Delhi District Court
State vs Kuldeep Trivedi on 22 July, 2011
IN THE COURT OF SH.SURESH CHAND RAJAN
ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT,
(New Delhi & South East District)
PATIALA HOUSE COURTS, NEW DELHI
S.C.NO.151/09
FIR No.812/2007
U/s 302 IPC
PS Ambedkar Nagar
State
Vs.
Kuldeep Trivedi
S/o Rameshwar Prasad
r/o FII/281, 3rd Floor
Madangir
New Delhi
Challan filed on :16.02.2008
Received by Fast Track Court on: 02.12.2009
Reserved for order on: 02.07.2011
Judgment delivered on: 22.07.2011
JUDGMENT
The background facts as projected by the prosecution are that on 09.11.2007 DD no.18A was recorded, copy of which is Ex.PW18/A and the contents are that : 'Time 7.59 p.m, S65 Operator gave information that at F1/282 State Vs.Kuldeep Trivedi FIR No.812/07 Page No. 1 of 44 Madangir, Holi Chowk, someone has given knife blow on the person of one boy. 26089315 From L/Ct Archana 3654 PCR. Information recorded and copy has been handed over to SI Jitender who alongwith Ct. Moolchand 678/SD departed to the spot.
On receipt of said DD SI Jitender alognwith Ct. Moolchand reached at the spot i.e. H.NO. 282 FIInd Madangir where they came to know that the injured has already been taken to AIIMS Hospital. Thereafter both SI Jitender and Ct.Moolchand reached in the hospital and collected the MLC no. 142345/07. The MLC is Ex.PW3/A. The injured was unfit for statement. So, on the said DD no.18A, IO SI Jitender made his endorsement, prepared rukka and handed over the same to Ct. Moolchand for registration of the case. Ct. Moolchand went to PS Ambedkar Nagar and got the case registered u/s 324 IPC vide FIR no. 812/07. The clothes of the injured were seized. On 10.11.07 SI Jitender recorded the statement of the injured Jitender in the hospital wherein he has alleged that he is working as driver in Sunny Travel Agency, Sant Nagar. On 9.11.2007 at about 7.45 p.m he had gone to F IInd281 Madangir at his ancestral property . His grandmother Somwati had registered this house in the name of his father and his two brothers. Third floor was given to his father. But his Tau(elder brother of his father) named Ramesh and his nephew Kuldeep does not let them stay there nor allow his father to enter in the said premises. On 09.11.2007 he had gone there to light the candles (deepak jalane gaya tha) because of Deepawali. Wife of Kuldeep came and uttered that he had no share in the State Vs.Kuldeep Trivedi FIR No.812/07 Page No. 2 of 44 said house (ish makan mai tumhara koi hissa nahin hai). She asked him to go from there. She started quarreling with him. In the meantime Kuldeep came there and he started quarreling and beating him. He came down stairs in the gali due to fear. When he reached near the motorcycle Kuldeep gave knife blow on his abdomen but he turned back and it hit on his back. Blood oozed out from the wound and he fell aside in the gali. Seeing this Kuldeep ran away from that place. His mobile bearing no. 9210872249 was also taken by the father of Kuldeep. PCR came and removed him to hospital where his statement was recorded. Thereafter section 324 was converted to section 307 IPC. On 12.11.07 father of Kuldeep Trivedi produced the mobile before IO SI Jitender and it was seized by the IO. Accused Kuldeep was searched but he could not be traced. During treatment on 17.11.2007 injured Jitender has expired. Thereafter Section 307 was converted to section 302 IPC. Post mortem on the dead body was conducted and after PM it was handed over to his father. On 18.11.07 accused Kuldeep Trivedi was arrested on the basis of secret information from Muradabad UP. His disclosure statement was recorded. The place of incident was pointed out by the accused and weapon of offence i.e.knife was got recovered from the drain by the accused. The investigation was done and after completion of the investigation challan u/s 302 IPC was filed in the court
2. This case being triable by the court of session and after committal proceedings, it was committed by the Ld.MM and received by State Vs.Kuldeep Trivedi FIR No.812/07 Page No. 3 of 44 the court of sessions on 25.02.08 and thereafter by Fast Track Court on 02.12.2009.
3. The accused Kuldeep Trivedi was charged u/s 302 IPC & remaining on 06.08.2008 by my Ld. Predecessor Sh VK Bansal, Ld. ASJ to which accused pleaded not guilty and claimed trial.
4. The prosecution in support of its case in all has examined as many as 22 witnesses. Thereafter the prosecution evidence was closed.
5. The evidence against the accused was put to him in his statement of accused recorded u/s 313 Cr.P.C in which he has pleaded his innocence and stated that he has been falsely implicated in this case due to enmity regarding the family dispute of property between Ramesh and Suresh chand regarding property no. FII/281 Madangir, New Delhi
6. I have heard Ld. APP for the State as well as Ld. Defence counsel for the accused and perused the testimonies of the PWS and exhibited documents carefully.
7. In view of the submissions made by the Ld.Counsel for the State Vs.Kuldeep Trivedi FIR No.812/07 Page No. 4 of 44 accused persons as well as Ld.APP for the State, I have also perused the testimonies of PWS. Pw1 Naveen Kumar has deposed that he has business of mobile recharge and LIC. On Diwali festival in the evening he went to temple and when he came back he saw police present in the back side gali of his shop. Came to know that an incident of knife blow injury had taken place. He himself did not see any such incident where knife blow injury was caused to the victim. He has been declared hostile by the prosecution and cross examined by the Ld. APP for the State wherein he has admitted that incident dated was 9.11.07. He does not know that Jitender was resident o H.NO.F11/281. He denied that he was present at his shop on that day. He denied about having seen the present case incident. He did not call the police. There was no blood in good amount of quantity on the steps of his shop rather only a few drops of blood were there on the back side of his shop. His landline number is 55535628, 26059315 and house no. is 26051460. He denied having made phone to the police from his number 26059315. Nothing fruitful could be brought on record in cross examination by the Ld. APP for the State.
8. PW2 Veena is the mother of deceased Jitnder @ Jeetu and she has deposed that on 9.11.07 her son Jitender had gone to house no. FII/281 Madangir to light the candles being Diwali and next day she came to know through Babuva that Jitneder has been stabbed. They went to hospital and located around 7 p.m. Jitender disclosed her about the State Vs.Kuldeep Trivedi FIR No.812/07 Page No. 5 of 44 quarrel and giving knife blow by accused Kuldeep Trivedi. On 10.11.07 Jitender was conscious.
9. PW3 Dr. Surjeet Kumar has been deputed by the MS of AIIMS Hospital for Dr. Khaliquzzma who had prepared the MLC no. 142345/07 of Jitender with alleged history of stab injury. The MLC is Ex.PW3/A.
10. PW4 Dr. Prakash Kumar Sagar has deposed that he identified the dead body of Jitender on 18.11.2007 and after post mortem it was handed over to the father of deceased vide memo Ex.PW4/B.
11. PW5 W/Ct. Archana has produced the PCR 100 number call form filled by L/Ct. Aruna on 9.11.2007. The form is Ex.PW5/A.
