Delhi District Court
State vs . Satish Kumar on 16 July, 2015
1
IN THE COURT OF SH. PARAMJIT SINGH : ADDL. SESSIONS JUDGE
(SOUTHWEST)02, DWAKRA COURTS:DELHI
(Sessions Case No. 40/13)
Unique ID case No.02405R0081772013
State Vs. Satish Kumar
FIR No. : 349/12
U/s : 302 IPC
P.S. : Palam Village
State Vs. Satish Kumar
S/o Sh. Vijay Kumar
R/o RZP80, Gali No. 1, Raj NagarII
Palam Colony,
New Delhi.
Date of institution of case12.04.2013
Date on which, judgment have been reserved30.06.2015
Date of pronouncement of judgment13.07.2015
JUDGEMENT:
In the present case on 21.12.2012, on receipt of DD No. 25A regarding admission of injured Pankaj with stabbed injuries at DDU hospital, ASI Onkar Singh alongwith Ct. Satpal went to the DDU hospital, where injured Pankaj was SC No. 40/13 1/25 2 found admitted vide MLC No. 26722/12 and he was declared unfit for statement and accordingly the said DD No. 25A was kept pending. On 22.12.2012, injured Pankaj was declared fit for statement accordingly ASI Onkar Singh recorded the statement (Ex. PW18/B) of injured Pankaj, wherein he stated that in the month of November, Satish had a quarrel with his brother Karan and he had beaten him at that time and due to said quarrel, there was tension between him and Satish. He further stated that on 21.12.2012 at about 7:30 P.M., he had gone to meet Vicky and at Pandit Chowk, Raj NagarII, Palam Colony, Delhi, Satish met him and he had an altercation with him and during the said quarrel, Satish stabbed him with a knife as a result of which he sustained injuries in his abdomen and fell down and his friend Raj Kumar got him admitted in the hospital. In his statement, injured Pankaj also stated that while stabbing, Satish was saying that "Tujhe Upar Pahuncha Daita Hun" and that Satish had committed deadly assault upon him and has stabbed him with a knife and caused injuries to him and legal action may be taken against him.
On the basis of the abovesaid statement (Ex. PW18/B), a rukka (Ex. PW18/C) was prepared by ASI Onkar Singh and the same was sent to P.S. Palam Village through Ct. Rajesh for the registration of the case and accordingly, the present case was registered vide FIR No.349/12 at P.S Palam Village and the case was assigned to ASI Onkar Singh, for investigation.
On 02.01.2013, information regarding death of Pankaj was received from DDU hospital vide DD No. 23A and accordingly, Section 302 IPC was added in this case and investigation of the case was taken over by Insp. Sunder Singh, SHO, PS : Palam Village.
SC No. 40/13 2/25 3
In brief, case of the prosecution is that on 21.12.2012 at about 7:30 P.M., near H. No. RZF1130, Lohia Marg, near Pandit Chowk, Raj NagarII, Palam Colony, Delhi within the jurisdiction of PS Palam Village, accused Satish Kumar stabbed deceased Pankaj with a knife with intention to kill him and consequent to the said injuries, deceased Pankaj expired in DDU hospital on 02.01.2013.
2. On completion of the investigation, the charge sheet was filed. After committal, the arguments on the point of charge were heard and on the basis of the material on record, charge for committing the offence punishable u/s 302 IPC was framed against accused Satish Kumar by the Ld. Predecessor of this court, to which the said accused pleaded not guilty and claimed trial.
3. In support of its case, the prosecution has examined twenty seven witnesses i.e PW1 to PW27.
PW1 Sh. Karan is the brother of deceased Pankaj and prosecution is relying upon his testimony to prove its case on record.
PW2 Ct. Satish Kumar deposed that on 21.12.2012, he was on duty at DDU hospital and at about 8:35 P.M., one Pankaj was brought to DDU hospital with stab injuries and was admitted in the hospital vide MLC No. 26722/12 and he informed DO Palam Village in this regard and DD No. 25 was recorded.
PW3 Ct. Virender deposed that on 02.01.2013, he was posted as Duty Constable at DDU hospital and on that day, one Pankaj, already admitted in the SC No. 40/13 3/25 4 hospital since 21.12.2012, expired in ICU and he sent information in this regard to PS Palam Village vide DD No. 23A. PW4 Rakesh Kumar TGT, GBSSS, Raj NagarII produced admission register and deposed that according to said register, one Satish Kumar had taken admission in ClassVI A vide admission no. 1991 and he has proved the copy of the said relevant entry as Ex. PW4/A and stated that according to admission register, the date of birth of said Satish Kumar is 28.12.1991.
