Supreme Court - Daily Orders
Naveen Kumar vs State Of Uttaranchal on 8 August, 2019
Bench: Navin Sinha, Indira Banerjee
1
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal No(s).1127/2010
NAVEEN KUMAR Appellant(s)
VERSUS
STATE OF UTTARANCHAL Respondent(s)
WITH
Criminal Appeal No.1422 of 2011
O R D E R
The appellant Naveen Kumar assails his conviction under Section 302 IPC sentencing him to life imprisonment, with fine and a default stipulation. He has also been convicted under Section 24/4 of the Arms Act and sentenced to undergo imprisonment for one year. The sentences have been directed to run concurrently. Appellant Satish Kumar Balmiki stands convicted under Section 302/34 IPC and sentenced to undergo life imprisonment, with fine and a default stipulation.
Sri J.C. Gupta, learned Senior Counsel for the appellants submitted that there are two dying declarations of the deceased. The first is stated to have been made before the police constable PW-5 after the assault at the place of occurrence. The second dying declaration was made to his father PW-7 in the hospital. Inviting our attention to the injury report recorded when the victim was Signature Not Verified Digitally signed by DEEPAK SINGH Date: 2019.08.14 brought to the hospital, read with the post mortem report, it is 18:13:34 IST Reason:
submitted that it is highly improbable that the injured, given the nature of his injuries, would have been in a level of consciousness 2 to make a dying declaration. The assault is stated to have been made at about 5.15 p.m. The deceased expired soon thereafter at the hospital about 6.35 p.m. The three friends whom the deceased named in his dying declaration as accompanying him at the time of assault, failed to identify the assailants.
Referring to the evidence of PW-5 who is stated to have brought the injured to the hospital, it was submitted that no explanation has been furnished by the witness why, despite being a police constable, he did not lodge an FIR on returning to the police station at a distance of ¾ kilometer after admitting the injured in the hospital. The witness has contradicted himself in his cross-examination regarding the disclosures made by the victim. Likewise, referring to the evidence of the doctor PW-4, it was submitted that the witness did not state anything with regard to the condition of the injured when he was brought to the hospital. The cross-examination of PW-4 was done nearly three years after the examination-in-chief, and 8 years after the date of occurrence/treatment. It will not be safe to rely on any statement of the doctor at this distant point of time. The witness has stated that the victim was serious and could possibly expire. No Magistrate was called to record the dying declaration. Merely because the witness may have stated that the victim was in a position to speak, or his limbs were moving, cannot lead to any presumption that the injured was in a fit state of mind to make a dying declaration narrating the facts of the incident as it may have occurred. The mere fact that the knife may have been recovered on the disclosure made by the appellant Naveen is inconsequential 3 in absence of any FSL report with regard to the presence of blood on the same. Reliance in support of his submissions was placed on Sabbita Satyavathi vs. Bandala Srinivasarao, [(2004) 10 SCC 620], Kanchy Komuramma vs. State of AP, [1995 Supp (4) SC 118].
The submission by the counsel for the respondent was that in both the dying declarations the appellants have consistently been named as the assailants. There is no variation in the narration of events so as to conclude any contradiction making it unreliable. The fact that the prosecution witnesses have gone hostile is not very relevant when there has been recovery of the weapon of offence at the behest of one of the appellants. Reliance was placed on Vishram and Others vs. State of Madhya Pradesh, [(1993) Suppl 2 SCC 274] to submit that in absence of any positive findings of unconsciousness leading to loss of speech, the dying declaration could not be doubted in view of the evidence of PW-4.
We have considered the submissions and gone through the materials on the record. The assault on the deceased took place on 12.09.1991 at about 5.15 p.m. The victim is stated to have made a dying declaration to the constable PW-5 that the appellant Naveen stabbed him while the co-accused held him. PW-5 states he then brought the injured to the hospital on a three-wheeler and then proceeded to the police station located nearby. The witness has not furnished any reason why despite being a police constable, he did not lodge any FIR immediately on reaching the police station. The witness deposed that the injured had disclosed his father’s name to him, but in the cross-examination, he states that the injured had not disclosed his father’s name. There is an omission in the 4 statement of the witness under Section 161 Cr.P.C. and the deposition in Court with regard to the fact that the witness may have asked questions and to which the injured may have replied. The driver of the three-wheeler has not been examined. The witness stated that he had picked up the injured in his lap. But the witness has not deposited his blood-stained clothes during investigation. The witness was unable to name the treating doctor at the hospital and acknowledges that he did not record any statement of the injured and that he also did not inform PW-7, the father of the injured.
