Delhi District Court
State vs . Shahrukh @ Sheikh Salauddin on 23 November, 2009
1 S.C. No.: 16/09
IN THE COURT OF MS. MADHU JAIN, ADDITIONAL
SESSIONS JUDGE03,NORTH, DELHI.
FIR No.: 402/2008
P.S: Kashmiri Gate
U/s: 304 IPC
S.C. No.: 16/09
In the matter of:
State Vs. Shahrukh @ Sheikh Salauddin
S/o Late Sheikh Aslam
R/o Patri, GPO
Kashmiri Gate, Delhi
Date of receiving in Sessions Court: 02.04.2009
Arguments Heard: 11.11.2009,
23.11.2009
Date of Judgement: 23.11.2009
J U D G E M E N T
Case Of The Prosecution:
1. On 13.12.2008 on receipt of DD no. 5 A, P.S. 2 S.C. No.: 16/09 Kashmiri Gate, ASI Ramesh Kumar reached at Hindu Rao Hospital where the injured Atul was admitted in hospital vide MLC No. 10265/08 and was declared unfit for statement by the doctors and doctors had also opined "weapon sharp injury and smell of alcohol present". The DD was kept pending for further investigation and on 30.12.2008 injured was declared fit for statement. He gave his statement that he is a rag picker and belongs to Assam and lives at Patri, GPO, Kashmiri Gate. On the intervening night of 12.12.08/13.12.2008 at about 1.00 a.m. in the night, he was picking rags from behind the Gali GPO, Kashmiri Gate. Accused Shahrukh was also with him and he had a fight with him. In the anger, accused Shahrukh took out a glass piece from the dustbin and tried to attack him on his hand. He tried to save himself and removed his hand as a result of which 3 S.C. No.: 16/09 that glass piece hit him on his stomach instead of hand. He went to sleep near the GPO and at about 6.00 a.m. in the morning, he felt some pain in his stomach. He was going to Police Station to report when in the way, he met a Home Guard who got him admitted in Hindu Rao Hospital . On his statement, the FIR was registered and ASI himself undertook the investigation. During investigation, he prepared the site plan and from the draft man also, the site plan was got prepared. IO tried to search the accused Shahrukh and subsequently arrested him on 4.1.2009. His Disclosure statement was recorded. Accused Shahrukh also pointed out to the place of incident. The injured died in the meanwhile and thereafter his postmortem report was obtained by the IO. After completion of investigation, challan U/s 304 IPC was filed against the accused.4 S.C. No.: 16/09
2. Since the offence U/s 304 IPC is exclusively triable by the court of sessions, therefore, after supply of the documents, the Ld. MM committed the case to the court of Sessions.
Charge Against The Accused:
3. Prima facie case under section 304 IPC was made out against the accused. Charge was framed against him to which he pleaded not guilty and claimed trial. Witnesses Examined:
4. In support of its case, prosecution has examined 14 witnesses in all.
5. PW1 is Head Constable Sumer Singh who registered the DD no. 5 A regarding admission of the injured in hospital and also made departure entry of ASI Ramesh Kumar. He proved the copy of DD no. 5A as Ex. PW1/A. 5 S.C. No.: 16/09
6. PW2 is Devender Pal who stated that during the intervening night of 12.12.2008 and 13.12.2008, after finishing his duty, when he reached near G.P.O. Kashmiri Gate, a person was lying in injured condition who disclosed his name as Atul and he took him to Hindu Rao Hospital and the IO of the case had also recorded his statement in this regard.
7. PW3 is Ismail @ Shankar who stated that he know the accused present in the court as well as the deceased Atul as they all are vagabond of the area of Jamuna Bazar and used to sleep during night on the patri. He, the deceased and the accused were smack addict. He further stated that he does not remember the exact date but it was extreme winter and during night time, a quarrel had taken place between the accused and the deceased Atul on account of Smack consuming. During quarrel, the accused took out a broken 6 S.C. No.: 16/09 piece of glass and hit on the abdomen of Atul. On the next morning, the accused met him and told him the abovesaid facts. Thereafter he went away somewhere and hid himself. The police met him and he disclosed these facts to the police and the police had recorded his statement in this regard. After two or three days from that day, police again came to him and joined him in the investigation of the case. During investigation they were searching the accused in the area of Jamuna Bazar and when they reached in the Kunj Park, Hanuman Mandir, the accused was found sitting in the park. The police apprehended the accused on his pointing out and arrested him in this case. He further stated that the arrest memo Ex. PW3/A, personal search memo Ex. PW3/B and disclosure statement of accused Ex. PW3/C bears his thumb impression.