12. PW6 Suresh Chand is the father of deceased and he has deposed that he son had gone to light candle in another house on the occasion of Deepawali and thereafter he was to go on duty on bike bearing registration no. DL SQ 4047. Next day Pradeep @ Babuva disclosed to them that Jitender has been stabbed by Kuldeep. Kuldeep who is his nephew is present in the court. They could not find his son admitted till 7 p.m and thereafter they came to know that his son has been admitted at the 7th floor of AIIMS Hospital and found him there. On 11.11.07 SI Jitender alongwith ASI came to the hospital and recorded State Vs.Kuldeep Trivedi FIR No.812/07 Page No. 6 of 44 the statement of his son Jitender in his presence in the noon time. The statement is Ex.PW6/A. He has further deposed that his mother Somwati had given the house no. FII/281 to him and his brother. He got share at IInd Floor and Rajender at Ist floor. Accused Kuldeep Trivedi, son of his sister is residing at the IIIrd Floor and his brother Rajender at First Floor. Due to nuisance/harassment of his brother and accused Kuldeep he shifted to Sangam Vihar after locking 2nd floor. His brother and Kuldeep had ill eyes to grab his share. He does not recollect the exact date when his statement and his sons statement were recorded in the hospital but it was recorded on 10 or 11.11.2007. Statement of his son was recorded on 10.11.2007 in his presence which is Ex.PW6/A signed by his deceased son at point B. His son was expired on 17.11.2007 in the hospital. He received the dead body vide memo Ex.PW4/B. He identified the mobile of his son Ex.PW6/Article1, blue jacket, pink shirt and white baniyan belonging to his deceased son are Ex.PW6/article2 (Colly.).
13. PW7 Smt. Durgi has deposed that she does not know anything about this case. She was declared hostile and cross examined by the Ld. APP for the State but in vain.
14. PW8 SI Mahesh Kumar has deposed that he prepared the scaled site plan which is Ex.PW8/A.
15. PW9 HC Ram Pal has deposed that on 9.11.2007 he along with State Vs.Kuldeep Trivedi FIR No.812/07 Page No. 7 of 44 Incharge Vinod Pal went to FII/323 Holi Chowk Madangir where blood was lying on the road. He took nine photographs. The negatives are Ex.PW9/A1 to A9 and photographs are Ex.PW9/B1 to B9.
16. PW10 HC Nirbhey Singh has deposed that on 18.11.07 after post mortem the dead body was handed over to relatives of deceased vide memo Ex.PW4/B. One sealed envelope was handed over to him by the dealing clerk which he handed over to IO and it was seized vide memo Ex.PW10/A.
17. PW11 Dr. Sushil Sharma has deposed that on 18.11.2007 he alongwith Dr. Sudhir Gupta had conducted the post mortem on the dead body of Jitender. The post mortem report is Ex.PW11/A.
18. PW12 Ct.Moolchand has deposed that on 9.11.07 he accompanied SI Jitender to the spot and thereafter to AIIMS Hospital where MLC of injured was collected. He has further deposed that SI Jitender made endorsement on DD no.18A dated 9.11.07 and handed over the same to him for registration of the case. He got the case registered. He has stated that doctor has handed over a sealed parcel which was seized vide memo Ex.PW14/A. Crime team reached at the spot and took some photographs. Anita w/o Kuldeep disclosed them about the incident.
State Vs.Kuldeep Trivedi FIR No.812/07 Page No. 8 of 44
19. PW13 HC Mahender has deposed that on 28.12.07 SI Jitender took the case property from Malkhana vide RC no.13/A to take the same to FSL Rohini.
20. PW14 Ct.Anil Kumar has deposed that on 17.11.07 he accompanied Insp. Dalip and SI Jitender to Moradabad in search of accused Kuldeep where near railway line Govind Nagar he was arrested vide memo Ex.PW14/A and his personal search was conducted vide memo Ex.Pw14/B. His disclosure statement was recorded which is Ex.PW14/C. He has further stated that in Delhi police took the police party to the place of incident where he stabbed the son of his maternal uncle and pointed out the same vide memo Ex.PW14/D. Thereafter accused Kuldeep took the police to the house no. FII/322 Madangir where there was a small nali/drain in front of the said house and underneath of 2/3 steps of stairs he took out one knife and stated that he had hidden the same after incident. The sketch of the knife was prepared. He identified the knife Ex.PW14/article1.
21. PW15 Ct.Bhagwan Sahai has deposed that on 17.11.07 he sent information to PS regarding death of injured Jitender..
22. PW16 HC Balender Kumar has deposed that he recorded the FIR on the basis of rukka sent by SI Jitender Singh. The copy of FIR is Ex.PW16/B. State Vs.Kuldeep Trivedi FIR No.812/07 Page No. 9 of 44
23. PW17 SI KP Shah has deposed that he alongwith his staff and father of accused went to village Jalalpur PS Amroha and thereafter reached in Govind Nagar Moradabad on 18.11.2007. Trap was laid near the house of the relative of accused near railway track and at about 1 p.m on the identification of the father of accused, he was apprehended and arrested vide memo Ex.PW14/A and his personal search was conducted vide memo Ex.PW14/C. Accused was interrogated and his disclosure statement was recorded which is Ex.PW14/C.
24. PW18 SI Jitender Singh has deposed that he reached at the spot on receipt of DD no.18A and then went to hospital where he collected the MLC of injured. He made endorsement on DD and got the case registered. He made search for accused and made enquiry from teh wife of accused. On 10.11.07 he again wen to hospital and in the presence of father of deceased, he recorded the statement of injured Jitender which is Ex.PW6/A and added section 307 IPC in FIR. He also recorded the statement u/s 161 Cr.PC which is Ex.PW18/B1. He has further deposed that on 17.11.07 he received information about death of injured vide DD no.17A copy of which is Ex.PW18/C. ON 18.11.07 accused Kuldeep Trivedi was brought to PS after arrest by SI KP Shah. He pointed out the place of incident vide memo Ex.PW14/D. Accused got recovered on knife, sketch of which is Ex.PW18/D and it was seized vide memo Ex.Pw18/E. On 18.11.07 Ct. Nirbhay brought the sample of State Vs.Kuldeep Trivedi FIR No.812/07 Page No. 10 of 44 deceased from hospital which was seized vide memo Ex.PW10/A. He has further deposed that on 12.11.07 Rameshwar - father of accused came to PS and handed over one mobile make Haier which was found at the place of incident. It was seized vide memo Ex.Pw18/F. He identified the mobile Ex.PW6/A1 and knife Ex.PW14/A1.
25. PW19 Insp. Dilip Singh is the second IO and he has stated that on 18.11.07 he conducted the inquest proceedings. The brief facts are Ex.PW19/A and form no. 25.35 is Ex.PW19/B. After Post Mortem the dead body was handed over to the father of deceased vide memo Ex.PW4.B. Accused Kuldeep Trivedi was arrested from his native village by SI KP Shah and he was produced before him. He pointed out the place of incident vide memo ex.PW14/D and thereafter he got recovered one churra from near drain, the sketch of the same is Ex.PW18/D and it was seized vide memo Ex.Pw18/E. He sent the exhibits to FSL through SI Jitender. He obtained the post mortem report which is Ex.PW11/A. He sent the weapon of offence for subsequent opinion to autopsy surgeon who conducted the post mortem. He filled the FSL form Ex.PW19/C. The FSL result is Ex.PW19/D and E. he identified the knife.
26. PW20 Dr. Sudhir Gupta has deposed that he conducted the post mortem on the dead body of Jitender alongwith Dr. Sushil. The Post Mortem report is Ex.PW11/A. He has also given the subsequent opinion State Vs.Kuldeep Trivedi FIR No.812/07 Page No. 11 of 44 regarding the weapon of offence. The sketch of knife is Ex.PW20/A prepared by him and opinion is Ex.Pw20/B.
