Delhi District Court
SC/44635/2015 on 11 February, 2020
IN THE COURT OF DR. SUDHIR KUMAR JAIN
DISTRICT & SESSIONS JUDGE, NORTH-EAST
KARKARDOOMA COURTS, DELHI
SC-44635/2015
CNR No.DLNE01-000283-2013
FIR: 325/13
Police Station: Khajuri Khas
Under Section: 302 IPC
STATE
V
AADIL S/O SABBIR
R/O H. NO.C-1, GALI NO.7
NEHRU VIHAR
DELHI
Date of Institution : 21.10.2013
Date of Argument : 20.01.2020
Date of Judgment : 11.02.2020
JUDGMENT
1. The Constitution of India which guarantees every citizen protection of life and liberty as a positive right cast a duty on State to maintain law and order in society for securing peace and security to citizens. The State to achieve these objectives enacts penal laws, instrumental and symbolic prescribing punishment in case of breach of law and order in society. When any person found guilty of committing breach of right of life, liberty or property guaranteed to citizens then it becomes duty to State to apprehend such person, put to fair trial and punish if found guilty. The aim of Criminal Justice System is to punish the guilty and to protect the innocent. Section 299 of the Indian Penal Code, 1860 (hereinafter referred to as "IPC") defines murder. It reads as under:-
SC 44635/15 STATE V AADIL FIR 325/13 1/31300. 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 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 as aforesaid.
Section 302 IPC prescribed punishment for offence of murder defines in section 299 IPC. It reads 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.
2. Shabbo (hereinafter referred to as 'the deceased') got married with Aadil (hereinafter referred to as 'the accused') and having one son and one daughter out of marriage. The accused was addicted to consume liquor and used to abuse and beat the deceased after consuming liquor. The accused on 26.06.2013 demanded money from the deceased for purchasing liquor. The accused on refusal attacked the deceased with a scissor and ran away from the spot leaving behind the deceased in injured condition.
The brothers of the deceased Wahid and Sahid on 26.06.2013 were present at work place. They received information that deceased had received injuries by scissor at C-1 Gali, Nehru Vihar. Thereafter, Wahid and Sahid along with other workers reached at the spot where deceased was lying in severe injured condition. Many public persons were present at spot. The injured was taken to Mavi Hospital but the hospital refused to entertain the injured. Thereafter, the injured was taken to GTB Hospital in an ambulance wherein Sahid accompanied the injured. The deceased informed to brothers Wahid and Shahid that the accused SC 44635/15 STATE V AADIL FIR 325/13 2/31 caused injuries to her by a scissor. In the GTB Hospital also the deceased again told brother Wahid that she was assaulted by the accused who caused injuries to her by a scissor.
Inspector Rajesh Vijay after receipt of DD no.49A regarding stabbing of a lady at Nehru Vihar on 26.06.2013 at about 9:55PM sent ASI Vijender and Ct. Nareshveer to GTB Hospital. ASI Vijender at about 10:00PM conveyed Duty Officer about serious condition of injured lady. Thereafter, Inspector Rajesh Vijay reached at GTB Hospital. The injured was already declared unfit for statement. Inspector Rajesh Vijay collected the MLC bearing no.2420/13 of the deceased. The deceased was having stab injuries on the chest and abdomen. Inspector Rajesh Vijay met with Wahid, Kausar Jahan and Bano but no eye witness was found there. The deceased expired at 11:30PM. Inspector Rajesh Vijay reached at the spot where no eye witness was available. Rukka was prepared. FIR was registered. The exhibits were collected from the spot. Post mortem of the deceased was conducted and dead body of the deceased was handed over to relatives. The accused was arrested on 27.06.2013 on the basis of secret information. The accused on 29.06.2013 got recovered one part of the scissor stated to be used in the commission of the offence. Inspector Rajesh Vijay during investigation collected the post mortem report and obtained subsequent opinion about weapon of offence, got prepared the scaled site plan and recorded the statements of the witnesses. The accused after completion of investigation charge sheeted for offence punishable under section 302 IPC. The charge sheet was filed in concerned court of the Metropolitan Magistrate.
The copies of charge sheet and annexed documents were supplied to the accused in compliance of Section 207 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code"). The concerned Metropolitan Magistrate vide committal order dated 10.10.2013 committed the case to the Court of Sessions and assigned to this Court for trial in accordance with law.
3. The charge for offence punishable under section 302 IPC was framed against the accused vide order dated 07.11.2013 to which the accused pleaded not guilty and claimed trial.
SC 44635/15 STATE V AADIL FIR 325/13 3/314. The prosecution examined Mohd. Sahid as PW1, Wahid as PW-2, Bano as PW- 3, sister of the accused Rabia as PW-4, Kausar as PW-5, ASI Jagbir Singh as PW- 6, Inspector Mukesh Kumar Jain as PW-7, HC Zile Singh as PW-8, daughter of the deceased namely Hudda as PW-9, Firoz as PW10, ASI Shanti Lal as PW-11, brother of the deceased Shakeel as PW12, Shaukin Pal, AAO, In-Charge, CATS Ambulance, HQs Bela Road as PW13, Ct. Rakesh as PW14, Ct. Jai Kishan as PW15, HC Man Singh as PW16, Dr. P. Ram, DMS, GTB Hospital as PW17, Dr. Priyal Jain, Sr. Demonstrator, UCMS & GTB hospital as PW18, HC Virender as PW19, ASI Puran Singh as PW20, Ct. Sanjay Kumar as PW21, HC Ram Avtar as PW22, Inspector Ravi Kumar as PW23, Retired SI Gopi Chand as PW24, SI Shailender as PW25 and the Investigating Officer Inspector Rajesh Vijay as PW26.