PW5 Ct. Dinesh delivered the copies of FIR to Ld. MM in Dwarka Courts and at the office of the Senior Officers of Police on 03.01.2013 and stated that no delay was caused in delivering the copies.
PW6 Sh. Raj Kumar deposed that on 21.12.2012, he came to know that his friend Pankaj had sustained injuries and accordingly he went near H. No. RZF1130, where he found Pankaj in serious condition and shifted him to a private hospital from where he was referred to DDU hospital and he got him admitted there.
PW7 Sh. Surjeet Singh identified dead body of his brother at mortuary, DDU hospital on 03.01.2013 vide memo Ex. PW7/A and stated that after postmortem, dead body was handed over to his father Sh. Rajbir Singh vide memo Ex. PW7/B. PW8 HC Rakesh Chander deposed that on 12.02.2013 on the directions of IO, he had taken one sealed parcel alongwith sample seal to DDU hospital vide RC No. 14/21 and deposited the same in the Forensic Department and so long as the exhibits remained in his custody, same remained intact.
PW9 Ct Harish Kumar deposed that on 27.02.2013 on the directions of SC No. 40/13 4/25 5 IO, he took three sealed parcel alongwith three sample seal to FSL, Rohini vide RC No. 18/21 and deposited the same there and so long as the exhibits remained in his custody, same remained intact.
PW10 SI Ved Prakash has recorded FIR No. 349/12 of this case and he has proved copy of the said FIR as Ex. PW10/A and his endorsement on the rukka as Ex. PW10/B. He has also proved copy of the DD No. 25A dated 21.12.2012 as Ex. PW10/C. PW11 Dr. Vineet Kumar Soni deposed that on 21.12.2012, he examined Pankaj at DDU hospital vide MLC No. 26722 and has proved the same as Ex. PW11/A. PW12 HC Ram Phool deposed that he was posted as MHC (M) at PS Palam Village and on 22.12.2012, ASI Onkar Singh deposited two sealed parcels in the Malkhana and he made entry in register no. 19 at Sr. No. 1436 and he has proved copy of the said entry as Ex. PW12/A. PW12 further deposed that on 03.01.2013, Insp. Sunder Singh deposited one sealed parcel in the Malkhana and he made entry in register no. 19 at Sr. No.730 and he has proved copy of the said entry as Ex. PW12/B. PW12 has also proved copies of RC No. 14/21 and RC No. 18/21 as Ex. PW12/C and Ex. PW12/D respectively and stated that so long as the exhibits remained in his custody, they were intact and nobody tampered with the same.
PW13 Dr. B.N. Mishra has conducted the postmortem on the body of Pankaj and has proved his detailed report in this regard as Ex. PW13/A. He further deposed that on 12.02.2013, IO Insp. Sunder Singh produced one sealed parcel and sought opinion regarding weapon of offence and he opined that produced weapon SC No. 40/13 5/25 6 i.e. knife could have been used for infliction of injuries and that the tears observed on the clothes produced were also consistent and possible by the said weapon and he has proved his report in this regard as Ex. PW13/C. PW13 has also stated that he prepared sketch of knife which is Ex. PW13/B and the said knife is Ex. PX1.
PW14 Sh. Rajbir Singh identified dead body of his son at mortuary, DDU hospital on 03.01.2013 vide memo Ex. PW14/A and stated that after postmortem, dead body was handed over to him vide memo Ex. PW7/B. PW15 Dr. Abhishek Agarwal has proved the opinion regarding nature of injuries as dangerous with sharp object given by Dr. Nitesh on MLC No. 26722 dated 21.12.2012 (Ex. PW11/A) of patient Pankaj.
PW16 Ct. Hardeep Singh deposed that on 22.01.2013, he went to the spot alongwith Insp. Sunder Singh and ASI Onkar Singh and took rough measurements and notes at the instance of ASI Onkar Singh in the presence of Insp. Sunder Singh and prepared the scaled site plan which is Ex.PW16/A. PW17 Dr. Akhil Sethi has proved the death summery, death report and medical certificate of cause of death of patient Pankaj prepared by Dr. Vinita as Ex. PW17/A, PW17/B and PW17/C respectively.
