State vs Dheeraj Kumar on 18 January, 2019

[Cites 19, Cited by 0]

Delhi District Court

State vs Dheeraj Kumar on 18 January, 2019

State Vs Dheeraj Kumar

FIR No.545/2017 PS Hari Nagar U/s 302 IPC

IN THE COURT OF SHRI SAURABH PARTAP SINGH LALER
ADDITIONAL SESSIONS JUDGE (PILOT COURT)
WEST DISTRICT : TIS HAZARI COURTS : DELHI

SC No. 176/2018
FIR No. 545/2017
U/s. 302 IPC

P.S Hari Nagar

in the matter of :

State

VERSUS
DHEERAJ KUMAR

S/o Late Balbir Singh
Rio Jhuggi No. 311
Pilli Kothi MS Block
Hari Nagar, Delhi.

Date of Institution 26.03.2018
Date of reserving Judgment : 24.12.2018
Date of pronouncement 18.01.2019

Appearances

For the State

For the accused

Mr. Santosh Kumar
Additional Public Prosecutor

Sh. Rishabh Jain,
Advocate

Sessions Case No. 176/2018

Page 1/52



State Vs Dheeraj Kumar FIR No.545/2017 PS Hari Nagar U/s 302 IPC

JUDGMENT

Accused namely, Dheeraj Kumar aged about 27 years son of Late Balbir Singh, was sent up for trial for murder of Gurpreet Singh @ Guppu son of Late Sh. Man Mohan Singh on report under Section 173 of the Code of Criminal Procedure, 1973, (Cr.P.C) submitted on 13.03.2018 upon conclusion of investigation into First Information Report (FIR) No.545/2017 of Police Station Hari Nagar for offence punishable under Section 302 of the Indian Penal Code, 1860 (IPC).

2.1.

Prosecution Version As per the prosecution story, on receipt of DD No. 27PP from Police Post Hari Nagar regarding pouring of acid on one boy at House No. A-71, Pilli Kothi, Hari Nagar, Delhi, HC Anil along with Ct. Parmod reached at the spot where they came to know that the injured was taken to Deen Dayal Upadhyay Hospital by the PCR van. The said officials reached at Deen Dayal Upadhyay Hospital and collected MLC No. 013008/2017 of Gurpreet, wherein the doctor had reported history of 'superficial deep burn over body 03 days back found road side and injuries mark as superficial to deep burn over right thigh fore arm, lower abdomen and other part'. Vide DD No.22PP dated 14.12.2018 information from Safdarjung Hospital received that injured Gurpreet son of Man Mohan Singh was referred to this hospital from Deen Dayal Hospital vide MRD No.74634/2017. Thus, HC Anil along with Sub-

Sessions Case No. 176/2018 Page 2/52

State Vs Dheeraj Kumar FIR No.545/2017 PS Hari Nagar U/s 302 IPC Inspector Manohar Lal I/C Police Post Hari Nagar reached at Safdarjung Hospital, where doctor declared the injured fit for statement and upon statement of injured Gurpreet @ Guppa son of Manmohan Singh @ Gajju, Head Constable Anil prepared rukka and came to Police Station Hari Nagar and handed over the same to Duty Officer at 01:15 AM for registration of FIR under section 326-B IPC, which was registered at the police station vide FIR No. 545/2017. The investigation of FIR bearing No.545/2017 was thereafter handed over to ASI Kailash. During investigation, ASI Kailash got the spot photographed through Crime Team and received report of Crime Team. On 15.12.2017 accused Dheeraj son of Balbir Singh R/o Jhuggi No.311, Pilli Kothi, MS Block, Hari Nagar was arrested after inquiry. Accused in his disclosure statement disclosed that he had addiction of smack and he knew Gurpreet Singh resident of A-71, Hari Nagar since birth as he was his friend.

Accused stated that Gurpreet Singh came back to Delhi from Punjab 5-6 days prior to the day of incident and on 12.12.2017 in the evening accused and Gurpreet Singh had consumed smack together at the house of Gurpreet Singh, thereafter, accused Dheeraj came back to his house. Accused on the same night again went to house of Gurpreet for smack, to which Gurpreet denied and accused Dheeraj came back to his house. On 13.12.2017 in between 3-4 AM, accused Dheeraj went to the house of Gurpreet Singh and asked for smack and money, to which Gurpreet Singh again denied, due to which accused Sessions Case No. 176/2018 Page 3/52 State Vs Dheeraj Kumar FIR No.545/2017 PS Hari Nagar U/s 302 IPC

3. Dheeraj became anger and poured chemical on Gurpreet from cane, which was lying at the house of Gurpreet Singh and some drops of the said chemical also spilled over the accused. On the pointing out of accused plastic cane which was having chemical was recovered at the instance of accused from the house of Gurpreet Singh and police prepared site plan. Thereafter, accused Dheeraj Kumar was medically examined vide MLC No.14150/2017 and doctor opined "old burn injury Bil Feet (approx 2-3%)". The accused was remanded to judicial custody for 14 days by learned Metropolitan Magistrate. On 17.12.2017, DD No.10PP was recorded upon information from Safdarjung Hospital that Gurpreet Singh, who was admitted in the hospital for treatment, has expired. Thereafter, investigation of the present case was further handed over to Sub-Inspector Vikas and on 18.12.2017 after postmortem of Gurpreet Singh, the dead body was handed over to his relatives and after completion of investigation, the present charge sheet was filed under Section 302 IPC.

After completion of the investigation, the 1.0 came to the conclusion that sufficient evidence had come on record against accused Dheeraj Kumar for commission of offence punishable under Section 302 IPC. The police report under Section 173 Cr.P.C (charge-sheet) was prepared against Sessions Case No. 176/2018 Page 4/52 State Vs Dheeraj Kumar FIR No.545/2017 PS Hari Nagar U/s 302 IPC accused Dheeraj Kumar and filed in the court of learned Metropolitan Magistrate.

On the basis of charge-sheet and the documents submitted with it, the learned Metropolitan Magistrate, Delhi took cognizance of offences punishable under Section 302 IPC and vide order dated 21.05.2018 after complying with the provisions contained in Section 207-209 Cr.PC, committed the case to the Court of Session for 22.05.2018.

Charge On 11.04.2018, after hearing the learned Additional Public Prosecutor for the State and the learned counsel for the accused, charge was framed against the accused namely, Dheeraj Kumar for commission of offence punishable under Section 302 IPC. The charge so framed was read over and explained to the accused to which he did not plead guilty and claimed trial.

Prosecution Witnesses To prove the afore-mentioned charge against the accused, the prosecution examined 25 witnesses in all. For the sake of convenience, a brief description of all the prosecution witnesses as well as their testimonies and the documents relied upon them is produced is stated herein below, in tabular form:-

Sessions Case No. 176/2018 Page 5/52

State Vs Dheeraj Kumar FIR No.545/2017 PS Hari Nagar U/s 302 IPC Sl.

NO.

NAME OF PROSECUTI-

ON WITNESS EXIHIBIT DOCUMENTARY EVIDENCE NATURE OF TESTIMONY PW-1 SMT.

TARVINDER KAUR She is paternal aunt (bua) of the deceased and she testified regarding the oral dying declaration made by the deceased to her on 13.12.2017 over telephone and on 14.12.2017 = at Safdarjung Hospital.

PW-2 HC VIJAY KUMAR PW-2/A DD Entry No. 27 Dt. 13/12/17 PW-2/B DD Entry No. 02 Dt. 14/12/17 He was posted as Duty Officer, who recorded DD No.27 PP upon receiving telephonic information from Duty Officer of PS Hari Nagar and he handed over the same to PW-18 HC Anil for necessary action. He also recorded DD No.2 on 14.12.2017 upon receiving information from DDU Hospital and handed over the same to PW-18.

PW-3 CT. EKTA PW-3/A DD Entry No. 10 Dt. 17/12/17 PW-3/B DD Entry No. 22 Dt. 14/12/17 She was posted as DD Writer in PS Hari Nagar on 17.12.2017 and she recorded DD No.10 PP on 17.12.2017 regarding death of Gurpreet Singh upon information received from ASI Dharamvir from Safdarjung Hospital. She handed over the copy of the same to PW-20 ASI Sessions Case No. 176/2018 Page 6/52 State Vs Dheeraj Kumar FIR No.545/2017 PS Hari Nagar U/s 302 IPC Vikas.