27. PW21 V Sankaranarayanan, Sr. Scientific Assistant (Biology) has deposed that he examined the exhibits and prepared his report which is Ex.PW19/A & D.
28. PW22 Parshuram Singh has also examined the exhibits and prepared the report which is Ex.PW22/A.
29. I have also considered the defence evidence led by the accused. DW1 Ram Kishore Sharma has deposed that he does not recollect the month but on 9th in the year 2007 accused Kuldeep Trivedi came to his residence. But he was not present at that time and he talked to him on telephone as he had come to his house. When he came back to his house he met him there. There was dispute between the maternal uncles regarding the property.
30. In the overall analysis of the testimonies of all the witnesses it is revealed PW1 Naveen Kumar is the alleged eye witness and PW7 Durgi has also allegedly seen accused Kuldeep Trivedi following deceased Jitender. So, this case depends on direct evidence. On perusal of the statement of PW1 Naveen Kumar he has stated that when he came back from temple he saw police in the back side gali of his shop and State Vs.Kuldeep Trivedi FIR No.812/07 Page No. 12 of 44 came to know that incident of knife blow injury has been caused to a person and victim was Jitender. He himself did not see any such incident where knife blow injury was caused to the victim. PW1 has been declared hostile by the prosecution and cross examined by the Ld. APP wherein he has admitted that date of incident is 9.11.2011. He does not know victim Jitender was resident of House No. FII/281 situated in the back side gali of his shop. He denied that he was present at his shop at around 7.30 7.45 p.m and saw Jitender coming from his house and reached near his motorcycle standing in front of his shop. He did not see any such fact that accused Kuldeep came running towards victim Jitender, caused him a knife blow injury and ran away. He know accused Kuldeep being resident of the locality. He did not see any such fact that Jitender with that knife blow injury walked towards his shop and fell near steps of his shop. He did not call the police. There was no blood in good amount of quantity on the steps rather a few drops of blood were there on the back side of his shop, a little away from his shop. Landline number of is shop is 55535628 and another no. 26059315 and his house no. is 26051460. He denied the suggestion that in order to protect and to save accused from his criminal act he is suppressing the truth and resiling from his earlier statement made to the police. PW7 Smt. Durgi has deposed that she does not know anything about this case nor she has given any statement to the police at any time. She has also been declared hostile by the prosecution and cross examined by the Ld. APP for the State wherein she has denied having made statement mark PW7/A to the State Vs.Kuldeep Trivedi FIR No.812/07 Page No. 13 of 44 police. In this case both PW1 Naveen and PW7 Durgi are the material witnesses as PW1 had witnessed the incident and PW7 Durgi had seen accused Kuldeep following deceased Jitender. But both these witnesses have not supported the case of the prosecution. Both have been cross examined by the Ld. APP for the State but nothing fruitful could be extracted in cross examination by the Ld. APP for the State. The testimonies of PW1 & PW7 is unworthy of credit. However, I have also looked for another circumstances of the case.
31. The prosecution, in this case has also examined PW2 Smt.Veena (mother of deceased) and PW6 Suresh Chand father of deceased. Pw2 Smt. Veena and PW6 Suresh Chand both have stated that their son on the instruction of PW2 had gone to light the candles in the house bearing no. FII/281 Madangir as it was Diwali festival on 9.11.07 and thereafter he was to go to his duty. PW6 has stated that he was his son was to go on duty at Sangrila Hotel on his bike bearing no. DL SQ 4047. But PW2 has not corroborated this version of PW6 while both are husband and wife. PW2 & PW6 have further stated that on the next morning i.e. 1.11.07, a boy Babuva came to their place and conveyed that their son Jeetu @ Jitender had been stabbed by Kuldeep and that Jeetu is in the hospital. The prosecution has not examined Babuva to establish that he conveyed the information to PW2 & PW6. The stab incident had taken place in the night between 89 p.m. PW2&Pw6 did not come to know about the stab incident meted out to their son State Vs.Kuldeep Trivedi FIR No.812/07 Page No. 14 of 44 immediately after the incident while as per the case of the prosecution they had stayed at that place before shifting to Sangam Vihar and deceased Jitender as well his parents might have been known by the locality persons. There is no evidence as to how Babuva came to know about the said incident. PW2 & PW6 could search their son in the AIIMS Hospital at 7 p.m on 10.11.07. Pw2 Smt. Veena has stated that she enquired from her son as to how he was injured and Jitender then told her that when he had reached Madangir house FII/281 and was lighting the candles, Kuldeep and his wife picked up a fight with him. Accused Kuldeep is her sister's son. PW6 Suresh Chand who is the father of deceased and husband of PW2 has not corroborated this version of PW2 that his son disclosed about causing injury by accused Kuldeep to him. Further Pw6 in his deposition has stated that they (he and his wife) found his son admitted at 7th floor of AIIMS Hospital and they found that his son is unconscious at that time. MLC Ex.PW3/A suggests that deceased was unfit for statement on 9.11.2007 at 9.45 p.m. There is no remarks on MLC as to when deceased was fit for statement. Further PW6 has stated that on 11.11.07 SI Jitender alongwith one ASI came to the hospital and recorded the statement of his son Jitender in his presence in the noon time. In cross examination PW6 has stated that his son was shifted to the ward from the emergency ward on 11.11.2007 in the morning time. He remained entire day on 11.11.2007 and the lunch and dinner was brought for him by his wife from house. His wife remained in the hospital upto two and two and half hours while she came to the hospital at 10.30 a.m State Vs.Kuldeep Trivedi FIR No.812/07 Page No. 15 of 44 and thereafter she went back to his house and did not turn up again to the hospital. The statement of his son was recorded by the police. In examination in chief PW6 has stated that the statement of his son was recorded in the noon time. Since deceased Jitender was unconscious on 9.11.2007 and PW6 has stated that his son was unconscious on 10.7.07, the alleged day when they found him admitted in the hospital, it is unbelievable that the deceased had disclosed about the incident to his mother PW2 on 10.11.2007. It is crystal clear from above version that even on 11.11.07 PW2 Veena was not present at the time of alleged statement as it was recorded in noon time and at that time she had already left for her house. PW2 Veena has further stated that her son Jitender further told her that he came down stairs and bolted the stairs door. This version has not been corroborated by PW6 or any other evidence. Jitender further told her that he reached near his motorcycle and was in the process of starting it that accused Kuldeep came towards him holding a knife and inflicted a knife blow injury in his abdomen. On perusal of the MLC, the injury had been sustained by the deceased at the back (right lower lumber region) and not on abdomen. PW6 Suresh Chand has stated in his statement that there is dispute between his brothers and him regarding property no.FII/281 Madangir, New Delhi as his brothers wanted to grab his share in the property at 2 nd Floor. I have considered the further cross examination of PW2 & 6. PW2 has denied the suggestion that deceased Jitender used to bring bad character boys in the house in Madangir which used to be objected by accused State Vs.Kuldeep Trivedi FIR No.812/07 Page No. 16 of 44 Kuldeep and that is why accused has been falsely implicated in this case. She has further denied the suggestion that Ramesh had several times requested and asked them to sell their share i.e. second floor to him. Rather they had requested Ramesh several times to buy their share in this property. When they were residing at the second floor Ramesh used to harass them by disconnecting some times electricity and some times water supply and Kuldeep and his wife would not allow them to have access to the overhead tanks for fetching water saying that since over head water tank was a part of his tenanted premises he would not allow them to take water. She admitted that they had shifted to Sangam Vihar only when they were fed up with acts of harassment committed by Ramesh vol. Even Kuldeep also used to collude. Her son used to reach home by around 9 O'clock morning after completing his duty over night. She has further stated that she used to be an attendant present in the hospital till her son Jitender remained alive and admitted but then half of the day her husband also used to be an attendant in the hospital. PW6 has given different version that his wife, on 11.11.2007 came at about 10.30 and left after 2 or 2 and half hours. However, PW2 has further stated that during her stay as attendant in the hospital she did not see police visiting hospital during the period everyday to see and find out condition of her son Jitender till his death. It is crystal clear that no statement of deceased was recorded by the police in her presence. She admitted about the quarrel regarding property. PW6 Suresh Chand in cross examination has stated that his statement was recorded in this case State Vs.Kuldeep Trivedi FIR No.812/07 Page No. 17 of 44 when he went to the PS but he does not recollect whether it was prior to death of his son or later on. His son regained consciousness after one or one and a half hour later in the hospital from the reaching time. MLC does not corroborate this version. He admitted that his brother Ramesh wanted to grab his share of second floor forcibly. He admitted that he had strained relations with his brothers.
