Delhi District Court
State vs Vikas @ Vicky @ Ponga on 4 June, 2011
IN THE COURT OF DR. SUDHIR KUMAR JAIN : ADDITIONAL
SESSIONS JUDGE01 (OUTER), ROHINI, DELHI.
Sessions Case No: 18/10
FIR no: 384/09
Police Station : Sultanpuri
U/S : 302/201/212/34 IPC
& 25/27 Arms Act
State
Versus
1.Vikas @ Vicky @ Ponga,
S/o Amar Singh,
R/o H.No. D2/295,
Sultanpuri, Delhi.
2.Jagiro,
W/o Late Parkash,
R/o Jhuggi No.8,
Near Railway Crossing No.8,
Sanjay Gandhi Transport Nagar,
Delhi. ... Accused
Date of Institution : 12.3.2010
Date of Decision: 4.6.2011
State V Vikas @ Vicky @ Ponga
FIR no. 384/09
PS Sultanpuri Page No. 1 of 43
JUDGMENT
Manu was residing at house no.D3/154, Sultanpuri, Delhi. Manu was the brother of Ashok. Manu on 5.12.2009 at about 9.15 pm had gone to a park situated near to his house where 45 boys were playing with cards. Manu asked them not to play cards there. On this Vikas @ Vicky @ Ponga took out a sharp edged knife and inflicted knife blows in the stomach and other body parts of Manu. Ashok was standing near the park and heard the cries "maar diya maar diya" made by Manu. Manu came out from the park and fell down on the gate. Manu was bleeding at that time. Ashok removed the Manu to Sanjay Gandhi Memorial Hospital. The police was informed.
2. SI Parveen Kumar after receipt of DD No.44A regarding the admission of injured by his brother at Sanjay Gandhi Memorial Hospital along with PSI Deepak reached at Sanjay Gandhi Memorial Hospital. SI Parveen Kumar collected the MLC of Manu. Manu was medically examined by Dr. Sanjay Kaushik with the history of physical assault. The general condition of the Manu was stated to be poor due to multiple sharp injuries. Dr. Sanjay Kaushik declared Manu fit for statement. SI Parveen State V Vikas @ Vicky @ Ponga FIR no. 384/09 PS Sultanpuri Page No. 2 of 43 Kumar recorded the statement of Manu which was signed by Manu. Ashok, brother of Manu also signed on the statement made by Manu and recorded by SI Parveen Kumar. Manu in his statement stated that when he aksed 4/5 boys who were playing cards, not to play cards in the park then Vikas @ Vicky @ Ponga inflicted knife injuries to him. Rukka was prepared. FIR No.384/09 u/s 307 IPC was registered. Manu (hereinafter referred to as "deceased") expired in hospital. Thereafter the investigation was handed over to Inspector Mahesh Kumar. The case was converted u/s 302 IPC.
3. Inspector Mahesh Kumar got conducted the post mortem on the dead body of the Manu. The cause of death was opined as hemorrhage and shock consequent to penetrating injuries in the chest. Exhibits were collected. Vikas @ Vicky @ Ponga was arrested. Subsequent investigation was handed over to Inspector Samarjeet Singh. Inspector Samarjeet Singh during investigation and at the instance of accused got recovered knife stated to be used as weapon of offence from the jhuggi bearing no. 8, Railwlay Phatak, Sanjay Gandhi Transport Nagar, Delhi belonged to Jagiro. Knife was seized. Jagiro was also arrested. Inspector State V Vikas @ Vicky @ Ponga FIR no. 384/09 PS Sultanpuri Page No. 3 of 43 Samarjeet Singh during investigation collected Post Mortem Report, obtained subsequent opinion regarding weapon of offence, got prepared the scaled site plan, sent exhibits to FSL and completed other formalities of investigation. Inspector Samarjeet Singh (hereinafter referred to as "Investigating Officer") after completion of investigation charge sheeted the accused u/s 302/201/212/34 IPC and u/s 25/27 Arms Act, 1959. The charge sheet was submitted to the court of concerned Metropolitan Magistrate. The accused were put to trial.
4. The accused were supplied with the copies of charge sheet along with annexed documents in compliance with Section 207 Cr.P.C. The case was committed to the Court of Sessions vide committal order dated 9.3.2010 passed by the concerned Metropolitan Magistrate and thereafter assigned to this court for trial in accordance with law.
5. The accused Vikas @ Vicky @ Ponga was charged for the offence punishable u/s 302/201 IPC and u/s 25/27 Arms Act, 1959; and the accused Jagiro was charged for the offence u/s 212 IPC vide order dated 15.5.2010. The accused pleaded not guilty and claimed trial. State V Vikas @ Vicky @ Ponga FIR no. 384/09 PS Sultanpuri Page No. 4 of 43
6. The prosecution examined Ashok as PW1; Raju as PW2; Ct.
Ravi Malik as PW3; W/Ct. Anuradha as PW4; L/Ct. Manju as PW5; Vijay as PW6; Manish @ Mannu as PW7; Dr. Sanjay Kaushik as PW8; SI Parveen Kumar as PW9; Mahadev as PW10; Inspector Sanjay Gade as PW11; Ct. Vijender as PW12; Dr. Raj as PW13; Dr. Manoj Dhingra as PW14; Inspector Samarjeet Singh as PW15; SI Deepak as PW16; Dr. J.V. Kiran as PW17; Ct. Sanjay as PW18; Inspector Mahesh Kumar as PW19; HC Rajesh Kumar as PW20; HC Ramesh Kumar as PW21; and SI Manohar Lal as PW22.
PW1 Ashok is the brother of the deceased who removed the deceased to the Sanjay Gandhi Memorial Hospital and was a witness to the statement made by the deceased to PW9 SI Parveen Kumar. PW2 Raju identified the dead body of the deceased. PW3 Ct. Ravi Malik being the member of crime team took the photographs of the spot from different angles. PW4 W/Ct. Anuradha received the call regarding the incident at PCR Control Room and thereafter recorded the message in the PCR form. PW5 L/Ct. Manju participated in the investigation at the time of arrest of the accused Jagiro. PW6 Vijay and PW7 Manish @ Mannu State V Vikas @ Vicky @ Ponga FIR no. 384/09 PS Sultanpuri Page No. 5 of 43 are stated to be the eye witnesses. PW8 Dr. Sanjay Kaushik medically examined the deceased and declared him fit for statement. PW9 SI Parveen Kumar after receipt of DD no. 44A along with PW16 PSI Deepak went to the Sanjay Gandhi Memorial Hospital where he recorded the statement of deceased and conducted initial investigation. PW10 Mahadev gave his mobile to PW1 Ashok for informing to the police about the incident. PW11 Inspector Sanjay Gade, Incharge Crime Team, inspected the spot and prepared the Crime Team Report. PW12 Ct. Vijender joined the investigation with Inspector Mahesh Kumar at the time of arrest of the accused Vikas @ Vicky @ Ponga and also was a witness to the recovery of weapon of offence i.e knife. PW13 Dr. Raj also examined the deceased after being referred to surgery department. PW14 Dr. Manoj Dhingra on 16.12.2010 gave the subsequent opinion regarding the weapon of offence on the application filed by Inspector Samarjeet Singh. PW15 Inspector Samarjeet Singh conducted the investigation after formal arrest of the accused and got effected the recovery of weapon of offence. PW17 Dr. J.V. Kiran on 6.12.2009 conducted the post mortem on the dead body of the deceased and opined cause of death as hemorrhage and shock consequent to the penetrating State V Vikas @ Vicky @ Ponga FIR no. 384/09 PS Sultanpuri Page No. 6 of 43 injury to the chest by singed edged sharp stabbing weapon. PW18 Ct. Sanjay deposited the exhibits to FSL. PW19 Inspector Mahesh Kumar conducted the part investigation and arrested the accused after he surrendered in the concerned court of Metropolitan Magistrate. PW20 HC Ramesh Kumar got recorded the FIR bearing no.384/09 on the basis of rukka sent by PW9 SI Parveen Kumar. PW21 HC Ramesh Kumar received the information from Sanjay Gandhi Memorial Hospital regarding the admission of deceased which was reduced into writing vide DD no.44A. PW22 SI Manohar Lal prepared the scaled site plan of the place of occurrence.