She also identified the hand writing of Constable Om Prakash, in whose handwriting DD no.22 PP dated 14.12.2017 was written.

PW-4 SOMDUTT @ SONU PW-4/A Statement U/S 161 Cr. PC He as per the prosecution was the caller who informed the police about the fact that the deceased had suffered injuries due to acid and he is also a witness to the oral dying declaration, but this witness did not support the prosecution story as far as the dying declaration is concerned, though he stated that call at 100 number was made from his mobile phone by the deceased on 13.12.2017.

PW-5 SMT. JAGJIT KAUR SHARMA PW-5/A Identification statement of dead body Mark PW-5/B Receipt of Dead body She is real sister of the deceased and a witness to the oral dying declaration made by the deceased to her at the Safdarjung hospital on 14.12.2017.

PW-6 DR.

VAMSEEDHA RAN, DEPTT.

BURNS & PLASTIC SURGERY, PW-6/A Application for recording statement of of injured Gurpreet Doctor at Safdarjung Hospital who had declared the deceased (fit for statement on application of PW-18 HC Anil Kumar.

Sessions Case No. 176/2018 Page 7/52

State Vs Dheeraj Kumar FIR No.545/2017 PS Hari Nagar U/s 302 IPC SAFDARJUN G HOSPITAL PW-7 |DR.RAHUL PW-7/A_ |MLC Report Doctor at Deen Dayal PANWAR, Upadhaya Hospital who DEPTT. OF had conducted' medical BURNS & examination of the PLASTIC deceased.

PWw-8/C | ment of case acceptance PW-9 |DR. Doctor at DDU Hospital RISHABH who had examined the DEV deceased on = 13.12.2017 TRIPATHI, SR and had referred him to (DEPTT. OF Burns & Plastic Surgery CASUALTY), Department.

DDU HOSPITAL PW- |DR. VEDANT |PWw-10/A | Post-Mortem Doctor at Safdarjung 10 KULSHREST Report Hospital who had HA, SR, Pw. Inquest papers conducted postmortem and DEPTT. OF had opined that the cause Forensic | 1/B(Coll of death is due to MEDICINE, y) septicemic shock as a SAFDARJUN result infected antemortem G HOSPITAL corrosive burn _ injuries involving about 65% of total Sessions Case No. 176/2018 Page 8/52 State Vs Dheeraj Kumar FIR No.545/2017 PS Hari Nagar U/s 302 IPC body surface area.

PW- |ASIMUKESH |Ppw-11/A | Crime Team He was Incharge of the 11 Report Mobile Crime Team who had inspected the spot on 15.12.2017.

PW- |DR. JAYANT, PW-12/A | Death Summary |Doctor at Safdarjung 12 SR, DEPTT. | pw-12/B | Death Report Hospital who had prepared OF BURN, the death summary and PLASTIC & death report of the MAXILLOFAC deceased on 17.12.2017. IAL SURGERY, VMNC & SAFDARJUN G HOSPITAL Pw- |ASI PW-13/A | Photographs of |He was photographer in the 13 SANJEEV (colly) finger print-outs Mobile Crime Team and PW-13/B [Certificate u/s "Sed the Spot on 17.12.2017.

65 B Indian Evidence Act PW- |SIMANOHAR He being Incharge of Police 14 LAL Post Hari Nagar had went alongwith PW-18 HC Anil to Safdarjung Hospital on 14.12.2017. and in_ his presence the statement of deceased was recorded in the Safdarjung Hospital, on the basis of which FIR was lodged.

PW- |DR.ANOOP, | PW-15/A |MLC Report Doctor at Safdarjung 15 SR, BURNS & Hospital who examined the PLASTIC deceased on 14.12.2017 SURGERY, and had mentioned the Sessions Case No. 176/2018 Page 9/52 State Vs Dheeraj Kumar FIR No.545/2017 PS Hari Nagar U/s 302 IPC SAFDARJUN history as told by the G HOSPITAL deceased.

PW- |ASI SUBE He was Incharge of PCR 16 SINGH Van and had visited the spot upon receiving call from the Control Room where he met the caller and deceased and he took the deceased to DDU Hospital. Deceased also told him that Dheeraj had poured acid on him.

PW- |DR. NAVED, He was working as doctor 17 CMO, DDU at DDU_ Hospital on HOSPITAL 13.12.2017 and _ identified the hand writing of Dr. Rishabh Dev Tripathi MLC Ex. PW 7IA.

PW- |HC ANIL PW-18/A | Application for |He is the first lO of the case 18 KUMAR recording who upon receiving DD statement of of injured Gurpreet PW-18/B Statement before police PW-18/C Statement before police No.27 PP went to the spot on 13.12.2017, where he came to know that injured was already shifted to DDU after which he DDU__-- Hospital injured was Hospital went to the found unfit for statement.

On_ the 14.12.2017 he alongwith PW-14 ASI went to Safdarjung Hospital the and he where next date i.e. Manohar Lal where shifted application to the doctor to injured was moved Sessions Case No. 176/2018 Page 10/52 State Vs Dheeraj Kumar FIR No.545/2017 PS Hari Nagar U/s 302 IPC state as to whether the fit statement and after the injured was for injured was declared fit for statement he recorded the Pw 18/B, upon which he _ prepared rukka Ex. PW 18/C. statement Ex.

PW- |ASIKAILASH PW-19/A |Site plan He is the second IO of the 19 CHAND without scale case who had _ made inquires from PW Som Dutt PW-19/B_ Arrest memo of |'"4 and had also prepared site accused plan and got the spot PW-19/C | Personal Search inspected by the Crime Memo of Team. He is also witness to accused the arrest of accused, his PW-19/D Disclosure disclosure statement and the recovery of the plastic Statement cane at his instance.

PW-19/E | Seizure memo of Plastic Cane PW- (SI VIKAS PW-20/A | Identification He is the third 1O of the 20 statement of case, who was assigned investigation of the case on dead body 17.12.2017 and he recorded PW-20/B | Request for statements of relatives of Post-Mortem --_ deceased i.e. PW-1 PW-20/C |Seizurememo /|Tarvinder Kaur, Ajit Pal of Viscera Singh, PW-5 Smt. Jagjit Kaur and Tarun Sharma.

He the postmortem conducted and had handed over the dead body of the to the relatives had also _ got of the deceased.

Sessions Case No. 176/2018 Page 11/52

State Vs Dheeraj Kumar FIR No.545/2017 PS Hari Nagar U/s 302 IPC PW- |CT. BHARAT He had accompanied 21 LAL second IO PW-19 ASI Kailash Chand on 15.12.2017 and is a witness to the arrest, disclosure and pointing out / recovery of the accused.

Pw- |CT. PRAMOD He had accompanied the 22 first l1O PW-18 HC Anil to the spot on 13.12.2017.

Pw- |HC PWw- Entry No. 3902 He was posted as MHC(M) 23 SURENDER 23/A(OS in register no. at PS Hari Nagar and the SINGH R) 19 case . properties were deposited with him.

PW- Entry No. 3906 23/B(OS in register no.

R) 19 PW-23/C |FSL Acknowledgem ent of RC No. 17/21/18 PW-23/D |FSL Acknowledgem ent of RC No. 18/21/18 PW-23/E | Acknowledgme nt of Case acceptance PW- /RAVI S/O He is father of PW-4 Som 24 GOPI RAM Dutt in whose name the phone number 9654979670 was subscribed, though the same was being used by Sessions Case No. 176/2018 Page 12/52 State Vs Dheeraj Kumar FIR No.545/2017 PS Hari Nagar U/s 302 IPC his son Som Dutt.

PW- |INSPECTOR /Px-1 FIR He is the last IO of this 25 VIJENDER (Colly) case, who had got prepared SINGH Px-2 MLC of scaled site plan and had obtained the FSL results Dheeraj Kumar and complete other dt. 16.12.17 formalities before filing of Px-3 FSL Report the charge sheet.

dated 27.02.2018 Px-4 CAF of mobi9le (Colly) no. 96549 79670 Px-5 Call detail (Colly) _| record of mobile no.

