Delhi High Court
Akash vs State on 23 October, 2019
Equivalent citations: AIRONLINE 2019 DEL 1692
Author: Sangita Dhingra Sehgal
Bench: Manmohan, Sangita Dhingra Sehgal
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. 1106/2018
% Judgment reserved on: September 27th, 2019
Judgment pronounced on: 23rd October, 2019
AKASH ....Appellant
Through: Mr. Chetan Lokur with Mr.
Nitish Chaudhary, Advocates
Versus
STATE ....Respondent
Through: Mr. Rajat Katyal, APP for the
State with SI Rajeshwar, PS
Palam Village
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
SANGITA DHINGRA SEHGAL, J
1. The present Appeal is instituted on behalf of the appellant under
Section 374(2) of the Code of Criminal Procedure, 1973, (hereinafter
referred to as "Cr.P.C.") against the impugned judgment dated
13.07.2018 and order on sentence dated 18.07.2018 passed by the
Court of learned Additional Sessions Judge, Dwarka Courts, Delhi,
in Session Case No.440982/2016 in FIR No.157/2013, registered at
Police Station Palam Village under Section 302 of the Indian Penal
Code,1860 (hereinafter referred to as "IPC") whereby the appellant
was convicted for the offence punishable under Section 302 IPC and
was sentenced to rigorous imprisonment for life alongwith a fine of
CRL.A. 1106/2018 Page 1 of 49
Rs.50,000/-, in default of payment of fine, to further undergo simple
imprisonment for a period of six months.
2. Brief facts of the case, as noticed by the Learned Trial Court, are as
under:-
"The case of the prosecution is that on 05.06.2013,
DD no. 24A was assigned to PSI Amrender
regarding an injury with screwdriver to a person.
Thereafter, he alongwith Ct. Piplad reached at the
spot i.e. H. No. 154, Gali No.2, Phase-I,
Manglapuri, where PCR Van Z- 45 was already
found present and injured Sudesh Kumar was going
to shift in the said PCR Van. Injured Sudesh told him
that his brother in law (saala), namely Akash had
hit him from behind with some sharp weapon.
Thereafter, on checking, PSI Amrender found two
injuries marks, one was on the back and another was
between the back right and front side below the
place of hand and armpit. No blood was oozing from
him. PCR officials were immediately asked to take
him to the hospital and house of the injured was
inspected, where no blood stains were found.
Thereafter, on enquiry from the family members of
the injured, it was revealed that injured Sudesh was
assaulted by his saala Akash and the eye witness of
the same is Aadesh, brother of injured Sudesh, who
had accompanied with the PCR Van and injured to
CRL.A. 1106/2018 Page 2 of 49
the hospital. After that, he alongwith Ct. Piplad went
to DDU Hospital, where injured was declared
brought dead vide MLC No. 13692/13 and dead
body was shifted to the mortuary of DDU Hospital
and Sh. Adesh, brother of injured was found present
there. PSI Amrender collected the abovesaid MLC.
Thereafter, he alongwith Sh. Adesh reached at the
police station and recorded the statement of Sh.
Adesh, wherein he stated that his younger brother
Sudesh had got married with Monika on his own
wish but the family members of Monika were not
happy with the said marriage. Akash, brother of
Monika was very much annoyed with the said
marriage and mostly threatened him and his family
members to kill him. Earlier also 2-3 times he came
to his home for quarrel. Today, on 05.06.2013, at
about 5 p.m., when he was going to Manglapuri
Chowk, then he saw his brother Sudesh was coming
and he also saw that brother in law of Sudesh came
from his behind and after assaulting upon him, he
ran away. He ran towards the Akash to catch him
but due to distance he could not. Thereafter, he saw
that Sudesh had fallen and he came near to him and
Sudesh told him that Akash had assaulted upon him
with a sharp weapon from behind and had ran away.
Thereafter, he brought Sudesh to home and told the
CRL.A. 1106/2018 Page 3 of 49
entire facts to his family members and made a call at
phone No. 100. On his said statement, the present
case was registered under Section 302 IPC against
the accused Akash. Thereafter, site plan was
prepared at the instance of Sh. Aadesh, accused
Akash was arrested, interrogated, his disclosure
statement was recorded and weapon of offence was
recovered. After completion of all the proceedings
and Investigation, charge sheet was filed against the
accused Akash."