PW18 ASI Onkar Singh is the Ist IO of this case and he deposed that on receipt of DD No. 23A from DDU Hospital regarding admission of one Pankaj in the hospital in stabbed condition, he alongwith Ct. Satpal reached DDU hospital, where injured Pankaj was declared unfit for statement and no eye witness was found there. He further deposed that the above said DD was kept pending and on SC No. 40/13 6/25 7 22.12.2012 in the evening at about 6:40 P.M., injured Pankaj was declared fit for statement and accordingly he recorded his statement which is Ex. PW18/B and prepared rukka (Ex. PW18/C) and sent the same to PS through Ct. Rajesh for registration of the FIR. PW18 deposed that doctor handed over to him one sealed parcel containing the clothes of injured which were seized vide memo Ex. PW18/D and thereafter he went to the spot and prepared the site plan Ex. PW18/E at the instance of Raj Kumar. PW18 further deposed that thereafter in search of accused, he went to his house in Raj Nagar and arrested him vide arrest memo Ex. PW18/F and his personal search was taken vide memo Ex. PW18/G. PW18 deposed that accused made his disclosure statement Ex. PW18/H and got recovered one knife and he prepared sketch of the knife which is Ex. PW18/L and seized the said knife vide memo Ex. PW18/H. He further deposed that he also prepared site plan of the recovery which is Ex. PW18/K, recorded statements of the witnesses and deposited the case property with the MCH (M) and he has proved the said knife as Ex. PX1. PW18 also deposed that thereafter the investigation of this case was taken over by Insp. Sundar Singh.
PW19 Ct. Rajesh Kumar accompanied PW18 ASI Onkar Singh to DDU hospital and his testimony is almost on the similar lines as that of PW18 ASI Onkar Singh.
PW20 Dr. Ankuj Kumar Garg has proved death certificate prepared by Dr. Vinita Singh as Ex. PW17/A. PW21 HC Sri Krishan recorded DD No. 23A dated 02.01.2013 & DD SC No. 40/13 7/25 8 No. 07A dated 03.01.2014 at PS Palam Village and has proved the copies thereof as Ex. PW21/A and Ex. PW21/B respectively.
PW22 ASI Nihal Singh deposed that on 03.01.2013, he accompanied IO Insp. Sundar Singh and ASI Onkar Singh to mortuary, DDU hospital, where postmortem on the deceased was got conducted and on 25.02.2013 on the directions of the IO, he went to Forensic Department, DDU hospital and brought subsequent opinion alongwith two sealed parcels and handed over the same to the IO.
PW23 Dr. Ritu Aggarwal has proved death summary prepared by Dr.Akhil Sethi as Ex. PW17/A. PW24 Dr. Irfan Nahvi has proved the opinion about nature of injury as dangerous given by Dr. Nikesh on MLC Ex. PW11/A. PW25 Insp. Sunder Singh is the main IO of this case and he deposed that in the night intervening 2/3.01.2013, DD No. 23A regarding death of injured Pankaj was received and Duty Officer informed him in this regard in the morning and Section 302 IPC was added and he took over the investigation of this case. PW25 further deposed that thereafter he went to DDU hospital alongwith ASI Onkar Singh and HC Nihal Singh and got postmortem on the deceased conducted and he has proved the document regarding inquest proceedings as Ex. PW25/A. PW25 deposed that the dead body was identified by father and brother of the deceased and after postmortem, the dead body was handed over to them and one sealed parcel containing blood gauze handed over by the doctor after postmortem was seized vide memo Ex. PW18/L. He further deposed that on 22.01.2013 he got the scaled site plan prepared through draftsman Hardeep Singh at the instance of SC No. 40/13 8/25 9 ASI Onkar Singh and on 12.02.2013, he sent the sealed parcels containing clothes of the deceased and knife to the DDU hospital for subsequent opinion and on 25.02.2013, he obtained subsequent opinion regarding weapon of offence and also collected exhibits from Autopsy Surgeon. PW25 also deposed that he recorded statements of the witnesses and after completion of the investigation, he filed the chargesheet in the court.
PW26 Dr. Vinita Singh has proved the death summary, death report and medical certificate of cause of death of Pankaj prepared by her as Ex. PW17/A, Ex. PW17/B and Ex. PW17/C respectively.
PW27 Dr. Irfan has proved the endorsement regarding patient fit for statement given by Dr. Nalin on document Ex. PW18/A.
4. After recording of prosecution evidence, statement of accused Satish Kumar u/s 313 Cr. P. C was recorded by the Ld. Predecessor of this court, wherein all the incriminating evidence was put to the accused, which the accused denied as incorrect. Accused Satish Kumar claimed to be innocent and stated that he has been falsely implicated in this case. He also stated that he wanted to lead evidence in his defence.
5. In his DE, accused has examined DW1 Brij Mohan, DW2 Puran Mal, DW3 Rakesh Kumar, DW4 Manoj and DW5 Vasudev.
6. I have heard the arguments put forward by Ld. Addl. PP and Ld.defence SC No. 40/13 9/25 10 counsel for the accused and have carefully gone through the record of the case. I have also carefully considered the evidence adduced on behalf of the prosecution in support of its case as well as by the accused in his defence.
