Delhi District Court
State vs . Kalu on 22 February, 2010
1
IN THE COURT OF SH. SANJEEV AGGARWAL LD. ADDL.
SESSIONS JUDGE: ROHINI COURTS: DELHI
SC No. 8/08
FIR No. 392/07
P.S. S.P. Badli
U/s 304 IPC
State Vs. Kalu
S/o Khem Chand
R/o Chander Pal Ka Makan,
Samta Vihar , Mukund Pur,
Delhi.
Permanent Address:
Village Khalilpur Rath
P.S. Salempur Distt.
Bulland Shaher(U.P)
Date of Institution in Sessions Court:6.9.07.
Date of transfer to this Court: 11.11.08.
Date of Judgment: 18.2.10
JUDGMENT
1. In brief the prosecution story is that on receipt of DD No. 20A on 8.5.07 at P.S. S.P. Badli, SI Chander Prakash alongwith constable Surender reached the spot i.e. Samta Vihar, Mukundpur, Delhi, where they came to know, that one injured Nafisa Begum had been removed to BJRM Hospital, on reaching there he obtained the MLC of the injured Nafisa Begum, where it became 2 known to him, that she had been shifted to Trauma Centre. Thereafter, he reached the Trauma Centre, where the doctor opined that she was unfit for statement. Thereafter, not finding any eye witness there, he came back to the spot, and thereafter recorded the statement of complainant Gajraj Singh, who stated that :
" on 8.5.07 at around 2.15p.m he was looking for his labourers and while looking for them he reached near the house of Chander Pal and was passing through it. At that time, he heard the noise of abuses from the roof of the said house and on hearing the said abuses, he reached the roof of the said house and saw that two persons were taking liquor in the afternoon and one Nafisa Begum was protesting the same, and due to this an altercation was going on between both of them, and one Nafisa Begum was saying, that if they would drink liquor then she would tell the landlord and would get their room vacated, and on this one person got angry and proceeded towards Nafisa Begum, and thereafter he intentionally pushed Nafisa Begum 3 from the roof of the said house, when he tried to caught hold of the said person he ran away, but he was caught by the public persons. When he came down, he saw that Nafisa Begum was bleeding, and the name of the person who had pushed Nafisa Begum was known as Kalu S/o Khem Chand. Thereafter, he made a call at 100 number and at that time the husband of Nafisa Begum, Sh. Munne Khan also reached the spot and removed the Nafisa Begum to the hospital.
2. On the said complaint, a rukka was written by the IO SI Chander Prakash, and he got an FIR U/s 308 IPC registered at P.S S.P. Badli through Constable Surender.
3. On 14.5.07, an information was received from Trauma Centre, that injured Nafisa Begum had died. Thereafter, on 15.5.07 the postmortem of the deceased was got conducted, and the doctor opined, that the cause of death was Cranio-cerebral damage as a result of antemortem injury to the head. All injuries were antemortem in nature and had been produced by blunt force impact possible as suggested injuries were sufficient to cause death. 4
4. Thereafter, SI Chander Prakash got prepared the siteplan and Section 302 IPC was also added in the FIR and accused Kalu was arrested and after completion of investigation(s) an charge-sheet U/s 302 IPC was filed in the court.
5. Upon committal of the case to the court of Sessions, a charge U/s 304 IPC was framed against the accused vide order dt. 6.11.07, to which he pleaded not guilty and claimed trial.
6. Thereafter, the prosecution in support of its case, has examined 11 witnesses.
PW1 is Sh. Gajraj Singh, the complainant, who has turned hostile.
PW2 is Sh. Mune Khan, the husband of the deceased Nafisa Begum and another material witness of the prosecution. PW3 is Sh. Allha Mehar, the brother of the deceased, who had identified the deadbody of the deceased.
PW4 is Constable Surinder, who accompanied the IO to the spot, and had taken some part in the investigation(s). PW5 is Dr. Shakuntla Rani Sr. Medical Officer BJRM Hospital, 5 who had proved the MLC qua the injured Nafisa, prepared at BJRM Hospital, where she was initially admitted by her husband Mune Khan, in place of Dr. Sanjay, who had left the services of the hospital.