96549 79670

7. Statement of the Accused After conclusion of prosecution evidence, on 13.12.2018 statement of accused Dheeraj Kumar was recorded under Section 313 Cr.P.C on 13.12.2018, wherein he denied the correctness of all the incriminating circumstances appearing in the evidence against him and stated that he was falsely implicated in the present case. He also stated that the present case was planted upon him by Sub-Inspector Manohar Lal, as Sub-Inspector Manohar Lal prior to the incident had called him to clean the police post Hari Nagar to which accused denied and during that arguments Sub-

Inspector Manohar Lal stated that he is going to implicate Sessions Case No. 176/2018 Page 13/52 State Vs Dheeraj Kumar FIR No.545/2017 PS Hari Nagar U/s 302 IPC him in a false case in which accused may suffer a lot and will remember him for his entire life. The accused categorically denied that he was friend of the deceased and stated that he did not knew the deceased.

9.1.

9.2.

9.3.

The accused did not lead evidence in his defence.

Final Arguments Arguments were advanced by Mr. Santosh Kumar, learned Additional Public Prosecutor for the State and Sh. Rishab Jain, Ld Counsel for accused Dheeraj Kumar.

Learned Additional Public Prosecutor submitted that the deceased made several dying declarations both oral and written to his relatives, police officials as well as the doctor and the testimonies of the said witnesses corroborates each other in all material particulars and as such the dying declarations pointing towards the accused stands proved beyond reasonable doubt, which in itself is sufficient to prove the charges against the accused. He has further pointed out that there were burn injuries on the foot of the accused when he was got medically examined after his arrest, which further corroborates the fact it was the accused who had poured acid upon the deceased. He also submitted that it was at the instance of the accused and his pointing out that the can containing the acid was recovered from the house of the deceased.

On the other hand learned Defence Counsel has submitted that the oral dying declarations upon which the prosecution is relying upon could not be proved as the Sessions Case No. 176/2018 Page 14/52 State Vs Dheeraj Kumar FIR No.545/2017 PS Hari Nagar U/s 302 IPC witnesses testified contrary to what was stated by them to the police in the statement under Section 161 Cr.P.C. and he also submitted that there is no evidence on record to show that the accused and deceased were childhood friend and knew each other or that the accused is a drug addict, and in absence of such evidence, the statement of deceased recorded by PW-14 and PW-18 can not be relied upon. He submits that the prosecution has failed to explain as to why the statement Ex. PW 18/B was not recorded in the presence of Magistrate or doctor or relatives of the deceased despite the fact that several doctors and relatives of the deceased were present in the hospital at the time when the alleged statement was recorded. He submitted that said statement can not be relied upon and in absence of any corroboration the statement by itself is not sufficient to prove the guilt of the accused. As regards recovery of the cane containing acid, the learned counsel submitted that the police already had knowledge of the said cane as it is mentioned in the statement Ex. PW 18/B and also because PW-18 HC Anil Kumar had seen the same when he first visited the spot on 13.12.2017. He lastly submitted that the star witness of the case i.e. PW-4 Som Dutt from whose phone number the call was made to the police control room did not support the prosecution story and that the accused has been falsely implicated in the present case at the instance of PW-14 ASI Manohar Lal.

Sessions Case No. 176/2018 Page 15/52

State Vs Dheeraj Kumar FIR No.545/2017 PS Hari Nagar U/s 302 IPC 9.4. In rebuttal, Learned Additional Public Prosecutor has submitted that the testimony of witnesses, including that of PW-4 have to read in whole and not in piece meal and when all the testimonies are read together it becomes clear that the deceased made several dying declaration before his death to different persons, stating in all of them that it was the accused only who had poured acid upon him.

JUDICIAL RESOLUTION

10. | have given my thoughtful consideration to the submissions of both the sides and have perused the record.

11. In the present case, accused has been charged for commission of offence punishable under Section 302 IPC.

The said Section is reproduced as under:

302.Punishment for Murder- Whoever commits murder shall be punished with death, or imprisonment for life and shall also be liable to fine.

12. The relevant portion of Section 300 IPC which defines 'Murder' reads as follows:

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 -

Secondly- 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 -

Thirdly- If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be Sessions Case No. 176/2018 Page 16/52 State Vs Dheeraj Kumar FIR No.545/2017 PS Hari Nagar U/s 302 IPC inflicted is sufficient in the ordinary course of nature to cause death, or Fourthly- 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 is aforesaid.

13. Further, the relevant portion of Section 299 Indian Penal Code which defines "Culpable homicide", having reference in the definition of 'Murder' reads as follows:

299. Culpable homicide-Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, commits the offence of culpable homicide.

14. There is no eye witness of the murder of deceased and the present case is based on circumstantial evidence. The circumstantial evidence produced by the prosecution against the accused to prove charge of offence of murder can be broadly divided into following categories:-

a) Dying declarations . Written statement dated 14.12.2017 Ex. PW-

18/B of the deceased to PW-18 HC Anil Kumar and PW-14 ASI Manohar Lal.

° Oral statements made by deceased to PW-1 Smt Tarvinder Kaur, PW-4 Somdutt Sonu, PW-5 Jagjit Kaur Sharma and PW-16 ASI Sube Singh.

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State Vs Dheeraj Kumar FIR No.545/2017 PS Hari Nagar U/s 302 IPC

15.

b) Recovery and pointing out memo Ex.PW-19/E with respect to cane containing acid at the instance of accused and pursuant to his disclosure statement Ex.PW-19/D. Cc) Burn injuries over the foot of the accused, as mentioned in his medical examination report Ex. PX-2.

d) Cause of death of accused due to septicemic shock as a result of infected ante mortem burn injuries involving about 65% of total body surface area.

e) FSL report Ex.PX-3 dated 27.02.2018 as per which the cane seized vide memo Ex.PW-19/E was found to contain Acetic Acid.

DYING DECLARATIONS 15.1. The most important piece of evidence against the accused in the present case is the dying declarations made by deceased Gurpreet Singh @ Guppa before his death. There is no eye witness of the alleged incident or any circumstantial witness. The primary evidence on the basis of which the accused was charge sheeted, are the oral and written statements made by deceased before his death, in which he stated that the Dhiraj s/o Raju threw acid upon him, because of which he suffered injuries which ultimately resulted into his death.

15.2. Dying declaration is admissible under Section 32 (1) of Indian Evidence Act, but since it is not a statement on Sessions Case No. 176/2018 Page 18/52 State Vs Dheeraj Kumar FIR No.545/2017 PS Hari Nagar U/s 302 IPC oath and the truth or otherwise of the same can not be decided by touch stone of cross examination, hence, the court has to scrutinize the same with care and caution.

15.3. In the present case as per the prosecution, the deceased before his death made oral dying declarations to PW-1 Smt. Tarvinder Kaur, PW-4 Somdutt, PW-5 Smt. Jagjeet Kaur and PW-16 ASI Sube Singh. He also made dying declaration to police officials namely PW-14 Sl Manohar Lal and PW-18 HC Anil Kumar, which was recorded and on the basis of which the present FIR was registered.

15.4. The dying declaration was not recorded in the present case either by the Magistrate or by the doctor and the dying declaration recorded by the two police officials as mentioned above was also not recorded in the presence of doctor or relatives of deceased, therefore, the testimony of PW-1, PW-4, PW-5, PW-16 and PW-14 and PW-18 has to be scrutinized by the court with caution before relying upon the said dying declarations.

15.5. Oral dying declaration to PW-1 Smt. Tarvinder Kaur:-

a) As per prosecution case the first dying declaration was made by deceased to PW-4 Somduit, however, as per the evidence of the witnesses, the first dying declaration was made by deceased Gurpreet Singh @ Guppu over telephone to his aunt Smt. Tarvinder Kaur Sessions Case No. 176/2018 Page 19/52 State Vs Dheeraj Kumar FIR No.545/2017 PS Hari Nagar U/s 302 IPC on 13.12.2017. The testimony of PW-1 in this regard is reproduced as under:-

"On _ 13.12.2017 | had received telephone call of persons of locality where my nephew was Staying at that time. They had asked me to have a talk with Gurpreet Singh on telephone. My nephew Gurpreet Singh told me_on telephone that one boy namely Dheeraj_had_ snatched _money_from_him_and_had poured acid on him. | asked the said locality people (jhuggi walas) on telephone to take Gurpreet Singh to the hospital. The said jhuggi walas made telephone call to me in the morning that Gurpreet was not admitted in the hospital by the hospital staff."

b) As per this witness the deceased made another dying declaration to her in person when she met the deceased in Safdarjung Hospital and her testimony in this regard is as under:-

"From DDU_ Hospital Gurpreet was_ shifted to Safdarjung Hospital. After | reached at Safdarjung Hospital, | had a talk with Gurpreet Singh, who told me_that one boy namely, had snatched money from him and had poured acid on him by plastic cane of 20 ltr. Gurpreet Singh expired in Safdarjung Hospital."