7. It has been submitted by Ld. Addl. PP that in view of the evidence adduced on record, in particular the dying declaration of the deceasedPankaj, the prosecution has been successful in proving on record the guilt of the accused beyond the reasonable doubt. It is further submitted that prosecution has been successful in proving on record that on 21.12.2012, accusedSatish Kumar stabbed deceased Pankaj with a knife with intention to kill him and due to the said injuries, deceased Pankaj expired in DDU hospital on 02.01.2013 and as such accused Satish Kumar committed murder of Pankaj. Ld. Addl. PP also submitted that in view of the evidence and material brought on record by the prosecution, the guilt of the accused have been proved beyond the reasonable doubts and he prayed that accused Satish Kumar may be convicted of the charged offence.
On the other hand, it has been submitted by the Ld. defence counsel that the prosecution has miserably failed to prove the guilt of the accused beyond the reasonable doubts. It is further submitted that accused was innocent and have been falsely implicated in this case, although he has nothing to do with the offence alleged in the instant case. It is submitted that accused was not present in Delhi on the day of incident and he does not know as to how and why he has been named in this case. It is further submitted that nothing was recovered from or at the instance of the accused and the alleged recovery was planted upon him. It is further SC No. 40/13 10/25 11 submitted that the evidence brought on record by the prosecution was self contradictory and there were various loopholes in the testimonies of various prosecution witnesses, which entitles the accused to the benefit of doubt. It is submitted that the testimonies of various prosecution witnesses were not trustworthy as there were material contradictions/ discrepancies in their testimonies, which were fatal to the case of the prosecution. Ld. defence counsel also submitted that prosecution has miserably failed to bring home the guilt against the accused and he prayed that accused Satish Kumar may be acquitted of the charged offence.
8. I have carefully considered the submissions made by Ld. Addl. PP for the State and Ld. defence counsel for the accused and have carefully gone through the record of the case. I have also carefully considered the evidence adduced on behalf of the prosecution in support of its case and by the accused in his defence.
9. In the present case, accused Satish has been charged for committing the offence punishable u/s 302 IPC by the Ld. Predecessor of this court.
In brief, the case of the prosecution is that on 21.12.2012 at about 7:30 P.M, near H. No. RZF1130, Lohia Marg, near Pandit Chowk, Raj NagarII, Palam Colony, Delhi within the jurisdiction of PS Palam Village, accused Satish Kumar stabbed deceased Pankaj with a knife with intention to kill him and consequent to the said injuries, deceased Pankaj expired in DDU hospital on 02.01.2013.
In the present case, the prosecution is mainly relying upon the statement (Ex. PW18/B) of deceased Pankaj recorded before his death by ASI SC No. 40/13 11/25 12 Onkar Singh on 22.12.2012 and it is being submitted on behalf of behalf of prosecution that the said statement of deceased Pankaj tantamount to his dying declaration.
In his above said statement (Ex. PW18/B), it has been stated by deceased Pankaj that in the month of November, Satish had a quarrel with his brother Karan and he had beaten him at that time, however the said matter was not reported and due to the said quarrel, there was tension between him and Satish. He further stated that on 21.12.2012 at about 7:30 P.M, he had gone to meet Vicky and at Pandit Chowk, Raj NagarII, Palam Colony, Satish met him and he had an altercation with him and during the said quarrel, Satish took out a knife from his pocket and stabbed him with knife, as a result of which he sustained injuries in his abdomen and fell down and his friend Raj Kumar got him admitted in DDU hospital. In his statement, injured Pankaj also stated that while stabbing, Satish was saying that "Tujhe Upar Pahuncha Daita Hun" and that Satish had committed deadly assault upon him and has stabbed him with a knife and caused injuries to him and legal action may be taken against him.
10. Section 32 of Indian Evidence Act deals with the admissibility of the statement of relevant fact made by a person, who is dead. It reads as under :
32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc is relevant. Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found or who has become incapable of giving evidence, or whose attendance cannot be procured, SC No. 40/13 12/25 13 without an amount of delay or expense which under the circumstances of the case appears to the court unreasonable, are themselves relevant facts in the following cases : (1) When it relates to cause of death When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question.
Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceedings in which the cause of his death comes into question.
In view of the provisions of section32 of Indian Evidence Act, it is clear that the statement of relevant facts made by a person, who is dead are themselves relevant facts when such statement relates to the cause of death or as to any of the circumstances of the transaction which resulted in the death of such person, in case in which the cause of his death comes into question. It is pertinent to note that such statements are relevant whether the person making them was or was not under expectation of death at the time when such statements were made.