PW6 is HC Anoop Singh, the duty officer, who had proved the FIR Ex.PW6/A. PW7 is Const. Mahesh Patil, who is a formal witness. PW8 is Dr. Upender Kishore, Autopsy Surgeon, who has proved the postmortem report Ex.PW8/A. PW9 is H.C. Jadu Boro of the PCR, who removed the injured Nafisa Begum from the TSR when she was being carried to the hospital by her husband Mune Khan on 8.5.07 and who had admitted the injured Nafisa Begum in the BJRM Hospital, on the said date.
PW10 is Dr. Virender Kumar, who was posted at Trauma Centre, who has proved the death summary of the deceased Nafisa Begum as Ex.PW10/A. PW11 is SI Chander Prakash, the IO of this case, who has 6 deposed regarding the investigation(s) of the present case, as was carried out by him during the course of the present case.
7. Thereafter, statement of the accused U/s 313 Cr.P.C was recorded, in which the defence of the accused was that he was innocent and had been falsely implicated in this case, and that the complainant Gajraj Singh had threatened him that he will get the room vacated from him at any cost and as he wanted to get his room vacated for his labourers and the police persons had also booked him U/s 308 IPC, by saying that he was the same person who had denied to take the passengers in auto rickshaw free of cost.
8. He has also produced one witness in defence. DW1 is Sh.
Prem Chand, who has deposed that on the date of occurrence, the accused was sleeping in his room and he had woken him up at around 3.00-3.30p.m. on that day.
9. I have heard the Ld. Counsel(s) for the accused Dr. Vijender Mehandiyan and Sh. Sudesh Mahal and Ld. Addl. PP for State Sh. G.S. Guraya.
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10. Ld. Defence counsel has argued that in the present case PW1, who was the star witness of the prosecution namely Gajraj Singh had turned hostile, and has not supported the prosecution case, and he has also stated in his deposition that the deceased had fallen from the roof, as the cemented portion, where she was standing fell down and he has also argued, that the deceased was totally unconscious, when she was being taken to the hospital and therefore, she was not in any condition to give any statement, and even the Autopsy Surgeon has mentioned number of injuries, which were found on the body of deceased which shows that she could not have been in any condition to make any statement against the accused, as her condition was so bad, that it was impossible for her to make any statement or any oral dying declaration, and even the doctor on the MLC of the deceased Ex.PW5/A has written unfit for statement, when she was admitted in BJRM Hospital. Therefore, he has argued that the accused has been able to probablise his defence and the accused therefore, is liable to be acquitted, as also the investigation(s) of the present case was totally faulty and unfair, 8 and the defence witness's deposition has proved that he was sleeping in his room on the date of occurrence.
11. On the other hand, Ld. Addl. PP for the State, has argued that even, if PW1 Gajraj Singh had turned hostile, even then it does not effect the case of the prosecution a little bit, as the deceased Nafisa Begum before her death had made oral dying declaration to her husband Mune Khan, which is also corroborated by the testimony of PW9 H.C. Jado Boro, who had removed her in the PCR Van from the TSR in which her husband was carrying her and had admitted her in the hospital, and he had also deposed that the injured Nafisa Begum was conscious at that time, and he has also argued that the MLC Ex.PW5/A also supports the prosecution story, that the patient at the time of her admission into the hospital was though drowsy, but was responding to painful stimuli, and he has also argued that the incident took place at around 2.30p.m., and the injured was admitted into the hospital at 3.00p.m and half an hour elapsed between the time, when the injured had fallen down and the time, when she was admitted into the hospital is very crucial, 9 especially in the case of head injury, as the patient looses consciousness gradually and not in a sudden manner, and he has argued that the PW9 has totally supported the prosecution story, that injured Nafisa was speaking properly at that time, when he had shifted her to the PCR van and he had also argued that number of injuries found on the body of the injured were not such so, as to make her totally incapable of giving any statement, and relying upon the oral dying declaration of the deceased, he has argued that the accused deserves to be convicted, and he has also argued that even PW1 Gajraj Singh has admitted in his deposition that he had made a call from his mobile phone to the PCR and he has consequently argued that DD No.20A Ex.PW11/A totally proves the case of the prosecution in which the informant had himself mentioned to the police, that one drunkard had pushed a woman from the roof and he has argued that therefore, the accused deserves to be convicted.