32. From perusal of the testimony of PW2 it is revealed that in this case IO had recorded the Statement of deceased Jitender. After making the statement deceased had died. Now question arose as to whether this statement Ex.PW6/A recorded by IO is to be considered as dying declaration or not? To take the dying declaration into consideration, our Hon'ble Supreme Courts has summed up that :-
1. It is for the court to see that dying declaration inspires full confidence as the maker of the dying declaration is not available for cross examination
2. Court should satisfy that there was no possibility of tutoring or prompting.
3. Certificate of the doctor should mention that victim was in a fit state of mind.
Magistrate recording his own satisfaction about the fit mental condition of the declarant was not acceptable especially if the doctor was available.
4. Dying declaration should be recorded by the executive magistrate and police officer to record the dying declaration only if condition of the deceased was so precarious that no other alternative was left.
5. Dying declaration may be in the form of questions and answers and answers being written in the words of the person making the declaration. But court cannot be too technical.
33. Keeping in view the above criteria, I have considered the evidence on record. PW18 SI Jitender Singh has stated that on receipt of DD no.18A Ex.PW18/A he went to the spot and thereafter to hospital. State Vs.Kuldeep Trivedi FIR No.812/07 Page No. 18 of 44 He collected the MLC of injured on which the injured was declared unfit for statement by the doctor. He made endorsement on DD no.18A, prepared rukka and got the case registered. On 10.11.2007 he again went to AIIMS Hospital where Jitender was admitted in casualty ward and after taking the due permission of the doctor in the presence of Suresh Chand, father of deceased, the statement of injured was recorded by him which is Ex.Pw6/A signed by him at point C and by deceased at point B. In cross examination PW18 has stated that he did not move any application to the doctor before recording the statement of injured Jitender regarding his fitness to record his statement. He denied the suggestion that injured was not fit for statement on 10.11.2007 so he did not record his statement. He denied the suggestion that he got fabricated each and every statement to falsely implicate the accused. He denied the suggestion that deceased has never given any statement in the presence of his father or that he obtained the signatures on the statement of deceased of his father in the PS. He came to know about dispute between the brothers on property issue. PW6 Suresh Chand who is the father of the deceased has stated that On 11.11.07 SI Jitender alongwith one ASI came to the hospital and recorded the statement of his son Jitender in his presence in the noon time and disclosed that Kuldeep Trivedi has stabbed him from his backside and when he tried to inform them from his mobile the said mobile was snatched by the father of Kuldeep from him. The statement is Ex.Pw6/A. In cross examination he has stated that on the second night from the incident night SI Jitender State Vs.Kuldeep Trivedi FIR No.812/07 Page No. 19 of 44 alongwith other SI came to the hospital while he was present with his deceased son in the hospital and at that time they recorded the statement of his son in his presence. His deceased son regained consciousness after one or one and a half hour later in the hospital. He has stated that when the statement of his son Jitender was recorded by SI Jitender at that time SI did not call any doctor or nurse vol. But he was present over there. 44 In view of the deposition of PW6 & PW18 I have also perused the statement Ex.PW6/A. It is revealed that it was recorded on 10.11.07 by SI Jitender Singh and witnessed by Pw6 Suresh Chand. PW6 Suresh Chand is the father of the deceased. Pw2 Veena and PW6 themselves have stated that there is dispute between PW6 and his brothers in respect of property at II Floor of property no. FII/281. So, he can be termed as interested witness. Further PW6 has stated in his statement that on 09.11.2007 on the occasion of Deepawali his son Jitender went to his duty place at Sangrila Hotel, New Delhi. PW2 Veena has stated in her cross examination that her son was doing the work of driver in Connaught Place and they presumed that he was on duty in the night. The statement Ex.PW6/A shows that Jitender was working in Sunny Travel Agency (Sant Nagar) as driver. So, the statement Ex.PW6/A, statement of father of deceased and mother of deceased are contradictory to each other regarding working place of deceased. Pw6 has stated that next day i.e. 10.11.07 he and his wife could trace their son State Vs.Kuldeep Trivedi FIR No.812/07 Page No. 20 of 44 admitted at 7th floor of AIIMS Hospital and found that his son was unconscious. On 11.11.07 SI Jitender alongwith one ASI came to the hospital and recorded the statement of his son Jitender in his presence in the noon time. I have perused the said statement as well as testimony of IO and it is revealed that the statement Ex.PW6/A was recorded on 10.11.07 and not on 11.11.07. The date of statement is 10.11.07. As per evidence of PW2 and 6 they reached in the hospital on 10.11.07 at about 7 p.m. PW6 has also stated in his examination in chief that the statement was recorded in the noon time. When on 10.11.07, they reached in the hospital at 7 p.m, it is unbelievable that the statement Ex.PW6/A was recorded in his presence in the noon time. PW6 has further stated that when his son was trying to inform them from his mobile, the said mobile was snatched by the father of Kuldeep from him. The statement Ex.PW6/A does not find mentioned about this fact. The seizure memo of mobile Ex.PW18/F shows that the phone in question fell from the pocket of Jitender and produced by the father of accused to IO. When it fell from the pocket, there is no question of its snatching by the father of accused. PW6 has further stated that he does not recollect the exact date whether his statement was recorded by the police on 10 or 11.11.2007 and his deceased son Jitender statement was also recorded by the police in the hospital in his presence on these two dates either on 10 or 11.11.07. His son expired on 17.11.2007. Considering the cross examination of PW6 he has stated that on the second night from the incident night SI Jitender alongwith other SI came to the hospital while State Vs.Kuldeep Trivedi FIR No.812/07 Page No. 21 of 44 he was present and they recorded the statement of his son in his presence. By stating so he meant that the statement was recorded on 10.11.07 in the night. IO PW18 SI Jitender has stated that on 10.11.2007 he went to AIIMS Hospital where Jitender was admitted in casualty ward and he recorded his statement. But PW6 Suresh Chand in cross examination has stated that his son was shifted to ward from emergency ward on 11.11.07 in the morning time. PW18 has stated stated that he recoded the statement of deceased Jitender on 10.11.07 in casualty ward. Further the MLC Ex.PW3/A did not show as to when the deceased Jitender was declared fit for statement and which create doubt regarding recording of statement Ex.PW6/A.