3. To bring home the guilt of the accused, the prosecution examined 21
witnesses in all. Statement of the accused was recorded under Section
313 of Code of Criminal Procedure by the learned trial court wherein
he pleaded not guilty and claimed trial and chose not to lead any
evidence in his defense.
4. After hearing the counsel for both the sides and on appreciation of
entire evidence available on record, the learned Trial Court convicted
the appellant for the charged offence.
5. Mr. Chetan Lokur, learned counsel for the appellant, opened his
arguments by submitting that the impugned judgment dated
13.07.2018 is based on conjectures and surmises and the same is
against the facts and settled proposition of law and that the learned
trial court has ignored and omitted the material evidence and has
disregarded the cogent evidence in favour of the appellant.
CRL.A. 1106/2018 Page 4 of 49
6. Learned counsel further contended that PW-4 Adesh Kumar (brother
of the deceased) is a planted witness, who was not present at the time
of incident and he has been introduced by the prosecution in order to
falsely implicate the appellant.
7. Learned counsel for the appellant further argued that the learned
Trial Court has erred in relying on the testimonies of PW-1, Prem
Singh (Father of the deceased), PW-4 Adesh Kumar (brother of the
deceased), PW-6 Bal Kishan (maternal uncle of the deceased), PW-
10 Vinod (brother-in-law of the deceased), PW-15 (Insp. Amrendra
Kumar) as there are major contradictions and discrepancies in their
testimonies. He further contended that all these witnesses are
interested witnesses and hence their evidence cannot be treated as
trustworthy and reliable, moreover, there is a very strong possibility
of the prosecution witnesses being tutored and influenced. He further
contended that the learned Trial Court erred in convicting the
appellant on the basis of these testimonies stated to have been made
by the deceased to them after the incident and soon before his death
treating the same as dying declaration.
8. He further added that the alleged dying declaration given by the
deceased to the police witnesses i.e. PW-12 (Ct. Piplad Singh) and
PW-15 (Insp. Amrendra Kumar) were not reduced in writing and
hence the same cannot be believed. Moreso, the MLC was prepared
at 6:25 p.m. wherein it was recorded that 'Patient brought to the
casualty with alleged history of being in unresponsive state since 30
minutes. As per history available from patient's attendant, the
patient came back home from the market at 5:00 p.m. today. The
CRL.A. 1106/2018 Page 5 of 49
attendant noticed that patient was stumbling and not walking steady
and said that he had been assaulted while at the market. He also
complained of shortness of breath at the time. Patient then fell
unresponsive 30 minutes prior to ED arrival.' whereas DD No. 24A
was written at 5:55 p.m. Thus, there was no possibility for the
deceased to have made a dying declaration to PW-12 (Ct. Piplad
Singh) and PW-15 (Insp. Amrendra Kumar). To substantiate his
arguments, learned counsel for the Appellant relied upon the case of
Atbir v. Government of NCT of Delhi reported at (2010) 9 SCC 1.
9. The next contention raised by the learned counsel for the appellant is
that an accused cannot be convicted only on the basis of alleged
weapon of offence having been recovered pursuant to the disclosure
statement. He further contended that although the appellant is
alleged to have made a disclosure statement pointing out the weapon
of offence (Screw Driver) but the said pointing out memo does not
fall within the purview of Section 27 of the Indian Evidence Act and
is not admissible in the eyes of law as the same does not find support
from the scientific evidence. To substantiate his arguments, learned
counsel for the Appellant relied upon the case of Shiv Narayan v.
State (NCT of Delhi) reported at 2002 (61) DRJ 734 (DB).
10. Learned counsel for the appellant further submitted that the police is
required to carry out a fair and thorough investigation and collect
favourable and unfavourable evidence against a suspect but in the
instant case there are major loop holes in the investigation by the
police which have been ignored by the learned Trial Court.
CRL.A. 1106/2018 Page 6 of 49
11. On the other hand, Mr. Rajat Katyal, learned APP for the State,
strongly refuted the contentions raised by the learned counsel for the
appellant and argued that the impugned judgment does not call for
any interference as it is a well reasoned judgment.