12. I have considered the rival contentions of the Ld. Defence counsel and ld. Addl. PP for the State.
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13. PW1 Gajraj Singh, who is the complainant and most material witness of the prosecution has not supported the prosecution case, and has turned hostile. Rather in his examination in chief, he has stated that one Mustafa Begum fell on the roof of the house, as there was an open space which was covered with cement, and that cemented portion broke down and Nafisa Begum who was standing on the cemented portion fell from that and her body was found full of blood meaning thereby, he has not supported the prosecution case, as mentioned in the complaint Ex.PW1/A wherein he had stated to the police earlier that accused had pushed Nafisa Begum from the roof of the house, as she was stopping the accused from consuming liquor. But, in the cross-examination by the Ld. Addl. PP he has admitted that the complaint Ex.PW1/A was readover to him before signing. However, all the contents of the said complaint Ex.PW1/A were put to him, despite that he did not support the contents of the said complaint Ex.PW1/A. Though, he admitted in the cross-examination carried out by the Ld. Addl. PP that the name of the husband of Nafisa Begum was Mune Khan, and it was 11 correct that Nafisa Begum was taken to the hospital by Mune Khan, who had arrived at the spot. He also admitted that it was correct that he had informed the police on 100 number and that his mobile number was 9818268619 and that he had informed the police from this mobile. However, he resiled from the suggestion, that he had informed the police at 100 number that one drunkard person had thrown a lady from the roof. PW1 also admitted his signature on the arrest memo Ex.PW1/B and the personal search memo of the accused Ex.PW1/C. It is settled law that even the testimony of a hostile witness can be considered, if the same is trustworthy and the testimony of a hostile witness can not be effaced from the record merely because he has been declared hostile. In view of the judgment of Hon'ble Supreme Court in Khujji @ Surendera Tiwari Vs. State of M.P., 1991 Cr.L.J 2653, wherein it was held as under:
"Evidence of hostile witness cannot be rejected into merely because prosecution choose to treat him hostile and cross-examined him-evidence of such hostile witness cannot be treated as effaced or washed off record altogether-same 12 can be accepted to extent their version is found to be dependable on careful scrutiny thereof-if other evidence corroborate testimony of hostile witness same can be relied upon in reaching conclusions.
14. PW2 is Mune Khan, the husband of the deceased Nafisa Begum, who has stated that on 8.5.07 he had gone out of his house for some work. When he returned to his house at about 2.30p.m, he saw his wife lying in a pool of blood on the floor of his house and crowd was gathered there. He went on the road and hired a TSR and took his wife to hospital in TSR. On the way, his wife told him that she had been pushed from the roof of the house by Kalu and he also identified the accused correctly in the court by pointing out towards him. He further deposed that " I asked her why he had pushed her from the roof on (sic) which she told him that after consuming the liquor accused Kalu was creating nuisance and quarreling and she went upstairs and he pushed her from the roof. She was saying repeatedly Kalu-Kalu".
15. He further deposed that on the way near Shiv Mandir chowk, 13 PCR van met him and PCR van took his wife accompanied by him to BJRM Hospital and from there his wife was shifted to Trauma Centre, where she died on 14.5.07.
16. PW2 Mune Khan in his cross-examination has stated that accused Kalu was known to him, as he was living in the neighbourhood, and no further suggestion has been given in his cross-examination that accused Kalu was not previously known to him. Therefore, the identity of the accused in this case has been clearly established by the deposition of PW2 Mune Khan. PW2 in his cross-examination has also stated that blood was oozing out of the head of Nafisa when he saw her. It was around 2.30p.m when he took her to hospital and after 10 minutes he reached at Shiv Mandir Chowk in TSR, where his wife was shifted to PCR Van and they reached BJRM Hospital at about 2.45p.m, and that Nafisa was talking to him in TSR till Bridge at Mukundpur By-Pass before shifting her to PCR van and thereafter she became unconscious.
17. The testimony of PW2 that the deceased Nafisa Begum had told him about the incident and the name of the accused before 14 dying, is corroborated by the testimony of PW9 HC Jadu Boro, who has also deposed that on 8.5.07 he was posted in PCR, North West Zone. On that day, an information was received regarding a quarrel. Thereafter, he alongwith other staff deputed on PCR van visited the spot i.e. Samta Vihar, Mukund Pur. There they found that one woman was being taken away by TSR to Hospital. They shifted the woman in their PCR van and admitted her in BJRM Hospital. The name of the injured was Nafisa Begum. Her husband Mune Khan also accompanied them in the hospital.