7 S.C. No.: 16/09
8. PW4 is Head Constable Mahavir Singh who was working as duty officer at P.S. Kashmiri Gate on 30.12.2008 and had registered the FIR Ex. PW4/A.
9. PW5 is Dr. Ajay Bansal who examined the injured Atul and proved the MLC as Ex. PW5/A.
10. PW6 is Dr. M.K. Panigrahi who conducted postmortem on the dead body of deceased Atul and proved the report as Ex. PW6/A.
11. PW7 is Head constable Champat who handed over the rukka and FIR to the IO and joined the IO in investigation of the case. He alongwith the IO arrested the accused, recorded his disclosure statement and prepared the memos.
12. PW 8 is Dr. Naseem Akhtar who prepared the death summary of deceased Atul and proved the same as Ex. PW8/A. 8 S.C. No.: 16/09
13. PW9 is Ct. Narender Kumar who took the sealed parcels alongwith the sample seal to IO of the case and also proved the seizure memo as Ex. PW9/A.
14. PW10 is Constable Ranbir who was posted as duty constable at Hindu Rao Hospital. He gave the information of admission of injured in the hospital to the Police Station .
15. PW11 is Head Constable Rajpal who was working as MHC (Case Property) in P.S. Kashmiri Gate and recorded the fact of deposition of sealed envelope in the malkhana register vide entry Ex. PW11/A.
16. PW12 is ASI Ramesh Kumar who is the IO of the case. He recorded the statement of deceased as well as the statement of other witnesses, prepared the inquest report and other memos etc.
17. PW13 is SI Mahesh Kumar, Draftman from Crime 9 S.C. No.: 16/09 Branch who prepared the scaled site plan Ex. PW13/A.
18. PW14 is Constable Krishan Kumar who was posted as duty constable at Hindu Rao Hospital during the intervening night of 1.1.2009 and 2.1.2009. He received the information of death of deceased Atul from hospital and gave the information to duty officer of P.S. Kashmiri Gate.
19. Statement of accused U/s 313 Cr.P.C. was recorded wherein accused stated that he used to take smack and he himself told the police officials that he wants to leave this habit and had also asked them to put him behind the bar. First they did not take him but after sometime, police officials came and told him that they will put him behind bars for de addiction. He stated that he does not know anything else and the case is false case. He further chose not to lead any evidence in defence.
10 S.C. No.: 16/09
20. I have heard the Ld. APP for the state as well as Ld. Amicus Curiae for the accused and have carefully perused the record.
21. Ld. Amicus Curiae for accused emphasized that the entire case rests upon the circumstantial evidence alone, and therefore, case of the prosecution has to be subjected to the tests as laid down in Padala Veera Reddy Vs. State of A.P. & Ors. MANU/SC/0018/1990: AIR 1990 SC 79 wherein the Apex Court held that such evidence must satisfy the following tests:
1. the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
2. those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
3. those circumstances, taken cumulatively, should form a 11 S.C. No.: 16/09 chain to complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and
4. the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
22. Ld. Counsel for accused further argued that the chain is not complete in the present case and by no strength of imagination, it can be concluded that no other hypothesis is possible than the guilt of the accused. On the other hand, Ld. APP for the state argued that the injured while being taken to the hospital took the name of accused Shahrukh and subsequently in his statement given to the IO which can only 12 S.C. No.: 16/09 be termed as dying declaration i.e. the statement before his death also, he took the name of accused Shahrukh. He further argued that there is a statement made by the accused to one Ismail @ Shankar which can only be termed as extra judicial confession and, therefore, the case of prosecution has been proved beyond reasonable doubt.