7. The prosecution proved the statement of the deceased made to PW9 SI Parveen Kumar as ExPW1/A; identification memos of dead body of the deceased as ExPW1/B and ExPW2/A; receipt of dead body after post mortem as ExPW1/C; Crime Team Report as ExPW11/A; photographs of the spot as ExPW3/B1 to ExPW3/B8; negatives as ExPW3/A1 to ExPW3/A8; PCR Form as ExPW4/A; arrest memo of accused Jagiro as ExPW5/A; MLC of deceased as ExPW8/A; endorsement given by PW8 Dr. Sanjay Kaushik regarding the fitness of State V Vikas @ Vicky @ Ponga FIR no. 384/09 PS Sultanpuri Page No. 7 of 43 injured Manu as ExPW8/B; DD no.44A as ExPW9/A; rukka as ExPW9/B; seizure memo of the exhibits handed over by the doctor after medical examination of the deceased as ExPW9/C; seizure memo of exhibits collected from the spot as ExPW9/D; DD no.9B as ExPW9/E; seizure memo of exhibits handed over by the concerned doctor after the post mortem as ExPW9/F; arrest memo of accused Vikas @ Vicky @ Ponga as ExPW12/A; disclosure statement of accused Vikas @ Vicky @ Ponga as ExPW12/B; pointing out memo prepared at the instance of accused Vikas @ Vicky @ Ponga as ExPW12/C; sketch of knife as ExPW12/D; seizure memo of knife as ExPW12/E; subsequent opinion given by PW14 Dr. Manoj Dhingra regarding weapon of offence i.e knife as ExPW14/B; sketch of knife prepared by PW14 Dr. Manoj Dhingra as ExPW14/A; supplementary disclosure statements of accused Vikas @ Vicky @ Ponga recorded by PW15 Inspector Samarjeet Singh on 8.12.2009 and 9.12.2009 as ExPW15/A and ExPW15/B; pointing out memo of the place of recovery of knife as ExPW15/C; disclosure statement of accused Jagiro as ExPW15/D; school record pertaining to date of birth of accused Vikas @ Vicky @ Ponga as ExPW14/E and ExPW14/F; application filed by PW15 Inspector Samarjeet Singh seeking opinion regarding the weapon State V Vikas @ Vicky @ Ponga FIR no. 384/09 PS Sultanpuri Page No. 8 of 43 of offence as ExPW15/G; scaled site plan as ExPW15/H; Post Mortem Report as ExPW17/A; copy of Road Certificate as ExPW18/A; inquest proceedings as ExPW19/A; application filed by the PW19 Inspector Mahesh Kumar for formal arrest of the accused Vikas @ Vicky @ Ponga as ExPW19/B; personal search memo of accused Vikas @ Vicky @ Ponga as ExPW19/C; the computerized copy of the FIR recorded by PW20 HC Rajesh Kumar as ExPW20/A; endorsement on rukka as ExPW20/B. PWs also identified the exhibits collected during the investigation as ExPW9/1 to ExPW9/3 and the knife as ExP12/1. The prosecution evidence was closed vide order dated 31.5.2011.
8. The respective statements of accused Vikas @ Vicky @ Ponga and accused Jagiro were recorded u/s 313 Cr. P.C. Wherein they pleaded innocence and denied the incriminating evidence. The accused Vikas @ Vicky @ Ponga stated that no such incident took place in his presence and he was falsely arrested in this case at the instance of PW1 Ashok. The accused Vikas @ Vicky @ Ponga also denied the factum of recovery of knife at his instance and stated that his signatures were obtained on blank papers by the police. The accused Jagiro stated that no knife was State V Vikas @ Vicky @ Ponga FIR no. 384/09 PS Sultanpuri Page No. 9 of 43 recovered from her jhuggi. The accused preferred not to lead defence evidence.
9. Shri R.A. Yadav, APP for the State and Shri Y.S. Chaudhary, advocate for the accused heard. Record perused.
10. India has adopted the adversarial system of common law for the dispensation of criminal justice. In the adversarial system every person accused of an offence is always presumed to be innocent so that burden lies upon the prosecution to establish beyond reasonable doubt that all the ingredients of the offence with which the accused is charged are made out. The accused enjoys the right to silence and cannot be compelled to reply.
In case Shivani V State of Maharashtra, AIR 1973 SC 2622 it was stressed that judicial instrument has a public accountability. The cherished principle of golden thread of proof beyond reasonable doubts should not be stretched morbidly. It further observed that only reasonable doubts belong to the accused otherwise the justice would lose its credibility.
State V Vikas @ Vicky @ Ponga FIR no. 384/09 PS Sultanpuri Page No. 10 of 43
11. Section 300 IPC deals with murder. It reads as under :
300. Murder : Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death; or 2ndly--If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or 3rdly--If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or 4thly--If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Exception 1....
Exception 2....
Exception 3....
Exception 4....
Exception 5....
State V Vikas @ Vicky @ Ponga FIR no. 384/09 PS Sultanpuri Page No. 11 of 43 In section 300 IPC, each of the four clauses requires that the act which causes death should be done intentionally, or with the knowledge or means of knowing that death is a natural consequence of the act. An offence cannot amount to murder unless it falls within the definition of culpable homicide; for this section merely points out the cases in which culpable homicide is murder. Putting it shortly, all acts of killing done:
i) with the intention to kill, or
ii) to inflict bodily injury likely to cause death, or
iii)with the knowledge that death must be the most probable result, are prima facie murder, while those committed with the knowledge that death will be a likely result are culpable homicide not amounting to murder.