12. Learned APP for the State further contended that the testimonies of
PW-1 Prem Singh (Father of the deceased), PW-4 Adesh Kumar
(brother of the deceased),PW-6 Bal Kishan (maternal uncle of the
deceased), PW-10 Vinod (brother in law of the deceased) and PW-15
(Insp. Amrendra Kumar) are consistent and trustworthy and the
minor contradictions and discrepancies, if any, do not affect the case
of the prosecution as they do not go to the root of the matter. It is a
settled proposition of law that even if there are some omissions,
contradictions and discrepancies in the testimonies of the witnesses,
the entire evidence cannot be completely disregarded. The learned
APP further contended that the testimony of the eye witness PW-4
(Adesh Kumar) cannot be rejected on the mere ground of his
relationship with the deceased because it is not a sufficient ground to
discard the evidence of the eye witness. To substantiate his
arguments learned APP for State relied upon the case of Khujji @
Surendra Tiwari vs. State of Madhya Pradesh reported at (1991) 3
Supreme Court Cases 627.
13. He further submitted that the testimonies of prosecution witnesses
coupled with the dying declarations of the deceased are corroborative
in nature and the prosecution has been able to prove its case beyond
reasonable doubt. To substantiate his arguments learned APP for
CRL.A. 1106/2018 Page 7 of 49
State relied upon the case of Parbin Ali and Another vs. State of
Assam reported in 2013 2 SCC 81.
14. We have given our anxious consideration to the submissions
advanced on behalf of counsel for the parties at considerable length
and also perused the material available on record.
Whether testimony of Eyewitness reliable?
15. The first argument raised by the learned counsel for the appellant is
that PW-4, Adesh Kumar (brother of the deceased) is a planted
witness. Who has been introduced by the prosecution in order to
falsely implicate the appellant.
16. It is a settled law that the conviction can be recorded on the basis of
the statement of a single eye-witness provided his credibility is not
shaken by any adverse circumstances, appearing on the record
against him and the court at the same time is to be convinced that he
is a truthful witness. Eyewitnesses account requires a careful
independent assessment and evaluation for its credibility, which
should not be adversely prejudged on the basis of any other evidence.
The evidence must be tested for its inherent consistency and the
inherent probability of the story; consistent with the account of other
witnesses held to be creditworthy; consistent with the undisputed
facts, the credit of the witnesses; their performance in the witness
box; their power of observation etc. In this context, we may
profitably refer to the case of Jagdish Prasad vs. State of M.P
reported as AIR 1994 SC 1251, wherein the Hon'ble Supreme Court
held as follows: -
CRL.A. 1106/2018 Page 8 of 49
"6. As a general rule, a court can and may act on the
testimony of a single witness though uncorroborated
provided the testimony of that single witness is found
out entirely reliable. In that case, there will be no legal
impediment for recording a conviction. But if the
evidence is open to doubt or suspicion, the court will
require sufficient corroboration. In this connection,
reference may be made to a decision of this Court in
Vadivelu Thevar v. State of Madras, wherein this Court
has classified the testimony of a witness into three
categories. viz. (1) wholly reliable (2) wholly
unreliable, and (3) neither wholly reliable nor wholly
unreliable and observed that though in the first two
categories of classification, there may not be any
difficulty in coming to a conclusion either accepting
or rejecting the testimony but it is in the third
category of cases that the court has to be circumspect
and has to look for corroboration in material
particulars by reliable testimony either direct or
circumstantial.
7. Now, let us scrutinise the testimony of P.W. 1 in the
light of the observation made by this Court in the above
decision. It is seen from the evidence that P.W. 1 was
an arch enemy of the fifth respondent as the former had
assaulted the fifth accused on a prior occasion.
Probably this must have been the proximate motive for
the occurrence in question. The trial court, in fact, took
note of this and made the following observations:
CRL.A. 1106/2018 Page 9 of 49
The description given by the witness (PW. 1)
regarding the part played by each of the five accused
in hitting the deceased also does not seem to be
correct, because the object of assault was in fact
against this witness because of the previous enmity and
that he was first aimed at by accused Bawan, but
escaped the assault and, therefore, in the natural
course of conduct, the witness ought to have left the
spot at the next moment to save himself.
