarding the condition of deceased and the conclusion can be arrived that deceased was unconscious at the time of alleged statement then dying declaration is required to be disbelieved."
The Ld. Counsel for the accused further relied upon Laxmi vs Om Prakash, AIR 2001 (Supreme Court) 2383 , wherein Hon'ble Supreme Court has held that Sessions Case No.440982/2016 State Vs. Aakash Page No. 22/35 "a dying declaration found reliable can basis of conviction. One of the important test of reliability of the dying declaration is that the deceased was in a fit state of mind and capable of making a statement at point time of recorded."
I have gone through both the judgments but both of them are not applicable to the facts of the case. In the present case, not one but PW4 PW10, PW6 and PW15 have inverbatum told the same thing. There is no discrepancies in the same. There is no other evidence except the statement of PW2 i.e. wife of the deceased Sudesh that the deceased was unconscious. The statement of PW2 cannot be sole criteria to decide whether the deceased was conscious or not. She has vested interest as her husband has already died and accused is her brother and motive lies with PW2 to depose as guided by her father etc. because in any case she would not like to lose her brother. Moreover, veracity of statement of the witnesses is to be checked by the Court and has to be seen as to which witness inspires confidence. In the present matter Sessions Case No.440982/2016 State Vs. Aakash Page No. 23/35 there was no occasion for IO to say that he was also told by the deceased that who has killed him. Merely, the statement given to IO was not recorded does not mean that the same cannot be taken into account. Moreover, if he had recorded the statement then the counsel would have argued that it should have been recorded by some independent witness and not by the IO. In the given set of circumstances, when the deceased was battling with his life then what decision is to be taken is important. First duty of the IO was to try to save his life and not to go into technicalities.
From all the above discussion, it is clear that there is a statement of deceased Sudesh before his death to his brother Sh. Sudesh, Jija Sh. Vinod and PW15 Insp. Amrendra, which can be termed as his dying declaration.
The Ld. Counsel for the accused has relied upon one judgment Rasheed Beg vs State of Madhya Pradesh AIR 1974 Supreme Court 332 and argued that the conviction should not be based solely on uncorroborated dying declaration. The plathora of judgments are available on this point and I would not like to burden this judgment by citing those judgments. It is wisdom Sessions Case No.440982/2016 State Vs. Aakash Page No. 24/35 of the Court made out from the circumstances, as to whether, dying declaration canbe taken into account and whether conviction can be based on the same. Herein, in the present matter, the PW4 has stated in chief examination itself that he had seen the accused running from the spot. So, the present is case rather of direct evidence. Firstly, there is dying declaration available on record. Secondly, there is statement of PW4 as discussed above, which put the nail in the coffin of the case of the accused. When one witness has seen the accused on the spot even though may not have seen commission of crime then the corroboration of dying declaration is made out from the record. Herein, it has to be kept in mind that initially, PW4 has stated that he has not seen accused following his brother Sudesh on the day of incident and he also did not see accused Aakash assaulting his brother Sudesh but in cross-examination by Ld. APP on this point, he admitted that accused Aakash brother in law of Sudesh came from behind and assaulted on Sudesh and thereafter, ran away. So, in these circumstances, it is not the case which is based only on circumstantial evidence but dying declaration alongwith one eye Sessions Case No.440982/2016 State Vs. Aakash Page No. 25/35 witness proves the case of the prosecution. In the cross- examination by the counsel for the accused, he has once again denied the suggestion that no one has witness the incident. Rather, he has further stated that he had noticed only one injury on the person of his brother Sudesh and thereafter he noticed another injury on the person of his brother. Ex.PW4/A is the initial complaint of the day of incident in which PW4 Sh. Adesh Kumar complainant had also clearly mentioned that "Sudesh ka saal Aakash uske pichhe se aaya aur Sudesh par hamla karke bhag gaya. Mein Aakash ko pakadne k liye bhage lekin duri hone ki vajehe se veh haath nahi aya. Phir meine dekha ki Sudesh Ladkhada kar gir gyaa aur mein jaa k Sudesh ko sambhala aur usne bataya ki Aakash kisi nukili chiz se pichhe se vaar kar k bhag gaya". There is no dent in this piece of evidence. The two injuries have been corroborated by PW4, PW15 and PW16. Postmortem report Ex.PW16/A corroborates the same. The injuries are fully proved which correspond with the statement of witnesses.