12. Section 302 IPC deals with punishment for murder.
13. The APP argued that the eye witnesses PW6 Vijay and PW7 Manish @ Mannu turned hostile and did not support the case of the prosecution but the prosecution to prove the guilt of the accused relied on the statement made by the deceased stating therein the facts leading to the transaction resulting into his death to PW9 SI Parveen Kumar which can be treated as dying declaration as per the Section 32 (1) of the Evidence Act, 1872 and the accused can be convicted solely on the basis of said State V Vikas @ Vicky @ Ponga FIR no. 384/09 PS Sultanpuri Page No. 12 of 43 dying declaration made by the deceased to the PW9 SI Parveen Kumar soon before the death without corroboration from other evidences. The APP further argued that PW6 Vijay and PW7 Manish @ Mannu were playing cards with the accused Vikas @ Vicky @ Ponga at the time of the incident as such they cannot and can never be expected that they would support the case of the prosecution.
The defence counsel argued that the prosecution has failed to prove its case beyond reasonable doubt as the public witnesses have turned hostile; PW8 Dr. Sanjay Kaushik who certified about the fitness of the deceased before the making of the statement to PW9 SI Parveen Kumar was not present at the time of recording of said statement ExPW1/A and the prosecution has not explained the absence of PW8 Dr. Sanjay Kaushik at the time of recording of statement ExPW1/A. The defence counsel also referred the cross examination of PW8 Dr. Sanjay Kaushik. The defence counsel argued that the statement ExPW1/A which the prosecution is propose to treat as dying declaration is doubtful and no reliance can be placed on the statement ExPW1/A without corroboration from other evidences. The defence counsel argued that the Investigating State V Vikas @ Vicky @ Ponga FIR no. 384/09 PS Sultanpuri Page No. 13 of 43 Officer has not verified the signature of the deceased on the statement ExPW1/A; in the MLC ExPW8/A the name of assailant has not been mentioned; and the recovery of knife ExP12/1 from the jhuggi of accused Jagiro is doubtful. The defence counsel argued that the prosecution has failed to prove its case beyond reasonable doubt, hence the accused are to be acquitted.
14. The prosecution in support of its case is primarily relying upon the statement ExPW1/A made by the deceased to PW9 SI Parveen Kumar in presence of PW1 Ashok who is the brother of the deceased. The prosecution also examined two eye witnesses PW6 Vijay and PW7 Manish @ Mannu but they turned hostile and did not support the case of the prosecution. Another piece of evidence sought to be proved by the prosecution is the recovery of knife ExP12/1, stated to be the weapon of offence, at the instance of accused Vikas @ Vicky @ Ponga from the jhuggi of accused Jagiro and as per the subsequent opinion given by the PW14 Dr.Manoj Dhingra, knife ExP12/1 could be the weapon of offence and the injuries mentioned in the Post Mortem Report ExPW17/A could have been caused by the knife ExP12/1.
State V Vikas @ Vicky @ Ponga FIR no. 384/09 PS Sultanpuri Page No. 14 of 43
15. Section 32 of the Evidence Act, 1872 deals with cases in which statements of relevant fact by person who is dead or cannot be found etc. is relevant. Sub section (1) deals with relates to cause of death. Section 32 (1) reads as under : S.32 Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant--Statements, written or verbal, of relevant facts made a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:--
(1) When it relates to cause of death:--
When the statement is made by a person as to the cause of his death, or as to 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 them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.
16. Section 32 is one of those provisions that provide exceptions to State V Vikas @ Vicky @ Ponga FIR no. 384/09 PS Sultanpuri Page No. 15 of 43 the principle of excluding hearsay evidence. The principle of the section is that a person who has the firsthand knowledge of the facts of a case, but who, for reasons stated in the section, such as death or disability, is not able to appear before the court, then his knowledge should be transmitted to the court through some other person. A statement u/s 32 (1) can be proved when it is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death.
A "dying declaration" means the statement of a person who has died explaining the circumstances of his death.
17. The decision of the Privy Council in Pakala Narayana Swami V Emperor, AIR 1939 PC 47 is a leading judicial authority on dying declaration. Lord ATKIN observed as under : The circumstances must be circumstances of the transaction ; general expressions indicating fear or suspicion whether of a particular individual or otherwise and not directly related to the occasion of the death will not be admissible. But statements made by the deceased that he was proceeding to the spot where he was in fact killed, or as to his reasons for so proceeding, or that he was going to meet a particular person or that he had been invited by such State V Vikas @ Vicky @ Ponga FIR no. 384/09 PS Sultanpuri Page No. 16 of 43 person to meet him, would each of them be circumstances of the transaction, and would be so whether the person was unknown, or was not the person accused. such a statement might indeed be exculpatory of the person accused. "circumstances of the transaction" is a phrase no doubt that conveys some limitations. It is not as broad as the analogous use in "circumstantial evidence", which includes evidence of all relevant facts. It is on the other hand narrower than "res gestae" circumstances must have proximate relations to the actual occurrence.
18. The principles laid down Palaka Narain Swai case relating to the relevancy of a dying declaration were accepted by the Supreme Court in Kaushal Rao V State of Bombay, AIR 1958 SC 22. The following proposition of law were laid down relating to the test of reliability of dying declaration:
i) That is cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated;
ii) That each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made;
iii) That it cannot be laid down as a general proposition that a dying declaration is a State V Vikas @ Vicky @ Ponga FIR no. 384/09 PS Sultanpuri Page No. 17 of 43 weaker kind of evidence than other piece of evidence;
iv) That a dying declaration stands on the same footing as another piece of evidence and ha to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence.
v) That a dying declaration which has been recorded by a competent Magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character; and
vi) That in order to test the reliability of a dying declaration, the Court has to keep in view, the circumstances like the opportunity of the dying man for observation; for example whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated, had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had State V Vikas @ Vicky @ Ponga FIR no. 384/09 PS Sultanpuri Page No. 18 of 43 been made at the earliest opportunity and was not the result of tutoring by interested parties.
19. The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. The great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. Since the accused has no power of crossexamination, the court insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however has to always be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant.
20. A dying declaration can be oral or in writing and in any adequate method of communication whether by words or by signs or otherwise will State V Vikas @ Vicky @ Ponga FIR no. 384/09 PS Sultanpuri Page No. 19 of 43 suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a magistrate is absolutely necessary, although to assure authenticity it is usual to call a magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a magistrate and when such statement is recorded by a magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. 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. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise.
21. An oral dying declaration can from the basis of conviction, though the Courts seek for corroboration as rule of prudence. But before State V Vikas @ Vicky @ Ponga FIR no. 384/09 PS Sultanpuri Page No. 20 of 43 the said declaration can be acted upon, the Court must be satisfied about the truthfulness of the same. 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.
22. The Supreme Court in Paniben V State of Gujrat, AIR 1992 SC 1817 summed up the principles governing dying declaration laid down in several judgments as under : i. There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (Mannu Raja V State of U.P., AIR 1976 SC 2199).
ii. If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration (State of U.P. V Ram Sagar Yadav, AIR 1985 SC 416; Ramavati Devi V State of Bihar, AIR 1983 SC 164).
iii.This court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration. (Rama Chandra Reddy V Public Prosector, AIR 1976 SC 1994).