It is far-fetched to visualise that P.W. 1 could have
witnessed the entire occurrence viz., the actual assault
perpetrated on the deceased when he was fleeing for
his life and thereafter hid himself inside a room of the
hospital till 5 a.m. Though P.W. 1 claims to have
known all the six accused persons it appears he has
not mentioned the name of the accused Pangoo
(acquitted) in his first report. Surprisingly, before the
trial court P.W. 1 has mentioned only the names of
five accused and specifically and deliberately omitted
the name of the first accused in his evidence. The
High Court has commented upon the conduct of P.W. 1
in its judgment stating "he deliberately tried to help the
acquitted accused Mishrilal". In fact, the trial court
taking a very serious view of the conduct of P.W. 1 had
gone to the extent of conducting a preliminary enquiry
under Section 340 of the CrPC for launching a
prosecution against P.W. 1 for perjury.
CRL.A. 1106/2018 Page 10 of 49
8. The evidence of P.W. 1 is found to be discrepant in
its material particulars by the High Court. We, after
going through the evidence, hold that it is quite
unsafe to act upon the evidence of P.W. 1 whose
testimony is clouded with grave suspicion and serious
doubts. For all the aforementioned reasons we are
constrained to set aside the judgment of the High
Court confirming the judgment of the Trial Court. In
the result, the conviction of all the appellants (accused
2-5) Under Section 302, I.P.C. read with Section 34,
I.P.C. and the sentence of imprisonment for life
imposed therefore are set aside and the appellants are
acquitted."
17. Further the Court, after going through the entire evidence must form
an opinion about the credibility of the witnesses and otherwise also,
evidence is to be considered from the point of view of
trustworthiness and if the evidence is incredible and cannot be
accepted by the test of prudence, then it may create a dent in the
prosecution version. In case of Mritunjoy Biswas vs. Pranab @ Kuti
Biswas and Anr., reported at (2013) 12 SCC 79, the Apex Court held
as under:
"28. As is evincible, the High Court has also taken note
of certain omissions and discrepancies treating them to
be material omissions and irreconcilable discrepancies.
It is well settled in law that the minor discrepancies are
not to be given undue emphasis and the evidence is to be
CRL.A. 1106/2018 Page 11 of 49
considered from the point of view of trustworthiness.
The test is whether the same inspires confidence in the
mind of the court. If the evidence is incredible and
cannot be accepted by the test of prudence, then it may
create a dent in the prosecution version. If an omission
or discrepancy goes to the root of the matter and
ushers in incongruities, the defense can take advantage
of such inconsistencies. The omission should create a
serious doubt about the truthfulness or creditworthiness
of a witness. It is only the serious contradictions and
omissions which materially affect the case of the
prosecution but not every contradiction or omission (See
Leela Ram vs. State of Haryana and another, Rammi
alias Rameshwar vs. State of M.P. and Shyamal Ghosh
vs. State of West Bengal)".
18. The statement of Adesh Kumar (brother of the deceased), the sole
eyewitness was recorded by the police vide Rukka (Ex.-PW4/A)
wherein he stated that:-
"Sudesh ka saala Akash uske pichhe se aaya aur Sudesh
par hamla karke bhag gaya. Mein Akash ko pakadne ke
liye bhage lekin duri hone ki vajehe se veh haath nahi
aya. Phir meine dekha ki Sudesh Ladkhada kar gir Gaya
aur mein jaa k Sudesh ko sambhala aur usne bataya ki
Akash kisi nukili chiz se pichhe se vaar kar k bhag
gaya"
CRL.A. 1106/2018 Page 12 of 49
19. PW-4, Adesh Kumar (brother of the deceased) stepped into the
witness box and deposed that:
"On 05.06.2013, there was a puja at the house of my
sister who is residing in Manglapuri, New Delhi and on
that day when I was going towards Manglapuri Chowk
at around 5 p.m and when I reached near the main
gate of our colony, I saw my brother Sudesh coming
from the side of chowk and he told me that accused
Akash and two of his cousins (sons of his Bua), one of
them namely Rahul and I do not know the name of
other person, had assaulted on him with a screw driver
on his back and chest on left side. I saw that Sudesh
was having injuries on his chest and back. I informed
the police on telephone No. 100. One police van came
there after about ½ hour. I took my brother Sudesh to
DDU hospital in a PCR van in injured condition and on
the way when we reached at Dabri, my brother Sudesh
expired. I did not see accused Akash following my
brother Sudesh on the day of incident. I also did not
see accused Akash on assaulting my brother Sudesh.
Vol. I had seen him while running from the spot along
with his two aforesaid cousins."
