Delhi High Court
Rakesh Kumar @ Mukri vs State Of N.C.T. Of Delhi on 17 May, 2007
Author: Aruna Suresh
Bench: Madan B. Lokur, Aruna Suresh
JUDGMENT Aruna Suresh, J.
1. In the present Appeal appellant (accused) Rakesh Kumar @ Mukri has assailed the judgment dated 3rd August, 2001 and order on sentence dated 8th August, 2001 whereby the learned Additional Sessions Judge, Delhi was pleased to hold him guilty of having committed an offence of murder punishable under Section 302 of Indian Penal Code (hereinafter referred as IPC) and sentenced to undergo imprisonment for life and to pay a fine of Rs. 1,000/- and in default of fine to further undergo rigorous imprisonment for three months.
2. The story of the prosecution in nutshell is that on 15th August, 1998 on the occasion of Janmashtami Constable Anant Ram (PW14) and Constable Jitender (PW8) were posted on duty at Shiv Mandir, Basti Julhan, Gali Paharwali, Sadar Bazar, Delhi. At about 6.00/6.15 P.M. on information from some children that one person had been stabbed, Constable Anant Ram (PW14) went to the spot in front of house No. 1913, Basti Julhan, and found Bale Ram lying on the road. On seeing accused Rakesh Kumar @ Mukri, Bad Character (hereinafter referred as 'BC') of the area running away, he chased Rakesh Kumar @ Mukri but could not succeed in apprehending him. Constable Anant Ram came back to the spot and saw blood oozing out of the chest of the injured. On inquiry from the injured he came to know that appellant Rakesh Kumar @ Mukri had stabbed Bale Ram @ Mota. The injured was removed to Hindu Rao Hospital in a three wheeler scooter but was declared brought dead by the doctor who examined him. On the basis of statement of Constable Anant Ram case under Section 302 IPC was registered against the appellant Rakesh Kumar @ Mukri. He was charge-sheeted under Section 302 IPC after completion of the investigation.
3. On the basis of prima facie evidence available on the record and after hearing learned Counsel for the State as well as appellant, learned trial court was pleased to frame the following charge against the appellant Rakesh @ Mukri on 02.02.1999:
CHARGE I, Brajesh Kumar, Addl. Sessions Judge, Delhi hereby charge you Rakesh Kumar @ Mukri son of Ram Kishan as under:
That on 15.08.98 at about 6/6.15 P.M. at Gali near house No. 1913, Basti Julahan, Sadar Bazar, within the jurisdiction of P.S. Sadar Bazar, you have committed murder by causing the death of Bala Ram @ Mota by a sharp edged weapon and thereby committed an offence punishable under Section 302 IPC and within my cognizance; And I hereby direct that you be tried by this Court for the said offence. ASJ 2.2.99 The Appellant pleaded not guilty and claimed trial.
4. Prosecution has examined as many as 19 witnesses to bring home the guilt of the appellant. We shall refer to the evidence of the witnesses whose statements are relevant for the purposes of the present appeal.
5. Learned Counsel for the appellant has impugned the judgment dated 3rd August, 2001 on various aspects. It has been submitted that the eye witnesses to the incident Smt. Chamba Devi (PW2) and Shri Babu Lal Chand (PW4) are hostile witnesses. Dying declaration allegedly made to complainant Constable Anant Ram in the absence of examination of any other witnesses, who were present at the spot at that time, cannot be read against the appellant. Non-examination of independent public witnesses by the prosecution is fatal to the case. There is possibility of false implication of the accused especially when Constable Anant Ram did not disclose name of the witnesses or the appellant in the Daily Diary or to the doctor who had medically examined deceased Bale Ram.
6. All these submissions have been refuted by the learned Additional Public Prosecutor for the State. He has argued that Babu Lal Chand helped the Constable in removing the injured to the hospital. It was natural for Constable Anant Ram to ask the injured as to how he had received injuries, especially when there was no eye witness to the stabbing. It is further submitted that statement of Constable Anant Ram was recorded by the Investigating Officer in the hospital at the first available opportunity. Since Constable Anant Ram was not an eye witness, he did not give history to the doctor at the time of the admission of the deceased and thereafter from the testimony of Constable Anant Ram and the dying declaration made by the deceased as well as from the other evidence adduced on the record, killing by the accused is proved and the trial court has rightly convicted him under Section 302 IPC.