23. The case of the prosecution is based on circumstantial evidence requiring chain to be completed. The fact that the deceased has died is not in dispute. The cause of death was due to the injuries caused to him in his stomach.
24. The first circumstance as elicited by the prosecution is the statement of deceased given to one Home Guard who took him to the hospital. PW2 Devender Pal was posted as Constable in Delhi Home Guard on the intervening night of 12.12.2008 and 13.12.2008 and was on duty in Kila Ghat, 13 S.C. No.: 16/09 Behind GPO, P.S. Kashmiri Gate. PW2 has deposed that after finishing his duty at 6.00 a.m., when he reached near GPO, Kashmiri Gate, a person was lying in injured condition. Injured disclosed his name as Atul and told him that during the previous night, a quarrel had taken place between him and one boy named Shahrukh and Shahrukh had hit some glass type object on his abdomen. He took the injured to Hindu Rao Hospital. No doubt, the statement of this witness was recorded much after the date of incident i.e. on 30.12.2008 and the date of statement of PW2 Devender Pal also shows that his statement was recorded on 30.12.2008 but the delay in recording the statement of this witness has been duly explained by the IO who has been examined by the prosecution as PW12. He has stated that when he went to Hindu Rao Hospital alongwith Constable after receipt of DD 14 S.C. No.: 16/09 No. 5, the injured was declared unfit for making statement by the doctors and since no other eye witness was available in the hospital, he kept the DD pending for further investigation. He further stated that he again and again went to the hospital but injured was always found unfit for making statement. Subsequently on 30.12.2008, the injured was declared fit for making statement and it seems that after the injured gave his statement on 30.12.2008, thereafter only the injured stated that he met a Home Guard Ct. Devender Pal in the way who brought him to the hospital and, thereafter only the IO recorded the statement of this Home Guard Constable Devender Pal. No suggestion has been given to PW2 that he used to know the injured Atul or the accused Shahrukh previously. And there is no reason to believe that this witness was known either to the injured or to the accused, that is why 15 S.C. No.: 16/09 he would give a false statement against the accused at the instance of injured Atul. No doubt in the statement of PW2 recorded by the IO, he had not stated that accused Shahrukh had hit the injured Atul with glass type object but it is clearly mentioned in the statement of PW2 given to the IO that injured had a quarrel with the accused Shahrukh on the previous night. Even in the MLC prepared by the doctor, when the injured was first admitted in the hospital after incident, the name of Constable Devender Pal of Home Guard has been duly mentioned, which shows the fact that the injured was brought to the hospital by Home Guard Constable Devender Pal who has been examined as PW2 and therefore there is no reason to disbelieve the testimony of PW2.
25. PW2 has clearly stated that he was told by the 16 S.C. No.: 16/09 injured that he had a quarrel with accused Shahrukh. As per the MLC Ex.PW5/A, when the injured was first admitted in the hospital, he was semi conscious. It is not mentioned in the MLC that the injured was unconscious and, therefore while being taken to the hospital, the injured must have disclosed these facts to the Home Guard as he was not unconscious while being taken to the hospital and when he reached to the hospital, at the time of examination also he was semi conscious and not unconscious as per the MLC Ex. PW5/A.
26. The next circumstance as relied upon by the prosecution is the statement of deceased given to the IO on 30.12.2008 after the deceased was declared fit for making statement by the doctors. PW12 has stated that on 30.12.208 injured was declared fit for making statement,and thereafter he recorded the statement of injured Ex.PW12/A on which the 17 S.C. No.: 16/09 injured had signed at point A. He attested his statement and signature and made his endorsement Ex.PW12/B and produced the rukka before the duty officer who registered the FIR No.402/2008 on computer. He went to the place of occurrence as disclosed by the injured and as per his statement, he prepared the rough site plan. He also started search of accused Shahrukh and during search he met one public person Shankar @ Ismail who told him that he know accused Shahrukh who is wanted in this case. Shankar @ Ismail was joined in the investigation of this case but on that day, the accused could not be traced out. On 2.1.2009, he received a call from duty constable of Hindu Rao Hospital wherein he was informed that the injured of the case has expired. MLC Ex.PW5/A has been duly proved by Dr. Ajay Bansal who had examined the injured. He stated that the 18 S.C. No.: 16/09 patient was brought by constable Devender Pal with the alleged history of assault and the injured was semi conscious and less oriented. Smell of alcohol was present and on examination there was stab wound present in abdominal wall and intestine was protruding from the same. He referred the injured to EMO (Surgery) and medicine vide the MLC Ex.PW5/A.