PW-1 and PW-2 are the brothers of the deceased. PW-3 Bano was residing in the house situated in gali no.14, C-1, Nehru Nagar and knew the accused and deceased for last 2-3 years. PW-4 Rabia is the sister of the accused and the deceased was her sister-in-law (bhabi). PW-5 Kausar had gone to GTB Hospital to see the deceased and met the police. PW-6 ASI Jagbir Singh being Duty Officer at PS Khajuri Khas on 26.06.2013 recorded DD no.49A which was marked to ASI Vijender through Ct. Naresh for necessary action. PW-7 Inspector Mukesh Kumar Jain, Draftsman, South East District prepared the scaled site plan on 31.08.2013 at the instance of the Investigating Officer Inspector Rajesh Vijay. PW-8 HC Zile Singh on the intervening night of 26/27.06.2013 posted in Mobile Crime Team, North East District and took 8 photographs of the spot at the instance of the Investigating Officer Inspector Rajesh Vijay. PW-9 Hudda is daughter of the accused and the deceased. PW10 Feroz called the police. PW11 ASI Shanti Lal being Duty Officer at PS Khajuri Khas registered FIR bearing no.325/13 on the basis of rukka sent by the Investigating Officer Inspector Rajesh Vijay through HC Ram Avtar. PW-12 Shakeel younger brother of the deceased on 27.06.2013 identified the dead body of the deceased in mortuary of GTB Hospital and received the dead body of deceased. PW-13 Shaukin Pal, AAO, In-Charge, CATS Ambulance, HQ, Bela Road on 26.06.2013 removed the deceased from Mavi Hospital and admitted her in the GTB Hospital. PW14 Ct. Rakesh on 27.06.2013 SC 44635/15 STATE V AADIL FIR 325/13 4/31 delivered the copy of FIR at the residence of the Metropolitan Magistrate, Joint Commissioner of Police, New Delhi Range, Additional Commissioner of Police, Additional DCP and DCP. PW15 Ct. Jai Kishan on 20.09.2013 took five sealed pulandas from the MHC (M) and deposited in FSL, Rohini. PW-16 HC Man Singh received one sealed pulanda from SI Shailender Kumar on 26.06.2013, three sealed pulandas and one sealed pulanda from Investigating Officer Inspector Rajesh Vijay on 27.06.2013 and 29.06.2013 respectively and received FSL result on 16.06.2014 in a sealed envelope along with five sealed parcels from Ct. Shiv Dutt. PW-17 Dr. P. Ram, DMS, GTB Hospital produced MLC of the deceased prepared by Dr. Sober and medical opinion regarding injuries of deceased given Dr. Sober. PW18 Dr. Priyal Jain, Sr. Demonstrator, UCMS & GTB Hospital conducted the post mortem on the body of the deceased. PW-19 HC Virender on 26.06.2013 being posted as Duty Constable at GTB Hospital handed over the sealed clothes of the deceased to the SI Shailender. PW-20 ASI Puran Singh after receipt of PCR call at 9:40 PM on the intervening night of 26/27.06.2013 reached at the spot where he came to know that a lady Shabbo i.e. the deceased was stabbed by her husband and was taken to Mavi Hospital by her relatives. PW21 Ct. Sanjay Kumar and PW22 HC Ram Avtar participated in the investigation along with Investigating Officer Inspector Rajesh Vijay and SI Shailender. PW23 Inspector Ravi Kumar posted as In charge, Mobile Crime Team, North East District prepared the scene of the crime visit report on 26.06.2013. PW24 Retired SI Gopi Chand and PW25 SI Shailender participated in the investigation with Investigating Officer Inspector Rajesh Vijay. PW-26 Inspector Rajesh Vijay being the Investigating Officer conducted the investigation.
The prosecution proved DD no.49A as Ex. PW6/A, scaled site plan Ex. PW7/A, eight photographs as Ex. PW8/A and negatives as Ex.PW8/B, the computerized copy of FIR bearing no.325/13 as Ex.PW11/A, endorsement on the rukka as Ex. PW11/B, handing over memo of the deceased as Ex.PW12/B, photocopy of the patient proforma register pertaining to call no.13385 dated 26.06.2013 regarding quarrel as Ex. PW13/A, arrest memo and personal search memos of the accused as Ex.P22/A and Ex.PW22/B, personal search memo of SC 44635/15 STATE V AADIL FIR 325/13 5/31 accused as Ex.PW22/C, seizure memo of blood and gauze Ex. PW22/D, seizure memo regarding blood stained earth as Ex.PW22/E, seizure memo of earth control sample as Ex. PW22/F, scene of crime visit report as Ex. PW23/A, pointing out memo of the spot as Ex. PW24/A, photocopy of the relevant entries in register no.19 regarding FSL result as Ex. PW16/A, photocopy of register no.21 and RC no.72/71 dated 20.09.2013 as Ex.PW16/A, photocopy of the acknowledgement from FSL dated 20.09.2013 as Mark X, MLC of the deceased as Ex. PW17/A, post mortem report of the deceased as Ex. PW18/A and subsequent opinion regarding the weapon of offence i.e. half scissor as Ex. PW18/B and its sketch as Ex.PW18/C, seizure memo of the clothes of the deceased as Ex.PW19/A and seizure memo of the weapon of offence i.e. scissor as Ex.PW21/A.
5. The statement of accused was recorded under section 313 Cr.P.C. wherein accused pleaded innocence and false implication. The accused preferred not to lead defence evidence.
6. Sh. Masood Ahmed, Additional Public Prosecutor for the State and Sh. Rishi Chawla, Advocate/LAC for the accused heard. Record perused.
7. The Additional Public Prosecutor argued that the accused was in habit of consuming liquor which was objected by the deceased and the accused due to this reason committed murder of the deceased. The defense counsel argued that the prosecution could not prove motive of the accused in committing murder of the deceased.
Section 8 of the Indian Evidence Act, 1872 deals with relevance of motive in criminal trial. It reads as under: -
8. Motive, preparation and previous or subsequent conduct.-- Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or pro- ceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influ- enced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.
SC 44635/15 STATE V AADIL FIR 325/13 6/31The Supreme Court in Shivaji Genu Mohite V State of Maharashtra, AIR 1973 SC 55observed regarding importance of existence of motive in a criminal case as under:-
In case the prosecution is not able to discover an impelling motive, that could not reflect upon the credibility of a witness proved to be a reliable eye-witness. Evidence as to motive would, no doubt, go a long way in cases wholly dependent on circumstantial evidence. Such evidence would form one of the links in the chain of circumstantial evidence in such a case. But that would not be so in cases where there are eye-witnesses of credibility, though even in such cases if a motive is properly proved, such proof would strengthen the prosecution case and fortify the court in its ultimate conclusion. But that does not mean that if motive is not established, the evidence of an eye-witness is rendered untrustworthy.
In State of U.P. V Babu Ram, (2000) 4 SCC 515 the Supreme Court has stated that motive is a relevant factor in criminal cases whether based on the testimony of eye witnesses or circumstantial evidence. The Supreme Court in Amitava Banerjee V State of West Bengal, (2011) 12 SCC 554 observed that motive for the commission of an offence assumes greater importance in cases resting on circumstantial evidence than those in which direct evidence regarding commission of the offence is available. In Anil Kumar V State, 2011 (5) AD (Delhi) 351 it was held as under:-
Motive always locks up in the mind of the accused and some time it is difficult to unlock. People do not act wholly without motive. The failure to discover the motive of an offence does not signify its non-existence. The failure to prove motive is not fatal as a matter of law. Proof of motive is never an indispensable for conviction. When facts are clear it is immaterial that no motive has been proved.
The Supreme Court in Khurshid Ahmed V State of Jammu & Kashmir, Criminal Appeal No 872 OF 2015 decided on 15 May, 2018 observed that the prosecution may prove but the prosecution is not bound to prove the motive for a crime. Motive is an emotion which compels the person to do a particular act. It will be very difficult for the prosecution to prove the real motive in all cases. Motive is a double-edged weapon when there is direct and reliable evidence available motive loses its importance. In a case of circumstantial SC 44635/15 STATE V AADIL FIR 325/13 7/31 evidence motive assumes greater importance than in the case of direct evidence. In a case of direct and compelling evidence even assuming that no motive is attributed, still the prosecution version has to be examined.