7. Smt. Chamba Devi (PW2) and Babu Lal Chand (PW4) have been introduced as eye witnesses to the commission of crime that is murder of Bale Ram by the appellant. Chamba Devi turned hostile and did not support the prosecution case that she had seen appellant inflicting stab injuries on the chest of deceased Bale Ram @ Mota. As per her statement she came to the balcony of her house on the first floor on hearing some noise from the ground floor "Mardiya-Mardiya". She saw deceased Bale Ram lying dead and three-four persons lifting the deceased. In the cross-examination by the learned Additional Public Prosecutor she admitted that she knew the appellant Mukri who was residing in her gali. She also admitted that one police Constable was present when injured Bale Ram was being removed by other four persons. She identified the appellant as the person named Mukri. According to her, she came to know from the public that appellant had stabbed Bale Ram to death but she denied having seen the incident.
8. Babu Lal Chand (PW4) only heard that there was a quarrel in the gali and there was an incident of stabbing. He did not know if Mukri had stabbed someone or that Mukri was stabbed. He had seen the deceased being carried by three-four persons near Doctor Rajinder Kumar Sagar's shop accompanied by one Constable. In the cross-examination by learned Additional Public Prosecutor he admitted that he knew appellant Mukri being son of Ram Kishan. He only came to know from other people that Mukri had stabbed Bale Ram. He denied having seen the incident with his own eyes.
9. Those three-four persons who were seen by Smt. Chamba Devi (PW2) and Babu Lal Chand(PW4) present at the spot and lifting and taking the injured/deceased to the three wheeler scooter have not been interrogated by the prosecution during the investigation of the case for the best reasons known to it. It was a Janmashtami day and the murder took place during the day light may be in the evening and indeed in the public place namely street. There being two temples of Lord Shiva at a short distance of each other, there must be number of persons present because of Janmashtami Utsav. It is not known why the prosecution did not make efforts to join any independent person from the public who must have witnessed the incident of stabbing and were present at the spot when Constable Anant Ram reached there on receipt of information. Surprisingly, none of the public persons accompanied Constable Anant Ram who chased the appellant for apprehending him.
10. Under these circumstances, when the prosecution has not been able to prove the guilt of the accused on the basis of the testimony of eye witnesses now it is to be seen if prosecution has been able to complete the chain of circumstances in such a manner that they point only towards the accused who can be the author of crime.
11. The prosecution has been successful in proving that Bale Ram deceased was stabbed by a sharp edged weapon at about 6.15 P.M. on 15th August, 1998. On receipt of information from children Constable Anant Ram went to the spot and with the help of four-five public persons took the injured in a three wheeler scooter to Hindu Rao Hospital and the deceased was declared brought dead. Appellant was the BC of the area and was a smack-addict. He was arrested in this case with the permission of the court when he surrendered himself in the court of Additional District & Sessions Judge, Delhi in a case under Section 27 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred as 'NDPS Act').
12. Constable Anant Ram, the only witness who reached the spot has deposed that he saw appellant running away and he chased him up to 15-20 steps but appellant was successful in running away from the spot. None of the other independent public witnesses examined by the prosecution support this version. Smt. Chamba Devi did not see Constable Anant Ram chasing appellant. Constable Anant Ram's statement does not find corroboration from any other independent witness to prove the presence of the appellant at the spot and also indicating that he escaped after committing the offence. Constable Anant Ram does not say if appellant was armed or not.
13. Under Section 8 of the Indian Evidence Act, 1872 the fact that after the commission of the alleged crime accused absconded and attempted to conceal things which were or might have been used in committing it are relevant.