C) As per the prosecution this witness met the deceased at the time when he was being shifted from DDU Hospital to Safdarjung Hospital and it was on the way that the deceased told her that one Dheeraj had Sessions Case No. 176/2018 Page 20/52 State Vs Dheeraj Kumar FIR No.545/2017 PS Hari Nagar U/s 302 IPC poured acid upon the deceased, however, this witness testified that the deceased told her over the telephone on 13.12.2017 itself that acid was poured upon him by Dheeraj.

d) Though, there is contradiction in the testimony of this witness and her statement under section 161 Cr.P.C, but she was not confronted with her statement under section 161 Cr.P.C, hence she never got an opportunity to explain the contradiction between the two statements.

e) At this stage the court would like to refer to section 162 of Code of Criminal Procedure, 1973. The said section is reproduced as under:-

162. Statements to police not to be signed: Use of statements in evidence.-- (1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as _ hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made:

Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any Sessions Case No. 176/2018 Page 21/52 State Vs Dheeraj Kumar FIR No.545/2017 PS Hari Nagar U/s 302 IPC part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act, 1872 (1 of 1872); and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-

examination.

(2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of Section 32 of the Indian Evidence Act, 1872 (1 of 1872), or to affect the provisions of Section 27 of that Act.

Explanation.--An__omission to state a fact or circumstance _in the statement referred to in sub-

section (1) may amount to contradiction if the same appears to be_significant_and_otherwise_relevant having regard to the context in which such omission occurs _and_ whether _any__ omission amounts to a contradiction in the particular context shall be a question of fact.

f) Under Section 145 of Indian Evidence Act it is permissible to contradict a witness who is giving evidence in court by his prior inconsistent statement and section 162 Cr.P.C allow the said provision of Evidence Act to operate as against prosecution witnesses, who Sessions Case No. 176/2018 Page 22/52 State Vs Dheeraj Kumar FIR No.545/2017 PS Hari Nagar U/s 302 IPC are allowed to be confronted with their previous statements recorded during investigation by the police.

g) Contradiction can only be made after strict compliance with section 145 of Indian Evidence Act.

The said section is reproduced as under:

145. Cross-examination as to previous statements in writing. - A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if_it_is intended to contradict him by the writing, his attention must, before the writing can be proved, be ll h rts of it which ar for th purpose of contradicting him.

h) In light of the aforesaid two sections, the manner of proving a contradiction is best brought out by an illustration.

In a case of murder a witness who claims to have witnessed the actual commission of murder deposes in Court at follows : "When I reached the scene of offence, | saw X and Y, and | saw that X stabbed the victim V with a_sword-stick. This substantive evidence. Before the Police the witness had stated that when he reached the scene of offence, he saw X and Y and saw that Y stabbed V. This is a case of clear contradiction. He has not stated before the Police that he saw X stabbing V. This contradiction must be brought on record to prove that the substantive evidence of witness that he saw X stab V is false.

Sessions Case No. 176/2018 Page 23/52

State Vs Dheeraj Kumar FIR No.545/2017 PS Hari Nagar U/s 302 IPC The contradiction should be brought on record by cross-examination of the witness as follows :

Q. Did it happen that you did not see X stab V ?

(This question should not be put to the witness by asking "It it true that you did not see X stab V ? as such a question may imply that the accused admits the presence of the witness at the murder).

A. No. | did see X stab V. Q. It is true that the Police recorded your statement during investigation, on. ...... ?

A. Yes.

Q. You did not tell the Police that you saw X stab V ? A. No. | did tell Police that | saw that X stabbed V. Q. It is seen from your statement before the Police that you did not tell the Police that you saw X stab V?

(At this stage the attention of the witness should be drawn to the omission by requesting the Court to verify this fact from the Police statement and to note in writing that the attention of the witness is drawn to the omission. It may be noted that the entire statement of the witness before the Police cannot be brought on record to prove omission).

A. | did tell the Police.

Q. Can you explain why the said statement is not to be found in your statement before the Police ?

A. | can't explain.

The next question is important, and must be asked without fail.

Q. | suggest that your statement in Court that you saw X stab V is false?

A. The suggestion is false.

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State Vs Dheeraj Kumar FIR No.545/2017 PS Hari Nagar U/s 302 IPC The effect of the cross-examination as suggested above is that the evidence of witness that he saw X stab V may be held to be not trustworthy.

It is worth remembering that when witness says that he saw X stab V, it is implied that he did not see Y Stab V. The cross-examination suggested above does not prove the contradiction brought on record. For that purpose, the Investigating Officer who recorded the statement should be cross-examined thus:-

Q. Witness did not tell in his statement recorded by you that he saw X stab V?

A. No, he did not say so.

Without this questioning the contradiction cannot be held to be proved.' 15.6. In the present case PW-1 never stated to the police in her statement under Section 161 Cr.P.C. dated 17.12.2017 that the deceased had disclosed the name of Dheeraj as assailant to her on telephone on 13.12.2017 or that deceased had told her that the acid was poured upon him by Dheeraj at Safdarjung Hospital. As per statement under Section 161 Cr. P.C. Smt. Tarvinder Kaur was informed by the deceased that acid was thrown upon him by Dheeraj while she along with Ajeet Pal Singh was taking the deceased from DDU Hospital to Safdarjung Hospital.

Thus, as per statement under Section 161 Cr. P.C. it was on the way from DDU Hospital to Safdarjung Hospital that the dying declaration regarding involvement of Dheeraj was made by the deceased which is contrary to what is 1 Illustration taken from an article on the site of Maharashtra Judicial Academy (Author not mentioned in the Article). Reference is also made to judgment titled Tahsildar Singh Vs State AIR 1959 SC 1012.

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State Vs Dheeraj Kumar FIR No.545/2017 PS Hari Nagar U/s 302 IPC stated by PW-1 Tarvinder Kaur in her examination in chief. However, during course of her cross examination she was not confronted with her statement under Section 161 Cr.P.C. The witness in her cross examination categorically stated that she had narrated all the facts to the Investigating Officer and that the Investigating Officer had read out the statement to her after it was recorded but the relevant portion of the statement under Section 161 Cr.P.C. or any question as regards the said statement was not put to this witness. Thus the contradictions in her testimony and her statement under section 161 Cr.P.C could not be proved as per section 162 Cr.P.C and 145 of Indian Evidence Act.

15.7. Coming to the other portion of her cross examination, the said witness stated that the Investigating Officer had recorded her statement on 14.12.2017 at Safdarjung Hospital which is contradictory to what PW-20 SI Vikas Kumar testified because as per PW-20 SI Vikas Kumar the statement of Tarvinder Kaur was recorded at Police Post Hari Nagar and not at Safdarjung Hospital and that too after the death of deceased on 17.12.2017.

15.8. The said witness was specifically questioned as regards the telephone number from which the deceased used to make call to her but she failed to disclose the said numbers and stated that the deceased used to make call by borrowing the mobile phones of others.

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State Vs Dheeraj Kumar FIR No.545/2017 PS Hari Nagar U/s 302 IPC 15.9. It may further be noted that her testimony PW-1 stated that the deceased told her the culprit namely Dheeraj had snatched money from the deceased and had poured acid on him. She is specifically mentioned the fact that the culprit had snatched the money from the deceased twice in her examination in chief which is contrary to what is mention in the written dying declaration Ex. PW18/B, wherein it is mentioned that the culprit had thrown acid upon the deceased as the deceased had refused to give money to the culprit. Thus, there is material contradiction behind the reason for the commission of the offence.

15.10. Oral dying declaration to PW-4 Somdutt:-

a) As per the prosecution the first dying declaration was made by deceased at the spot itself to Som Duitt, but when PW-4 Som Dutt was examined, he stated in his examination in chief that though he had met Gurpreet at the spot and that call on 100 number was made from his mobile phone, but he never disclosed the name of the culprit as Dheeraj.

b) The said witness was cross examined at length by learned Additional Public Prosecutor, but nothing came forth even in his cross examination to prove that the first dying declaration was made by the deceased to him at the spot, when call was made at 100 number.