State V Vikas @ Vicky @ Ponga FIR no. 384/09 PS Sultanpuri Page No. 21 of 43 iv.Where dying declaration is suspicious it should not be acted upon without corroborative evidence. (Rasheed Beg V State of Madhya Pradesh, AIR 1974 SC 332).
v. Where the deceased was unconscious and could never make any dying declaration the evidence with regard to its is to be rejected. (Kake Singh V State of M.P., AIR 1982 SC 1021).
vi.A dying declaration which suffers from infirmity cannot form the basis of conviction. (Ram Manorath V State of U.P., 1981 SCC (Crl) 581).
vii.Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (State of Maharashtra V Krishnamurthi Laxmipati Naidu, AIR 1981 SC
617).
viii.Equally, merely because it is a brief statement it is not be discarded. On the contrary, the shortness of the statement itself guarantees truth. (Surajdeo Oza V State of Bihar, AIR 1979 Sc 1505).
ix.Normally the Court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail. (Nanahau Ram V State, AIR 1988 SC
912).
State V Vikas @ Vicky @ Ponga FIR no. 384/09 PS Sultanpuri Page No. 22 of 43 x. Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon (State of U.P. V Madan Mohan, AIR 1989 SC 1519).
23. The deceased was residing at house no.13/154, Sultanpuri. The deceased on 5.2.2009 at about 9.15 pm had gone to park situated near to his house where 45 boys were playing cards. The deceased asked said boys not to play the cards over there. On this the accused Vikas @ Vicky @ Ponga gave a knife blows on the stomach and other body parts of the deceased. PW1 Ashok, brother of the deceased removed the deceased to Sanjay Gandhi Memorial Hospital. PW9 SI Parveen Kumar after receipt of DD no.44A ExPW9/A along with PW16 PSI Deepak reached at Sanjay Gandhi Memorial Hospital where he collected the MLC ExPW8/A pertaining to the deceased prepared by PW8 Dr.Sanjay Kaushik. PW9 SI Parveen Kumar recorded the statement ExPW1/A of the deceased after the deceased was being declared as fit for statement by PW8 Dr. Sanjay Kaushik vide endorsement ExPW8/B on MLC ExPW8/A. The statement ExPW1/A was signed by the deceased at point B. PW1 Ashok, brother of the deceased, put his signature at point A.PW9 SI Parveen Kumar put his signature at point C. The statement ExPW1/A is perused. The facts State V Vikas @ Vicky @ Ponga FIR no. 384/09 PS Sultanpuri Page No. 23 of 43 pertaining to incident mentioned in statement ExPW1/A are important. In statement ExPW1/A the deceased stated that on 5.12.2009 at about 9.30 pm he was standing in a park situated in front of his house where 45 boys were playing cards; when he asked the said boys not to play the cards then the accused Vikas @ Vicky @ Ponga started to abuse him; when the deceased asked the accused Vikas @ Vicky @ Ponga not to abuse him then the accused Vikas @ Vicky @ Ponga took out a sharp edged knife from his pocket and inflicted knife blows on his stomach and shoulder. The facts mentioned in statement ExPW1/A are the circumstances of the transaction which resulted into the death of the deceased. The statement ExPW1/A is a dying declaration within the meaning of Section (1) of Evidence Act, 1872. (The statement ExPW1/A shall be hereinafter referred to as "the dying declaration ExPW1/A.) The issue which needs consideration is that whether the dying declaration ExPW1/A can be relied upon without any corroboration and can be the sole basis of conviction of the accused in absence of any corroborative evidence particularly when eye witnesses PW6 Vijay and PW7 Manish @ Mannu turned hostile and did not support case of the prosecution. PW1 Ashok is not the eye witness of the incident.
State V Vikas @ Vicky @ Ponga FIR no. 384/09 PS Sultanpuri Page No. 24 of 43
24. As per the dying declaration ExPW1/A, the incident occurred on 5.12.2009 at about 9.30 pm. The deceased was brought to the Sanjay Gandhi Memorial Hospital at 10 pm by PW1 Ashok as reflected from MLC ExPW8/A. PW8 Dr. Sanjay Kaushik medically examined the deceased with the history of physical assault. PW8 Dr. Sanjay Kaushik deposed that general condition of the injured Manu i.e the deceased at that time was very poor as he sustained multiple sharp and deep injuries. PW8 Dr. Sanjay Kaushik vide endorsement ExPW8/B at about 10.40 pm declared the deceased fit for statement. The deceased was also referred to ortho and surgery departments for further management.
25. The defence counsel referred cross examination of PW8 Dr. Sanjay Kaushik. PW8 Dr. Sanjay Kaushik during cross examination deposed that the injured was shouting in pain due to injuries; he did not remember for how long the police officials remained with him; the injured Manu has not given any statement to the police in front of him or the deceased did not put his signature at any paper in front of him. What is appearing from the testimony of PW8 Dr. Sanjay Kaushik is that the deceased Manu at the time of treatment was crying in pain and further his State V Vikas @ Vicky @ Ponga FIR no. 384/09 PS Sultanpuri Page No. 25 of 43 statement was not recorded by PW9 SI Parveen Kumar in the presence of PW8 Dr. Sanjay Kaushik and further the deceased did not put his signature at any paper in presence of PW8 Dr. Sanjay Kaushik. The dying declaration ExPW1/A is not signed by the PW8 Dr. Sanjay Kaushik. It is also not mentioned in the dying declaration ExPW1/A that PW8 Dr. Sanjay Kaushik who firstly medically examined the injured (i.e the deceased) after being admitted in Sanjay Gandhi Memorial Hospital was also present along with PW9 SI Parveen Kumar and PW1 Ashok at the time of its recording. However it is reflected from the perusal of endorsement ExPW8/B made on MLC ExPW8/A that at that time the deceased was in fit state of mind when the dying declaration ExPW1/A was recorded by PW9 SI Parveen Kumar.
26. The testimony of PW9 SI Parveen Kumar is important. PW9 SI Parveen Kumar after receipt of DD no.44A ExPW9/A along with PW16 PSI Deepak reached at Sanjay Gandhi Memorial Hospital where he immediately obtained the MLC ExPW8/A prepared by PW8 Dr. Sanjay Kaushik. The deceased was under medical treatment at that time. PW8 Dr. Sanjay Kaushik declared the deceased at that time fit for statement. State V Vikas @ Vicky @ Ponga FIR no. 384/09 PS Sultanpuri Page No. 26 of 43 PW9 SI Parveen Kumar recorded the dying declaration ExPW1/A that after the deceased was declared fit for statement. In cross examination PW9 SI Parveen Kumar deposed that he reached at the hospital at about 9.45 /9.50 pm and remained in the hospital for one hour. PW9 SI Parveen Kumar also deposed in cross examination that the deceased had signed statement ExPW1/A while he was lying in bed. PW9 SI Parveen Kumar denied the suggestion that at that time, the deceased was not able to sign and the signature of the deceased was fabricated. The defence counsel has not cross examined the PW1 Ashok Kumar and PW9 SI Parveen Kumar that the deceased has made statement ExPW1/A after being tutored or under influence of PW1 Ashok. PW1 Ashok also denied the suggestion that the deceased had become unconscious after receiving the injuries. The deceased was in senses when taken to hospital. It is also reflected from the perusal of MLC ExPW8/A that at that time the deceased was conscious and oriented, with normal blood pressure and heart beats. Although the deceased was crying in pain when he was admitted in the hospital but it does not mean that the injured was out of his senses and was not fit to make the statement. PW8 Dr. Sanjay Kaushik immediately declared the deceased fit for statement after being admitted in State V Vikas @ Vicky @ Ponga FIR no. 384/09 PS Sultanpuri Page No. 27 of 43 the hospital. There is no reason to disbelieve the testimony of PW8 Dr. Sanjay Kaushik that the deceased was fit to make statement. The dying declaration ExPW1/A is signed by the deceased himself at point B. If the PW6 Vijay and PW7 Manish @ Mannu turned hostile and did not support the case of the prosecution, it does not dilute the admissibility of dying declaration ExPW1/A.