27. Perusal of the record shows that the injured was declared fit for making statement vide endorsement dated 30.12.2008. After he was declared fit for making statement, IO recorded the statement of injured/deceased and in his statement the deceased had stated that on the intervening night of 12.12.2008 and 13.12.2008 at about 1.00 a.m. in the night, he had a quarrel with accused Shahrukh who is smack addict and in the anger, Shahrukh took out a glass piece from 19 S.C. No.: 16/09 the dustbin and wanted to hit on his hand but he removed his hand and due to this, the glass piece hit him on his stomach instead of hand and thereafter accused Shahrukh ran away from the spot and he lied down in front of GPO. At about 6.00 a.m. in the morning, he felt some pain and he was going to the police station when in the way he met one Home Guard who took him to Hindu Rao Hospital. He has clearly stated that accused Shahrukh had hit him and he can identify him. There is no reason to disbelieve the statement of deceased given to the IO on 30.12.2008. Though in the MLC the time at which the injured was declared fit for making statement has not been mentioned but there is clear cut endorsement that injured was declared fit for making statement and thereafter only the IO recorded his statement. In his cross, IO has stated that on 30.12.2008, he himself went to the hospital to see the 20 S.C. No.: 16/09 injured at about 3 or 3.30 p.m. He contacted the concerned doctor who had declared the injured fit for making statement and he did not move any application before the concerned doctor. He has also admitted that the concerned doctor had not mentioned the time at point X in the MLC wherein he had declared the injured fit for making statement. The injured was declared fit for making statement by the doctor and it was thereafter only that the IO had recorded the statement of the injured. IO has admitted that when he recorded the statement of injured Atul, there were other patients also in the ward and doctors and staff were not available besides the bed of the injured. He has stated that he did not make any other patient as witness as they all were injured persons and were the sufferers and no other public person was available in the ward. IO denied the suggestion that injured did not make any 21 S.C. No.: 16/09 statement before him or that he manipulated the same.
28. The doctors had declared the injured fit for making statement and, thereafter IO recorded his statement. Injured has clearly taken the name of accused Shahrukh. There is no reason to disbelieve the testimony of IO i.e. PW12 in this regard. He has been cross examined at length on this point and he has clearly stated that except for him no other doctor and staff were available besides the bed of the injured at the time of recording his statement and there were patients on the other bed also. He did not try to make them witness as they were injured persons and were the sufferers. Injured in this case died three days after the incident i.e. on 2.1.2009. The injured was duly declared fit for making statement and from his MLC or from the postmortem report or the death summary, it does not seem that the injuries at that time 22 S.C. No.: 16/09 appeared so fatal that the injured would succumb to those injuries. The statement of injured Ex. PW12/A inspires confidence as he has clearly stated that the accused Shahrukh tried to hit him on his hand but since he removed his hand, therefore, the glass piece struck him on his stomach instead of his hand and thereafter accused ran away from the spot and he can very well identify him. Thus there is no reason to disbelieve the same. From this statement, it is clear that injured did not tell any lie to the IO about the manner in which he was attacked by the accused. Rather he has clearly stated that accused tried to hit him on hand but as he removed his hand, glass piece struck his stomach.
29. The other circumstantial evidence put forth by the prosecution is the extra judicial confession made by the accused to one Ismail @ Shankar.
23 S.C. No.: 16/09
In Asra Bano Vs. State MANU/DE/1296/2009, Hon'ble High Court of Delhi held that "Reliance by Ld. Defence Counsel on the proposition as enunciated by the Supreme Court in Kishore Chand Vs. State of Himachal Pradesh 1991 SCC (Cri) 172 is not in dispute. There is no doubt that an extra judicial confession must satisfy the requirements of section 24 to 26 of the Evidence Act and it has to be construed strictly. Such a piece of evidence must be voluntary and has to be proved like any other fact. However, the mere fact that the appellant had chosen to make this extra judicial confession in presence of a person not specially known to her would not discredit this version".