14. In the present case there is a weak attempt on the part of the prosecution to prove that appellant who happened to be the BC of the area, was seen running away by Constable Anant Ram. Under these circumstances even this fact as stated by Constable Anant Ram cannot be taken as a relevant fact in the absence of any other corroborative piece of evidence.
15. Ashok Kumar (PW18) who happened to be son of Chamba Devi is a smack-addict. He in his cross-examination disclosed that when he reached the spot Bale Ram was lying dead. His brother who was a doctor who resides in the area had checked the deceased and declared him dead. If that is so, then the Doctor who had examined the deceased Bale Ram at the spot before he was removed to the hospital is a relevant chain in the circumstances which may strongly indicate the involvement of the appellant in the murder of Bale Ram. Intriguingly, the prosecution neither named the doctor nor examined him as a witness.
16. It seems that Constable Anant Ram asked the injured as to what had happened and the injured had told him that appellant Rakesh Kumar @ Mukri had stabbed him. There were three-four persons of the public present at the spot. This indicates that at the time when the alleged dying declaration was made by deceased Bale Ram to Constable Anant Ram it was in the presence of three-four other public persons. However, none of those three-four persons have been examined by the prosecution to support the version of Constable Anant Ram that deceased had named the appellant as the assailant. Oral dying declaration can be considered by the court as the basis of conviction provided it inspires confidence in the mind of the court. However, the court has to satisfy itself about the truthfulness of the dying declaration before acting upon it. It has also to be seen as to whom the dying declaration was made by the deceased.
17. In 'Heikrujam Chaoba Singh v. State of Manipur' where the prosecution had not examined several disinterested persons, though present when the deceased was making the alleged declarations, it was held that no reliance can be placed on the dying declaration made by the deceased to his brothers. It was observed:
An oral dying declaration no doubt can form the basis of conviction, though the Courts seek for corroboration as a rule of prudence. But before the said declaration can be acted upon, the Court must be satisfied about the truthfulness of the same and that the said declaration was made by the deceased while he was in a fit condition to make the statement. The dying declaration has to be taken as a whole and the witness who deposes about such oral declaration to him must pass the scrutiny of reliability.
18. In 'Smt. Laxmi v. Om Prakash and Ors'. as well as , it was held :
Nemo moriturus praesumitur mentire. No one at the point of death is presumed to lie." A man will not meet his Maker with a lie in his mouth" -- is the philosophy in law underlying admittance in evidence of dying declaration. "A dying declaration made by person on the vergo of his death has a special sanctity as at that solemn moment, a person is most unlikely to make any untrue statement. The shadow of impending death is by itself the guarantee of the truth of the statement made by the deceased regarding the causes or circumstances leading to his death. A dying declaration, therefore, enjoys almost a sucrose not status, as a piece of evidence, coming as it does from the mouth of the deceased victim. Once the statement of the dying person and the evidence of the witnesses testifying to the same passes the test of careful scrutiny of the Courts, it becomes a very important and a reliable piece of evidence and if the Court is satisfied that the dying declaration is true and free from any embellishment such a dying declaration, by itself, can be sufficient for recording conviction even without looking for any corroboration" -- is the statement of law summed up by this Court in Kundula Bala Subrahmanyam v. State of A.P. . The Court added - such a statement, called the dying declaration, is relevant and admissible in evidence 'provided it has been made by the deceased while in a fit mental condition'. The above statement of law, by way of preamble to this judgment, has been necessitated as this appeal, putting in issue acquittal of the accused respondents from a charge under Section 302/34 IPC, seeks reversal of the impugned judgment and invites this Court to record a finding of guilty based on the singular evidence of dying declaration made by the victim. The law is well settled: dying declaration is admissible in evidence. The admissibility is founded on principle of necessity. A dying declaration, if found reliable, can form the basis of conviction. A court of facts is not excluded from acting upon an uncorroborated dying declaration for finding conviction. A dying declaration, as a piece of evidence, stands on the same footing as any other piece of evidence. It has to be judged and appreciated in the light of the surrounding circumstances and its weight determined by reference to the principles governing the weighing of evidence. It is, as if the maker of the dying declaration was present in the court, making a statement, stating the facts contained in the declaration, with the difference that the declaration is not a statement on oath and the maker thereof cannot be subjected to cross-examination. If in a given case a particular dying declaration suffers from any infirmities, either of its own or as disclosed by other evidence adduced in the case or circumstances coming to its notice, the court may as a rule of prudence look for corroboration and if the infirmities by such as render the dying declaration so infirm as to prick the conscience of the court, the same may be refused to be accepted as forming safe basis for conviction. In the case at hand, the dying declarations are five. However, it is not the number of dying declarations which will weigh with the court. A singular dying declaration not suffering from any infirmity and found worthy of being relied on may form the basis of conviction. On the other hand if every individual dying declaration consisting in a plurality is found to be infirm, the court would not be persuaded to act thereon merely because the dying declarations are more than one and apparently consistent.