35. According to this section 32 of Indian Evidence Act when the statement is made by a person as to the cause of his death, or any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. Such statements are relevant whether the person who made this was expecting death or not. In English law he must be under expectation of death only then this declaration is valid. This declaration is valid both in civil and criminal cases whenever the cause of death comes into question. In a catena of Judgments on the admissibility of dying declaration, various view have been taken to provide justice. Main thing is that if these declarations seem trustworthy, these retain their full values. Most important point of consideration is that victim was in a fit condition State Vs.Kuldeep Trivedi FIR No.812/07 Page No. 22 of 44 of mind to give the statement when recording was started and remained in fit condition of mind till the recording of the statement finished. Merely stating that patient was fit will not serve the purpose. This can be best certified by the doctor who knows best about the condition of the patient. But even in conditions where it was not possible to take fitness from the doctor, dying declarations have retained their full sanctity if there are other witnesses to testify that victim was in such a condition of the mind which did not prevent him from making statement. Medical opinion cannot wipe out the direct testimony of the eyewitness stating that the deceased was in fit and conscious state to make the dying declaration. Second most important point to be considered is that it should not be under the influence of any body or prepared by prompting, tutoring or imagination. Even if any one of these points is proved then dying declaration is not considered valid. If it becomes suspicious then it will need corroboration. If the declaration is contradictory then it lose value. Best form of dying declaration is in the form of questions and answers. If it is in the form of narrations it is still good because nothing is being prompted and every thing is coming as such from the mind of the person making it. If a person is not capable of speaking or writing he can make a gesture in the form of yes or no by nodding and even such type of declaration is valid. Whenever this is being recorded in the form of questions and answers precaution should be taken that exactly what questions are asked and what answers are given by the patient those should be written. It is preferred that it should be written in the State Vs.Kuldeep Trivedi FIR No.812/07 Page No. 23 of 44 vernacular which the patient understands and speaks. It is best that it is recorded by the magistrate but if there is no time to call the magistrate due to the deteriorating condition of the victim it can be recorded by anybody e.g. public servant like doctor or any other person. Recording of dying declaration by the police is discouraged but if there is no body else to record it dying declarations written by the police officers are also considered. If these are not recorded by the magistrate it is better that signatures of the witnesses are taken who are present at the time of recording it. It does not matter that the person has put a thumb impression or signed it if this is duly witnessed. If a literate person putting the thumb impression that he cannot sign e.g. he was lying in the bed and could not get up to sign it or it was inconvenient for him to put thumb impression due to his condition (intravenous drip on the back of hand) or injury e.g. injury on the right hand in a right handed person. In the absence of such conditions if there is thumb impression and this is not witnessed by disinterested persons a doubt may be created whether this was done after the person died to take revenge by some interested person. First information report got recorded by the police has been taken as dying declaration by the Honorable Supreme Court, when the person did not survive to get his dying declaration recorded. But when patient remained admitted in hospital for sufficient days i.e. for 8 days FIR cannot be treated as dying declaration.
36. It is obligatory to closely scrutinize all the pros and cons of State Vs.Kuldeep Trivedi FIR No.812/07 Page No. 24 of 44 the circumstances while valuating a dying declaration since it is not a statement made on oath and is not tested on the touch stone of cross examination. In Ram Nath v. State of Madhya Pradesh the Hon'ble Supreme Court has held that It is settled law that it is not safe to convict an accused person merely on the evidence of a dying declaration without further corroboration because such a statement is not made on oath and is not subject to crossexamination and because the maker of it might be mentally or physically in a state of compassion and might be drawing upon his imagination while he was making the declaration.
37. Hence, as a rule of law or prudence there is no requirement as to corroboration of the dying declaration before it is acted upon. The basis for its admissibility is the conviction of the court that it is true. Corroboration for dying declaration has to be looked into. The element of vagueness could crop up due to several reasons, namely, the inability of the dying man to perceive things properly due to pain or injury inflicted upon him or due to dwindling vision when he is on the verge of death. Another important factor that forms basis of the admissibility of a dying declaration is the morality or religious condition of the dying man, Truth sits on the lips of a dying man who has a sense of impending death. But if the dying man was under no expectation of death, could it be presumed that even then his religious or moral fiber would get strengthened impelling him to speak the truth. It is not always the case. Truth would sit on the lips of a dying man only if he is under expectation State Vs.Kuldeep Trivedi FIR No.812/07 Page No. 25 of 44 of death. The Indian law does not insist on the element of expectation of death while the English law does. Conviction can be based on dying declaration without corroboration if it is true and voluntary. Dying declaration becomes unreliable if it is not as per prosecution version.
38. I have also considered some case law. In case Law AIR 1989 Supreme court 1097, The State of Assam Vs. Bhelu Sheikh & Ors. It is stated in head note that : 'Penal Code (1860), Ss.300, 149 - Murder - Appreciation of evidence - No clear and cogent evidence to show that accused had caused injuries to victims - Statement of one of deceased not recorded by Magistrate even though he was alive for nine days after occurrence - Injuries on person of accused not explained - acquittal of accused - held, Proper'.
In the present case the injury has been shown as sharp cut injury 1.5 cm x 1 cm on right lower lumber region, depth 4 cm. No active bleeding. All joints movement are normal. Only one injury has been mentioned in the MLC. Post mortem report mentions some other injuries also. Statement of deceased Jitender has not been recorded by the Magistrate but it was recorded by a police officer. The deceased was admitted in the hospital on 09.11.2007 and he expired on 18.11.2007 i.e. after about 9 days of the occurrence. The alleged statement Ex.PW6/A even has not been got attested by the IO from any doctor to establish its genuineness. Reliance can also be placed on case Law 1989 CRI. L.J. 879 The State of Assam Vs. bhelu Sheikh & Ors.
State Vs.Kuldeep Trivedi FIR No.812/07 Page No. 26 of 44
39. In case Law 1990 Cri. L.J. 790 titled Smt. Madhu Bala Vs. State (Delhi Admn.) it is stated in headnote (A) that:
'Evidence Act (1872), S. 32 - Rules and Orders of Punjab High Court, Vol. 3, Chap. 13A, Rules 3 & 5 - Bride burning Dying declaration - Recording by Magistrate in Hospital - Certificate of fitness to make declaration not obtained from doctor - signature or thumb impression not obtained - Declaration cannot be accepted'.
Rule & orders of Hon'ble Punjab High court, Vol. 3 Chapter 13A, Rule 3 requires that the Judicial officer before proceeding to record the dying declaration should himself satisfy that the declarant is in a fit condition to make a statement and in case the Medical officer is present, his attendance is not only to be secured but a certificate of the fitness of the declarant to make a declaration is also to be obtained. Rule 5 requires the Judicial Magistrate to obtain signatures or thumb impression of the declarant. The present statement was recorded by IO SI Jitender. But he did not obtained the certificate of fitness of injured(deceased) from the doctor concerned or available on duty. The signature obtained on statement Ex.PW6/A has not been proved by way of leading expert evidence establishing that it was the genuine signatures of deceased Jitender.
40. In case Law 1992 CRI. L.J. 2644 titled Pearilal Rana @ Peara and Anr Vs. The State it is stated in headnote (A) that : 'Evidence Act, (1 or 1872) S. 32 - Dying declaration - recording of by Police Official - does not stand self condemned but creates a suspicion
- In emergency, it can be recorded without calling Magistrate or a State Vs.Kuldeep Trivedi FIR No.812/07 Page No. 27 of 44 doctor'.