In the case titled as "Dashrath @ Champa & Ors. Vs. State of M.P ( reported as AIR 2008 SC 316)", it has been laid down by the Hon'ble Supreme Court of India that: " The eight clauses of Section 32 are exceptions to the general rule against hearsay just stated. Clause (1) of Section 32 makes relevant what is generally described as SC No. 40/13 13/25 14 dying declaration though such an expression has not been used in any Statute . It essentially means statements made by a person as to the cause of his death or as to the circumstances of the transaction resulting in his death".
11. The law regarding the admissibility of dying declaration has been laid down by the Hon'ble Supreme Court of India in the case reported as (2002) 6 Supreme Court Cases 710.
In the aforesaid case titled as " Laxman Vs. State of Maharashtra (reported as (2006)6 SCC 710) ", it has been laid down by the Hon'ble Supreme Court of India that: "The situation in which a man is on the deathbed is very solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason that the requirements of oath and cross examination are dispensed with. Since the accused has no power of cross examination, the courts insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to make the dying declaration looks up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion SC No. 40/13 14/25 15 will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable". In the aforesaid case, it has been further laid down that: " Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntarily and truthful ".
Further, in the case titled as "Dashrath @ Champa & Ors. Vs. State of M.P ( reported as AIR 2008 SC 316)" , while dealing with the admissibility of dying declaration, it has been held by the Hon'ble Supreme Court of India that : " The grounds of admission are firstly, necessity for the victim being generally the only principal eyewitness to the crime, the exclusion of the statement might deflect the ends of justice, and secondly, the sense of impending death, which creates a sanction equal to the obligation of an oath. The general principle on which this species of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced and the mind is induced by the most SC No. 40/13 15/25 16 powerful considerations to speak the truth ; a situation so solemn and so lawful is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a Court of justice ".
In the aforesaid case, it has been further laid down that : "The principle on which dying declaration is admitted in evidence is indicated in legal maxim " nemo moriturus procesumitur mentiri, a man will not meet his maker with a lie in his mouth "
12. In the case reported as AIR 2001SC 2383, the law regarding the reliability of the dying declaration has been dealt with by the Hon'ble Supreme Court of India.
In the aforesaid case titled as "Laxmi Vs. Om Prakash & Ors (reported as AIR 2001 SC 2383)" it has been laid down by the Hon'ble Supreme Court of India that: " One of the important tests of the reliability of the dying declaration is a finding arrived at by the Court as to satisfaction that the deceased was in a fit sate of mind and capable of making a statement at the point of time when the dying declaration purports to have been made and/or recorded. The statement may be brief or longish. It is not the length of the statement but the fit state of mind of the victim to narrate the facts of occurrence which has relevance. If the Court finds that the capacity of the maker of the statement to narrate the facts was impaired or the Court entertains grave doubts whether the deceased was in a fit physical and mental state to make the statement the SC No. 40/13 16/25 17 Court may in the absence of corroborative evidence lending assurance to the contents of the declaration refuse to act on it. The dying declaration is admissible in evidence. The admissibility is founded on principle of necessity. A dying declaration, if found reliable can form the basis of conviction. A court of facts is not excluded from acting upon uncorroborated dying declaration for finding conviction. A dying declaration, as a piece of evidence, stands on the same footing as any other piece of evidence. It has to be judged and appreciated in the light of the surrounding circumstances and its weight determined by reference to the principles governing the weighing of evidence ".
In view of the above, it is evident that the dying declaration is admissible in evidence provided that the dying declaration is of such a nature that it inspires confidence of the court in its truthfulness and correctness. Further, the court also has to satisfy itself as to the fact that the deceased was in a fit state of mind and was capable of making the statement at the time when such dying declaration is purported to have been made or recorded.
13. In the present case, the above statement/dying declaration ( Ex. PW18/B) of deceased Pankaj has been recorded by PW18 ASI Onkar Singh . One of the requirement for the admissibility of the dying declaration is that deceased should have been in fit state of mind and capable of making the statement and in the instant case, it has been specifically stated in his testimony by the PW18 ASI Onkar Singh that injured Pankaj was declared fit for statement and accordingly , he SC No. 40/13 17/25 18 recorded his statement which is Ex. PW18/B. This factum regarding the deceased/ injuredPankaj being fit for statement is also evident from the endorsement regarding said patient being fit for statement given by the Dr. Nikesh on the document Ex. PW18/A, which has been duly proved on record by the PW27 Dr. Irfan. In these circumstances and in view of the material on record, it is clear that at the time of making statement/dying declaration ( Ex. PW18/B), deceasedPankaj was in a fit state of mind and was capable of making the statement, when the said statement /dying declaration was recorded by the PW18. In addition to this, in view of the material on record, the above statement/dying declaration ( Ex. PW18/B) of deceased Pankaj also inspires full confidence as there is nothing on record to disbelieve the same. In fact, nothing material has come on record to show that statement/dying declaration ( Ex PW18/B) made by the deceased was not truthful or correct.