20. In his cross examination, he deposed that:-
"It is correct that on 05.06.2013 at about 5 p.m when my
brother Sudesh was coming from the side of main gate of
our colony, I saw that accused Aakash, brother-in-law
CRL.A. 1106/2018 Page 13 of 49
of Sudesh came from behind and he assaulted on
Sudesh and thereafter he ran away. It is also correct
that I chased the accused to apprehend him but he
managed to escape due to the distance. It is also
correct that I saw that my brother had fallen and when I
came near him, he told me that Akash had assaulted on
him with a sharp object. It is also correct that first I
brought my brother Sudesh in injured condition to my
home and told the entire facts to the family members and
thereafter informed the police on telephone No.100. It is
also correct that I had stated all the aforesaid facts to
the police when my statement was recorded."
21. A close examination of the statements made by PW-4 Adesh Kumar
at different stages shows that the same are full of contradictions and
improvements as detailed below:-
a. The witness, in his initial statement, Rukka (Ex-PW-4/A), has
deposed that the alleged incident was seen by him and stated
that ('Sudesh ka saala Akash uske pichhe se aaya aur Sudesh
par hamla karke bhag gaya. Mein Akash ko pakadne k liye
bhaga lekin duri hone ki vajehe se veh haath nahi ayaa') but,
during his examination-in-chief he has deposed that the alleged
incident was narrated to him by his brother (the deceased) and
stated that 'when I reached near the main gate of our colony, I
saw my brother Sudesh coming from the side of chowk and he
told me that accused Akash and two of his cousin (sons of his
CRL.A. 1106/2018 Page 14 of 49
Bua) one of them namely Rahul and I do not know the name
of other person, had assaulted on him with a screw driver'.
b. The witness, in Rukka (Ex-PW-4/A), failed to give the details
of the weapon of offence used for causing injury but during his
examination-in-chief he disclosed that the injury had been
caused by a 'screw driver'.
c. According to PW-4 (brother of the deceased), the deceased
was attacked by the accused while he was accompanied by two
more assailants i.e. two cousins of Aakash (sons of his Bua)
and stated that 'when I was going towards Manglapuri
Chowk at around 5 p.m. and when I reached near the main
gate of our colony, I saw my brother Sudesh coming from the
side of chowk and he told me that accused Akash and two of
his cousins (sons of his Bua), one of them namely Rahul and
I do not know the name of other person, had assaulted on
him with a screw driver on his back and chest on left side.'
but, during cross-examination PW-4 (brother of the deceased)
did not refer to the cousins of the accused which is totally
contrary to the stand taken by him in the examination-in-chief
and deposed that 'I saw that accused Aakash, brother-in-law
of Sudesh came from behind and he assaulted on Sudesh and
thereafter ran away'.
d. Another noticeable contradiction is that PW-4 (brother of the
deceased) in his examination-in-chief stated that the deceased
narrated the incident to him but in the cross-examination, he
added that he chased the accused who managed to escape. The
CRL.A. 1106/2018 Page 15 of 49
witness (PW-4) deposed that 'accused Akash and two of his
cousins (sons of his Bua), one of them namely Rahul and I
do not know the name of other person, had assaulted on him
with a screw driver on his back and chest on left side. I saw
that Sudesh was having injuries on his chest and back. I
informed the police on telephone No. 100. One police van
came thereafter about ½ hour. I took my brother Sudesh to
DDU hospital in a PCR van in injured condition and on the
way when we reached at Dabri, my brother sudesh expired.'.
The witness (PW-4) during cross-examination deposed that 'It
is also correct that I chased the accused to apprehend him
but he managed to escape due to the distance.'
e. PW-4, contradicting his initial statement in Rukka
(Ex-PW-4/A) as well as testimonies recorded before court, the
witness, at one stage, deposed that 'I did not see accused
Akash following my brother Sudesh on the day of incident. I
also did not see accused Akash on assaulting my brother
Sudesh'.
22. On a careful analysis of the testimony of PW-4, Adesh Kumar (brother
of the deceased), we find that there are apparent contradictions in his
testimony making it unsafe to rely on the same. The testimony of
PW-4, Adesh Kumar (brother of the deceased) is surrounded by
suspicion and the contradictions, inconsistencies, concealment,
improvements and exaggerations. The testimony of PW-4, Adesh
Kumar (brother of the deceased) casts a shadow of doubt on his
presence at the scene of crime.