It has been further held that " In the instant case this piece of evidence i.e. the extra judicial confession has to be tested upon the veracity of the witness to whom it is made, the time and place of making it, the circumstances in which it came to be made and the actual words used by the appellant. In our view, there appears to be no improper or colateral consideration on the part of PW17 to make his version suspect; his testimony in fact inspires confidence. This statement is also not hit by the bar of section 25 and 26 of 24 S.C. No.: 16/09 Evidence Act; it is a confession made to an independent public person and not while the appellant was in the custody of a police officer".
In State of A.P. Vs. E. Satyanarayana MANU/SC/0743/2009, Hon'ble Supreme Court of India held that " In Rao Shiv Bahadur Singh Vs. State of Vindhya Pradesh MANU/SC/0053/1954: 1954CrilJ910 and Maghar Singh Vs.State of Punjab MANU/SC/0152/1975 : AIR 1975 SC 1320, this court held that the evidence in the form of extra judicial confession made by the accused to witnesses cannot be always termed to be a tainted evidence. Corroboration of such evidence is required only by way of abundant caution. If the court believes the witness before whom the confession is made and is satisfied that the confession was true and voluntarily made, then conviction can be found on such evidence alone. In Narayan Singh Vs. State of M.P. MANU/SC/0086/1985 : 1985CRilJ1862 this court cautioned that it is not open to the court trying the criminal case to start with a presumption that extra judicial confession is always a weak type of evidence. It would depend on the nature of the circumstances, 25 S.C. No.: 16/09 the time when the confession is made and the credibility of the witnesses who speak for such a confession. The retraction of extra judicial confession which is a usual phenomenon in criminal cases would by itself not weaken the case of prosecution based upon such a confession. In Kishore Chand Vs. State of H.P. MANU/SC/0374/1990 :
1990CriLJ2289 this court held that an unambiguous extra judicial confession possesses high probative value force as it emanates from the person who committed the crime and is admissible in evidence provided it is free from suspicion and suggestion of any falsity. However, before relying on the alleged confession, the court has to be satisfied that it is voluntary and is not the result of inductment, threat or promise envisaged under section 24 of the Evidence Act or was brought about in suspicious circumstances to circumvent sections 25 and 26. The court is required to look into the surrounding circumstances to find out as to whether such confession is not inspired by any improper or collateral consideration or circumvention of law suggesting that it may not be true. All relevant circumstances such as the person to whom the confession is made, the time and place of making it, the circumstances in which it was 26 S.C. No.: 16/09 made have to be scrutinized. To the same effect is the judgment in Baldev Rai Vs. State of Haryana MANU/SC/0010/1991 : 1990 CriLJ2643. After referring to the judgment in Piara Singh Vs. State of Punjab MANU/SC/0119/1977 : 1977CriLJ1941, this court in Madan Gopal Kakkad Vs. Naval Dubey MANU/SC/0509/1992 : (1992) 2SCR921 held that the extra judicial confession which is not obtained by coercion, promise of favour or false hope and is plenary in character and voluntary in nature can be made the basis of conviction even without corroboration".
In Velayuda Pulavar Vs. State by Sub Inspector of Police MANU/SC/0711/2009 Hon'ble Supreme Court of India held that "In the instant case, the extra judicial confession was made before the Village Administrative Officer who is not a stranger to the first accused and he knew him for quite sometime. The evidence on record clearly establishes that Ex.P1 was recorded by the Village Administrative Officer PW1 in the Panchayat Office in the presence of many persons. The evidence of PW3 also corroborates the version of PW1 that the present appellant made extra judicial 27 S.C. No.: 16/09 confession (Ex.P1) in the Pachayat Office and he is one of the attestors to Ex.P1. So far as plea relating to corroboration is concerned, if the court looks for such corroboration of a judicial confession or an extra judicial confession, same need not be in material particulars. It can be and will have to be only corroboration in general. Each and every piece of information mentioned in the extra judicial confession need not be corroborated by independent evidence. It is well settled that conviction can be recorded solely on the basis of extra judicial confession if it is found to be credible and worthy of acceptance. PW1's evidence coupled with that of PW3 makes the position clear that there was a voluntary extra judicial confession made by the appellant before the Village Administrative Officer (PW1)".