27. There is nothing in the evidence led by the prosecution or in the cross examination of PWs conducted by the defence counsel to suggest the deceased was not in a fit state of mind at the time of making the dying declaration ExPW1/A. The deceased in the dying declaration ExPW1/A has mentioned the accused Vikas @ Vicky @ Ponga by name and even referred the name of his mother. The accused Vikas @ Vicky @ Ponga was properly identified by the deceased in dying declaration ExPW1/A. The dying declaration ExPW1/A was recorded by PW9 SI Parveen Kumar without any delay on the basis of what has been disclosed or stated by the accused. The incident occurred at about 9.30 pm and the deceased was admitted in the hospital at 10 pm. The deceased was declared fit for statement by PW8 Dr. Sanjay Kaushik at 10.40 pm. The rukka ExPW9/B State V Vikas @ Vicky @ Ponga FIR no. 384/09 PS Sultanpuri Page No. 28 of 43 was sent to the police station for registration of the FIR at about 11.40 pm. Mere presence of PW1 Ashok, brother of the deceased, at the time of recording of dying declaration ExPW1/A does not necessarily means that the deceased was tutored or under the influence of PW1 Ashok.
28. The dying declaration ExPW1/A was recorded by a police official and not by a magistrate. PW9 SI Parveen Kumar recorded dying declaration ExPW1/A after the deceased was declared fit for statement. If the dying declaration is recorded by a police officer, it does not render dying declaration unreliable or dying declaration cannot be acted upon. In case State V Champa Lal, 2009 Cri.LJ 2403, the Supreme Court observed that the dying declaration recorded by the Investigating Officer is not always unreliable. It was further observed that refusal to rely on it by discarding plea of Investigating Officer as to impossibility to get magistrate, without indicating any reason is improper. In the said case, the Supreme Court also referred Munna Raja V State of M.P., AIR 1976 SC 2199 wherein it was observed that practice of recording of dying declaration by the Investigating Officer himself is to be discarded. However the Supreme Court observed that there was nothing in the State V Vikas @ Vicky @ Ponga FIR no. 384/09 PS Sultanpuri Page No. 29 of 43 Munna Raja to show that whenever the Investigating Officer records the dying declaration, the same has to be kept out of considered.
In the instant case, the deceased was admitted in the Sanjay Gandhi Memorial Hospital at 10 pm and was declared fit for statement at about 10.40 pm. At that time, as per the testimony of PW8 Dr. Sanjay Kaushik the condition of the deceased was very poor as the deceased has sustained multiple sharp and deep injuries. The rukka ExPW9/B was sent to police station at about 11.40 pm. It clearly reflects that there was no occasion or time for PW9 SI Parveen Kumar to call a magistrate or any other person for recording the dying declaration of the deceased. The dying declaration ExPW1/A was recorded without any delay.
29. In case Bhagirath V State of Haryana, AIR 1997 SC 234 the Supreme Court upheld the conviction on the basis of the dying declaration recorded by head constable in presence of doctor and was corroborated by medical evidence. In the instant case, the dying declaration ExPW1/A is also corroborated by the recovery of weapon of offence i.e knife ExP12/1 and medical evidence (infra). Although PW9 Dr. Sanjay Kaushik was State V Vikas @ Vicky @ Ponga FIR no. 384/09 PS Sultanpuri Page No. 30 of 43 not present when dying declaration ExPW1/A was recorded but PW8 Dr. Sanjay Kaushik has already declared the deceased fit for statement. In case Jai Parkash and others V State of Haryana, AIR 1999 SC 3361 the statement of deceased with burn injuries was recorded by police as complaint and on account of her death, the statement was treated as dying declaration. The deceased was in fit mental state and as such, the dying declaration was relied upon. In the instant case, the deceased at the time of making the dying declaration ExPW1/A was in fit state of mind as certified by the PW8 Dr. Sanjay Kaushik vide endorsement ExPW8/B on MLC ExPW8/A. In case State of U.P. V Chet Ram, AIR 1989 SC 1549, the deceased was fully conscious when the dying declaration was made to the police and the deceased in the dying declaration has stated who was the assailant and how the incident took place. It was observed that the dying declaration merited acceptance and be accorded high degree of value. In the instant case, the deceased in the statement ExPW1/A mentioned the name of the accused Vikas @ Vicky @ Ponga who inflicted knife blows and how the incident took place.
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30. In case Ramwati Devi V State of Bihar, AIR 1983 SC 164(1) it was observed that there is no requirement of law that dying declaration must necessarily be made to a magistrate. It was observed that what evidentiary value or weight has to be attached to such statement, must necessarily depend on the facts and circumstances of each particular case. In the instant case, the dying declaration was recorded without any delay after being the deceased was declared fit for statement. The deceased in dying declaration ExPW1/A has mentioned all the necessary facts leading to the transaction resulted into his death.
31. The prosecution has proved beyond reasonable doubt that the deceased has made dying declaration ExPW1/A to PW9 SI Parveen Kumar in presence of PW1 Ashok when he was brought to the hospital after being declared fit for statement by PW8 Dr. Sanjay Kaushik. The dying declaration ExPW1/A inspires full confidence about its truthfulness and correctness and can be safely acted upon. The dying declaration ExPW1/A can be sole basis of conviction due to following proved facts :
i) The deceased at the time of making the dying declaration ExPW1/A was in fit state of mind.
State V Vikas @ Vicky @ Ponga FIR no. 384/09 PS Sultanpuri Page No. 32 of 43
ii) The deceased clearly narrated all the relevant facts of the transaction leading to his death caused by the deceased.
iii) The dying declaration ExPW1/A is not result of any tutoring, imagination or being made with a motive to falsely implicate the accused.
iv) The dying declaration ExPW1/A was recorded without delay. There was no occasion time for PW9 SI Parveen Kumar to call Magistrate.
v) The deceased in dying declaration properly identified the accused Vikas @ Vicky @ Ponga as assailant.
vi) The dying declaration ExPW1/A is also corroborated and supported by the evidence of recovery of knife ExP12/1 at the instance of accused from the jhuggi of accused Jagiro and subsequent opinion given by PW14 Dr. Manoj Dhingra ExPW14/B that the knife ExP12/1 was the weapon of offence and used by the accused in inflicting stab injuries to the deceased.