CRL.A. 1106/2018 Page 16 of 49
Dying Declaration
23. The main thrust of the arguments of counsel for the appellant is that
the multiple dying declarations made by the deceased are not
trustworthy and fail to inspire confidence in the eyes of law hence, it
is necessary to examine the position of law relating to dying
declarations. Section 32 of the Evidence Act deals with a statement,
when the same is made by a person in relation to cause of his death,
which reads as under: -
"Section.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 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
CRL.A. 1106/2018 Page 17 of 49
the nature of the proceeding in which the cause of his
death comes into question."
24. To treat a statement as dying declaration following ingredients need
to be fulfilled:
(i) Statement should be of a person who is dead/cannot be
found/has become incapable of giving evidence etc.
(ii) It should relate to the relevant facts; and
(iii) It should relate to cause of 'his death' or circumstances of the
transaction which resulted in 'his death', in cases in which the
cause of that person's death comes into question.
25. It has been repeatedly held by the Apex Court that even though a
dying declaration is admissible in evidence, yet the Courts must
scrutinize the dying declaration with care and caution as a person
who has made such a statement is not available for cross-
examination. The Apex Court in the case of Ramilaben
Hasmukhbhai Khristi and Ors. V. State of Gujarat, reported at AIR
2002 SC 2996 has held as under:
"Under the law, dying declaration can form the sole
basis of conviction, if it is free from any kind of doubt
and it has been recorded in the manner as provided
under the law. It may not be necessary to look for
corroboration of such a dying declaration. As
envisaged, a dying declaration is generally to be
recorded by an Executive Magistrate with the
certificate of a medical doctor about the mental fitness
of the declarant to make the statement. It may be in the
CRL.A. 1106/2018 Page 18 of 49
form of question and answer and the answers be
written in the words of the person making the
declaration. But the court cannot be too technical and
in substance if it feels convinced about the
trustworthiness of the statement which may inspire
confidence such a dying declaration can be acted upon
without any corroboration."
26. The Apex Court in the case of Madan @ Madhu Patekar Vs the
State of Maharashtra reported at AIR 2018 SC 2007, has taken into
consideration its various decisions and culled out the principles
governing dying declarations. Germane portion of the judgment is
extracted below:
"10. The rule of admissibility of dying declaration is no
more res Integra. In the adjudication of a criminal case,
dying declaration plays a crucial role. A dying
declaration made by a person as to cause of his/her
death or as to any of the circumstances which resulted in
his/her death, in cases in which cause of death comes in
question, is relevant under Section 32 of the Evidence
Act. It has been emphasized number of times that dying
declaration is an exception to the rule against
admissibility of hearsay evidence. The whole
development of the notion that the dying declaration,
as an exception to the hearsay rule, is based on the
formalistic view that the determination of certain
classes of evidence as admissible or inadmissible and
CRL.A. 1106/2018 Page 19 of 49
not on the apparent credibility of particular evidence
tendered.
11.In order to ameliorate such concerns, this court has
cautioned in umpteen number of cases to have a
cautious approach when considering a conviction
based on dying declaration. Although there is no
absolute rule of law that the dying declaration cannot
form the sole basis for conviction unless it is
corroborated, the courts must be cautious and must rely
on the same if it inspires confidence in the mind of the
Court [See: Ram Bihari Yadav Vs. State of Bihar &Ors.
(1998) 4 SCC 517 and Suresh Chandra Jana &Ors. Vs.
State of West Bengal &Ors., 2017 (8) SCALE 697].
12.Moreover, this court has consistently laid down that
a dying declaration can form basis of conviction, if in
the opinion of the Court, it inspires confidence that the
deceased at the time of making such declaration, was in
a fit state of mind and there was no tutoring or
prompting. If the dying declaration creates any
suspicion in the mind of Court as to its correctness and
genuineness, it should not be acted upon without
corroborative evidence [See Also: Atbir Vs. Government
of NCT of Delhi, 2010 (9) SCC 1, Paniben Vs. State of
Gujarat, 1992 (2) SCC 474 and Panneer Selvam Vs.