In Shiva Karam Payaswami Tewari Vs. State of Maharashtra MANU/SC/0059/2009 Hon'ble Supreme Court of India held that "Criminal - Conviction - Sentence - Extra judicial confession - Appeal against -
Sections 302, 321 and 201 of the Indian Penal code, 1860 - Accused convicted by trial court on basis of extra judicial confession made before PW1 - High Court dismissed the 28 S.C. No.: 16/09 appeal - Hence present appeal - Held, not necessary that witness should speak the exact words but there cannot be vital and material difference - court to satisfy that extra judicial confession was voluntary and without any coercion and undue influence - Extra judicial confession can form the basis of conviction if persons before whom it is stated to be made appear to be unbiased and not even remotely inimical to the accused - if court believes witnesses before whom confession is made and is satisfied that confession was voluntary basing on such evidence, conviction can be founded - Confession should be clear, specific and unambiguous - Confession not defined in Evidence Act - Confession is a statement made by accused admitting the offence or facts which constitute the offence - statement includes both oral and written statement - Communication is not a necessary ingredient to constitute confession - Admissions and confessions are exceptions to hearsay rule - Extra judicial confession was not made to a stranger but to a friend - Trial Court and the High Court rightly acted upon the extra judicial confession - Background in which assault was made shows section 302 IPC has no application - Assault made in course of sudden quarrel without premeditation - 29 S.C. No.: 16/09 Accused not armed at relevant point of time - Conviction altered to section 304 part II IPC - Appeal partly allowed".
It has been further held that "We shall first deal with the question regarding claim of extra judicial confession. Though it is not necessary that the witness should speak the exact words but there cannot be vital and material difference. While dealing with a stand of extra judicial confession, court has to satisfy itself that the same was voluntary and without any coercion and undue influence. Extra judicial confession can form the basis of conviction if persons before whom it is stated to be made appear to be unbiased and not even remotely inimical to the accused. Where there is material to show animosity, court has to proceed cautiously and find out whether confession just like any other evidence depends on veracity of witness to whom it is made. It is not invariable that the court should not accept such evidence if actual words as claimed to have been spoken are not reproduced and the substance is given. It will depend on circumstance of the case. If substance itself is sufficient to prove culpability and there is no ambiguity about import of the statement made by accused, evidence can be 30 S.C. No.: 16/09 acted upon even though substance and not actual words have been stated. Human mind is not a tape recorder which records what has been spoken word by word. The witness should be able to say as nearly as possible actual words spoken by the accused. That would rule out possibility of erroneous interpretation of any ambiguous statement . If word by word repetition of statement of the case is insisted upon, more often than not evidentiary value of extra judicial confession has to be thrown out as unreliable and not useful. That cannot be a requirement in law. There can be some persons who have a good memory and may be able to repost exact words and there may be many who are possessed of normal memory and do so. It is for the court to judge credibility of the witness's capacity and thereafter to decide whether his or her evidence has to be accepted or not. If court believes witnesses before whom confession is made and is satisfied that confession was voluntary basing on such evidence, conviction can be founded. Such confession should be clear, specific and unambiguous".