15.11. Oral dying declaration to PW-5 Smt. Jagjeet Kaur (sister of deceased):-

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a) Even PW-5, who is real sister of deceased, testified about dying declaration made by the deceased in Safdarjung Hospital and her testimony in this regard is as under:-

"On 14.12.2017, | had come to know that one boy namely Dheeraj Kumar had poured acid on Gurpreet Singh. | came to Know from my bua? that Gurpreet Singh was admitted in Safdarjung Hospital. We went to Safdarjung Hospital in the evening of 14.12.2017. | met _ my _ brother Gurpreet Singh in the hospital. He told me _ that one boy / person namely Dheeraj_had burnt him_by pouring acid. On 17.12.2017 we came to know that Gurpreet Singh had expired during medical treatment in the hospital."

b) PW-5, testified that she met the deceased in Safdarjung Hospital on 14.12.2017 and that her statement was recorded by the police in the police station which was also signed by her.

C) The signed statement of this witness is not available on record and the only statement of this witness is dated 17.12.2017 which is under Section 161 Cr. P.C. and not signed by this witness. As per record the said statement was recorded by PW-20 SI Vikas, however, PW-20 in his testimony stated that the statement of this witness was recorded at Police Post Hari Nagar and is not at the police station.

2 Buai.e. PW-1 Smt. Tajinder Kaur.

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d) It may be noted that both PW-1 and PW-5, who are close relatives of the deceased being his real maternal aunt (bua) and his sister, in their testimony stated that the deceased told them that "one boy namely Dheeraj"

had poured acid upon him. None of the said two witnesses Stated in their testimony that they knew the said Dheeraj prior to the incident and they also did not testify that the accused namely Dheeraj Kumar is know to them as they had seen him in the locality or alongwith the deceased prior to the incident.

At this stage, the court would like to point out that in the written dying declaration Ex. PW 18/B it is mentioned that Dheeraj was childhood friend of the deceased and they used to consume smack together. If the culprit Dheeraj was childhood friend of deceased as mentioned in the dying declaration Ex. PW 18/B, then PW-1 and PW-5 must have known the said Dheeraj not only by name but also by face. It may be noted that PW-5 in her cross examination specifically stated that she used to reside with her brother at Delhi before 2010 when she got married and that even after marriage she used to visit her brother regularly and had lastly visited him just 5-6 days prior to the incident. This witness also stated that her house, where she resides after the marriage, is at 15 minutes walking distance from the house where the deceased was residing, which shows that this witness being sister of the deceased and being resident Sessions Case No. 176/2018 Page 29/52 State Vs Dheeraj Kumar FIR No.545/2017 PS Hari Nagar U/s 302 IPC 15.12.

of the same locality must have know as to who was childhood friend of deceased, but neither she, nor PW-1 stated that Dheeraj was childhood friend of the deceased and that they had seen him ever before.

Coming to the other portion of her cross examination, the said witness stated that the Investigating Officer had recorded her statement on 14.12.2017 and that after here statement the statement of the deceased was recorded by the Investigating Officer, which is contradictory to what PW-20 SI Vikas Kumar testified, because as per PW-20 SI Vikas Kumar the statement of Jagjeet Kaur was recorded at Police Post Hari Nagar and not at Safdarjung Hospital and that too after the death of deceased on 17.12.2017. It may be noted that PW-18 HC Anil Kumar never stated that he recorded either statement of PW-1 or that of PW-5.

15.13.

Oral dying declaration to PW-16 ASI Sube Singh (PCR Van):-

a) PW-16 ASI Sube Singh, who was posted at PCR Power-45, upon receiving a call from the Control Room had reached the house of deceased at 11:00 PM on 13.12.2017. PW-16 testified before the court that he met the PCR caller at the spot and on his pointing out he went inside the house of deceased i.e. House No. A-

71, Pilli Kothi, Hari Nagar, which was a khandernuma house (partly demolished building) and that in the said house he found the deceased lying on a stone slab under a blanket. He testified that the deceased was Sessions Case No. 176/2018 Page 30/52 State Vs Dheeraj Kumar FIR No.545/2017 PS Hari Nagar U/s 302 IPC crying in pain and that he was also saying that Dheeraj had poured acid on him. This witness took the deceased in the PCR vehicle to DDU Hospital. In his examination in chief as well as in his cross examination the witness stated that the local police along with SHO had also reached the spot while he was present at the spot, but as the injured was already moved in the PCR Van, hence, the injured was taken to the hospital by this witness.

It may be noted though as per this witness the name of the culprit was disclosed to him by the deceased, the Investigating Officer did not record statement either at the spot or at the hospital in order lodge an FIR in view of the fact that injured had suffered burn injuries and is unfit for statement. The statement of this witness was not recorded subsequently on 15.12.2017 or 17.12.2017, rather the same was recorded as late as 27.12.2017, by which time the accused was already apprehended by the police . It may further be noted that in his cross examination this witness stated that the injured / deceased was conscious when he was admitted in DDU Hospital, but in the history told to the examining doctor at DDU Hospital in the presence of this witness, it is not mentioned that the acid was not poured upon the deceased by a boy namely Dheeraj.

b) It is interesting to note that though the police through this police witness was aware of the name of Sessions Case No. 176/2018 Page 31/52 State Vs Dheeraj Kumar FIR No.545/2017 PS Hari Nagar U/s 302 IPC the culprit as Dheeraj on 13.12.2017 itself, but no efforts were made to apprehend the said culprit after lodging of FIR on the basis of information given by this witness to PW-18 HC Anil Kumar, who had reached the spot while this witness was still present there.

Cc) In the given circumstance, if the name of the culprit was disclosed by the deceased to PW-16 and if subsequently it was found that injured was not fit to give statement, then the Investigating Officer should have recorded the statement of this witness and get the FIR registered and start investigation immediately, so as to apprehend the culprit before he flees away from the hands of justice.

d) It may be noted that the dying declarations discussed till this stage are oral dying declarations, in which the deceased merely stated the name of the culprit as Dheeraj and did not state the parantage and the address of the said culprit. None of the aforesaid witnesses specially PW-1, PW-4 and PW-5 identified accused Dheeraj s/o of Balbir Singh to be the same person to whom the deceased was referring to in his oral dying declarations allegedly made to these witnesses.

15.14. Written dying declaration to PW-14 and PW-18:-

a) PW-14 and PW-18 also testified about dying declaration made by deceased in Safdarjung Hospital which was recorded by them as exhibit PW-18/B. Sessions Case No. 176/2018 Page 32/52 State Vs Dheeraj Kumar FIR No.545/2017 PS Hari Nagar U/s 302 IPC

b) The testimony of these two witnesses as regards the dying declaration is reproduced as under:-

PW-14 SI Manohar Lal veeeeees | alongwith HC Anil went to Safdarjung Hospital. We met injured Gurpreet Singh in Safdarjung Hospital in the Burns Ward and made enquiry from him as he was declared fit for statement by the examining doctor. During his statement injured Gurpreet Singh stated that one Dheeraj son of Raju r/o jhuggi No.311, Pilli Kothi, Hari Nagar is his childhood friend and both of them used to consume smack _together. He further stated that in the intervening night of 10-11.12.2017 both of them had consumed smack together and thereafter Dheeraj had gone to his house whereas Gurpreet had slept in his house, at 2-2:30 a.m., Dheeraj had again come to his house and had asked for smack from him and when he refused, Dheeraj demanded money from him which was also refused by him (Gurpreet Singh) on which Dheeraj had raised abuses to Gurpreet and had gone from there. Gurpreet further stated in his statement that Dheeraj had again come to his house in the early hours of the morning at about 4-4:30 a.m. and had again demanded smack from him for which he had again refused. Gurpreet further stated that on his refusal for smack, Dheeraj had demanded money from him to purchase smack and when he refused for Sessions Case No. 176/2018 Page 33/52 State Vs Dheeraj Kumar FIR No.545/2017 PS Hari Nagar U/s 302 IPC the same Dheeraj had become angry and had abused him and he had picked up a plastic can already lying inside the room and after opening the lid, he poured the chemical like substance on his body due to which he had sustained burns (jhulas gaya) and became unconscious, on 13.12.2017, when he was screaming in pain one boy of neighbourhood had heard his voice and had come to him and police was informed on which police came there and had taken him to the hospital. HC Anil recorded the said statement of Gurpreet Singh and thereafter we went to police station. HC Anil had prepared rukka and had got the FIR registered in PS Hari Nagar. Investigation was marked to ASI Kailash."