18. In his cross-examination PW9 has stated that he had shifted the injured from the TSR to the PCR van. At that time, she was crying with pain. When they reached the hospital, they came to know the person accompanying the injured was Mune Khan, the husband of the injured and it took around 6/7 minutes for them to reach the spot from the Jahangir Puri and when they were present at the spot no other policemen had come there. At that time Nafisa was weeping with pain and her husband was telling her that she will be all right, and he had not seen the injured talking to anyone. 15
19. Though, apparently it appears from the testimony of PW9 HC Jadu Boro and PW2 Mune Khan, that there is some material contradiction in the testimony of PW2 and PW9 with regard to the fact, whether Nafisa Begum was in a condition to talk while being shifted from TSR to PCR van, as PW2 Mune Khan in his cross- examination has stated that Nafisa was talking to him in the TSR till Bridge at Mukundpur Bye-pass before shifting her to PCR van and thereafter, she became unconscious. On the other hand PW9 HC Jadu Boro has stated in his cross-examination that at the time of shifting Nafisa was crying with pain and her husband was telling her that she will be all right, but on careful consideration of the testimonies of PW2 and PW9, it is not so, as PW9 in his cross- examination has only stated that he had not seen the injured/deceased talking to anyone and PW2 has also stated that she talked to him till in the TSR or till Mukundpur Bridge. This assertion of PW9 that deceased Nafisa Begum was crying with pain is not doubtful, as the same is corroborated by the MLC Ex.PW5/A which has been proved by PW5 Dr. Shakuntla Rani by way of 16 secondary evidence, as she has deposed in the court that Dr. Sanjay who had prepared the MLC had left the hospital and his present whereabouts were not known and she had seen him writing and signing during the course of their official duties and she has proved the said MLC prepared by Dr. Sanjay, as Ex.PW5/A.
20. Perusal of the said MLC Ex.PW5/A would show that the injured Nafisa Begum had been admitted into the BJRM Hospital on 8.5.07 at 3.00p.m by HC Jadu Boro. And after her medical examination it was found, at that time the patient was drowsy but was responding to painful stimuli, there was a history of loss of consciousness (LOC), both ears bleeding, nasal bleeding was also present. However, no history of vomiting or convulsion was found and pupils of both eyes were semi dilated and were sluggish in reaction and the Glasgow coma scale score of the injured Nafisa Begum has been mentioned as E3V4M5=12/5.
Glasgow Coma Scale or GCS, is a neurological scale which aims to give a reliable, objective way of recording the conscious state of a person, for initial as well as subsequent assessment. A patient is assessed against the criteria of the scale, and the resulting points 17 give a patient score between 3(indicating deep unconsciousness) and either 14(original scale) or 15 (the more widely used modified or revised scale).
GCS was initially used to assess level of consciousness after head injury, and the scale is now used by first aid, EMS and doctors as being applicable to all acute medical and trauma patients. In hospitals it is also used in monitoring chronic patients in intensive care.
Elements of the scale
Glasgow Coma Scale
1 2 3 4 5 6
Eyes Does not Opens eyes in Opens eyes in Opens eyes N/A N/A
open response to response to spontaneously
eyes painful voice
stimuli
Verbal Makes Incomprehen Utters Confused Oriented, N/A
no sible sounds inappropriate disoriented converses
sounds words normally
Motor Makes Extension to Abnormal Flexion/Withdra Localizes Obe
no painful flexion to wal to painful painful ys
move- stimuli(decer painful stimuli stimuli com
ments ebrate stimuli man
response) (decerebrate ds.
response)
The scale comprises three tests: eye, verbal and motor responses. The three values separately as well as their sum are considered. The lowest possible GCS(the sum) is 3(deep coma or death), while 18 the highest is 15(fully awake person) Individual elements as well as the sum of the score are important. Hence, the score is expressed in the form :
"GCS 9=E2V4M3 at 0.7:35"
Generally, brain injury is classified as:
Severe, with GCS<8 Moderate, GCS 9 - 12 Minor, GCS>13.
21. From the aforesaid literature which has been downloaded from the Internet from Wikipedia, the free encyclopedia, the Glasgow Coma Scale score of Nafisa Begum, which has been mentioned on the MLC is 12/15, the same in relation to the brain injury in view of the criteria laid down above, can be classified as moderate, as the same falls within the range 9-12.