It has been further held that "The expression' confession' is not defined in the Evidence Act, 'Confession' is a statement 31 S.C. No.: 16/09 made by an accused which must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. The dictionary meaning of the word 'statement ' is "act of stating; that which is stated; a formal account, declaration of facts etc.". The word 'statement' includes both oral and written statement. Communication to another is not however an essential component to constitute a 'statement'. An accused might have been overheard uttering to himself or saying to his wife or any other person in confidence. He might have also uttered something in soliloquy. He might also keep a note in writing. All the aforesaid nevertheless constitute a statement. If such statement is an admission of guilt, it would amount to a confession whether it is communicated to another or not. This very question came up for consideration before this court in Sahoo Vs. State of Uttar Pradesh MANU/SC/0071/1965 : 1966CriLJ68. After referring to some passages written by well known authors on the "Law of evidence"
Subba Rao, J. (as he then was) held that "communication is not a necessary ingredient to constitute confession". In paragraph 5 of the judgment , this court held as follows:
....Admissions and confessions are exceptions 32 S.C. No.: 16/09 to the hearsay rule. The evidence act places them in the category of relevant evidence presumably on the ground that as they are declarations against the interest of the person making them, they are probably true. The probative value of an admission or a confession goes not to depend upon its communication to another, though, just like any other piece of evidence, it can be admitted in evidence only on proof. This proof in the case of oral admission or confession can be offered only by witnesses who heard the admission or confession. As the case may be........if, as we have said, statement is the genus and confession is only a subspecies of that genus, we do not see any reason why the statement implied in the confession should be given a different meaning. We, therefore, hold that a statement, whether communicated or not, admitting guilt is a confession of guilt".
30. In the present case PW3 Ismail @ Shankar is also a vagabond of the area where the accused and the deceased used to roam. He has stated that he know the accused as well as the deceased as they all are vagabond of the area of 33 S.C. No.: 16/09 Jamuna Bazar. They all are smack addict and he does not remember the exact date but it was extreme winter and during night time, a quarrel had taken place between the accused and the deceased Atul on account of Smack consuming. The quarrel took place behind GPO, near Kura Khatta. During quarrel, the accused took out a broken piece of glass and hit on the abdomen of Atul. On the next morning, the accused met him and told him the abovesaid facts. When police met him, he disclosed these facts to the police and the police had recorded his statement in this regard. After two or three days from that day, police again came to him and joined him in the investigation of the case and on his pointing out the accused Shahrukh was arrested. In his cross, this witness has stated that police officials met him after about 15 days/one month from the date of incident 34 S.C. No.: 16/09 and they had recorded his statement thereafter. Admittedly the incident took place on the intervening night of 12.12.08 and 13.12.2008 and the statement of this witness had been recorded by the IO on 30.12.2008. PW3 in his cross has admitted very fairly that the incident did not take place before him and it was only accused Shahrukh who told him about the incident. He further stated that he did not inform the police. PW3 himself has stated that he is the vagabond of the area and also smack addict. If he did not inform the police about the incident then for this no adverse presumption can be raised seeing the background/living conditions of the accused , deceased as well as of the witness PW3 Ismail @ Shankar. He stated that he know the beat officer of the area as he is a rag picker but he denied the suggestion that he is the informer of the police and a frequent visitor to the police 35 S.C. No.: 16/09 station being the informer of the police. He also denied the suggestion that accused did not disclose about the incident to him. He further stated that accused had disclosed this incident to 2/3 other people also. There is no reason to disbelieve the testimony of PW3. Even a suggestion has been given to the IO that PW3 Ismail is the informer of the police but IO also denied the suggestion. PW3 himself has denied the suggestion that he is the informer of police and keeps visiting the police station being their informer. No doubt there is no public witness joined by the IO during the arrest of accused but IO himself has explained in his cross that he did not ask any of the vagabond who were sitting in the park to join the proceedings of arrest of accused as they are generally smack addict who roam in the park. However he had asked them if they know the accused on which they 36 S.C. No.: 16/09 confirmed that he is Shahrukh @ Salauddin. Thus from the testimony of IO also, it is clear that PW3 Ismail @ Shankar is not an implanted witness in this case being the informer of police. Testimony of PW3 is natural and inspires confidence. He has very fairly stated in the court that he is smack addict and the incident did not take place before him. He has admitted that when accused Shahrukh told him about the incident, he did not inform the police and when deceased Atul was attacked by the accused, thereafter on next morning accused told these facts to him and after that accused went somewhere. The testimony of PW3 is nothing but extra judicial confession made by the accused Shahrukh and PW3 can only be termed as the acquaintance or the friend of accused and, therefore confession made by the accused to him cannot be disbelieved.