Recovery of knife ExP12/1
32. The incident occurred on 5.12.2009. The accused Vikas @ Vicky @ Ponga ran away from the spot. The accused Vikas @ Vicky @ Ponga surrendered before the court on 7.12.2009. The accused was arrested by PW19 Inspector Mahesh Kumar vide arrest memo ExPW12/A. The State V Vikas @ Vicky @ Ponga FIR no. 384/09 PS Sultanpuri Page No. 33 of 43 disclosure statement ExPW12/B of the accused was recorded. The accused was remanded one day police custody by the Metropolitan Magistrate on application ExPW19/D. During investigation, the accused led the police party at the place of occurrence on 8.12.2009 where the PW15 Inspector Samarjeet Singh again recorded the disclosure statement ExPW15/A. Another disclosure statement ExPW15/B of the accused was also recorded on 9.12.2009 by PW15 Inspector Samarjeet Singh. In disclosure statement ExPW15/B, the accused disclosed that he had hide the weapon of offence i.e a knife ExP12/1 in the jhuggi of his aunt i.e accused Jagiro. The accused led the police party to the jhuggi bearing no. 8, Near Railway Phatak, Sanjay Gandhi Transport Nagar, Delhi under the occupation of accused Jagiro and from the said jhuggi, accused took out a knife ExP12/1 which was kept inside the box of a bed. PW15 Inspector Samarjeet Singh prepared the sketch of the knife ExPW12/B and seized the knife vide seizure memo ExPW12/E after converting it into a sealed pulunda sealed with the seal of SS.
33. The defence counsel argued that the recovery of the knife ExP12/1 is doubtful as there are contradictions in the deposition of State V Vikas @ Vicky @ Ponga FIR no. 384/09 PS Sultanpuri Page No. 34 of 43 witnesses of recovery and no public person was included in the investigation at the time of recovery of knife ExP12/1. The perusal of seizure memo ExPW12/E reflects that the knife ExPW12/1 was seized by PW15 Inspector Samarjeet Singh in the presence of PW12 Ct. Vijender. It is correct that no public person was included in the investigation at the time of recovery of knife ExP12/1 from the jhuggi of accused Jagiro. However PW15 Inspector Samarjeet Singh deposed that he asked many persons who were present at the spot including the residents of nearby jhuggies to join the investigation but none has agreed and left the place after seeing the police party. If the recovery is not effected in presence of public persons, it does not necessarily mean that the testimonies of police officials cannot be relied upon. PW15 Inspector Samarjeet Singh has made sincere efforts for including the public persons in the investigation at the time of recovery of knife ExP12/1 and despite his efforts no public person has agreed to join investigation. The prosecution has examined both witnesses of recovery i.e PW15 Inspector Samarjeet Singh and PW12 Ct. Vijender. Their respective testimonies are consistent, cogent and corroborating in material particulars. If there is any contradiction in the respective testimonies of PW15 Inspector Samarjeet Singh and State V Vikas @ Vicky @ Ponga FIR no. 384/09 PS Sultanpuri Page No. 35 of 43 PW12 Ct. Vijender, it is not fatal to the case of the prosecution. The knife ExP12/1 is also identified by PW15 Inspector Samarjeet Singh and PW12 Ct. Vijender as recovered at the instance of accused Vikas @ Vicky @ Ponga. The prosecution has proved the factum of recovery of knife ExP12/1 at the instance of accused Vikas @ Vicky @ Ponga from the jhuggi of accused Jagiro.
34. The prosecution to prove that the knife ExP12/1 was used as weapon of offence on 5.12.2009 by the accused in inflicting knife blows to the deceased examined PW14 Dr. Manoj Dhingra. PW14 Dr. Manoj Dhingra deposed that on 16.12.2010, the PW15 Inspector Samarjeet Singh produced one sealed pulunda which was found to be containing one knife. PW14 Dr. Manoj Dhingra examined the post mortem report ExPW17/A and the knife ExP12/1. PW14 Dr. Manoj Dhingra vide opinion ExPW14/B opined that the injuries no.1,2,3 and 4 mentioned in post mortem report ExPW17/A could be caused by the knife produced before him and examined by him. PW14 Dr. Manoj Dhingra also prepared the sketch of the knife ExPW14/A which tallied with the sketch ExPW12/D prepared by PW15 Inspector Samarjeet Singh immediately State V Vikas @ Vicky @ Ponga FIR no. 384/09 PS Sultanpuri Page No. 36 of 43 after the recovery and before its seizure vide seizure memo ExPW12/E. It proves that the knife which was recovered at the instance of accused from the jhuggi of accused Jagiro was produced before the PW14 Dr. Manoj Dhingra for expert opinion. The injuries on the person of deceased was inflicted by the knife is also corroborated by the post mortem report ExPW17/A. PW17 Dr. J.V. Kiran opined that the injuries no.1 and 3 were caused by single edged sharp stabbing weapon. The prosecution has proved beyond reasonable doubt that the knife ExP12/1 was the weapon of offence and was got recovered at the instance of accused Vikas @ Vicky @ Ponga from the jhuggi of accused Jagiro.
35. The prosecution to prove that the injuries inflicted by the accused Vikas @ Vicky @ Ponga to the deceased were sufficient to cause the death in ordinary course of nature has examined PW17 Dr. J.V. Kiran who conducted the post mortem on the dead body of the deceased. PW17 Dr. J.V. Kiran deposed that on 16.12.2009 he conducted the post mortem on the dead body of the deceased with alleged history of sustaining stab injuries on 5.12.2009 at about 9.30 pm. PW17 Dr. J.V. Kiran on external examination found four stab wounds on left shoulder, left arm, lower chest State V Vikas @ Vicky @ Ponga FIR no. 384/09 PS Sultanpuri Page No. 37 of 43 and left upper abdomen. PW17 Dr. J.V. Kiran on internal examination found a cut fracture of 9th rib underlying injury no.3. PW17 Dr. J.V. Kiran has opined the cause of death as hemorrhage and shock consequent to penetrating injuries to the chest via injuries 1 and 3 caused by single edge sharp stabbing weapon. PW17 Dr. J.V. Kiran further opined that injuries no.1 and 3 are sufficient to cause death in combination as well as independently in ordinary course of nature. PW17 Dr. J. V. Kiran opined all the injuries were ante mortem and fresh in duration. PW17 Dr. J.V.Kiran was cross examined by the defence counsel but there is nothing in the cross examination of PW17 Dr. J.V. Kiran which can dilute the credibility of post mortem report ExPW17/A. The prosecution proved that the injuries inflicted by the accuses were sufficient in ordinary course of nature to cause death of the deceased.