19. In the present case the alleged dying declaration was made to Constable Anant Ram who cannot be said to be disinterested person. He knew the appellant Rakesh Kumar @ Mukri being BC of the area and there was every possibility of falsely implicating him in this case. Taking into consideration the nature of injuries suffered that is stab wound on the chest of the deceased and the prosecution evidence that deceased while being taken away to the hospital in a three wheeler scooter became unconscious and succumbed to his injuries and was declared brought dead, we are of the view that it would not be safe to rely upon the statement of Constable Anant Ram who has made this important statement regarding dying declaration only in his complaint Ex.PW1/A.
20. Learned Counsel for the appellant has also brought to our notice the Daily Diary and even the history given to the doctor and urged that Constable Anant Ram has not disclosed about any dying declaration having been made by deceased Bale Ram to him. This fact is admitted by Constable Anant Ram in his cross-examination. Under these circumstances, when the name of the appellant as disclosed to Constable Anant Ram does not find mention in the DD No. 11-A dated 15th August, 1998 Ex.PW1/C, it becomes difficult for the court to place reliance on the statement of Constable Anant Ram if any dying declaration was made to him by the victim.
21. Complaint was recorded in the hospital in between 8.00 P.M. to 8.30 P.M. that is after about two hours of the incident. It can be an after thought when accused was named in the complaint by the complainant who happened to be a police Constable. It raises serious doubt in our mind if at all it was the accused/appellant who was responsible for killing Bale Ram or he has been involved in this case being BC of the area.
22. The incident had taken place on 15th August, 1998 and the appellant was arrested on 20th August, 1998 after about five days of the incident. It is not believable that for five days before surrendering himself, the appellant did not try to wash his 'banyan' which was allegedly recovered at his instance and seized vide Seizure Memo Ex.PW13/D. The exhibits were sent to Forensic Science Laboratory, Malviya Nagar for serological and biological examination. As per report Ex.PW19/D, human blood of Group A was found on all the exhibits including banyan of the appellant and pant and underwear of the deceased. This may be a circumstance to indicate that it was the appellant who might have stabbed deceased but then this is only an expert opinion which is relevant and cannot be a conclusive proof indicating that it was none-else but the appellant who had stabbed Bale Ram to death.
23. The learned trial court did not appreciate the oral as well as circumstantial evidence placed on the record by the prosecution. The court relied upon on the testimony of Constable Anant Ram and the CFSL report. It ignored the fact that the eye witnesses were hostile and the circumstantial evidence was weak in nature and was also incomplete. Where there is any doubt in the mind of the court and there are two possible views, the benefit of doubt should also go to the appellant/accused. If the evidence of circumstances is incomplete and other evidence is weak the appellant/accused is entitled to benefit of doubt.
24. To conclude, we are of the view that prosecution has not been able to establish its case either by way of testimony of eye witnesses or from the circumstantial evidence as placed on the record that it was the appellant who had murdered Bale Ram. Where there is any doubt in the mind of the court and there are two possible view, the benefit of doubt should always go to the appellant.
25. Consequently, appellant is given benefit of doubt and he is acquitted of the offence under Section 302 IPC as charged with. He be set at liberty forthwith if not wanted in any other case.