14. Further, that the abovesaid statement/dying declaration ( Ex. PW18/B) is also corroborated by the PW1 Karan, who deposed that accused Satish and one Sanju used to harass him while going to school and they used to snatch money and Sanju was his classmate and Satish was the friend of Sanju. He further deposed that in the month of November, 2012, when he was going to deposit school fee, accused Satish and his friend Sanju met him on the way and they snatched money from him. When he tried to stop them accused Satish gave beatings on his face with water tap due to which his tooth was broken. He further deposed that he informed SC No. 40/13 18/25 19 his brother Pankaj and his brother wanted to meet Satish in this regard and on 21.12.2012 at about 7:30 P.M, accused Satish met with his brother at Pandit Chowk, Raj Nagar and later on, he came to know that accused Satish murdered his brother by causing injuries with a knife. He further deposed that he also came to know that on that day that his brother was shifted to DDU hospital and he alongwith his mother went to DDU Hospital, where his brother Pankaj was found admitted in unconscious condition.
The important fact is that this witness i.e PW1 Karan was cross examined by the Ld. defence counsel, but nothing material has come on record which could assail the credibility or trustworthiness of this witness or which could be of any help to the accused. In his crossexamination by the Ld. Defence counsel, PW1 denied the suggestion that during the month of OctoberNovember, 2012 accused Satish was not in Delhi . He further denied the suggestion that accused Satish did not snatch any money from him. PW1 also denied the suggestion that he was deposing falsely as deceased was his brother.
Apart from the above said statement/dying declaration ( Ex PW18/B) of deceased Pankaj as well as testimony of PW1, the case of the prosecution is also corroborated by the medical evidence adduced on record by the prosecution. It is pertinent to note that in the postmortem of the deceased Pankaj ( Ex. PW13/A), it has been stated by the concerned Dr. B.N.Mishra, who conducted the postmortem that the cause of death was due to septicaemia caused by peritonitis consequent upon tearing of large intestine ( left side of colon) and left kidney by sharp pointed SC No. 40/13 19/25 20 weapon and it has also been stated that external injury no.1 i.e "One incised stab wound (stitched) of size 2 cm x deep to abdominal cavity present on the left lumber region just below 12th rib at mid axiliary line with partly healed up" was sufficient to cause death in ordinary course of nature. In addition to this PW13 Dr.B.N.Mishra also stated that on 12.2.2013, IO Insp. Sunder Singh produced one sealed parcel and sought opinion regarding weapon of offence and he opined that the produced weapon i.e knife could have been used for the infliction of injuries and the tears observed on the clothes produced were also consistent and possible by the said weapon and he has proved his report in this regard as Ex. PW13/C. PW13 also stated that he prepared the sketch of knife which was Ex. PW13/B and the said knife was Ex.PX1. It is pertinent to note here that said knife Ex. PX1 was the same knife which was got recovered by the accused pursuant to his disclosure statement and was seized vide seizure memo Ex. PW18/H. Hence, in view of the above and having regard to the fact and circumstances of the present case, I am of the considered opinion that accused Satish Kumar has rendered himself liable for committing the offence punishable u/s302 IPC.
15. It has been submitted by the Ld. defence counsels that there were material contradictions/discrepancies in the testimonies of various prosecution witnesses, which were fatal to the case of the prosecution, however the said SC No. 40/13 20/25 21 submissions made on behalf of the accused are devoid of any merits and are contrary to the record as perusal of the testimonies of the various prosecution witnesses reveals that there were no material contradictions or discrepancies in their testimonies and the contradictions/discrepancies, if any were minor or trivial in nature and these were not fatal to the case of the prosecution.
16. In the present case, in his defence evidence, accused has examined five witnesses i.e DW1 Brij Mohan , DW2 Puran Mal , DW3 Rakesh Kumar, DW4 Manoj & DW5 Vasudev and as far as the evidence of the said witnesses i.e DW1 to DW5 is concerned, their testimonies do not inspire confidence as there are material discrepancies in their testimonies and the said witnesses, being the relatives and friend of the accused, also appear to be interested witnesses.