8. The prosecution to prove motive of accused and that the accused was in the habit of consuming liquor and due to this reason the accused used to quarrel with the deceased examined PW4 Rabia, sister of the accused and PW9 Hudda, daughter of the accused who turned hostile and did not support the case of the prosecution. PW4 Rabia deposed that the accused is her brother while the deceased was her sister-in-law(bhabi). PW4 Rabia on 27.06.2013 came to know about the death of the deceased and on inquiry by the police, PW4 Rabia informed that she did not know anything about the case. PW4 Rabia was cross-examined on behalf of the State. PW4 Rabia during cross-examination denied suggestions that the accused and the deceased used to quarrel with each other due to the habit of the accused to consume liquor or that about 1 ½ months prior to the date of incident a quarrel took place between the accused and the deceased or that PW4 Rabia came to know on 27.06.2013 that the accused killed the deceased by inflicting scissor blow due to his habit of consuming liquor. PW9 Hudda deposed that no quarrel took place between the accused and the deceased in her presence and she had never seen the accused and the deceased fighting with each other. PW9 Hudda was also cross-examined on behalf of the State. PW9 Hudda in cross-examination deposed that she has not been tutored by her paternal uncle (chacha). PW9 Hudda never seen the accused while consuming the liquor and never heard about the deceased objecting to the habit of the accused for consuming liquor or that the accused used to beat the deceased. PW9 Hudda deposed that she came to know from her paternal uncle (chacha) that the accused has murdered the deceased but said piece of evidence is not admissible being hearsay in nature. The prosecution could not prove motive of the accused in committing murder of the deceased but this is not fatal to case of the prosecution.
9. The prosecution to prove its case examined eye-witnesses Bano as PW3 and Kaushar as PW5 who did not support the case of the prosecution. PW3 Bano SC 44635/15 STATE V AADIL FIR 325/13 8/31 deposed that she knows the accused and the deceased as PW3 Bano is also residing in the locality where the accused and the deceased were residing. PW3 further deposed that the accused sometime happened to be under the influence of liquor. The accused and the deceased used to fight/quarrel with each other. PW3 Bano came to know on the date of incident at about 9:30PM about the death of the deceased. PW3 Bano could not tell that how and in what manner the deceased had died as PW3 Bano did not see anything about the incident. PW3 was cross examined on behalf of the State. PW3 Bano during cross-examination admitted that the accused used to come back to home after consuming liquor and also used to assault the deceased on some occasions. The deceased had died on 26.06.2013.
The accused also thrown out the deceased from the house about 15 days prior to date of the incident. PW3 Bano denied the suggestions given by the Additional Public Prosecutor that the accused inflicted scissor blows to the deceased which was witnessed by PW3 Bano or that PW3 Bano saw the altercation between the accused and the deceased when the accused demanded money from the deceased for liquor or that PW3 Bano colluded with the family of the accused. The testimony of PW3 Banno only proved that the accused and the deceased used to fight/quarrel with each other and the accused used to demand money from the deceased for the purchase of liquor. The accused also used to assault the deceased occasionally but not regularly and about 15 days back from the date of incident the accused thrown out the deceased from the home.
PW5 Kaushar deposed that she knows the accused and the deceased was the wife of the accused. PW5 Kaushar on the day of incident had gone to G.T.B hospital to see the deceased where police met her but did not make any inquiry from her. PW5 Kaushar on cross-examination on behalf of the State denied the suggestion that the accused was in habit of taking liquor and used to abuse and beat the deceased after taking liquor or that the accused about 15 days prior to incident had ousted the deceased from the house after beating her or that on the day of incident, the accused demanded money from the deceased for liquor and due to this reason a altercation took place between the accused and the deceased or that accused attacked the deceased by scissor and then fled away from the spot SC 44635/15 STATE V AADIL FIR 325/13 9/31 leaving the deceased in injured condition. The respective testimony of the PW3 Shabbo and PW5 Kaushar does not connect the accused with alleged offence as PW3 Bano and PW5 Kaushar did not support the case of the prosecution.
10. The Additional Public Prosecutor argued that although eye-witnesses PW3 Bano and PW5 Kaushar did not support case of the prosecution as they have turned hostile but the deceased disclosed the circumstances under which she received the injuries and as to cause of her death to her brothers PW1 Mohd. Sahid and PW2 Wahid which amount to oral dying declaration and the conviction can be made solely on the basis of dying declaration. The defence counsel argued that PW1 Mohd. Sahid and PW2 Wahid are interested witnesses being real brothers of the deceased and their respective testimony cannot be relied on.
It is the salutary duty of every witness who has the knowledge of the commission of the crime to assist the State in giving evidence. The role of a witness is paramount in the Criminal Justice System of any country. A witness by giving evidence relating to the commission of an offence performs a sacred duty of assisting the court to discover the truth. The witnesses play an integral role in the dispensation of justice. The Supreme Court considered the aspect of truthfulness of an interested witness in several cases. In Dalip Singh & Others V State of Punjab, (1954) 1 SCR 145 it was observed as under: -
Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that here is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth.
In Masalti V State of U.P., (1964) 8 SCR 133 the Supreme Court observed as under:-
There is no doubt that when a criminal Court has to appreciate evidence given by witnesses who are partisan or interested, it has to be very careful in weighing such evidence. Whether or not there are discrepancies in the evidence; whether or not the evidence strikes the Court as genuine; whether or not the story disclosed by the evidence is probable, are all matters which must be taken into account.SC 44635/15 STATE V AADIL FIR 325/13 10/31
But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses..... The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice".
There is no proposition in law that relatives are to be treated as untruthful witnesses. On the contrary, reason has to be shown when a plea of partiality is raised to show that the witnesses had reason to shield actual culprit and falsely implicate the accused [See : Harbans Kaur & Anr. v. State of Haryana, 2005 CriLJ 2199].
If the evidence of an eyewitness, though a close relative of the victim, inspires confidence, it must be relied upon without seeking corroboration with minute material particulars. It is no doubt true that the Courts must be cautious while considering the evidence of interested witnesses.
Although PW1 Mohd. Sahid and PW2 Wahid are real brothers of the deceased but it does not mean their respective testimony is liable to be rejected on this ground. The evidence on the facts of each case has to be analyzed and conclusions drawn, and there cannot be pigeon - holding of evidence on any set formula. In criminal cases court should not adopt mechanical approach in appreciating evidence of prosecution. The broad features of prosecution case, the probabilities and normal course of human conduct of prudent person and some of the factors which are always kept in mind while evaluating the merit of the case. The respective testimonies of PW1 Mohd. Sahid and PW2 Wahid are only required to be scrutinized with caution.