Dying declaration recorded by police officer is looked into with suspicion. It becomes suspicious particularly when police did not requisition the service of a doctor or a Magistrate to record it while he had opportunity to do so. In the instant case as alleged by PW6 Suresh Chand, the injured regained consciousness on 10.11.2007 and thereafter his statement was recorded by IO SI Jitender. But IO has not requisitioned the service of any doctor or nurse available in the hospital at the time of doing so. The injured remained admitted thereafter till 17/18.11.2007. But no action has been taken by the IO to associate any doctor to confirm about fitness of injured to make the statement. The injured was alive for 9 days after recording of statement Ex.Pw6/A. So, it cannot be said that the service of doctor was not available for nine days.
41. In case Law Laxman Vs. State of Maharasthra, SC/0707/2002 it was observed that : 'There is no requirement of law that dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specific statutory form for such recording. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind.' In case Law Jamiruddin Molla Vs. The State, 1991 CRI L.J 356, it is stated in headnote (B) that : State Vs.Kuldeep Trivedi FIR No.812/07 Page No. 28 of 44 'Criminal P.C. (2 of 1974) S. 162(2) - Dying Declaration recorded by Investigating Officer in hospital - Admissibility - Prosecution must satisfy the court as to why required formalities were not complied with'. In case Law 1992 CRI L.J. 616 titled Surinder Kumar Vs. The State it is stated in head note that: 'Evidence Act (1 of 1872), S.32 - Dying declaration - Infirmities - Alleged case of Dowry death - Declaration given before Executive Magistrate, no attempt made by him to contact doctor to find out declarant's state of mind, nor declaration is in question answer form or in words and language of deceased and declarant wife was in midst of nearest relative - Dying declaration cannot be relied upon for conviction u/s 302, Penal Code.
In the present case the statement Ex.PW6/A has not been recorded by the Magistrate but recorded by PW18 SI Jitender. In consideration of the version of PW18 he has stated that the statement was recorded after taking due permission from the doctor in the presence of the father of deceased. On perusal of the MLC it is revealed that the doctor has never declared the injured (deceased) fit for statement. IO PW18 in cross examination had admitted that he did not move any application to the doctor before recording the statement of injured regarding his fitness to record his statement. In the absence of any remarks on MLC or application made before the doctor for recording the statement, the version of PW18 seems to be doubtful. I have also taken into consideration the statement Ex.PW6/A. Even this statement has not been signed by any doctor or nurse of the hospital to establish that it was actually recorded by IO in the hospital and that injured was in fit state of State Vs.Kuldeep Trivedi FIR No.812/07 Page No. 29 of 44 mind to give his statement. PW18 has also not averred in his statement that the injured was in fit state of mind to give his statement. The statement Ex.Pw6/A bears the signatures of injured signed as 'Jitender'. The witness to this statement Ex.PW6/A is the father of injured/deceased. Allegedly this statement was recorded in the hospital. As per version of PW6 Suresh Chand it was recorded recorded in noon time and thereafter he has stated that it was recorded in the night (at about 8 p.m). AIIMS Hospital is a crowded hospital where there are number of patients available. Even Nurses and Doctors remain on duty in the night. But no Doctor/Nurse or any other person from the relatives of patients or patient has been associated by the IO at the time of recording this statement Ex.PW6/A. On the other hand the testimonies of PW2 Veena mother of deceased and PW6 Suresh Chand, father of deceased are contradictory on various aspects as discussed above. There is also inimical terms between Pw6 and his brothers. The names of eye witnesses as alleged in the case of the prosecution are not mentioned in the alleged dying declaration. Reliance can be placed on AIR 1989 Supreme Court 1519. The factors which should be taken into consideration, whether or not the dying declaration should be relied upon have been well settled by the Supreme Court in a series of decisions. Suffice it to refer to K. Ramachandra Reddy Vs. The Public Prosecutor, AIR 1976 SC 1994: (1976 Cri LJ 1548), where the Hon'ble Supreme court has held that the dying declaration is undoubtedly admissible u/s 32 of Evidence Act and not being a statement on oath so State Vs.Kuldeep Trivedi FIR No.812/07 Page No. 30 of 44 that its truth could be testified by cross examination, the courts have to apply the strictest scrutiny and the closest circumspection to the statement before acting upon it. While great solemnity and sanctity is attached to the words of a dying man because person on the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person yet the Court has to be on guard against the statement of the deceased being a result of either tutoring, prompting or a product of his imagination. The court must be satisfied that the deceased was in a fit state of mind to make the statement after the deceased had a clear opportunity to observe and identify his assailants and that he was making the statement without any influence or rancor. ....... The prosecution has not offered any explanation as to why the required formalities contemplated u/s 32 of Evidence Act has not been complied with. In view of Sec.32 of Evidence Act as well as various case laws discussed above, I am of the view that this statement Ex.PW6/A cannot be treated as dying declaration as it lacks corroboration.
42. In the instant case in hand the eye witnesses did not support the case of the prosecution. The statement of deceased allegedly to have been recorded by IO SI Jitender on 10.11.07 cannot be treated as dying declaration. However, I have also looked for other connecting circumstances in this case. PW18 SI Jitender Singh is the first IO and he reached at the spot on receipt of DD no.18A and thereafter in AIIMS Hospital. He made endorsement on DD no.18A prepared rukka and got State Vs.Kuldeep Trivedi FIR No.812/07 Page No. 31 of 44 the case registered. PW12 Ct. Moolchand was with PW18. Ct. Moolchand has stated that he got the case registered. PW16 HC Balender recorded the FIR no. 812/07 u/s 324 IPC. The copy of FIR is Ex.PW16/A. PW18 SI Jitender Singh has stated that he started search for assailants and made enquiry from the wife named Anita of Kuldeep Trivedi regarding the incident and she disclosed him that Jitender came to light Diya on the occasion of deepawali in the flat where some altercation took place between Jitender and Kuldeep and she also disclosed that Kuldeep Trivedi followed Jitender with knife. In the statement of PW18 and PW12 both have stated that Anita disclosed that altercation took place between Jitender and Kuldeep while as per statement Ex.PW6/A injured disclosed that Anita came and uttered that they had no share in the property and he should go and started quarelling with him and in the meantime Kuldeep came and started manhandling with him. Further alleged PW Anita has not been made witness in this case while she had given vital information about the incident. PW18 searched for witnesses but could not find any witness. In this case prosecution has examined public witnesses PW1 Naveen, PW7 Durgi. On perusal of their statements recorded u/s 161 Cr.PC it is revealed that Naveen Kumar was recorded on 10.12.2007. PW18 SI Jitender has specifically stated that he did not find any eye witness at the spot and not recorded any statement. PW19 Insp. Dilip Singh has stated that the investigation was entrusted to him on 17.11.2007. The statement of Naveen u/s 161 Cr.PC shows that it was recorded on 10.12.07 and State Vs.Kuldeep Trivedi FIR No.812/07 Page No. 32 of 44 statement of Durgi was recorded on 30.12.2007. The date of incident is 09.11.2007. The statement of eye witnesses were recorded after about one and half month after the incident. The witnesses have denied their statements.