The Ld. Counsel has relied upon State of Uttar Pradesh vs Sessions Case No.440982/2016 State Vs. Aakash Page No. 26/35 Ashok Kumar Srivastav AIR 1992 (Supreme Court) 840 and argued that if the link in chain is incomplete and evidence is capable of two inferences then one in favour of accused must be accepted. He has further relied upon Babuda vs State of Rajasthan AIR 1992 (Supreme Court) 2091 that in circumstantial evidence complete chain should be formed without giving any room to any other hypothesis. He has further relied upon Hanuman Gobind Nargundkar vs State of Madhya Pradesh AIR 1952 (Supreme Court) 343 to the effect that the chain evidence should be so complete that it should not leave any reasonable ground for conclusion that in all human probability the act might have been committed by the accused. Ld. Counsel for the accused has though tried hard to justify and to prove the innocence of his accused but all the judgments are again not applicable because in the present matter one eye witness is there and presence of accused at the spot has been proved. Further, the commission of crime and mode and manner of commission is also proved and dying declaration has also been proved. So, there is no scope of breaking of any chain. The Ld. Counsel for the accused Sessions Case No.440982/2016 State Vs. Aakash Page No. 27/35 had further relied upon one judgment Padala Veera Reddy vs State of Andra Pradesh AIR 1990 (Supreme Court) 79 and argued that if the circumstances for want of direct evidence suggest the innocence of the accused or strong suspicion against the accused then he is entitled to acquittal. He has argued that in the present matter, PW2 could have deposed about the motive or unhappiness of father and brother of the witness PW2 with regard to her marriage with deceased and the prosecution has failed to prove the motive, so the accused should be given benefit of doubt. This part is dealt later on but from the fact and circumstances as mentioned above, it is clear cut made out that dying declaration is acceptable and PW4 has seen the accused committing the crime, which lead to only one conclusion that the offence with which accused has been charged had been committed by him. Threats and Motive The another argument is of motive to kill deceased Sudesh. PW1 in his testimony has categorically stated that "The family of Sessions Case No.440982/2016 State Vs. Aakash Page No. 28/35 the accused was not happy with the marriage of Monika with my son Sudesh. Accused Aakash was also not happy with the marriage and he was much annoyed and he and his father threatened my son Sudesh and our family members to kill". PW4 Sh. Adesh also supported the same. He also deposed that "The family of Monika was not happy with the said marriage and accused Aakash is the real brother of Monika, wife of my brother Sudesh and was much annoyed due to the marriage and he used to threaten my brother Sudesh and my family members to kill." So motive was clearly made out, even otherwise, PW1 and PW4 never made any complaint to any authority regarding the threats given by accused Aakash and his family members. Place of incident.
PW10 Sh. Vinod, who is the Jija of deceased has deposed that on the day of incident i.e. 05.06.2013, there was a function at his home and my relatives alongwith his brother in law Aadesh and deceased Sudesh were present. Perusal of testimony of PW10 Sh. Sessions Case No.440982/2016 State Vs. Aakash Page No. 29/35 Vinod shows that he resides in Mangalpuri and in that area accused Aakash also resides. PW4 Sh. Aadesh in his testimony has also deposed that he saw accused Aakash giving injuries to his brother Sudesh from behind. As the house of the accused is situated there and PW1 Sh. Aadesh deposed about the presence of accused at the spot, so, the presence of accused Aakash at the place of incident is established.