11. The defense counsel argued that it is apparent from the respective testimonies of PW1 Mohd. Sahid and PW2 Wahid that the deceased received serious and severe injuries and was not in a position to speak and as such the dying declarations alleged to have been made to PW1 Mohd. Sahid and PW2 Wahid by the deceased cannot be relied upon and cannot be the basis of holding the accused guilty of the alleged offence.
12. It is reflected and proved from evidence led by the prosecution that PW1 Mohd. Sahid and PW2 Wahid are employed in a Garment Manufacturing factory situated in the area of Nehru Vihar. PW1 Mohd. Sahid and PW2 Wahid after being SC 44635/15 STATE V AADIL FIR 325/13 11/31 informed about the injuries inflicted to the deceased came to the spot and saw that the deceased was lying in injured condition and has already sustained serious and severe injuries. PW1 Mohd. Sahid and PW2 Wahid with the help of few public persons removed the deceased to Mavi Hospital on a cot and from where a CATS Ambulance being driven by PW13 Shaukin Pal removed the deceased to GTB hospital. PW1 Mohd. Sahid accompanied the deceased to GTB Hospital. PW1Mohd. Sahid noticed two stab injuries on left side chest, another injury little below the first injury and injury on the head of the deceased. PW1 Mohd. Sahid deposed that in ambulance he asked the deceased as to how she suffered injuries then the deceased informed that the injuries were caused by the accused with a scissor. The relevant portion of the testimony of PW1 Mohd. Sahid is verbatim reproduced as under: -
Myself with my brother Wahid and some public persons, we took my sister Shabbo to a nearby private hospital, namely, Mavi Hospital on a cot. As soon as we reached Mavi Hospital that an ambulance arrived and Shabbo was taken to GTB Hospital by that ambulance and I accompanied her. I had seen bleeding injuries on the person of Shabbo and two prominent injuries appeared to be stabbed injuries on her left side chest and another injury a little below the first injury and further injuries on her head. In ambulance I asked Shabbo as to how she had suffered those injuries and she replied to me that injuries were caused by Aadil with a scissors.
PW1 Mohd. Sahid in cross-examination deposed that he was in Ambulance with the deceased. PW1 Mohd. Wahid denied the suggestions that the deceased was not taken to the hospital in CATS Ambulance or that he did not accompany the deceased in the ambulance or that he reached the hospital in an auto. PW1 Mohd. Sahid admitted that he did not get any blood stains on his clothes while carrying the deceased in the ambulance but denied the suggestion that he did not get any blood stains on clothes as he did not accompany the deceased in the ambulance. PW1 Mohd. Sahid admitted that the deceased was in pain and was not able to speak as she was almost unconscious. The deceased did not speak when put on cot but the deceased did speak when she was put in ambulance for removing to the hospital and in ambulance the deceased disclosed that the accused had stabbed her.SC 44635/15 STATE V AADIL FIR 325/13 12/31
13. PW2 Wahid deposed that the deceased was his sister and got married with the accused. PW2 Wahid along with PW1 Mohd. Sahid and few workers reached at the spot after being informed that the deceased had received injury by scissor. PW2 Wahid saw that the deceased was lying in gali in C 1 Block, Nehru Vihar and was in a serious and severe injured condition. PW2 Wahid along with PW1 Mohd. Sahid and few public persons removed the deceased to Mavi Hospital on a cot and from where deceased was removed to GTB hospital being drive by PW13 Shaukin Pal. PW2 Mohd. Wahid deposed that when the deceased was lifted on the cot, he asked the deceased as to who had assaulted and caused injuries to her then the deceased replied that the accused has caused injuries by scissor blow. PW2 Washid noticed serious stab injury on the deceased. PW2 also went inside in GTB hospital to see the condition of the deceased where also the deceased told him that she was assaulted and injuries were caused by the accused by a scissor. The relevant portion of the testimony of the PW2 Wahid is verbatim reproduced as under: -
When on the spot we were lifting Shabbo on the cot, I asked Shabbo as to who had assaulted her and caused injuries to her and Shabbo replied and said to me that Adil had caused her injuries by scissor blow. I saw serious stab injuries on Shabbo, one injury on the left side chest and second injury a little below the first injury. In GTB hospital I went inside to see the condition of my sister Shabbo and there again she told me that she had been assaulted and caused injuries with scissor by Aadil. Shabbo passed away on the same night in the hospital.
PW2 Wahid in cross-examination deposed that he did not board the ambulance and the deceased was taken to hospital by PW1 Mohd. Sahid and another person. PW2 denied the suggestion that he did not lift the deceased after the incident and due to this reason he did not receive any blood stains on clothes or that when PW2 Wahid reached at the spot then the deceased was not in a position to speak and was unconscious.
14. Issue which needs judicial consideration is that whether the deceased made dying declarations to PW1 Mohd. Sahid and PW2 Wahid and if yes whether those dying declarations are admissible under law. A Dying SC 44635/15 STATE V AADIL FIR 325/13 13/31 declaration is admitted in evidence. The principle on which it is admitted as evidence is indicated in the legal maxim nemomoriturus prae-sumitur mentire which means a man will not meet his maker with a lie in his mouth. The courts held that an accused can be convicted solely on the basis of Dying Declaration without corroboration since corroboration is only a rule of prudence and not a rule of evidence. Section 32 (1) of the Indian Evidence Act, 1872, deals with dying declaration. Section 32 (1) reads as under: -
Section 32. Cases in which statement of relevant facts by the 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 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.
Dying declaration is admissible in evidence only when the person making the statement dies and the cause of the person's death comes into question. If the person who has made a dying declaration survives, such a statement will not come within the purview of Section 32(1). Dying declaration is an exception to the general rule of excluding the hearsay evidence. The burden of proving the dying declaration is always on the prosecution. Since an accused can be convicted solely on the basis of dying declaration, the court is expected to carefully scrutinize the same. Three essential ingredients will have to be proved to the satisfaction of the court and they are:-
(i) the declarant should have been in actual danger of death at the time when he made the statement;
(ii) he should have had full apprehension of his danger and
(iii) death should have ensued.
A Dying Declaration should inspire the confidence of the court about the truthfulness of such a declaration. If the court, after careful evaluation of the entire evidence, feels that the same was the result of tutoring, prompting or product of imagination, the declaration should not be accepted. If the contents of SC 44635/15 STATE V AADIL FIR 325/13 14/31 the Dying Declaration contradict the core of the prosecution case, the declaration should not be the basis for conviction. In the case Pakala Arayaa Swami V Emperor, AIR 1939 PC47 the expression 'circumstances of the transaction which resulted in his death' has been eloquently explained. It was held by the Privy Council that the expression 'any of the circumstances of the transaction which resulted in his death' is necessarily wider in its interpretation than the expression 'the cause of his death.' There is need for corroboration of oral declaration particularly when the oral statement was made by the injured person to relatives and such declaration has to be considered with care & caution. In Khushal Rao V State of Bombay, 1958 Crl.L.J.106, the Supreme Court summarized the principles governing evidentiary value of the dying declaration as under:-
i. It cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated.
ii. Each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made. iii. It cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other piece of evidence. iv. A dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence.
v. A dying declaration which has been recorded by a competent magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character. vi. In order to test the reliability of a dying declaration, the Court has to keep in view the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties.SC 44635/15 STATE V AADIL FIR 325/13 15/31
In Paniben V State of Gujarat, 1992 Cr.L.J. 2919, the Supreme Court summarized the principles governing Dying Declaration as under:-
(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration.