17. In the instant case, DW1 Brij Mohan deposed that he was maternal uncle ( mama) of accused Satish and on 03.11.2012, the grand father of accused Satish expired and Satish alongwith him went to attend the last rites of his grand father at village Hazipur, Narnol, Haryana and after Kaaj ceremony after 13 days, accused Satish came back with him to attend his college and on 22.12.2012, the winter vacations of his college started and on 22.12.2012 he dropped Satish at the bus stand to come to Delhi early in the morning alongwith his belongings, however the testimony of this witness does not inspire confidence as there are material discrepancies therein. In addition to this, in his cross examination by the Ld. Addl. SC No. 40/13 21/25 22 PP, DW1 also stated that he does not have any record to show that the winter vacation in the said polytechnic institute started from 22.12.2012.
Further DW2 Puran Mal deposed that he was student of Saraswati Polytechnic college and was studying with Satish and he & Satish used to go college together and used to return together and on 21.12.2012 accused Satish was with him till evening and on 22.12.2012 accused Satish went to his house and he went to his home, however , the testimony of this witness does not appear to be of much help to the accused as there were material contradictions in his deposition. In fact, in his cross examination by the Ld. Addl. PP, this witness i.e DW2 admitted that the bus pass does not bear the stamp of the school and he do not have any document which shows that Satish was studying with him in the said institute during the session 20122013. He further admitted that there was some overwriting in the academic year as mentioned in the documents. DW2 also admitted that he has not brought any such document which shows that the school was closed for winter vacation 22.12.2012.
Similarly, DW5 Vasudev deposed that he was elder brother of Satish and in the intervening night of 23.11.2012, his grandfather expired and his brother alongwith maternal uncle reached in the village and took part in the cremation of his grand father and remained there till Tehrvi/Rasam Pagri and on 15.11.2012, his brother went from village to attend his college. He further deposed that on 22.12.2012, he received a call from his maternal uncle informing that as winter vacations, he was sending Satish to Delhi on 22.12.2012 and accordingly, he told his friend Manoj to go to bus stand Dhaula Kuan for picking his brother Satish SC No. 40/13 22/25 23 who would come there at 12/12:30 p.m and his friend told him that he had picked Satish from there and came back to the house. He further deposed that he alongwith his brother Satish and his friend Manoj were having lunch between 2 to 2:30 P.M, when two police officials came there and asked about his brother Satish and thereafter they took his brother on their bike and told them that after making some inquiry from him, they would let him off but till 5 p.m, his brother did not comeback then he went to PS and came to know that his brother was involved in this false case. It is pertinent to note that initial part of the testimony of this witness does not appear to be of much use to the accused as therein, he has stated about the death of his grand father in the month of November, 2012 whereas in the instant case the incident tookplace on 21.12.2012. Further, as far as the remaining part of testimony of PW5 is concerned, it does not inspire confidence as there were material discrepancies therein. In addition to this, in his crossexamination by the Ld. Addl.PP, DW5 Sh. Vasudev stated that he has not brought any record to show that accused Satish Kumar was present in the institute and to prove that his winter vacation started from 22.12.2012 .
In view of the above, all these three witnesses i.e DW1, 2 & 5 have been produced by the defence to prove that accused was not present at the spot on the date of the incident, however the evidence of these witnesses is not of much use to the accused as all these three witnesses have failed to prove the factum of alleged nonpresence of the accused and they have also failed to place on record any document to the effect that accused Satish Kumar was studying in Institute in question and was present at the said Institute during the relevant period . SC No. 40/13 23/25 24
In addition to the above , accused has also examined DW3 Sh.Rakesh Kumar who has deposed about the death of the grand father of the accused at the village and the alleged presence of accused Satish Kumar there in the month of November,2012, however the testimony of this witness is not of much use to the accused as incident in the instant case has taken place on 21.12.2012 and this witness has not deposed anything about the same. In addition to this , DW3 also admitted that he has not brought the negative of the photographs or any certificate as required u/s 65B of Indian Evidence Act . Further DW4 Sh. Manoj deposed that he brought the accused Satish Kumar from the bus stand Dhaula Kuan to home and when they were having meal at the house of Satish Kumar , two police officials came and took away Satish with him. In these circumstances DW4 is alleging the illegal picking up of the accused by the police officials, however he has failed to explain as to why he did not lodge any complaint about the same with the senior police officers or other authorities, which would have been normal human conduct on his part in the facts of the present case. In fact, in his cross examination by the Ld. Addl. PP, DW4 admitted that he did not make any complaint to any senior officer of police or to court alleging that Satish was lifted in unlawful manner by the police.