Recovery of weapon The weapon of offence i.e. screw driver was recovered at the instance of the accused Aakash. PW21 ACP Sunder Singh in his testimony had deposed that accused Aakash had produced the screw driver from the khatta and produced the same before me and stated that he had used the said screw driver in committing murder of Sudesh and after inspection of the same, he found it was having blood stains, he sealed the same and sought subsequent opinion of the doctor on the same as well as on pulanda of clothes of the deceased to DDU Hospital. Ex.PW16/B i.e. of opinion on Sessions Case No.440982/2016 State Vs. Aakash Page No. 30/35 weapon and clothes of the deceased has been perused. In the same on the opinion, it is mentioned that after perusal of the PM Report No. 718/13 and observation on the part of produced weapon of offence and cut marks on the cloths, I am of the considered opinion that the produced weapon of offence i.e. screw driver could have inflicted on the body of deceased which caused tearing of the clothe and injuries mentioned in PM Report. The counsel for the accused has stated that the recovery as shown by the prosecution is from open place and so, this piece of evidence is not admissible. The arguments are of no use because even otherwise if the recovery of this weapon of offence is ignored still the case of the prosecution is duly proved. The accused cannot be acquitted in any case only on the sole ground that weapon of offence is not recovered or recovery is doubtful if otherwise the direct or circumstantial unbroken chain is establish. Merely, the knife has not been sent for CFSL for verification of blood stains on the knife as the blood of the deceased on the knife cannot be sole ground. Thus, the judgment relied upon by the counsel for the accused Smt. Bimla Devi vs Stated decided on 07.07.2014 in Sessions Case No.440982/2016 State Vs. Aakash Page No. 31/35 Crl. Appeal 480/1998 is of no help to the accused. Contradictions in the testimonies The other argument of the counsel for the accused is that there is contradiction in testimonies of witness regarding lying of blood. PW10 Sh. Vinod in his testimony had deposed that when he reached to his house, he saw Sudesh was lying in pool of blood, however, PW12 Ct. Piplad that no blood was found lying at the spot during inspection and PW15 Inspector Amredra Kumar had also deposed that "he went to his house to search regarding lying of the blood but I found no blood over there." The prosecution had examined PW16 Dr. Narayan Dabas, who is his examination had deposed that "on examination of chest (thorax), the following injuries were found in the hear and pericardial sac:
The left ventricle of the heart pierced by making a tear of 0.5 cm. In diameter. The whole pericardial sac including retro pericardial area (mediastinum) contained massive blood (clotted) dark red in colour.
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The cause of death was due to hemorrhagic shock caused by penetrating injury to heart, on the left lung and liver inflicted by blunt and pointed weapon like screw driver or other comfortable articles/weapons."
The said witness was cross-examined by the counsel for the accused and in his cross-examination, he deposed that "it is correct that blood can come out due to the injuries mentioned in the postmortem report. Vol. The blood can accumulate in the plural cavities and peritoneal cavities without coming out of the body, depending on the amount of blood, site of injury and position of the body."
So, in these circumstances whether blood was available on the spot is not so much of consequence. There is corroboration of statement of each witnesses from each other. Merely, the witnesses are relative of deceased does not mean that their statement can be ignored if otherwise proved and is reliable. Merely, no complaint was made by the family members of the deceased regarding the alleged threats given by Aakash does not mean that incident itself can be ignored. The corroboration of time, Sessions Case No.440982/2016 State Vs. Aakash Page No. 33/35 place, injuries are duly made out with the incident. There is no improvement in the statement of witnesses except one fact that it has come in evidence that two persons i.e. sons of Bua of Aakash were also present on the spot and they have not been made witnesses but the same is not fatal to the case of the prosecution. The counsel for the accused has argued that they should have been made witnesses at least if not accused. It is a common practice that if something happens in the family they try to rope in other family members of the accused, in the present matter the initial complaint Ex.PW4/A does not mention the involvement of two other persons, so, improvement by PW4 to this effect has no meaning. Merely, some evidence has not come qua them does not mean that the accused present before this Court can be given benefit of doubt if otherwise the case is made out. It is settled principle of law that Court has not to see number of witnesses but it is the quality and not quantity of witnesses which matters. Reliance is made upon AIR 1957 Supreme court Page 614 title as Vadivelu Thevar; Chinniah Servai vs State of Madras. Sessions Case No.440982/2016 State Vs. Aakash Page No. 34/35
12. So from above discussion, the commission of crime by the accused Aakash and causing murder of deceased Sudesh stands duly proved. Witnesses have duly supported the case of prosecution and no dent could be created in their testimonies.
Motive of accused to cause murder of deceased Sudesh is made out. There is sufficient evidence that before his death deceased Sudesh told that his brother in law/saala Aakash caused him injuries. Even otherwise the prosecution has been able to proves its case through the direct evidence as well as through medical opinion. Thus, on all counts, guilt of accused has been duly proved beyond any doubt as discussed. The accused Aakash is held guilty for commission of offence punishable under Section 302 IPC and is convicted accordingly under Section 302 IPC.
Digitally
13. Be put up for order on sentence on 18.07.2018. signed by AJAY AJAY GOEL Date:
GOEL 2018.07.19
12:22:37
+0530
Pronounced in the open court. (AJAY GOEL)
Dated:13.07.2018 ASJ/Special Judge (NDPS)
Dwarka Courts/New Delhi.
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