(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration.
(iii) This Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration.
(iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence.
(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected.
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction.
(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected.
(viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth.
(ix) Normally the court in Order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye witness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail.
(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon.
In Satish Ambanna V State of Maharashtra, AIR 2009 SC 1626, after due consideration of the earlier views, the Supreme Court observed as under:-
The dying declaration is only a piece of untested evidence and must, like any other evidence, satisfy the court that what is stated therein is the unalloyed truth and that it is absolutely safe to act upon it. If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration.SC 44635/15 STATE V AADIL FIR 325/13 16/31
In Puran Chand V State of Haryana, (2010) 6 SCC 566 it was observed that a mechanical approach in relying upon a dying declaration just because it is there is extremely dangerous and it is the duty of the court to examine a dying declaration scrupulously with a microscopic eye to find out whether the dying declaration is voluntary, truthful, made in a conscious state of mind and without being influenced by the relatives present or by the investigating agency who may be interested in the success of investigation or which may be negligent while recording the dying declaration. The Court further opined that the law is now well settled that a dying declaration which has been found to be voluntary and truthful and which is free from any doubts can be the sole basis for convicting the accused.
15. An oral dying declaration is admissible in evidence as an exception to the gen- eral rule of evidence that hearsay evidence is no evidence in the eyes of law. The family members are the first one besides police to encounter the deeply injured man who is looking for some solace and in this situation the statement made to any close one should be taken with proper weight and value. Simultaneous danger which the courts have to face is the partitioning and bias to the witness who has recorded the dying declaration. The chance of malefic, concoction and the tamper- ing of the declaration can hardly be ruled out and perhaps this is the reason that courts always discouraged recording of the statement by private person more so family members. As laid down in Laxman V State of Maharashtra, 2002 (6) SCC 710 a dying declaration can be oral. In Prakash and another V State of Madhya Pradesh, (1992) 4 SCC 225 it was held as under:-
In the ordinary course, the members of the family including the father were expected to ask the victim the names of the assailants at the first opportunity and if the victim was in a position to communicate, it is reasonably expected that he would give the names of the assailants if he had recognised the assailants.
In Darshana Devi V State of Punjab, 1995 Supp (4) SCC 126 the Supreme Court referred to the evidence of the doctor who had stated that the deceased was semi- conscious, his pulse was not palpable and his blood pressure SC 44635/15 STATE V AADIL FIR 325/13 17/31 was not recordable and had certified that he was not in a fit condition to make a statement after the police had arrived at the hospital and expressed the view that the deceased could not have made an oral statement that he had been burnt by his wife. Thus, emphasis was laid on the physical and mental condition of the deceased and the veracity of the testimony of the witnesses who depose as regards the oral dying declaration The Supreme Court in Parbin Ali & Another V State of Assam, Criminal Appeal No 1037/2008 decided on 7 January, 2013 observed as under: -
The wife, the father-in-law and the two other relatives have clearly stated that the deceased had informed them about the names of the assailants. Nothing worth has been elicited in the cross-examination. They have deposed in a categorical manner that by the time they arrived at the place of occurrence, the deceased was in a fit state of health to speak and make a statement and, in fact, he did make a statement as to who assaulted him. Nothing has been suggested to these witnesses about the condition of the deceased. As has been mentioned earlier, PW-4, the doctor, who had performed the post mortem, has not been cross- examined. In this backdrop, it can safely be concluded that the deceased was in a conscious state and in a position to speak. Thus, it is difficult to accept that the wife, the father-in-law and other close relatives would implicate the accused-appellants by attributing the oral dying declaration to the deceased. That apart, in the absence of any real discrepancy or material contradiction or omission and additionally non cross-examination of the doctor in this regard makes the dying declaration absolutely credible and the conviction based on the same really cannot be faulted.
16. The combined testimonies of PW1 Mohd. Sahid and PW2 Wahid proved that they received information regarding stabbing of the deceased at their work place and they along with few workers came to the spot where they saw the deceased was lying in serious and severe injured condition. PW1 Mohd. Sahid and PW2 Wahid removed the deceased to Mavi Hospital on a cot and from where the deceased was removed to GTB hospital in a CATS ambulance being driven by PW13 Shaukin Pal. The deceased in the ambulance informed PW1 Mohd. Sahid that the accused caused stab injuries to her by using a scissors. The deceased informed PW2 Wahid when she was lifted to the cot that accused caused injuries to SC 44635/15 STATE V AADIL FIR 325/13 18/31 her by using a scissor. The deceased at that time was in pain and almost unconscious and due to this reason, the deceased was not able to speak. The deceased in GTB hospital was medically examined vide MLC Ex. PW17/A by Dr. Sober. PW17 Dr. P. Ram who produced MLC Ex.PW17/A deposed on the basis of record that there were three incised wounds over chest and left lateral lower abdomen area of the patient. The deceased was unfit for statement due to sharp injuries. The deceased was having history of vomiting but conscious and disoriented. The perusal of MLC Ex.PW17/A reflects that at the time when the deceased was medically examined by Dr. Sober, she was conscious although disoriented which corroborate the testimony of PW1 Mohd. Sahid that the deceased did speak when she was put on cot. PW1 Mohd. Sahid and PW2 Wahid were not materially cross examined by the defence counsel regarding dying declarations. PW1 Mohd. Sahid accompanied the deceased in ambulance till the deceased reached at GTB hospital. PW2 Wahid assisted by other persons put the deceased on the cot. PW1 Mohd. Sahid and PW2 Wahid were in contact with the deceased when the deceased made dying declarations to them at first instance. There is nothing in the cross examination of PW1 Mohd. Sahid and PW2 Wahid that the dying declarations made to them by the deceased were result of tutoring. There was no occasion for the deceased to make false declaration about the injuries caused to her by the accused by using scissor or there was no opportunity for PW1 Mohd. Sahid and PW2 Wahid to induce or tutor the deceased for making false and incorrect dying declarations. The dying declarations made to PW1 Mohd. Sahid and PW2 Wahid in continuity and without gap or lapse of much time inspire confidence, trustworthy and can safely be relied upon.