PW-18 HC Anil Kumar "In the evening on 14.12.2017, the information was received in the police post that injured Gurpreet had been shifted to Safdarjung Hospital from DDU Hospital. | alongwith Incharge of PP Hari Nagar went to Safdarjung Hospital. The injured was found admitted in the Burn Ward of the Safdarjung Hospital. | moved an application to the Incharge of Burn Ward in order to ascertain if the injured was fit for giving his statement or was still unfit. Th said application is Ex. PW 18/A bearing my signature at point A. Injured was Stated to be fit for statement vide the note of the Sessions Case No. 176/2018 Page 34/52 State Vs Dheeraj Kumar FIR No.545/2017 PS Hari Nagar U/s 302 IPC medical officer on my application which ts already Ex. PW GSA.

| recorded the statement of injured Gurpreet which is Ex. PW _ 18/B. It was true and correct statement of injured Gurpreet and he had signed the same after it was read out to him_and was understood by him.

The signature of Gurpreet Singh on Ex. PW 18/B is at point A. | had attested the same vide my signature at point B. Injured Gurpreet Singh had told me that the boy namely Dheeraj had come to him for consuming smack. He stated that Dheeraj had again come to him for demanding smack and when he refused, Dheeraj had asked money from him. He had further stated to me that when he had refused, a can containing chemical was poured by Dheeraj on him."

C) As regards dying declaration Ex. PW 18/B, it may be noted that as per PW-18 HC Anil Kumar the dying declaration Ex. PW 18/B was recorded by SI Manohar Lal in his writing, but SI! Manohar Lal who testified before this witness as PW-14 never stated that he had recorded the dying declaration in his own hand writing and he also did not identify his hand writing during his testimony. The said witness, who is writer of the dying declaration did not exhibit the dying declaration Ex. PW 18/B during his testimony and never stated that the same was written by him and not by PW-18 HC Anil Kumar. PW-14, as stated earlier mentioned that he was Sessions Case No. 176/2018 Page 35/52 State Vs Dheeraj Kumar FIR No.545/2017 PS Hari Nagar U/s 302 IPC present when the statement was made by deceased Gurpreet Singh at Safdarjung Hospital and he mentioned as to what was stated by the deceased but at last he stated "HC Anil recorded the said statement of Gurpreet Singh" and that "HC Anil had prepared rukka", which fact has been categorically denied by HC Anil Kumar (PW-18) in his cross examination wherein he stated "the statement of Gurpreet Singh as well as tehrir are in the hand writing of SI Manohar Lal and | had signed the same". Thus, there is a clear and material contradiction in the testimony of PW-14 and PW-18 as to who recorded the statement Ex. PW18/B as PW-14 stated that the statement was recorded by PW-18, whereas PW-18 stated that the statement was recorded by PW-14.

d) PW-18 in his cross examination explained that he did not record the statement and prepared rukka in his own hand writing as he had pain in his thumb at that time, but the said fact which could have been easily mentioned at the end of the statement or in the rukka Ex. PW 18/C, was for the reasons best known to this witness not so mentioned. Even in the rukka Ex. PW 18/C, it is mentioned that the statement was recorded, without any specific mention as to by whom it was recorded, thereby raising an inference that the same was recorded by HC Anil Kumar.

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e) Further, besides the said contradiction, it is interesting to note that though the relatives of the deceased as well as doctors were present in the hospital when the said statement / dying declaration Ex. PW 18/B was recorded by the police officials, the police officials did not obtain the signatures of the said persons on the statement / dying declaration. Both PW-14 and PW-18 admitted that there were nurses and doctors present in the hospital as well as in the burn ward where the statement was recorded, but none of the said nurses or doctors were asked to be present during recording of the statement / dying declaration.

f) In his cross examination PW-14 categorically mentioned that even family members of the deceased were present outside the ward, but he did not ask any public person, hospital staff or doctor to attest or witness the statement of deceased Gurpreet Singh. Similarly, PW-18 also mentioned in his cross examination that doctors and nurses were present in the burn ward at the time when the statement of Gurpreet Singh was recorded and that the relatives of the deceased were also present in the hospital, but no public person was asked to witness or attest the statement of the deceased. The reason for not asking the hospital staff or doctors as well as the relatives of the deceased who were present in the hospital to witness the statement given by the deceased is Sessions Case No. 176/2018 Page 37/52 State Vs Dheeraj Kumar FIR No.545/2017 PS Hari Nagar U/s 302 IPC mentioned by both these witnesses in their cross examination. PW-14 stated that the public persons were not asked to witness the statement for the reason that the deceased was talking normally and that his death was not expected, because of which the precautions taken in recording of the dying declaration were not taken, whereas as per PW-18 the reason for not joining public witnesses at the time of recording of statement of deceased was that the public persons were not allowed to enter in the burn ward, so as to become a witness to the recording of the statement of deceased. The reasons cited by the two witnesses differ and raise a doubt which goes to benefit the accused.

g) At this stage, it would be relevant to refer to the medical condition of the deceased at the time of recording of his statement. In this regard, the court would like to refer to the death summary and death report of the deceased which are Ex.12/A and Ex. PW 12/B respectively prepared by Dr. Jayant, Senior Resident, Department of Burn, Plastic and Mexillofacial Surgery, Safdarjung Hospital.

As per the death summary Ex. PW 12/A, the deceased was admitted in the hospital at 4:00 PM on 14.12.2017 and he expired at 7:00 AM on 17.12.2017. During the course of his stay in the hospital the patient / deceased was intubated on 14.12.2017 itself, that is the date on which he was admitted and despite the said intubation Sessions Case No. 176/2018 Page 38/52 State Vs Dheeraj Kumar FIR No.545/2017 PS Hari Nagar U/s 302 IPC his condition did not improve, rather it deteriorated and despite emergency medication the deceased expired on 17.12.2017. The death summary also mentions that the deceased had 65 percent chemical burn with facial burn as well as eye injury. PW-12 was cross examined by the learned defence counsel, in which it was explained by the said doctor that the "term intubated means that the patient is kept under life support devices". From the testimony of this witness and upon reading the death summary Ex. PW 12/A together with the MLC Ex. PW 15/A which also mentions 65 percent chemical burns, it can be concluded that the condition of the deceased was not improving as mentioned by PW-14 in his testimony, rather on the date of his admission at Safdarjung Hospital, he was intubated, which shows that he was quite serious and that anything could have happened to him because he had suffered 65 percent chemical burns including facial burns and eye injury. Therefore, the explanation given by SI Manohar Lal of not involving any public witness as a witness to the recording of statement of the deceased does not find support from the medical opinion on record.

h) Similarly the reason given by PW-18 for not asking the public witnesses to witness the statement of the deceased is also weak for the reason that even if public persons were not allowed to be present in burn ward, still the doctors and the nurses were admittedly present Sessions Case No. 176/2018 Page 39/52 State Vs Dheeraj Kumar FIR No.545/2017 PS Hari Nagar U/s 302 IPC in the burn ward who could have been asked to witness the statement given by the deceased who was in serious condition at that time. Both PW-14 and PW-18 could have easily requested the examining doctor who declared the deceased fit for statement, to be present during recording of statement of deceased, but no such efforts at all were made by PW-14 and PW-18, despite the fact that the deceased was in serious condition having 65 percent chemical burns.

i) Coming to another aspect in the present matter, in the complaint / statement / dying declaration of deceased Ex. PW 18/B the deceased mentioned that his childhood friend Dheeraj S/o Raju, Resident of Jhuggi No.311, Pilli Kothi, Hari Nagar, Delhi had thrown acid upon him from the cane which was lying in his room for the last 8-10 years. Thus, the deceased categorically mentioned that the culprit namely Dheeraj was his childhood friend, who was resident of Jhuggi No.311, Pilli Kothi, Hari Nagar, Delhi and that the name of his father was Raju.