43. PW18 SI Jitender and PW19 SI KP Shah have stated that on 18.11.2007 accused Kuldeep Trivedi was brought to PS after arrest by SI KP Shah. The prosecution has examined SI KP Shah as PW17 and PW14 Ct. Anil Kumar regarding arrest of accused Kuldeep Trivedi. It has been stated by PW14 Ct. Anil that on 17.11.2007 he alongwith Insp. Dilip Singh, SI Jitender, Ct. Sunil and other police officials went to Moradabad UP in search of accused Kuldeep. PW18 SI Jitender and PW19 Insp. Dalip have not corroborated the version of PW14 and 17 in this respect because they have stated that SI KP Shah brought the accused to PS which clearly demonstrate that neither SI KP Singh nor Insp. Dalip went to Moradabad for arrest of accused Kuldeep Trivedi. Further it has been stated by PW17 SI KP Singh that on secret inquiry accused was arrested near railway track at about 1 p.m on the identification of father of accused. The arrest memo is Ex.PW14/A. I have also perused the said memo. In column no. 7 it has been mentioned that 'Informed to his friend Dharmendra s/o Ramesh Chandra and his father Rameshwar Prasad on Mobile no. 9868796413'. Considering the version of PW14 & 17, Rameshwar Prasad was with them and on his identification accused Kuldeep was arrested. When he was with them it State Vs.Kuldeep Trivedi FIR No.812/07 Page No. 33 of 44 is unbelievable that he was informed on telephone by the police regarding arrest of his son. So, the arrest of accused from Govind Nagar, Moradabad UP is doubtful in this case.
44. Further it has been deposed by PW14, 17, 18 & 19 that accused disclosed about the commission of crime and thereafter took the police party to the place of incident and pointed out the place vide memo Ex.PW14/D. The incident took place on 09.11.2007. The same has already been informed to the police on 09.11.2007 vide DD no.18A copy of which is Ex.PW18/A. No public witness joined by the IO at the time of alleged pointing out by the accused. So, the place of incident was already in the knowledge of police.
45. It has further come in evidence of PW14, 18 & 19 that accused has made disclosure statement Ex.PW14/C and he got recovered one knife from the small nali (drain). The sketch of the knife is Ex.PW18/D and it was seized vide memo Ex.PW18/E. Allegedly the knife was recovered from drain from under the steps of house no. F II/322 Madangir, New Delhi. The IO has not taken any step to join the owner of the cited house at the time of recovery of knife from under the steps of his house. Also no other public from the neighbourhood or locality has been joined while the area Madangir is a thickly populated area. Even no other witness has been joined by the IO at the time of recovery of knife. I have also considered the FSL result Ex.PW19/D. The State Vs.Kuldeep Trivedi FIR No.812/07 Page No. 34 of 44 doctor who examined the knife has mentioned the total length of knife as 25.5 cm while IO at the time of preparing the sketch Ex.PW18/D has mentioned the length as 25.6 cms. No blood was detected on knife with handle and rusty metallic blade. The jacket of deceased shows blood group 'A'. But in the absence of any blood on the knife it does not connect the accused with the present case incident.
46. PW18 has further stated that on 12.11.07 the father Rameshwar of accused Kuldeep came to PS and handed over one mobile phone Haier Model stating that it was found at the place of incident as fell during quarrel. The testimony of PW6 Suresh Chand father of the deceased is contradictory in this respect as he has stated that his son told him that when he was trying to inform them from his mobile the said mobile was snatched by the father of Kuldeep from him. As per the statement of the father of deceased, the alleged mobile was snatched by the father of accused. Had it been snatched and since the son of accused has been involved in this case, it is unbelievable that father of accused had produced the mobile phone in the PS and handed over the same to IO. The recovery of mobile phone is therefore doubtful.
47. PW19 has conducted the inquest proceedings which are Ex.PW19/B. After post mortem he handed over the dead body of Jitender to Suresh Chand. He sent the exhibits to FSL. Now I will consider the medical evidence and FSL result. The prosecution has State Vs.Kuldeep Trivedi FIR No.812/07 Page No. 35 of 44 examined Dr. Surjeet Kumar for Dr. Khaliquzzma who prepared the MLC of deceased Jitender. The MLC is Ex.PW3/A. I have perused the said MLC. In the MLC the following injury is mentioned: Sharp cut injury 1.5 cm x 1 cm on right lower lumber with the depth of 4 cm.
48. Perusal of MLC revealed that only one injury is mentioned in the MLC. The prosecution has examined PW11 Dr. Sushil and PW20 Dr. Sudhir Gupta. These two doctors had conducted the post mortem on the dead body of Jitender. The post mortem report is Ex.Pw11/A. I have also perused the said Post Mortem report. In the Post mortem report following injuries are mentioned:
1. A elliptical shape, obliquely placed, stab wound at right aspect of lower back measuring 2.5x1 cm x Dragon Deep, situated 104 cm above fro right heel, 42 cm below from right shoulder tip and 8.5 cm right from sash midline. The wound is infected showed pus and margins of wound not clear. Direction of wound is forward inward and upward passing through skin and muscles of back perforate right kidney through and through, both posterior and anterior surface of right kidney swured showed surgical intervention. Total length of track is 11.5 cms.
2. Bruise, 9x7 cm, bluish brown colour, present 3 cm right to stab wound.
3. 3. Laprotomy wound infected, 34 cm length present at front of chest and abdomen, 19 cm below sternal angle and 9 cm above from root of penis.
4. A bruise 4x4 cm at front of right arm, 6 cm above from right cubital fossa.
5. A surgically swured, drainage wound 2x1cm x cavity deep present at front of abdomen.
The cause of death has been opined by PW20 as 'Septicemia as a result of above no.1 mentioned injury caused by stab. The injury is antemortam in nature and consistent in duration with history. Injury no.1 is likely to cause death in ordinary course of nature'. State Vs.Kuldeep Trivedi FIR No.812/07 Page No. 36 of 44
49. The MLC Ex.PW Ex.PW3/A suggests only one injury while the post mortem mentions five injuries. There is also difference in size of injury no.1 mentioned in MLC and Post mortem report. On perusal of the Post mortem report as well as deposition of PW11 and PW20 it seems that Jitender had developed Septicemia as a result of injury no.1 caused by stab due to which the patient had expired. It is stated in head note of case Law 1990 (1) CC Cases 250 (HC) that: 'Presence of injuries on the person of the deceased cannot be ground for commission of an offence'.
50. PW11 has stated that injury no.1 is likely to cause death in ordinary course of nature. In cross examination he denied the suggestion that if the deceased has not been suffered with septicemia, the said injury was not likely to cause death. He admitted that he used likely word, not sufficient in their opinion at point C on the post mortem report. By admitting this question of Ld. Defence counsel, it has been admitted by doctor PW11 that injury no.1 is not sufficient to cause death in ordinary course of nature. So, it is crystal clear that the death occurred in this case because of septicemia. PW11 has further stated that septicemia has been developed in the body of injured when there was some other injuries infection and could not be controlled even due to better treatment. As per the version of PW11 injury no.1 was not sufficient to cause death and septicemia has been developed because of some other injuries infection which could not be controlled by treatment. So, patient had expired in State Vs.Kuldeep Trivedi FIR No.812/07 Page No. 37 of 44 this case because of septicemia and not because of injury no.1. PW20 Dr. Sudhir has given the subsequent opinion which is Ex.PW20/B . I have also perused the same. It has been opined that injury no.1 mentioned in post mortem report could be possibly produced by the weapon (knife). Injury mentioned in MLC and injury no.1 in PM report are same. On perusal of the sketch of knife prepared by the doctor Ex.PW20/A it is revealed that he has mentioned the total length of knife as 25.5 cms while the IO at the time of alleged recovery mentioned the total length as 25.6 cms which also create doubt in the case of the prosecution. There is no public witness joined by the IO at the time of recovery of alleged knife. Further in the opinion Ex.PW20/B it has been stated that injury no. 1 in PM report and injury mentioned in MLC are same. On perusal of both the injuries it is revealed that there is lot of difference between the sizes of both the injuries. No explanation has been tendered by the prosecution or doctor as to how the size of injury no.1 is different. The doctor PW20 himself is not sure that injury no.1 was produced by the weapon examined by him as he has stated that injury could be possibly produced by the weapon. In view of the post mortem report and subsequent opinion discussed above, the case of the prosecution seems to be doubtful.