22. Though, on the MLC at point B, it has been mentioned patient is fit for statement and at the same time on the MLC at point C, it has been mentioned that the patient is unfit for statement and PW5 Dr. Shakuntla Rani has stated in her cross-examination that she does not know who has written the words fit for statement at 19 point B and who has written unfit for statement at point C. But, in view of the clear cut endorsement on the MLC that the patient was though drowsy, but was responding to painful stimuli and her Glasgow Coma Scale score was 12/15, which indicates a moderate brain injury, which means that the patient Nafisa Begum was not completely unconscious, so as not to be capable of giving any statement or oral dying declaration to her husband Mune Khan.
23. The pulse of the patient Nafisa Begum was also found to 84p.m and the B.P was also found to be 110/90 HG, which can be considered to be in the normal range, as there is nothing alarming about the same, which also shows that she was not dipping or was in a comatose condition at that time when she was admitted into the hospital.
24. The postmortem report of the deceased has been proved by PW8 Dr. Upender Kishore, which is Ex.PW8/A in which the following injuries were observed:
External ante-mortem injuries.
1. Bluish bruises of size 3x2 cms present over the outer aspects 20 of right arm in the middle.
2. Multiple scabbed abrasions of size 0.5 X 0.5 cms 3 in number present over the outer middle front of left arm.
3. Fracture closed of both bones left fore arm at lower end.
4. Dislocation of right shoulder joint.
5. Bluish bruises of size 6x3 cms present over the inner aspects of right leg lower aspect.
Internal examination Extra vasation of blood present in the right temporal region under the scalp, fracture of right occipital bones and both temporal bones extending to the base of skull, diffused subdural haemorrhage organised present over the both parietal and temporal region, sub arachanoid haemorrhage present all over both hemisphere.
Fracture of both sides ribs present in the mid clavicular line, right side chest cavity contains blood, right lungs lacerated, all internal organs congested, stomach- empty, uterus empty, menstrual phase, bleeding from vagina present.
Opinion- cause of death in this case was cranio-cerebral damage as a result of ante-mortem injury to the head, all injuries ante-mortem in nature and produced by blunt force impact, possible as suggested, injuries sufficient to cause death in ordinary course of nature.
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25. However, in answer to a court question, whether the pattern of injuries present on the dead body of deceased were possible by fall from the roof, he answered the same in affirmative, which also corroborates the prosecution story that deceased Nafisa Begum had fallen from the roof and in the cross-examination carried out by the Ld. Defence Counsel he stated that though he can not tell the exact height from which the deceased had fallen down, but more the height more severe the injuries. The nature of injuries found on her body as discussed above, shows that she had been pushed from great height.
26. The prosecution has also proved one DD No.20A which is Ex.PW11/A which is the DD entry with regard to the First Information which was received at the PS from the PCR that they had received one information from PCR via mobile no. 9818268619 from Mukund Pur village near cremation ground that "Ek Sharabi Ne EK Aurot Ko Chhat Se Neeche Faink Diya". As discussed above, PW1 has admitted in his cross-examination that he had made a call to 100 number from his mobile No. 9818268619, and 22 that he had informed the police from this mobile. But, he denied the suggestion that he informed the police at 100 number that one drunkard person had thrown a lady from the roof. The said DD No. 20A clearly contradicts the statement made by the PW1 in the court and it appears that PW1 had made a false statement in the court, though admitting that he made a call from his mobile number owned by him to the police at 100 number and had passed an information to the police but denying that he had informed the police that one drunkard person had thrown a lady from the roof of the house. It does not stand to reason, why would the police record a different information/version in the said DD No.20A than was actually given to the police by PW1, as in said DD entry all the other particulars given by the PW1 matches with his version, that he made a call from his mobile, but only the contents regarding the information that one lady had been pushed from the roof were incorrect as per his deposition in the court. Therefore, it seems that PW2 has made a statement, which was contradictory to the information which he had himself passed on to the police vide DD 23 No. 20Am which actuated the police into action, though, the said DD entry had been recorded at 2.35p.m and as per PW2 he had reached the spot at 2.30p.m. There is a minor contradiction, regarding the time of 5 minutes which is not material as the testimony of PW2 was recorded in the court, after a lapse of almost one year on 8.7.08 with regard to the incident dt. 8.5.07. Consequently, this time gap of 5 minutes in his testimony can be considered to be inconsequential in these circumstances. Further, as per MLC Ex.PW5/A, the injured had been admitted into the BJRM Hospital at 3.00p.m. Though, number of injuries had been found on the head and body of the deceased Nafisa Begum as discussed above in her postmortem report, but this gap of 30 minutes/25 minutes was very crucial, in the present case, especially in the case of head injuries, as in head injury one looses his consciousness slowly and half an hour time could be quite crucial, as more the time gap more the chances of person loosing sensorium or consciousness becomes and the MLC also supports the version of the prosecution, that she was in a condition to tell her 24 husband Mune Khan PW2 or that she was in a condition to make an oral dying declaration to her husband regarding the person who had thrown her from the roof and the circumstances in which she had been thrown by the accused from the roof, as she had stopped the accused from creating nuisance and quarreling, which he was doing after consuming the liquor on the roof of her house.