PW-4 the treating Doctor deposed that the injured was brought to the hospital at 6.05 p.m. The victim expired soon thereafter at 6.35 p.m. The doctor stated that the injured was in a serious condition and he could possibly expire. This clearly suggests that the injured was in a very serious condition. The possibility cannot be ruled out completely that he was not in a position of consciousness with mental faculties to make any dying declaration. The witness himself stated that he was not in a position to state whether the injured was capable of making a dying declaration or not. Therefore merely because the doctor stated that the injured may have spoken something, will not make it safe to extend the capability and ability of the injured in a fit state of mind to make a dying declaration. At this stage it is necessary to set out the post mortem report of the deceased.
1. In relation to muscularity : Both eyes half open mouth stoutness emaciation and in open, teeth 15/16, average the condition of rigor built, rigor mortis present mortis or decomposition of on upper and lower 5 body. extremities.
2. Ante-mortem Injuries I Incised wound 1.5 cm x 1 x muscle deep right-side upper part of chest 4 cm above and at 11 O’clock position, right nipple.
II Incised wound 2 cm x 1.5 cm x cavity deep right side of chest at 4 O’clock position and 8 cm below right nipple.
III Incised wound 1.5 cm x 1 cm x chest cavity deep in the middle of chest.
IV Incised wound 1.4 cm x .7 cm x muscle deep in the middle of left upper shoulder.
THORAX
Walls, ribs, cartilages : Cut on 6th and 7th ribs
life side
Pleura : Right and left side ruptured
Braonchis : About 1.5 litres of blood
present in left side pleural
cavity.
Right Lung : Upper part cut.
Left Lung : Left lung normal
Pericardium : Ruptured
Heart : Right ventricle cut through
out through, pale-240 gms.
PW-7 the father of the deceased lodged the FIR the same day at about 7.45 p.m. after the deceased had expired on basis of a dying declaration made to him. The witness himself stated that his son expired within 5 to 10 minutes of his reaching the hospital, which means he reached the hospital at about 6.20 p.m. At this stage, we consider it appropriate to go back to the evidence of PW-4 who 6 stated that the victim was brought at 6:05 pm in a serious condition and could possibly expire. It is highly unlikely that in the given nature of the injures, the deceased at this late stage when life was ebbing out of him was conscious enough to make any dying declaration. We take this view because while PW-4 stated that the deceased was given all possible treatment including injection and glucose which has corroborated by PW-5 also, the statement of PW-7 that no medical aid was provided to the deceased and that he was not unconscious or semi-conscious, reflects the anxiety of the witness to make his evidence credible when the circumstances are speaking otherwise. Considering the time when the witness arrived and death occurred, it will not be unreasonable to opine that the deceased must have been virtually unconscious. In Sabbita Satyavathi (supra), the injuries were similar in nature, if not lesser, to the extent relevant for the present case:
“1. Stab injury chest, on the left side, over 6 to 7th intercostals space in the anterior axillary line. It is spindle shape, edges clean tissues cut sharply obliquly, directed and 1-1/4' x 1/2 x depth leading into the thoracic cavity.
2. Incised injury 1/2' x 1/4 x 1' depth suspected to enter into the thoracic cavity. Present over the left side of the chest in the posterior axillary line 7-8 inter costal space bleeding.” The deceased died in approximately 1 hour 20 minutes after the occurrence. In the present case also, death has occurred in approximately 1 hour fifteen minutes. It was observed in para 21 as under:
“21... We find from the post-mortem report that the 7 left lung had suffered incised injuries at two places. Apart from the injuries to the left lung, it was also found that one of the injuries caused on the left side of the chest had pierced the body to such an extent that the ventricle of the heart also suffered an incised injury over the anterior aspect. It appears from the post-mortem report that the same stab injury caused damage to the left lung as also to the heart. This only indicates that the stab injuries were caused to the deceased with such great force that they not only fractured one of his ribs but also entered the thoracic cavity and injured the left lung and the ventricle of the heart. With such injuries, we entertain serious doubts as to whether the injured could have given two dying declarations as alleged by the prosecution, one at about 7.00 p.m. and the other at about 8.45-9.00 p.m. This is also supported by the medical evidence on record in as much as PW-13 has herself stated that if such an injury is caused to the heart, the injured would become unconscious immediately. It therefore, appears to us that after suffering the injuries the deceased must have become unconscious immediately. There was, therefore, no question of his making a dying declaration to anyone thereafter. We also notice the fact that according to PW-1 after making a dying declaration, the accused walked a few steps with him with his help till such time they got a rickshaw which carried them to the hospital. According to the Medical Officer, PW-13, a person with such injuries could not walk at all even with the help of someone else. Having regard to the sever nature of injuries and the vital organs involved which suffered incised injuries such as heart and the lungs, we entertain a serious doubt about the recording of the second dying declaration by the Medical Officer almost two hours after the occurrence”.