36. Another point which is arising out of the evidence although not argued by the defence counsel is whether the case is covered u/s 302 IPC or u/s 304 IPC. The accused Vikas @ Vicky @ Ponga did not pre plan to commit murder of the deceased. The deceased when at about 9.30 pm on 5.12.2009 was standing in the park at that time, the accused along with 34 State V Vikas @ Vicky @ Ponga FIR no. 384/09 PS Sultanpuri Page No. 38 of 43 boys was playing cards. When the deceased has objected the playing of the cards then the accused Vikas @ Vicky @ Ponga took out a sharp edged knife and inflicted injuries on the person of the deceased. Although death of the deceased had occurred without pre meditation and in a sudden fight but the accused Vikas @ Vicky @ Ponga has acted in a cruel and unusual manner. The accused Vikas @ Vicky @ Ponga has acted without any provocation caused by the deceased. The accused Vikas @ Vicky @ Ponga at that time was carrying a sharp edged knife ExP12/1 which was 36 cm in length. The accused has inflicted knife blows on the vital parts of the body of the deceased. The accused Vikas @ Vicky @ Ponga used deadly weapon i.e knife ExPW12/1 against unarmed person and inflicted multiple stab injuries to the deceased. As per the post mortem report ExPW17/A, the stab wounds were found on the chest and left upper abdomen. The stab wounds were deep and pierced through ribs. The cause of death was opined as hemorrhage and shock consequent to penetrating injuries to the chest via injuries no.1 and
3. The manner in which the injuries were inflicted by the accused Vikas @ Vicky @ Ponga, it cannot be said that the accused Vikas @ Vicky @ Ponga was not having any knowledge or intention to cause the death of the State V Vikas @ Vicky @ Ponga FIR no. 384/09 PS Sultanpuri Page No. 39 of 43 deceased. The case is covered u/s 302 IPC.
37. The accused Vikas @ Vicky @ Ponga is also charged for the offence u/s 201 IPC. Section 201 IPC deals with causing disappearance of evidence of offence, or giving false information to screen offender. It deals that whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false. To attract Section 201 IPC, the following ingredients must be fulfilled: i. committal of an offence;
ii. person charged with the offence u/s 201 must have the knowledge or reason to believe that the main offence has been committed;
iii. person charged with the offence u/s 201 IPC should have caused disappearance of evidence or should have given false information regarding the main offence; and iv. the act should have been done with the intention of screening the offender from legal punishment.
38. In the instant case, the accused Vikas @ Vicky @ Ponga after State V Vikas @ Vicky @ Ponga FIR no. 384/09 PS Sultanpuri Page No. 40 of 43 committing the offence ran away from the spot. The accused has hidden the weapon of offence i.e knife ExP12/1 in the jhuggi of accused Jagiro and which later on got recovered by the accused himself. As already held, the prosecution has proved the recovery of knife ExP12/1 beyond reasonable doubt. The accused after the commission of offence with knowledge has caused the disappearance of the evidence i.e knife ExP12/1 from the scene of crime. The prosecution has proved offence u/s 201 IPC against the accused.
39. The accused Vikas @ Vicky @ Ponga is also charged for the offence u/s 25/27 Arms Act, 1959. The weapon of offence i.e knife ExP12/1 was got recovered at the instance of accused Vikas @ Vicky @ Ponga from the jhuggi of accused Jagiro. The sketch of knife ExP12/1 was prepared and thereafter the knife ExP12/1 was seized vide seizure memo ExP12/E. The recovery memo ExPW12/E reflects that the length of knife was 36 cm and the knife ExP12/1a buttondar knife. The knife ExP12/1is also used in the commission of offence. The accused Vikas @ Vicky @ Ponga possessed the knife ExP12/1 in contravention of the Notification No.F/13/451/79Home (G) dated 29.10.1980 issued by State V Vikas @ Vicky @ Ponga FIR no. 384/09 PS Sultanpuri Page No. 41 of 43 Deputy Secretary, Home (G), Delhi Administration, Delhi. The prosecution has proved its case for the offence u/s 25/27 Arms Act.
40. The accused Jagiro has charged with the offence u/s 212 IPC.
Section 212 IPC deals with the harbouring offender. It provides that whenever an offence has been committed, whoever harbours or conceals a person whom he knows or has reason to believe to be the offender, with the intention of screening him from legal punishment. As per the prosecution, the accused has hidden the weapon of offence i.e knife ExP12/1 in the jhuggi of accused Jagiro who is also stated to be a parental aunt of the accused Vikas @ Vicky @ Ponga. The knife ExP12/1 was recovered from the jhuggi of accused Jagiro. However, mere recovery of knife ExP12/1 from the house of accused Jagiro does not mean that the accused Jagiro has harboured the accused Vikas @ Vicky @ Pong. There is no incriminating evidence against accused Jagiro except her disclosure statement ExPW15/D. It is not proved beyond reasonable doubt that the accused Jagiro has harboured the accused Vikas @ Vicky @ Ponga with intention of screening him from legal punishment. The offence u/s 212 IPC is not proved against the accused Jagiro.
State V Vikas @ Vicky @ Ponga FIR no. 384/09 PS Sultanpuri Page No. 42 of 43
41. The prosecution has proved beyond reasonable doubt that on 5.12.2009, the accused Vikas @ Vicky @ Ponga committed murder of the deceased by using knife ExP12/1 and thereafter concealed weapon of offence i.e knife ExP12/1 in the jhuggi of the accused Jagiro. The accused Vikas @ Vicky @ Ponga is convicted for offences u/s 302 IPC, u/s 201 IPC and u/s 25/27 Arms Act, 1959. The accused Jagiro is acquitted for offence u/s 212 IPC.
Announced in open court (Dr.Sudhir Kumar Jain) on 4.6.2011 ASJ01 (Outer) Rohini, Delhi. State V Vikas @ Vicky @ Ponga FIR no. 384/09 PS Sultanpuri Page No. 43 of 43
IN THE COURT OF DR. SUDHIR KUMAR JAIN : ADDITIONAL SESSIONS JUIDGE01 (OUTER), ROHINI, DELHI.
Sessions Case No: 18/10 FIR no: 384/09 Police Station : Sultanpuri U/s: 302/201/212/34 IPC & 25/27 Arms Act State Versus Vikas @ Vicky @ Ponga, S/o Amar Singh, R/o H.No. D2/295, Sultanpuri, Delhi. ... Convict ORDER ON SENTENCE Shri R.A. Yadav, APP for the State and Shri Y.S. Chaudhary, Advocate for convict heard on quantum of sentence.
2. The convict is stated to be aged about 20 years and was a student;
the convict has to shoulder the responsibility of his mother, brother State V Vikas @ Vicky @ Ponga FIR no. 384/09 PS Sultanpuri Page No. 44 of 43 and sister; the convict belongs to lower strata of the society; the antecedents of the convict are clear. The counsel for convict stated that he is not a previous convict and no other criminal case is pending against the convict. The convict as well as his counsel prayed for lenient view. The APP stated that the convict is not entitled for any leniency and prayed that sufficient punishment be awarded to the convict under given facts and circumstances.
3. The protection of society by stamping out criminal proclivity is essential function of state. It can be achieved by imposing appropriate sentence. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts for imposing appropriate sentence. Any definite formula relating to imposition of sentence cannot be laid down. The object of sentencing is that the offenders does not go unpunished and the justice be done to the victim of crime and the society. It is, therefore, the duty of every court to award proper sentence having State V Vikas @ Vicky @ Ponga FIR no. 384/09 PS Sultanpuri Page No. 45 of 43 regard to the nature of the offence and the manner in which it was executed or committed etc. The measure punishment in a given case must depend upon the gravity of the crime; the conduct of the offender and the defenceless and unprotected state of the victim. Imposition of appropriate punishment is the way adopted by the courts for responding the society's desire for justice against the criminals. Justice demands that courts should impose punishment fitting to the crime. The Courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of appropriate punishment.