27. Consequently, in these circumstances there is no doubt that the deceased Nafisa Begum was in a condition to make oral dying declaration to her husband PW2 Mune Khan,before her death with regard to circumstances leading to her death, which is also corroborated by the testimony of PW9 H.C Jadu Boro and also by the medical evidence discussed above.
28. It has been held in judgment AIR 1953 SC 420 in Ishwar Prasad v. State of Madhya Pradesh, that:
"Where there is an oral dying declaration, unless one is certain about the words uttered by the deceased, it cannot be acted upon without sufficient corroboration,as observed by the Supreme Court in Ram Nath Madhoprasad vs. St. of Madhya Pradesh."25
It has been further held in judgment 1988A.Cr.R 9 at page 15 in Sahebzade v.State of U.P. That:
" In a case of verbal dying declaration it will not be safe to place reliance and the same cannot be acted upon without sufficient corroboration unless the oral evidence produced by the prosecution proves the words actually uttered by the deceased. If on the contrary, the evidence shows that there are suspicious circumstances under which the statement was made, the probability that the other persons present at that time had added or altered the sequence of events leading to the assault, cannot be ruled out".
It has been further held in judgment 1988 C.Cr.L.R 75, that:
"Unless one is certain about the exact words uttered by the deceased, no reliance should be placed on verbal statements of witnesses and the oral declaration made by the deceased."
29. The proposition(s) of law laid down in the aforesaid judgments, to my mind are squarely applicable to the facts and circumstances of the present case, as PW2 Mune Khan has almost 26 reproduced the exact words stated by her deceased wife on the death bed, while she was being taken to the hospital in a TSR where he stated to PW2 on the way that she has been pushed from the roof of the house by Kalu and she asked her why he had pushed her from the roof on which she told him that after consuming the liquor accused Kalu was creating nuisance and quarreling and she went upstairs and he pushed her from the roof. She was saying repeatedly Kalu-Kalu".
30. Further, regarding the corroboration part, it has been held by the Hon'ble Supreme Court in Judgment Chandra Vs. Shivjee(1999)6 SCC 63 "Dying Declaration if truthful may alone form the basis of conviction without corroboration". Further it has been held in judgment "Gulam Hussain Vs. State (2000) 7, SCC 254, the statement has to be subjected to close scrutiny before it is accepted as truthful.
Further it has been held in judgment "Khushal Rao Vs. State of Bombay AIR 1958 SC 222 "that a Dying Declaration stands on 27 the same footing has another piece of evidence and it has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence."
31. It is settled law as held above, that if dying declaration is truthful, the same may alone form basis of conviction without corroboration, therefore, even if PW1 Gajraj Singh having turned hostile, even then the dying declaration has to be seen, as a whole and it has to been seen whether dehors the corroboration of independent witnesses the said dying declaration was truthful or not, if the same was truthful then no corroboration was required in view of the aforesaid settled law.
32. Further, most defined exceptions to the rule of hearsay evidence are also grounded in logic . These exceptions are based on view that it is possible to identify circumstances in which some statements are made that provide intrinsic indicia of reliability sufficient to justify their admission not with standing the absence of the declarant - These exceptions also reflect a policy that not only 28 indicia of reliability, but also the necessity that the statement be admitted and to be considered. For example the need for the admission of a dead declarants dying declaration concerning the cause of her death is usually high unless some one else was present, there may be no other evidence . The declarant is unavailable and the statement if true has substantial probative value indicia of reliability is based upon one or both of following generalizations.
(1) People who fear God are unlikely to lie, when they believe death is imminent.
(2) The imminence of death concentrates the mind and diminishes the capacity to fabricate.