The aforesaid persuades us to hold that in the present case also given the nature of injuries sustained by the deceased he was not in a position to make any dying declaration. There is no evidence whatsoever with regard to his physical condition when all other indications especially the time elapsed since the assault and when death occurred leaves us satisfied that it was not possible for him to make any dying declaration. Unfortunately, the trial 8 court reversed the entire burden of proof by the prosecution by concluding that it could not be assumed that the deceased was not in a condition to make a dying declaration, when it was the obligation of the prosecution to positively establish that the deceased was in a position to make a dying declaration.
The fact that the hostile witnesses may have stood by the place of occurrence and the manner of assault is inconsequential in absence of their failure to identify the assailants. The mere recovery of a knife at the behest of appellant Naveen without any FSL report can be of no avail to the prosecution.
We are constrained to observe that though the injury report of the deceased when he was brought to the hospital is available in the trial court records, but there is no bed head ticket or summary sheet with regard to the condition of the deceased when he was admitted at the hospital. Unfortunately, the trial court also did not consider it necessary to call for the same.
In Vishram (supra), it was opined that in absence of the doctor having stated categorically that the deceased would have been unconscious immediately after the injuries caused on the head and would not have been in a position to speak, makes it completely distinguishable from the facts of the present case when the doctor has himself deposed that he could say if the deceased was capable of making a dying declaration.
A dying declaration can undoubtedly be the basis of a conviction. But then it must be free from any doubts and must leave the court fully satisfied about its authenticity and reliability.
This Court in Laxmi v. Om Prakash, (2001) 6 SCC 118, observed as 9 follows:
“29….One of the important tests of the reliability of the dying declaration is a finding arrived at by the court as to satisfaction that the deceased was in a fit state of mind and capable of making a statement at the point of time when the dying declaration purports to have been made and/or recorded. The statement may be brief or longish. It is not the length of the statement but the fit state of mind of the victim to narrate the facts of occurrence which has relevance. If the court finds that the capacity of the maker of the statement to narrate the facts was impaired or the court entertains grave doubts whether the deceased was in a fit physical and mental state to make the statement the court may in the absence of corroborating evidence lending assurance to the contents of the declaration refuse to act on it…” In conclusion, we find it difficult to uphold the conviction of the appellants in view of the casual manner in which the investigation has been done. The benefit of doubt has to be given to appellants. The appellant Naveen is stated to be on bail. His bail bonds are discharged and he be set at liberty. Appellant Satish is in jail. He is directed to be released forthwith unless wanted in any other case.
The appeals are allowed.
……………………………………………………………J. [NAVIN SINHA] ……………………………………………………………J. [INDIRA BANERJEE] NEW DELHI, AUGUST 08, 2019.10
ITEM NO.110 COURT NO.12 SECTION II
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Criminal Appeal No(s). 1127/2010
NAVEEN KUMAR Appellant(s)
VERSUS
STATE OF UTTARANCHAL Respondent(s)
WITH
Crl.A. No. 1422/2011 (II)
Date : 08-08-2019 This appeal was called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE NAVIN SINHA HON'BLE MS. JUSTICE INDIRA BANERJEE For Appellant(s) Mr. J.C. Gupta, Adv.
Mr. Anurag Tomar, Adv.
Mr. Vikrant Singh Bais, Adv.
Mr. Rameshwar Prasad Goyal, AOR Mr. Sudhansu Palo, AOR For Respondent(s) Mr. Jatinder Kumar Bhatia, AOR Mr. Krishnam Mishra, Adv.
UPON hearing the counsel the Court made the following O R D E R O R D E R The Criminal Appeals are allowed in terms of the signed order.
Pending application(s) if any, shall stand disposed of.
(KAVITA PAHUJA) (SAROJ KUMARI GAUR)
COURT MASTER (SH) BRANCH OFFICER
(Signed order is placed on the file)