17. The prosecution proved recovery of blade/part of scissor Ex.P1 used as weapon of offence by the accused which is admissible as per section 27 of Indian Evidence Act, 1872. Section 27 of the Indian Evidence Act, 1872 incorporates the theory of confirmation by subsequent facts i.e. statements made in police custody are admissible to the extent that they can be proved by subsequent discovery of facts. Section 27 of the Indian Evidence Act, 1872 reads as follows:
SC 44635/15 STATE V AADIL FIR 325/13 19/31How much of information received from accused may be proved- Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.
The requirements of Section 27 of the Indian Evidence Act, 1872 were succinctly summed up in Anter Singh V State of Rajasthan, (2004) 10 SCC 657 as under:-
(1) The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with the question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible.
(2) The fact must have been discovered.
(3) The discovery must have been in consequence of some information received from the accused and not by the own act of the accused. (4) The person giving the information must be accused of any offence. (5) He must be in the custody of a police officer.
(6) The discovery of a fact in consequence of information received from an accused in custody must be deposed to.
(7) Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved.
In Raju Manjhi V State of Bihar, Criminal Appeal No. 1333/2009 decided on 2nd August, 2018 by the Supreme Court of India it was held as under:-
It is true, no confession made by any person while he was in the custody of police shall be proved against him. But, the Indian Evidence Act, 1872 provides that even when an accused being in the custody of police makes a statement that reveals some information leading to the recovery of incriminating material or discovery of any fact concerning the alleged offence, such statement can be proved against him.
18. As per the prosecution the accused used blade/part of a scissor Ex.P1 as weapon of offence. Investigating Officer PW26 Rajesh Vijay deposed that on 27.06.2013 the accused was arrested on the basis of secret information from the area situated near Khajuri Khas vide arrest memo Ex.PW22/A. The accused made SC 44635/15 STATE V AADIL FIR 325/13 20/31 disclosure statement Ex.PW22/C wherein he stated that he can get recovered part of the scissor which he had thrown after using it as weapon of offence. The accused on 29.06.2013 led the police party comprising of PW25 SI Shailender, PW21 Ct. Sanjay Kumar to a place near Mavi Hospital situated at Karawal Nagar road. The accused pointed out towards a stone under which one part of the scissor was lying which the accused picked up and handed over to Investigating Officer PW26 Inspector Rajesh Vijay. Investigating Officer PW26 Inspector Rajesh Vijay took part of scissor into the possession after converting into a pulanda after sealing with seal of RV vide seizure memo Ex.PW21/A. PW25 SI Shailender and PW21 Ct. Sanjay also deposed about the manner in which the recovery of part of scissor was affected at the instance of the accused. Investigating Officer PW26 Inspector Rajesh Vijay, PW25 SI Shailender and PW21 Ct. Sanjay also identified the blade/part of the scissor recovered at the instance of the accused as Ex.P1. The respective testimonies of Investigating Officer PW26 Inspector Rajesh Vijay, PW25 SI Shailender and PW21 Ct. Sanjay are corroborating each other and safely proved the recovery of part of scissor Ex.P1 used as weapon in commission of offence at instance of the accused. It is also proved from the testimony of Investigating Officer PW26 Inspector Rajesh Vijay that the part of seizure after recovery was deposited in the malkhana. The prosecution also examined MHC(M) HC Man Singh as PW16 who deposed that on 29.06.2013, Inspector Rajesh Vijay deposited one sealed pulanda vide entry at serial no.1813 in register no.19. The testimony of MHC(M) PW16 HC Man Singh proved that the weapon of offence i.e. one part of the scissor identified as Ex.P1 was not tampered with.
19. Investigating Officer PW26 Inspector Rajesh Vijay deposed that on 30.07.2013 he deposited weapon of offence i.e. one part of scissor to PW18 Dr. Priyal Jain after collecting from Malkhana for subsequent opinion. MHC(M) PW16 HC. Investigating Officer Inspector PW26 Inspector Rajesh Vijay on 30.07.2013 after collecting post mortem report Ex.PW18/A deposited one part of scissor before PW18 Dr. Priyal Jain after collecting the same from malkhana for subsequent opinion. PW18 Dr. Priyal Jain Investigating Officer Inspector PW26 Inspector SC 44635/15 STATE V AADIL FIR 325/13 21/31 Rajesh Vijay deposed that on 30.07.2013, PW26 Inspector Rajesh Vijay gave an application regarding subsequent opinion along with one sealed parcel sealed with the seal of RV. PW18 Dr. Priyal Jain opened the parcel which was found containing half of scissor. PW18 after examining scissor and post mortem report Ex. PW18/A opined vide subsequent opinion Ex. PW18/B that the injury no.1 to 4 were possibly caused by the object i.e. scissor. The detailed sketch of the scissor was also prepared which is Ex.PW18/C. The combined testimony of PW18 Dr. Priyal Jain and Investigating Officer PW26 Inspector Rajesh Vijay proved that the accused used the part of scissor Ex.P1 in commission of offence for inflicting injuries to the deceased.
20. PW26 Inspector Rajesh Vijay conducted the investigation reached at GTB hospital vide DD no.50A Ex. PW26/A after being informed that the deceased was in injured and serious condition. PW26 examined dead body of the deceased which was having stab injuries on chest and abdomen. PW26 Inspector Rajesh Vijay filled form 25.35 Ex.PW26/B and also seized the clothes of the deceased handed over by SI Shailender vide seizure memo Ex. PW19/A. PW26 Inspector Rajesh Vijay also called a crime team which inspected the site. PW26 Inspector Rajesh Vijay also lifted blood gauze, blood stained soils and earth control vide seizure memos Ex PW22/D, Ex.PW22/E and Ex. PW22/F. PW26 also submitted inquest papers Ex.PW26/E for post mortem. PW18 Dr. Priyal Jain conducted the post mortem on the dead body of the deceased on 27.06.2013 vide post mortem report Ex.PW18/A. PW18 Dr. Priyal Jain on examination of injuries found the following injuries: -
1) Wedge shaped incised stab wound of size 1.9 x 0.5 x 8 cm present over left side chest 6.5 from midline 13 cm below clevical, 108.5 cm above heel with inner angle of wound was acute and outer angle was obtuse. The wound goes downwards, backwards, medially cutting skin soft tissue entering chest cavity in the 6th inter coastal space entering pericardial sac going through and through in heart and pericardial sac. Extravasation of blood present throughout the track.SC 44635/15 STATE V AADIL FIR 325/13 22/31
ii) Incised stab wound of size 2 x 0.5 x 7 cm present over left side of chest 2.5 cm lateral and lower to injury no.1 with outer angle of wound was more acute than inner one. Wound goes upwards backwards medially cutting skin soft tissue entering chest cavity in 6th inter coastal space cutting pericardial sac. Extravasation of blood present through the track.
iii) W shaped incised stab wound size 1.4 x 0.7 x 1.7 cm present over left side of abdomen 5 cm above and lateral to anterior superior iliac spine would goes backward, upwards, medially cutting soft tissue and muscles. Extravasation of blood present through the track.
iv) Incised wound of size 1.5 x 0.5 x 0.5 cm present over back of left forearm 13.5 cm below elbow extravasation of blood present in surrounding of tissues.