)) Despite the fact that the name of father of deceased was specifically mentioned in the statement Ex. PW 18/B along with the address, the accused was arrested at the instance of secret informer and not from his jhuggi No.311, despite the fact that name of his father, as mentioned in the arrest memo Ex. PW 19/B, is Balbir Singh. Investigating Officer ASI Kailash Chand Sessions Case No. 176/2018 Page 40/52 State Vs Dheeraj Kumar FIR No.545/2017 PS Hari Nagar U/s 302 IPC PW-19 in his testimony stated that the accused was arrested at the instance of secret informer, whereas the accompanying Constable, Ct. Bharat Lal PW-21 did not mention in his testimony that the accused was arrested at the instance of secret informer. Both PW-19 and PW- 21 failed to explain in their testimony as to why accused Dheeraj s/o Balbir Singh was arrested in the present matter without being identified by the relatives of the deceased, as the childhood friend of the deceased and despite the fact that the name of father of accused is different from the name of father of culprit Dheeraj, which is mentioned in the complaint / dying declaration Ex. PW 18/B. The present accused despite being son of late Balbir Singh and not that of Raju was arrested and the prosecution relies upon his disclosure statement and pointing out memo to prove that he is the same Dheeraj whom the deceased has referred to in his statement Ex. PW 18/B. The admissibility and evidentiary value of the disclosure statement and pointing out/recovery memo has been discussed separately.

16. Recovery and pointing out memo Ex. PW-19/E with respect to cane containing acid at the instance of accused and pursuant to his disclosure statement Ex. PW 19/D:-

16.1. The court would like to point out that the first police official who reached the house of the deceased was PW-

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State Vs Dheeraj Kumar FIR No.545/2017 PS Hari Nagar U/s 302 IPC 16 ASI Sube Singh, who was posted at PCR Power-45 and upon receiving a call from the Control Room had reached the house of deceased at 11:00 PM on 13.12.2017. PW-16 testified before the court that he met the PCR caller at the spot and on his pointing out he went inside the house of deceased i.e. House No. A-71, Pilli Kothi, Hari Nagar, which was a khandernuma house (partly demolished building) and that in the said house he found the deceased lying on a stone slab under a blanket. He testified that the deceased was crying in pain and that he was also saying that Dheeraj had poured acid on him. This witness took the deceased in the PCR vehicle to DDU Hospital. In his examination in chief as well as in his cross examination the witness stated that the local police along with SHO had also reached the spot while he was present at the spot, but as the injured was already moved in the PCR Van, hence, the injured was taken to the hospital by this witness. Therefore, as per the testimony of this witness the police reached the spot i.e. the house of the deceased at 11:00 PM on 13.12.2017 and this fact is further corroborated by the testimony of PW-14 and PW- 18, who upon receipt of DD No.27 PP had reached the house of the deceased at about 11:15 PM on 13.12.2017. PW-18 HC Anil Kumar is the first Investigating Officer of the case, who reached the spot at about 11:15 PM on 13.12.2017 and in his cross examination he mentioned that the distance between police post Hari Nagar and the house of the deceased is about 1-1.5 km and that he had Sessions Case No. 176/2018 Page 42/52 State Vs Dheeraj Kumar FIR No.545/2017 PS Hari Nagar U/s 302 IPC used his personal motorcycle for going to the spot. This witness also stated in his cross examination that he had entered inside the house of the deceased, but as it was night time and there was no light inside the room, hence, he could not see as to what was there inside properly, however, he clarified that some light was coming from outside and in that light he was able to see one plastic cane and some clothes lying in the room. The said testimony of this witness is relevant to decide the evidential value of Ex. PW 19/E and the same is therefore reproduced as under:-

"The distance between police post Hari Nagar and the spot is about one or one and half kilometer. | had used my personal motorcycle for going to the spot. | had not mentioned in the Departure Entry about use of my personal motorcycle in enquiry. | had entered inside the house, but as it was ight ttme and there was no light inside the room, | could not see anything properly. However, from the light peeping inside from outside, | could see that one plastic can and some clothes were lying there. | did not pay any attention whether any utensils were lying there or not."

16.2. From the aforesaid cross examination, it is clear that the spot where the incident took place as well as the plastic cane was already within the knowledge of the Investigating Officer / PW-18 HC Anil Kumar on Sessions Case No. 176/2018 Page 43/52 State Vs Dheeraj Kumar FIR No.545/2017 PS Hari Nagar U/s 302 IPC 13.12.2017, when he first visited the spot at about 11:15 PM.

16.3. The accused was arrested by PW-19 ASI Kailash Chand and PW-21 Constable Bharat Lal and both the said witnesses specifically stated in their examination in chief that on 15.12.2017 before the arrest of accused they had gone to the spot where they met PW-4 Somdutt and the Mobile Crime Team was called there which not only inspected the place of occurrence but also took photographs of the same. The Incharge of the Mobile Crime Team PW-11 ASI Mukesh exhibited the scene of crime report as Ex. PW 11/A, in which it is categorically mentioned that a 20 ltr. Cane containing doa / acid was found at the spot during inspection at 12:30 -- 1:00 PM of 15.12.2017 and the Investigating Officer was suggested to seize the same. PW-11 ASI Mukesh in his examination in chief also testified that "inside the hall / room one empty cane of 20 ltr. with little amount of acid was found lying. At the floor of the said hall, some white spots appearing to be of acid were found, | advised the IO to seize the plastic cane. The photographs of the spot were taken by ASI Sanjeev". Thus, as per the Crime Team report, the cane containing acid was found at the spot and the Incharge of the Crime Team also advised the Investigating Officer to seize the same. Even in the photographs clicked by the photographer of the Mobile Crime Team, the cane containing acid is clearly visible lying on the floor.

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State Vs Dheeraj Kumar FIR No.545/2017 PS Hari Nagar U/s 302 IPC Therefore, not only PW-18 but PW-19, PW-21, PW-11 as well as PW-13, all police officials had knowledge of the place of incident and also of the fact that a 20 Itr. cane containing some acid was lying at the spot where the incident took place and all this information was within the knowledge of the said police officials well before the arrest of accused who as per the arrest memo Ex. PW 19/B was arrested at 7:00 PM on 15.12.2017.

16.4. The recovery of the plastic cane as shown at the instance of accused on 15.12.2017 is subsequent to its finding out by the police officials / Investigating Officer and therefore, it can not be said that the said plastic cane, which was seized vide memo Ex. PW 19/E was recovered at the instance of accused pursuant to his disclosure statement and pointing out. Therefore, both the disclosure statement Ex. PW 19/D and recovery memo pointing out memo Ex. PW 19/E are inadmissible under Section 25 of Indian Evidence Act and no part thereof falls within the ambit of Section 27 of Indian Evidence Act. The disclosure statement Ex. PW 19/D and pointing / recovery memo Ex. PW 19/E do not connect accused Dheeraj Kumar son of Balbir Singh to the offence and do not establish that Dheeraj Kumar son of Balbir Singh is the same person who is mentioned in the complaint / dying declaration Ex. PW 18/B as Dhiraj son of Raju.

16.5. Further there is no evidence on record that the present accused is resident of Jhuggi No.311, Pilli Kothi, Sessions Case No. 176/2018 Page 45/52 State Vs Dheeraj Kumar FIR No.545/2017 PS Hari Nagar U/s 302 IPC Hari Nagar, Delhi i.e. the address mentioned in the complaint / dying declaration Ex. PW 18/B. The said fact could have been easily proved by the prosecution by examining resident of the same locality, but no such efforts was made except examining PW-4 Som Dutt, who admitted be resident of WZ-116, Pilli Kothi, Hari Nagar, Delhi and that accused Dheeraj was residing in a jhuggi situated on the back side of his jhuggi but he too failed to prove that accused Dheeraj son of Balbir Singh is resident of Jhuggi No.311 or that accused Dheeraj son of Balbir Singh is the same person, who is mentioned as Dhiraj son of Raju in Ex. PW 18/B. 16.6. Further, the presence of the accused at the spot and the fact that he was awake in the intervening night of 12- 13.12.2017 could have been proved by obtaining the records of his mobile phone, however, nothing has come on record to show either the accused was having a mobile phone and consequently the presence of the accused at the spot could not be proved by proving his location by obtaining call detail report, nor could his address be proved by obtaining CAF of his mobile number, if any. It may be noted that in the cross examination of PW-19 ASI Kailash Chand learned counsel for accused suggest this Investigating Officer that accused Dheeraj is a vagabond but despite the said suggestion in the testimony of PW-19, the address of the said witness could not be proved in the testimonies of the subsequent witnesses. After PW-19 Sessions Case No. 176/2018 Page 46/52 State Vs Dheeraj Kumar FIR No.545/2017 PS Hari Nagar U/s 302 IPC

17. another witness to arrest PW-21 Bharat Lal was also examined, who categorically stated that accused was found present at his jhuggi i.e. Jhnuggi No.311, from where he was arrested but the said testimony of PW-21 is not only contrary to the testimony of PW-19 ASI Kailash Chand, but the same is also contrary to the content of arrest memo Ex. PW 19/B where the place of arrest does not mention the jhuggi number of accused as Jhuggi No.311.