37 S.C. No.: 16/09
31. In a case titled as Baljeet Kumar Vs. State MANU/DE/1654/2009 even the utterances made by the accused while running which was heard by PW6 were held to be nothing but extra judicial confession by the Hon'ble High Court of Delhi. Thus, prosecution has been able to prove that the death of deceased was caused by none else than the accused Shahrukh.
In a case titled as Baljeet Kumar Vs. State MANU/DE/1654/2009, it has been further held that "Law presumes that a man intends the consequences of his acts. At a murder trial, the problem relatable to intention and the linkage with the act is that sometimes it becomes difficult to find out the real intention which may be to simply injure the victim or it maybe to cause a grievous injury to the victim or to cause the death of the victim.
Commonsense guides us that the nature of assault, the attendant circumstances, the nature of the weapon of offence used and he ferocity of the attack would guide to determine the intention of the offender. Contemporaneous utterances of 38 S.C. No.: 16/09 the offender would also be relevant".
In Ved Prakash @ Vedu Vs. State MANU/DE/2839/2009, the Hon'ble High Court of Delhi held that "The injury which caused the death was in a chance meeting between the appellant and the deceased in the Mandirwali Gali. Since the dagger has been used to inflict the injury, which as per opinion of Dr .L.T. Ramani PW7 was sufficient to cause injury, but in the given factual matrix of the case neither the intention to cause death nor the knowledge that such injury was likely to cause death of the deceased, could be attributed to the appellant. It is a single injury caused in the heat of moment in a public place covered by the Fourth exception to section 300 IPC and thus we are of the considered view that the same is covered under section 304 Part II IPC and not section 302 IPC. We are fortified in our conclusion, in view of the pronouncement of Supreme Court in Ravindra Shalik Naik and Ors. Vs. State of Maharashtra MANU/SC/0153/2009: 2009 (2) Scale 354.
32. Now coming to the case in hand. In the present case, the deceased has clearly stated in his statement given 39 S.C. No.: 16/09 to the IO which can only be termed as dying declaration that accused wanted to hit him on his hand but he suddenly removed his hand and the glass piece hit him on his stomach instead of his hand. From the MLC Ex. PW5/A also, it is clear that there was only one stab wound present in abdominal wall and it is not that the accused had given repeated stabbing to the injured but the stab wound was so deep that the intestine can be seen protruding from the same. Death summary of accused has been duly proved by PW8 Dr. Naseem Akhtar who clearly reported that stab wound over the abdomen with bowel loop protruding. The postmortem report has been duly proved by PW6 Dr. M.K. Panigrahi who had found external injuries on the dead body and he also opined that death was due to shock consequent to intestinal perforation with perforation peritonitis and time since death at the time of 40 S.C. No.: 16/09 postmortem examination is about 13 days 11 hours and 32 minutes . In his cross, this witness denied that the injured died due to improper medical treatment. The cause of death has been duly mentioned as "shock consequent to intestinal perforation with perforation peritonitis" and it has been clearly mentioned in the MLC Ex.PW5/A that when patient was brought, stab wound was present in the abdominal wall and intestine can be seen protruding from the same. Thus, shock consequent to intestinal perforation caused the death of deceased.
33. No doubt the accused had due knowledge of his act since he hit the injured with a glass piece and therefore must be aware that glass piece is dangerous object but from the statement of injured himself, it is clear that accused wanted to hit on the hand of injured but the injured suddenly removed 41 S.C. No.: 16/09 his hand and the glass piece hit him on his stomach. It is not that the accused gave repeated stab to the injured with the glass piece. He only hit him once and therefore no intention can be attributed to the accused that he wanted to kill the deceased. Thus, intention of accused to cause the death of injured is missing and has not been proved by the prosecution.
34. In view of the abovesaid discussion and authoritative pronouncement also, accused Shahrukh is held guilty for the offence U/s 304 Part II of IPC and convicted accordingly.
(MADHU JAIN) ADDL.SESSIONS JUDGE03 (NORTH) DELHI Announced in the open court today i.e. 23.11.2009 42 S.C. No.: 16/09