33.The said oral dying declaration made by deceased Nafisa Begum to her husband PW2 Mune Khan is reliable in view of the corroboration of the same by PW9 H.C Jadu Boro and by the detailed medical evidence discussed above, from which it appears that she was in a condition to make such dying declaration. It is not the case of the accused that PW2 Mune Khan had any previous 29 enmity with him as no evidence in this regard has been lead on the record. The defence of the accused in his statement U/s 313 Cr.P.C is very weak, as he has stated that he had been falsely implicated in this case as complainant Gaj Raj Singh had threatened him to vacate the room from him, which he required for his labourers, which he refused and the police persons had also booked him U/s 308 IPC by saying that he was the same person who had denied to take passengers in auto rickshaw free of cost. The said defence prepounded by the accused in his statement has not been proved, rather same is contradictory, as PW1 Gajraj Singh has not supported the case of the prosecution and has turned hostile and has rather supported the accused . If this version of the accused was correct then PW1Gajraj Singh would have definitely deposed against him. On the other hand, PW1 Gajraj Singh has turned hostile and has not supported the prosecution story which also belies the defence of the accused.
34. The other defence taken by the accused, that he had been falsely implicated in this case, as he had once refused to take 30 passengers of police in his auto-rickshaw free of cost, this defence also does not appears to be tenable, as it is not the case of the accused, that he had made any complaint against the police officials in this regard earlier, that the said police officials were threatening him to implicate him in a false case. Further, in the said statement U/s 313 Cr.P.C, he has no where stated that he had any previous enmity with the deceased Nafisa Begum or PW2 Mune Khan, therefore, it does not stand to reason, why would PW2 or her deceased wife would falsely implicate him in this case, and there is no reason why the deceased Nafisa Begum would falsely implicated the accused at the death bed, while leaving out the real offender, when she apprehended that her death was imminent.
35. Further, the defence witness, DW1 Prem Chand examined by the accused regarding the plea of alibi does not appear to be trustworthy, as he has deposed that the accused had borrowed Rs. 2500/- from him and told him to get the money by visiting Delhi and on 8.5.07 he reached Mori Gate, where the relations of the accused resided, as he was not having the address of accused, thereafter, 31 he was taken to the room of accused by his cousin Chacha and at around 3.30p.m accused was sleeping, and thereafter he woke him up and he offered tea and again slept and thereafter some policemen came there and asked him who was residing in the said room and they also asked him his identity to which he disclosed that he had come from the village to take his money back from the accused. Thereafter, they took away the accused, as they stated that he was wanted for some interrogation in some quarrel. However, in his cross-examination he has admitted that he had not made any complaint to the police officials on 100 number or anywhere else, regarding the forcible taking away of the accused and he further stated that he did not know, whether the family members of the accused had lodged any complaint to any higher authorities. In his cross-examination, he has also stated that he had not got back his money, yet he had come to depose.
36. From the above cross-examination of the DW1, it appears that he had never made any call to the police on 100 number, which would have been the best evidence in favour of the accused to 32 show that he was not present at the spot at the time of occurrence nor any family members of the accused had made any complaint to higher officials regarding the false implication of the accused in this case, further it does not stand to reason that DW1 Prem Chand would have had come all the way from village to get back Rs. 2500/- from the accused which till date he had not got back and yet he was deposing in favour of the accused. Therefore, it appears that DW1 is a false witness and further no documentary evidence has been placed on record by DW1, regarding his alleged visit on 8.5.07 to the room of accused. In these circumstances, the defence evidence does not inspire any confidence and is discarded.
37. From the aforesaid analysis, it is clear that it was the accused, who had pushed Nafisa Begum from the roof of her house intentionally, when he was creating nuisance after consuming liquor and when Nafisa Begum went upstairs and told him not to indulge in the same, he pushed her down from the roof.
38. It has been held in judgment Sukhdeo AIR 1968 AII 151, wherein it has been held "The words "likely by such act to cause 33 death" occuring in the section can only mean that the injuries caused be such that either of the following probabilities may exist, that is to say, (1) that the man to whom such injuries are caused might die as a result of such injuries, or (2) the man to whom such injuries are caused might survive.