4. It was held in the case of Siddarama & Ors. V State of Karnataka, (2007) 1 SCC (Cri) 72 : the object should be to protect the society and to deter the criminal in achieving the avowed object to law by imposing appropriate sentence. It is expected that the courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be.
Imposition of sentence without considering its effect State V Vikas @ Vicky @ Ponga FIR no. 384/09 PS Sultanpuri Page No. 46 of 43 on the social order in many cases may be in reality a futile exercise. The social impact of the crime e.g. where it relates to offences relating to narcotic drugs or psychotropic substances which have great impact not only on the health fabric but also on the social order and public interest, cannot be lost sight of and per se require exemplary treatment. Any liberal attitude by imposing meagre sentences or taking too sympathetic view merely on account of lapse of time or personal inconveniences in respect of such offences will be result wise counterproductive in the long run and against societal interest which needs to be cared for and strengthened by a string of deterrence inbuilt in the sentencing system.
5. In case State of Punjab V Prem Sagar and Ors. (2008) 7 SCC 550 it was observed that the Indian Judicial System has not been able to develop legal principles as regards sentencing. It was further observed that whether the court while awarding sentence would take recourse to the principle of deterrence or reform or invoke the doctrine of proportionality would depend upon the facts and circumstances of each case and while doing so nature of offence said to have been committed by the accused plays an important role. A wide discretion is conferred on the court but said discretion must State V Vikas @ Vicky @ Ponga FIR no. 384/09 PS Sultanpuri Page No. 47 of 43 exercise judicially while sentencing an accused. It would depend upon the circumstances in which the crime has been committed and the mental state and the age of the accused is also relevant.
6. Section 302 IPC prescribed death or life imprisonment as a penalty for murder. The Indian Penal Code has under gone multi dimensional changes for the last three decades which indicates that the Parliament has taken note of contemporary criminological thought and movement. The Indian Penal Code reflects a definite swing towards life imprisonment. Death sentence is ordinarily ruled out and can only be imposed for "special reasons", as provided in Section 354 (3) Cr.P.C. It indicates that reformation and rehabilitation of offenders and no deterrence, are now among the foremost objects of the administration of criminal justice in the country. Section 354(3) Cr.P.C. is a part of emerging picture of acceptance by the legislature of the new trends in criminology. The personality of a offender revealed by his age, character, antecedents and other circumstances and the tractability of the offender to reform must necessarily play the most prominent role in determining the sentence to be awarded. A State V Vikas @ Vicky @ Ponga FIR no. 384/09 PS Sultanpuri Page No. 48 of 43 Judge has to balance the personality of the offender with the circumstances, situations and the reactions and choose the appropriate sentence to be imposed. The former rule that the normal punishment for murder is death is no longer operative and it is now within the discretion of the court to pass either of the sentence prescribed in the Section 302 IPC.
7. In case Bachan Singh V State of Punjab, AIR 1980 SC 898 it was observed that a real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.
8. In case Machhi Singh V State of Punjab, AIR 1983 SC 957, the guidelines are laid down which are to be kept in view, considering the question whether the case belongs to the rarest of rare category. It was observed that the following questions may be asked and answered as a test to determine the 'rarest of the rare' case in which death sentence can be inflicted:--
State V Vikas @ Vicky @ Ponga FIR no. 384/09 PS Sultanpuri Page No. 49 of 43
a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?
b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?
9. In case Machhi Singh, the guidelines were culled out which are to be applied to the facts of each individual case where the question of imposition of death sentence arises. The following preposition emerges from the Bachan Singh's case: i. The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.
ii. Before opting for the death penalty the circumstances of the 'offender' also required to be taken into consideration along with the circumstances of the 'crime'.
iii.Life imprisonment is the rule and death sentence is an exception. Death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and State V Vikas @ Vicky @ Ponga FIR no. 384/09 PS Sultanpuri Page No. 50 of 43 provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.
iv.A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.
10. In case Bablu @ Mubarak Hussain V State of Rajasthan, AIR 2007 SC 697, the Supreme Court observed as under :-
In rarest of rare cases when collective conscience of the community is so shocked that it will expect the holders of the judicial power center to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty, death sentence can be awarded. The community may entertain such sentiment in the following circumstances:
i. When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community.
ii. When the murder is committed for a motive which State V Vikas @ Vicky @ Ponga FIR no. 384/09 PS Sultanpuri Page No. 51 of 43 evinces total depravity and meanness; e.g murder by hired assassin for money or reward or a cold blooded murder for gains of a person visavis whom the murderer is in a dominating position or in a position of trust, or murder is committed in the course for betrayal of the motherland. iii.When murder of a member of a Scheduled Caste or minority community etc., is committed not for personal reasons but in circumstances which arouse social wrath, or in cases of 'bride burning' or 'dowry deaths' or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.
iv.When the crime is enormous in proportion. For instance when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed. v. When the victim of murder is an innocent child, or helpless woman or old or infirm person or a person visavis whom the murder is in a dominating position or a public figure generally loved and respected by the community.
11. In the instant case, the convict inflicted injuries on the person of deceased and the injuries were ultimately proved to be the fatal. The State V Vikas @ Vicky @ Ponga FIR no. 384/09 PS Sultanpuri Page No. 52 of 43 convict without any provocation and while acting in cruel and unusual manner inflicted knife blows the deceased which proved to be fatal. The deceased was unarmed at that time while the accused was possessing knife ExP12/1. The deceased at the time of his death was a young boy and due to his untimely death, his family members have lost his love and affection. The deceased was belonging to a poor family and he has to shoulder the responsibility to maintain his entire family. The untimely death of deceased must have caused irreparable loss and injury to his family. The convict is also young and has to maintain his family. The antecedents of the convicts are clear and no any other criminal case is pending against all of them. The case does not fall within the category of rarest of rare cases.
12. After considering the facts and circumstances of the case together, the convict is sentenced to life imprisonment along with fine of Rs.4000/ in default SI for two months for the offence punishable u/s 302 IPC; RI for two years along with fine of Rs.1000/ in default SI for one month for offence u/s 201 IPC; and RI for three years along with fine of Rs.2000/ in default SI for one month for offence State V Vikas @ Vicky @ Ponga FIR no. 384/09 PS Sultanpuri Page No. 53 of 43 u/s 25/27 Arms Act, 1959. All the sentences shall run concurrently. The case property is confiscated to the State. Benefit of Section 428 IPC be given to the convict. Committal warrants be issued against the convict. Case property confiscated to the State. A copy of the judgment and order on sentence be supplied to the convict free of cost forthwith. The file be consigned to the record room.
Announced in open court (Dr.Sudhir Kumar Jain) on 4.6.2011 ASJ01 (Outer) Rohini, Delhi. State V Vikas @ Vicky @ Ponga FIR no. 384/09 PS Sultanpuri Page No. 54 of 43