Hence, in view of the above, the testimonies of DW1 to DW5 do not inspire confidence and in my considered opinion, the same are not of any help to the accused in the fact and circumstances of the present case.
18. Thus, in view of the above discussion & observations and having regard SC No. 40/13 24/25 25 to the fact and circumstances of the present case, I am of the considered opinion that the prosecution has been successful in bringing home the guilt against the accused for committing the offence punishable u/s302 IPC, beyond the reasonable doubts. Accordingly, I hold the accusedSatish Kumar guilty of the offence punishable u/s 302 IPC and convict him accordingly.
Now to come up for arguments on the point of sentence on 16.7.2015.
(Announced in the open ) (Paramjit Singh)
(court on 13.7.2015) Addl. Sessions Judge
(SouthWest)02
Dwarka Courts, Delhi
SC No. 40/13 25/25
26
SC No. 40/13 26/25
27
FIR No.349/12
P.S. Palam Village
13.7.2015
Present: Sh. Pramod Kumar, Addl.PP for the State.
AccusedSatish Kumar in JC with counsel Sh.V.K.Sharma . Vide separate judgment, announced in the open court, accused Satish Kumar has been convicted u/s302 IPC .
Now to come up for the arguments on the point of sentence on 16.07.2015, as requested.
(Announced in the open ) (Paramjit Singh)
(court on 13.7.2015) Addl. Sessions Judge
(SouthWest)02
Dwarka Courts, Delhi
SC No. 40/13 27/25
28
IN THE COURT OF SH. PARAMJIT SINGH : ADDL. SESSIONS JUDGE (SOUTHWEST)02, DWARKA COURTS:DELHI (Sessions Case No. 40/13) Unique ID case No.02405R0081772013 State Vs. Satish Kumar FIR No. : 349/12 U/s : 302 IPC P.S. : Palam Village ORDER ON THE POINT OF SENTENCE In the present case, the convictSatish Kumar have been convicted u/s 302 IPC .
I have heard the arguments on the point of sentence put forward by Ld.Addl. PP for the State and Ld. Defence counsel for the convict.
2. It has been submitted by the Ld. Addl.PP that in view of the nature and gravity of offence, the convict does not deserve any leniency and he prays that maximum sentence prescribed by the law may be imposed upon the convict.
3. On the other hand, it has been submitted by the Ld. defence counsel that convictSatish Kumar is not a previous convict and is having clean antecedents. It is further submitted that convict Satish Kumar belongs to a poor family and has to lookafter his old aged parents. Ld. defence counsel also submits SC No. 40/13 28/25 29 that convict Satish Kumar have already remained in the custody for the last more than two years during the investigation and trial of this case and he prays that a lenient view may be taken in this case.
4. I have carefully considered the submissions made by Ld. Addl.PP and Ld. defence counsel and have carefully gone through the record of the case.
5. In the present case, the convictSatish Kumar have been convicted for committing the offence punishable u/s302 IPC. The present case does not fall under the category of rarest of rare cases. In these circumstances and having regard to the fact and circumstances of the present case, I hereby sentence the convict Satish Kumar to undergo imprisonment for life and to pay a fine of Rs. 10,000/ in default SI for five months u/s302 IPC, which sentence shall meet the ends of justice in this case.
Benefit u/s 428 Cr.PC be also given to the convict.
Conviction warrants be prepared accordingly.
Copies of the judgment and order on the point of sentence be supplied to the convict, free of cost.
File be consigned to the record room.
(Announced in the open ) (Paramjit Singh)
(court on 16.7.2015) Addl. Sessions Judge
(SouthWest)02
Dwarka Courts, Delhi
SC No. 40/13 29/25
30
FIR No. 349/12
P.S Palam Village
16.7.2015
Present: Sh. Pramod Kumar, Addl.PP for the State.
Convict Satish Kumar in JC with counsel Sh. V.K.Sharma. Arguments on the point of sentence, heard.
Vide separate order on the point of sentence, announced in the open court, the convict Satish Kumar has been sentenced to undergo imprisonment for life and to pay a fine of Rs. 10,000/ in default SI for five months u/s 302 IPC , which sentence shall meet the ends of justice in this case.
Benefit u/s 428 Cr.PC have also been given to the convict. Conviction warrant be prepared accordingly.
Copies of the judgment and order on the point of sentence be supplied to the convict, free of cost.
File be consigned to the record room.
(Announced in the open ) (Paramjit Singh)
(court on 16.7.2015) Addl. Sessions Judge
(SouthWest)02
Dwarka Courts, Delhi
SC No. 40/13 30/25