PW18 Dr. Priyal also opined that cause of death was shop as a result of internal hemorrhage as a result of injury no.1 produced by single sharp-edged weapon. Injury no.1 is sufficient to cause death in ordinary course of nature both individually as well as collectively. It is proved that injuries caused by the accused by using blade/part of scissor Ex.P1 were sufficient to cause death of the deceased.
21. The defense counsel argued that the accused did not commit murder of the de- ceased with premediated plan rather the offence was committed in spur of moment so provision of law for offence punishable under section 302 IPC is not attracted rather offence stated to be committed by the accused is covered under section 304 IPC. The Additional Public Prosecutor argued to contrary.
22. Section 304 IPC deals with punishment for culpable homicide not amounting to murder. It reads as under: -
304. Punishment for culpable homicide not amounting to murder.--
Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without SC 44635/15 STATE V AADIL FIR 325/13 23/31 any intention to cause death, or to cause such bodily injury as is likely to cause death.
In Jai Prakash v. State (Delhi Administration), 1991(2) SCC32, the Supreme Court held as under:
When a person commits an act, he is presumed to expect the natural consequences. But from the mere fact that the injury caused is sufficient in the ordinary course of nature to cause death, it does not necessarily follow that the offender intended to cause the injury of that nature. However, the presumption arises that he intended to cause that particular injury. In such a situation the court has to ascertain whether the facts and circumstances in the case are such as to rebut the presumption and such facts and circumstances cannot be laid down in an abstract rule and they will vary from case to case. However, as pointed out in Virsa Singh case the weapon used, the degree of force released in wielding it, the antecedent relations of the parties, the manner in which the attack was made that is to say sudden or premeditated, whether the injury was inflicted during a struggle or grappling, the number of injuries inflicted and their nature and the part of the body where the injury was inflicted are some of the relevant factors. These and other factors which may arise in a case have to be considered and if on a totality of these circumstances a doubt arises as to the nature of the offence, the benefit has to go to the accused...
In Pulicherla Nagaraju @ Nagaraja Reddy V State of Andhra Pradesh, (2006) 11 SCC 444, the Supreme Court enumerated some of the circumstances relevant to find out whether there was any intention to cause death on the part of the accused. It was observed as under:-
Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters - plucking of a fruit, straying of cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no premeditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be SC 44635/15 STATE V AADIL FIR 325/13 24/31 cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable Under Section 302, are not converted into offences punishable Under Section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable Under Section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances: (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any pre-meditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention..."
In Mangesh V State of Maharashtra, (2011) 2 SCC 123 the Supreme Court held that since the assault was not premeditated and everything happened at the spur of moment upon the accused being overcome by emotions (though not justified) attracted the offence punishable under Section 304 (Part-I) IPC notwithstanding that 6 injuries were caused including on the left side of the chest which is vital part of the body. It was highlighted by the Supreme Court that when a person loses his senses and becomes violent that by itself may not be a ground to be considered against him and a holistic view in the matter has to be taken. This decision highlighted the difference between premeditated acts and acts upon sudden loss of self-control in the heat of passion.
In Chenda Ram @ Chanda Ram V State of Chhatisgarh, 2013 (10) SCALE 637, the Supreme Court has considered its earlier decision right from SC 44635/15 STATE V AADIL FIR 325/13 25/31 Virsa Singh V State of Punjab, (1958) 1 SCR 1495; State of Andhra Pradesh V Rayavarapu Punnayya and Another, (1976) 4 SCC 382; Pappu V State of Madhya Pradesh, (2006) 7 SCC 391; Jagriti Devi V State of Himachal Pradesh, (2009) 14 SCC 771; and Gurmukh Singh V State of Haryana, (2009) 15 SCC 635 and observed as under:-
In Gurmukh Singh v. State of Haryana (2009) 15 SCC 635 after scanning all the previous decisions where the death was caused by a single blow, this Court indicated, though not exhaustively, a few factors to be taken into consideration while awarding the sentence. To quote:
23. These are some factors which are required to be taken into consideration before awarding appropriate sentence to the accused. These factors are only illustrative in character and not exhaustive. Each case has to be seen from its special perspective. The relevant factors are as under:
a) Motive or previous enmity;
b) Whether the incident had taken place on the spur of the moment;
c) The intention/knowledge of the accused while inflicting the blow or injury;
d) Whether the death ensued instantaneously or the victim died after several days;
e) The gravity, dimension and nature of injury;
f) The age and general health condition of the accused;
g) Whether the injury was caused without pre- meditation in a sudden fight;
h) The nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted;
i) The criminal background and adverse history of the accused;
j) Whether the injury inflicted was not sufficient in the ordinary course of nature to cause death but the death was because of shock;
k) Number of other criminal cases pending against the accused;
l) Incident occurred within the family members or close relations;
m) The conduct and behaviour of the accused after the incident.
Whether the accused had taken the injured/the deceased to the hospital immediately to ensure that he/she gets proper medical treatment?
These are some of the factors which can be taken into consideration while granting an appropriate sentence to the accused. The list of SC 44635/15 STATE V AADIL FIR 325/13 26/31 circumstances enumerated above is only illustrative and not exhaustive. In our considered view, proper and appropriate sentence to the accused is the bounded obligation and duty of the court. The endeavour of the court must be to ensure that the accused receives appropriate sentence, in other words, sentence should be according to the gravity of the offence. These are some of the relevant factors which are required to be kept in view while convicting and sentencing the accused".
The Supreme Court in Dhirendra Kumar V State of Uttarakhand, 2015 (3) SCALE 30 laid down the parameters which are to be taken into consider- ation while deciding the question as to whether a case falls under Section 302 IPC or 304 IPC, which are as under:-
(a) The circumstances in which the incident took place
(b) The nature of weapon used
(c) Whether the weapon was carried or was taken from the spot
(d) Whether the assault was aimed on vital part of body
(e) The amount of the force used
(f) Whether the deceased participated in the sudden fight
(g) Whether there was any previous enmity
(h) Whether there was any sudden provocation
(i) Whether the attack was in the heat of passion
(j) Whether the person inflicting the injury took any undue advantage or acted in the cruel or unusual manner.
In Lavghanbhai Devjibhai Vasava V The State of Gujarat, 2018(1)JCC565 the Supreme Court after following Dhirendra Kumar observed that Keeping in view the aforesaid factors it becomes evident that the case of the appellant would fall under Section 304 IPC as the incident took place due to a sudden altercation which was a result of delay in preparing lunch by the deceased. The appellant picked up a wooden object and hit the deceased. The medical evidence shows that not much force was used in inflicting blow to the deceased. The prosecution has not set up any case suggesting that relationship between the husband and wife was not cordial, otherwise. Manifestly, the incident took place SC 44635/15 STATE V AADIL FIR 325/13 27/31 due to sudden provocation and in a heat of passion the appellant had struck a blow on his wife, without taking any undue advantage. It was observed that offence would be covered under section 304-II IPC and not under section 302 IPC.