Burn _ injuries over the foot of the accused, as mentioned in his medical examination report Ex. PX-2:-

17.1. The prosecution has relied upon the burn injuries over the foot of the accused as mentioned in MLC Ex. PX2 to establish that the accused is the same Dheeraj whom the deceased named in his dying declarations and that the same burns were caused to him because the acid that he had thrown upon the deceased had also fallen upon his foot.

17.2. Perusal of the MLC Ex. PX2 (admitted under Section 294 Cr. P.C.) reveals that old burn injuries were found on the foot of the accused. It may be noted that the MLC Ex.

PX2 was prepared in the afternoon of 16.12.2017 and as per the dying declaration Ex. PW 18/B the incident had taken place on the intervening night of 11-12.12.2017. Thus, the difference between the date and time of incident and the time of examination of the accused by the examining doctor who prepared Ex. PX2 is less than 5 Sessions Case No. 176/2018 Page 47/52 State Vs Dheeraj Kumar FIR No.545/2017 PS Hari Nagar U/s 302 IPC days and it remains unexplained as to how a burn injuries just caused five days ago was mentioned by the examining doctor as old burn injuries. It may be noted that in Ex. PX2 the doctor has categorically stated that upon examination of the patient / accused no fresh external injury was seen and if it is so then some old injury on the foot of the accused can not be connected with the incident dated 11-12.12.2017. If the investigating agency wanted to link the accused with the incident through the burn injuries found on his foot, then the investigating agency should have sort an expert opinion from the doctors / forensic experts as to whether the said burn injuries were due to fire or acid and specifically Acetic acid.

17.3. Therefore, the MLC Ex. PX2 could not connect the

18. accused with the offence alleged.

Cause of death of accused due to septicemic shock as_a_result of infected ante mortem _burn_injuries involving about 65% of total body surface area:-

18.1. As per the postmortem report Ex. PW 10/A the cause of death is due to septicemic shock as a result of infected ante mortem burn injuries involving about 65% of total body surface area. PW-10 Dr. Vedent Kulshrestha in his testimony reiterated the opinion given by him in the postmortem report and in his cross examination he specifically denied that the septicemia (as mentioned in postmortem report and in his examination in chief) as the result of medical negligence. But, from the postmortem Sessions Case No. 176/2018 Page 48/52 State Vs Dheeraj Kumar FIR No.545/2017 PS Hari Nagar U/s 302 IPC report as well as from the MLCs Ex. PW 7/A and Ex. PW 15/A, it is clear that the cause of death is septicemic shock as a result of INFECTED ante mortem corrosive burn injury.

18.2. As per Modi's Text Book of Medical Jurisprudence and Toxicology (25" Edition) the immediate cause of death in case of burn injuries is due to shock, suffocation or accident or injuries and the delayed cause of death in burn cases is due _ to Inflammation, Hypoproteinaemia, Exhaustion, Lardaveous disease, erysipelas, Septicaemia, Pyaemia, Gangrene and Tetanus.

18.3. Most of the burn victims come to infections and their complications, if they survive the initial 24 hours. The burn injury causes devitalisation of the affected surface and produces extensive raw areas, which become moist due to the exudation of plasma, forming a medium ideal for the colonization and proliferation of various types of micro-

organisms. The affected individual's immune system is depressed and dysfunctional, and this compounded by the large cutaneous bacterial load, the possibility of gastrointestinal tanslocation, prolonged hospitalization and associated invasive' diagnostic and __ therapeutic procedures, all contribute to sepsis (septicemia)'.

18.4. The septicemia which is a kind of blood infection is likely to be caused when a person is suffering from burn 3 Referrance be made to Article "Burns Septicemia-The Leading cause of burn Mortality"

by Dr. Harish Dasari, Professor, Govt. Medical College, Chandigarh. As available on medind.nic.in Sessions Case No. 176/2018 Page 49/52 State Vs Dheeraj Kumar FIR No.545/2017 PS Hari Nagar U/s 302 IPC injuries, but is not a necessary outcome of every burn injury.

18.5. It may be noted that in the present case, as per the first MLC Ex. PW 7/A the patient had suffered the burn injuries three days prior to the date when he received first medical treatment. Even as per the dying declaration Ex. PW 18/B, the deceased did not got medical treatment after he suffered burn injuries rather for more than 24 hours he remained lying in a partly demolished building having no electricity and other facilities and at a place which as per the photographs Ex. PW 13/A (colly.) is quite unhygienic. Thus, the infection in the burn injuries as mentioned in the postmortem report may not only have been caused because of the acid burns received by the injured / deceased but also for the reason that he was not provided with immediate medical assistance and that he stayed with those burns at an unhygienic place for a long time after the burns were caused. However, be as it may, from the postmortem report, it is clear that the death of the deceased was caused due to septicemic shock as a result of infected burn injuries.

19. FSL report Ex.PX-3 dated 27.02.2018 as per which the cane seized vide memo Ex.PW-19/E was found to contain Acetic Acid:-

19.1. The FSL report dated 27.02.2018 was admitted under Section 294 Cr. P.C. on 21.08.2018 and as per the said report the cane which was seized vide memo Ex. PW 19/E Sessions Case No. 176/2018 Page 50/52 State Vs Dheeraj Kumar FIR No.545/2017 PS Hari Nagar U/s 302 IPC 19.2.

19.3.

20.

was found to be containing Acetic acid. It may be noted that Viscera of the deceased was also sent to the FSL but no traces of acid were found therein.

In the present case, where burn injuries were reported, when the deceased was admitted and his postmortem was conducted, samples from the said burns injuries should have also been lifted and sent to FSL for examination, so as to obtain an opinion as to whether the traces of Acetic acid were present in the said sample and whether the Acetic acid could have caused the said burns.

It may be noted here itself that the prosecution has failed as to why the said cane of Acetic acid was present in the house of the deceased that too for the last 8-10 years, specially when the deceased was not involved in manufacturing of something that required Acetic acid.

Conclusion:-

In view of the aforesaid discussion, the only evidence which has come on record is the written dying declaration made by the deceased to PW-14 and PW-18 which is Ex. PW 18/B and the oral dying declarations that he made to PW-1,PW-5 and PW-16. The said dying declarations could not be proved beyond reasonable doubt and as such in order to rely upon the said dying declarations, corroboration was required from the other evidence against the accused, but no such corroboration has come forth and as such the dying declarations which form the basis of the present case, can not be relied upon in order Sessions Case No. 176/2018 Page 51/52 State Vs Dheeraj Kumar FIR No.545/2017 PS Hari Nagar U/s 302 IPC to hold the accused guilty for the offence of murder of the deceased, more so, as the prosecution has also failed to prove miserably that accused Dheeraj son of Balbir Singh is the same Dhiraj son of Raju to whom the deceased referred to in his statement / dying declaration. 21, Final Order 21.1. In view of the aforesaid discussion the prosecution has failed to prove that it was the accused who had poured acid upon the deceased on 12.12.2017, which resulted into burns and because of infection in burns injuries the deceased expired on 17.12.2017. | accordingly hold the accused not guilty of the offence punishable under section 302 IPC and he is hereby acquitted of offence under section 302 IPC.

21.2. Family members of deceased Gurpreet @ Guppa are hereby referred to District Legal Service Authority, West, for consideration of suitable compensation amount.

21.3. In view of Section 365 Cr. P.C, a copy of the judgment be also sent to District Magistrate concerned for his information.

21.4. A copy of the judgment be also sent to worthy Commissioner of Police, Delhi, for his perusal and necessary action.

22. File be consigned to Record Room after necessary compliance. SAURABH - Digitally signed by PARTAP ¢ SAURABH PARTAP (Pronounced in the open SINGH LALER SINGH LALER Court on 18.01.2019) (SPS Laler) Additional Sessions Judge (Pilot Court) West:Court No. 33: Tis Hazari Courts Delhi Sessions Case No. 176/2018 Page 52/52

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Delhi District Court

State vs Dheeraj Kumar on 18 January, 2019