51. The prosecution has examined PW21 V Sankaranarayanan and PW22 Parshuram Singh from FSL. The FSL reports are Ex.PW19/E State Vs.Kuldeep Trivedi FIR No.812/07 Page No. 38 of 44 and D and Ex.PW22/A. I have perused these reports. Ex.PW19D reported that blood was detected on Ex.1a i.e. one jacket having brown stains, Ex.1b i.e. one shirt having brown stains, Ex.1c i.e one banian having brown stains and Ex.3 i.e. brown gauze cloth piece described as blood in gauze and blood could not detected on Ex.2 i.e. one knife with handle and rusty metallic blade. Ex.Pw19/E shows that 'A' Group blood was found on Ex.1a i.e. jacket, Ex.3 blood stained gauze cloth and no reaction was found for blood group on Ex.1b shirt and Ex.1c banian. Ex.PW22/A shows that cut marks on jacket, shirt and banian were corresponding in respect of size, shape and relative position and could have been caused by knife Ex.2. In this case the wearing clothes of accused has not been seized by the police. Allegedly accused has caused knife blow and his clothes might have also been smeared with blood but nothing has been deposed by the witnesses in this respect. The clothes examined in FSL are of deceased only. No blood could be detected on recovered knife to establish that the injuries were caused by the said recovered knife. So, prosecution could not establish that weapon of offence is the same with which the injury no.1 was caused by the accused on the person of deceased.
52. The most important aspect of the present case or for that matter of any criminal case is a motive. Undoubtedly, motive is an important aspect of every criminal trial. Sometimes motive plays an State Vs.Kuldeep Trivedi FIR No.812/07 Page No. 39 of 44 important role and becomes a compelling force to commit a crime and, therefore, motive behind the crime is a relevant factor for which evidence must be adduced. A motive is something which prompts a person to form an opinion or intention to do certain illegal act or even a legal act but with illegal means with a view of achieve that intention. In a case where there is clear proof of motive for the commission of the crime, it affords added support to the finding of the court that the accused was guilty of the offence charged with, though at the same time the absence of proof of motive does not render the evidence bearing on the guilt of the accused nonetheless untrustworthy or unreliable. In the present case as per the facts and circumstances, PW6 has stated that there is dispute between him and his brother on property FII/281 3rd Floor, Madangir, New Delhi and accused Kuldeep also used to harass him. Allegedly Kuldeep was residing in the said property at top floor and PW6 has share at 2nd floor. Accused Kuldeep is residing at the said property as tenant. So, there is no question of grabing the said share of PW6 by accused Kuldeep Trivedi when he is not the owner. Further PW6 has not placed any document regarding dispute of property in question on record. So, motive to kill deceased could not be proved by the prosecution. In case law titled Pandra Khadia Vs. State of Orissa , 1992 CRI L.J 762 it is stated in headnote : 'Evidence Act. 1872, Ss. 3,8 - Penal Code (1860), Ss.299, 300, 302 - Murder - Proof of - Case based on circumstantial evidence - Motive of accused not proved by prosecution - State Vs.Kuldeep Trivedi FIR No.812/07 Page No. 40 of 44 Held, that since important circumstantial evidence had been disbelieved absence of proof of motive would weigh in favour of accused'.
In case law Padala Veera Reddy Vs. State of Andhra Pradesh, 1989 Supp (2) S.C.C 706 it is stated in head note that : 'Evidence Act. 1972 - Sec.3 - 'Proved' - Conviction cannot be based on suspicion, however, strong it may be'.
53. In nutshell, the eye witnesses examined by the prosecution did not support the case of the prosecution and they have denied their statements recorded by the police. The statement of injured/deceased cannot be treated as dying declaration as discussed. The arrest of accused Kuldeep is doubtful. Recovery of knife could not be established since no public witness has been joined as well as there are a number of contradictions in this respect. The testimony of PW2 Veena and PW6 Suresh is contradictory. No blood was found on the weapon of offence. So, even circumstances of the case could not connect the accused with the present case offence.
54. Before an accused can be convicted, the fact of death should be proved by such circumstance as render the commission of the crime morally certain and leave no ground for reasonable doubt, the evidence State Vs.Kuldeep Trivedi FIR No.812/07 Page No. 41 of 44 should be so cogent and compelling as to convince the court that upon no rational hypothesis other than murder can the facts be accounted for. But on consideration of the evidence available on file, the prosecution could not connect the accused persons with the present case offence by leading cogent and reliable evidence. The eye witnesses did not support the case and even statement recorded by IO SI Jitender of deceased seems to be doubtful and even circumstances are not complete pointing the guilt of the accused.
55. The burden of proof in a criminal trial never shifts, and it is always the burden on the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence. It is no doubt a matter of regret that a foul cold blooded and cruel murder should go unpunished. There may also be an element of truth in the prosecution story against the accused and no doubt that the accused is the son of sister in law of PW6 and sister of PW2 who have pointed the finger towards accused Kuldeep Trivedi but it could not be conclusively proved by the prosecution that it was accused Kuldeep who committed the murder of Jitender. The other circumstances of the case i.e. arrest, recovery of weapon and motive etc. has also not been conclusively proved by the prosecution. Considering as a whole, the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by the prosecution by legal, reliable and unimpeachable State Vs.Kuldeep Trivedi FIR No.812/07 Page No. 42 of 44 evidence before an accused can be convicted. It is also a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof, since a higher degree of assurance is required to convict the accused. In view of the above discussions as well as observation of the case laws, I am of the opinion that prosecution could not establish its case without any reasonable doubt by leading cogent and reliable evidence.
56. It is well settled principle of law in AIR 2003 SC 3609, State of Punjab Vs.Karnail Singh that : "Golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the views which is favourable to the accused should be adopted.The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from the acquittal of the guilty is not less than from the conviction of an innocent".
57. In view of my above discussions, I am of the opinion that the prosecution could not establish its case against the accused as I did not find any legal, reliable and unimpeachable evidence in this case. I am State Vs.Kuldeep Trivedi FIR No.812/07 Page No. 43 of 44 unhesitatingly of the opinion that the prosecution has utterly failed in proving the instant case as would fasten the guilt on the accused leaving no room for doubt. So, the prosecution has failed to prove its case against accused and the accused is entitled to be given the benefit of doubt. I, therefore give the benefit of doubt to accused Kuldeep Trivedi and he is acquitted for the commission offence punishable u/s 302 IPC. Accused is in JC. He be released from the jail forthwith if not required in any other case. File be consigned to record room.
ANNOUNCED IN THE OPEN COURT ON 22.07.2011 (SURESH CHAND RAJAN) ADDL.SESSIONS JUDGE Fast Track Court New Delhi and South East District NEW DELHI State Vs.Kuldeep Trivedi FIR No.812/07 Page No. 44 of 44 State Vs.Kuldeep Trivedi FIR No.812/07 Page No. 45 of 44