The Delhi High Court in Sher Singh @ Sheru V State, Crl.A.323/1998 decided on 9th January, 2014 after examining the circumstances in which the occurrence has taken place and taking note of the fact that only one injury is attributed to the appellant viewed that the offence committed by the Appellant falls in the category of culpable homicide not amounting to murder which is punishable under Section 304 IPC. The Delhi High Court in Vinod Kumar & others V State (Govt Of NCT of Delhi), Crl. A. 20/2015 decided on 30 May, 2016 observed that it is necessary to prove, first that there was an intention of causing bodily injury; and that the injury intended to be inflicted is sufficient in the ordinary course of nature to cause death and to bring the offence within the ambit of exception 1 of Section 300 Indian Penal Code and hence provisions of Section 304 of the Indian Penal Code would be attracted as the appellants had caused such bodily injuries to the deceased which, to their knowledge, were likely to cause death. High Court Of Chhattisgarh, Bilaspur in Ram Kumar V State of Chhattisgarh, CRA No. 1372/2016 decided on 22th July, 2019 after following Lavghanbhai Devjibhai Vasava V State of Gujarat, (2018) 4 SCC 329 and Dhirendra Kumar V State of Uttarakhand,2015 SCC On Line SC 163 observed the appellant was perturbed or rather disturbed due to marriage of the deceased and was not able to reconcile that the deceased would belong to someone else. The appellant inflicted single blow over neck of the deceased and did not repeat blow and as such did not act in cruel manner. The deceased did not die instantly and could have been saved if admitted in the hospital. It was held that the offence would fall under section 304 Part-I IPC and not under section 302 IPC. High Court of Judicature at Allahabad in Khania V State of U.P., Criminal Appeal No. 1558 of 1990 decided on 12 th September, 2019 did not accept argument of defence that as per medical report, only one gunshot injury was found on the body of the deceased and, therefore, the appellant cannot be convicted under Section 302 of IPC and at best he can be SC 44635/15 STATE V AADIL FIR 325/13 28/31 convicted under Section 304 Part-I or Part-II of IPC. It was observed that as per prosecution case, it is the appellant, who fired gunshot injury on the appellant, resulting his instantaneous death and the manner in which the deceased was done to death clearly proves the case against the appellant under Section 302 and therefore, he cannot be convicted under Section 304 Part-I or Part-II of IPC.
23. It is apparent and proved from evidence led by the prosecution the accused was having habit of consuming liquor which was objected by the deceased. The accused used to demand money from the deceased for arranging liquor. The act of the accused in attacking the deceased by using blade/part of scissor Ex.P1 was not premediated and preplanned. There is no evidence which can reflect that the accused arranged weapon of offence for inflicting injuries to the deceased. The accused inflicted fatal injuries to the deceased in spur of moment and out of anger. The quality and quantity of evidence led by the prosecution does not reflect that the accused intended to kill the deceased. However the accused was having knowledge that by his acts he is likely to cause death of the deceased.
24. In the adversarial system every person accused of an offence is always presumed to be innocent so that burden lies upon the prosecution to establish beyond reasonable doubt and all ingredients of the offence with which the accused is charged are made out. The accused enjoys the right to silence and cannot be compelled to reply. In a criminal trial requirement of proof does not lie in the realms of surmises and conjectures. The doubt must be of reasonable man and the standard adopted must be a standard adopted by a reasonable and just man for coming to a conclusion considering the particular subject matter. Doubt must be actual and substantial doubts as to the guilt of accused arising from the evidence or lack of it, as opposed to mere apprehensions. In case Shivani V State of Maharashtra, AIR 1973 SC 2662 the Supreme Court emphasized that our jurisprudential enthusiasm for presumed innocent must be moderated by the pragmatic need to make criminal justice potent and realistic. In State of U.P V Shankar, AIR 1981 SC 897 it was observed that it is function of the court to separate the grain from the chaff and accept what appears to be true and reject the rest. In Gurbachan Singh V Sat Pal Singh, AIR 1990 SC 209 it was observed SC 44635/15 STATE V AADIL FIR 325/13 29/31 that exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicions and there by destroy social defence. In Krishna Mochi V State of Bihar, 2002 Crl LJ 2645 it was observed that there is sharp decline in ethical values in public life and in present days when crime is looming large and humanity is suffering and society is so much affected thereby duties and responsibilities of the courts have become much more. It was observed as under:-
Now the maxim "let hundred guilty persons be acquitted, but not a single innocent be convicted" is, in practice changing world over and courts have been compelled to accept that "society suffers by wrong convictions and it equally suffers by wrong acquittals"
In Sujit Biswas V State of Assam, (2013) 12 SCC 406 it was held that suspicion, however grave, cannot take the place of proof and the prosecution cannot afford to rest its case in the realm of "may be" true but has to upgrade it in the domain of "must be" true in order to steer clear of any possible surmise or conjecture. The Supreme Court in P. Satyanarayana Murthy V District Inspector of Police and others, (2015) 10 SCC 152 held that if in the facts and circumstances, two views are plausible, then the benefit of doubt must be given to the accused. In Jose V Sub Inspector of Police, Koyilandy and others, (2016) 10 SCC 519, the Supreme Court held as under:-
In a criminal prosecution, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof and in a situation where a reasonable doubt is entertained in the backdrop of the evidence available, to prevent miscarriage of justice, benefit of doubt is to be extended to the accused. Such a doubt essentially has to be reasonable and not imaginary, fanciful, intangible or non- existent but as entertainable by an impartial prudent and analytical mind, judged on the touch stone of reason and common sense. It is also a primary postulation in criminal jurisprudence that if two views are possible on the evidence available, one pointing to the guilt of the accused and the other to his innocence, the one favourable to the accused ought to be adopted".
25. The prosecution could only prove from evidence quilt of accused for offence punishable under section 304 Part-II. The accused in view of above discussion is SC 44635/15 STATE V AADIL FIR 325/13 30/31 convicted for offence under section 304 Part-II.
SUDHIR Digitally signed by
SUDHIR KUMAR JAIN
Location:
ANNOUNCED IN THE OPEN
KUMAR Karkardooma courts,
Delhi
COURT ON 11TH FEBRUARY, 2020 JAIN Date: 2020.02.12
11:30:40 +0530
(DR. SUDHIR KUMAR JAIN)
DISTRICT AND SESSIONS JUDGE
NORTH EAST DISTRICT
KARKARDOOMA COURTS, DELHI
SC 44635/15 STATE V AADIL FIR 325/13 31/31