Further, it has been held in judgment Sarabjeet Singh AIR 1983 SC 529, that:
"where the accused on the date of occurrence, had gone to the house of the complainant alongwith many others who were armed with spears and lathis, and on reaching the complainant's house, he raised a lalkara that the complainant's house be demolished and the inmates of the house be driven out, whereupon the complainant was assaulted, and the complainant's wife who came to his rescue was also injured, the appellant lifted the infant son of the complainant and threw him down with force on the ground, as a result of which the infant died, it was held that if one dealt with a very young infant child in a manner 34 which appeared to be harsh and likely to cause injuries, he must be presumed to know that such an infant might suffer death and such knowledge could be attributed to the accused- appellant. Hence, his case would fall squarely under clause(c) of this section and he would be punishable U/s 304, Part II".
39.The proposition of law laid down in the aforesaid judgment is squarely applicable to the facts and circumstances of the present case, as when the accused pushed down Nafisa Begum from the roof of her house on her objection regarding the causing of nuisance by the accused after consuming liquor, the accused can be attributed with the knowledge that by doing such an act of pushing from the roof, the Nafisa Begum might die as a result of such injuries or she might survive. But, in both the cases, the accused can be clearly presumed to know that by pushing the deceased Nafisa Begum from roof from such a height, it could cause the death of Nafisa Begum, and therefore, such a knowledge can be attributed to the accused for doing such an act. 35 Consequently, the case of the accused would squarely fall under clause (C) of Section 299 IPC, and would be punishable U/s 304(II) IPC.
40. The net result of the aforesaid discussion is that accused Kalu stands convicted U/s 304(II) IPC. Now to come up for hearing on the point of sentence on 22.2.10 at 2p.m.
Announced in the open court on dt. 18.2.10. (Sanjeev Aggarwal) ASJ/Rohini/Delhi.
36IN THE COURT OF SH. SANJEEV AGGARWAL LD. ADDL.
SESSIONS JUDGE: ROHINI COURTS: DELHI SC No. 8/08 FIR No. 392/07 P.S. S.P. Badli U/s 304(II) IPC State Vs. Kalu S/o Khem Chand R/o Chander Pal Ka Makan, Samta Vihar , Mukund Pur, Delhi.
Permanent Address:
Village Khalilpur Rath P.S. Salempur Distt.
Bulland Shaher(U.P) ORDER ON THE POINT OF SENTCE:
22.2.2010 Present: Sh. G.S. Guraya, Ld. Addl. PP for the state.
Convict is produced from J.C with counsels Dr. Vijender Mehandiyan and Sh. Sudesh Mahal along with Sh. Yogesh Kumar.
I have heard the Ld. Counsel(s) for the convict Dr. Vijender Mehandiyan and Sh. Sudesh Mahal along with Sh. Yogesh Kumar and Ld. Addl. PP for State Sh. G.S. Guraya.
It is submitted by the Ld. Counsel(s) for the convict, that the 37 convict is having clean antecedents and he is not involved in any previous case and is a young man of less than of 27 years of age and he has old and ailing parents to look after, not only that he has been recently married. He has also a grand father and sister of marriageable age to look after, and that the marriage of the sister has been fixed for May, 2010. Therefore, it is prayed by the Ld. Counsel(s) for the convict, that lenient view may be taken against him.
On the other hand Ld. PP for the state Sh. G.S. Guraya, submits that strict punishment should be awarded to this convict, as he had pushed a lady from the room of her house, when she was stopping the convict from consuming liquor and creating nuisance and he further submits that a message should go to the society at large, that these type of crimes would not be allowed to go unpunished in a light way.
I have gone through the rival contentions, no doubt the convict had caused the death of a lady by pushing her from the roof, while in inebriated state, especially when she was stopping the aforesaid convict from creating nuisance, after consuming liquor. 38 Consequently, this act of convict in pushing down the deceased Nafisa Begam from the roof of her house cannot be justified in any manner. Therefore, I am of the considered opinion that the interest of justice, shall be met, if the convict is sentenced to rigorous imprisonment for six years and also sentenced to pay a fine of Rs. 5,000/-, U/s 304 (II) IPC, in default of payment of fine, the convict shall further undergo SI for three months. The benefit of the period already undergone by the convict during the trial shall be extended to him U/s 428 Cr. PC. Copy of the judgment and order on the point of sentence be provided to the convict free of cost. File be consigned to record room.
Announced in the open court (Sanjeev Aggarwal) 22.2.2010. Addl. Sessions Judge:
Rohini Courts: Delhi.