State of Tamil nadu, 2008 (17) SCC 190]"
CRL.A. 1106/2018 Page 20 of 49
27. Reference can also be made to the dicta of the Apex Court in Sampat
Babso Kale & Anr. Vs. State of Maharashtra reported at 2019 SCC
OnLine SC 236 wherein it has been held that:
14.No doubt, a dying declaration is an extremely
important piece of evidence and where the Court is
satisfied that the dying declaration is truthful, voluntary
and not a result of any extraneous influence, the Court
can convict the accused only on the basis of a dying
declaration. We need not refer to the entire law but it
would be apposite to refer to the judgment of this Court
in the case of Sham Shankar Kankaria v. State of
Maharashtra reported in (2006) 13 SCC 165 held as
follows:
"11. Though a dying declaration is entitled to
great weight, it is worthwhile to note that the
accused has no power of cross-examination. Such
a power is essential for eliciting the truth as an
obligation of oath could be. This is the reason the
court also insists that the dying declaration
should be of such a nature as to inspire full
confidence of the court in its correctness. The
court has to be on guard that the statement of
deceased was not as a result of either tutoring or
prompting or a product of imagination. The court
must be further satisfied that the deceased was in
a fit state of mind after a clear opportunity to
observe and identify the assailant. Once the court
is satisfied that the declaration was true and
CRL.A. 1106/2018 Page 21 of 49
voluntary, undoubtedly, it can base its conviction
without any further corroboration. It cannot be
laid down as an absolute rule of law that the dying
declaration cannot form the sole basis of
conviction unless it is corroborated. The rule
requiring corroboration is merely a rule of
prudence............."
28. In view of the aforesaid settled legal position, it is to be seen whether
the multiple dying declarations made by the deceased inspire
confidence and are uninfluenced by any tutoring, prompting, or any
other extraneous reasons.
29. The prosecution produced PW-1, Prem Singh (Father of the
deceased), PW-6, Bal Kishan (Maternal uncle of the deceased), PW-
10, Vinod (brother-in-law of the deceased), PW-12 (Ct. Piplad) and
PW-15 (Inspector Amrender Singh) who when examined in Court
narrated the dying declaration made to each one of them soon after
the incident and before his death. PW-1, Prem Singh (Father of the
deceased) narrated what Sudesh deceased had told him in following
words:
"At around 5 pm, my son complainant Adesh Kumar
had brought Sudesh in injured condition having
injuries on his chest and back. Sudesh told us that
accused Akash had assaulted on him with a screw
driver and caused the aforesaid injuries on his
person. My son Sudesh was taken to DDU hospital
CRL.A. 1106/2018 Page 22 of 49
where he was declared by the doctors as declared
dead."
30. PW-4, Adesh Kumar (brother of the deceased) narrated the incident
as follow:
"On 05.06.2013, there was a puja at the house of my
sister who is residing in Manglapuri, New Delhi and on
that day when I was going towards Manglapuri Chowk
at around 5 p.m. and when I reached near the main
gate of our colony, I saw my brother Sudesh coming
from the side of chowk and he told me that accused
Akash and two of his cousin (sons of his Bua) one of
them namely Rahul and I do not know the name of
other person, had assaulted on him with a screw driver
on his back and chest on left side. I saw that Sudesh
was having injuries on his chest and back. I informed
the police on telephone No. 100. One police van came
there after about ½ hour. I took my brother Sudesh to
DDU hospital in a PCR van in injured condition and on
the way when we reached at Dabri, my brother Sudesh
expired. I did not see accused Akash following my
brother Sudesh on the day of incident. I also did not
see accused Akash on assaulting my brother Sudesh.
Vol. I had seen him while running from the spot along
with his two aforesaid cousins."
31. During cross-examination, PW-4, deposed as under: -
"It is correct that on 05.06.2013 at about 5 p.m. when
my brother Sudesh was coming from the side of main
gate of our colony, I saw that accused Aakash, brother-
CRL.A. 1106/2018 Page 23 of 49
in-law of Sudesh came from behind and he assaulted
on Sudesh and thereafter he ran away. It is also
correct that I chased the accused to apprehend him but
he managed to escape due to the distance. It is also
correct that I saw that my brother had fallen and when I
came near him, he told me that Akash had assaulted on
him with a sharp object. It is also correct that first I
brought my brother Sudesh in injured condition to my
home and told the entire facts to the family members
and thereafter informed the police on telephone
No.100. It is also correct that I had stated all the
aforesaid facts to the police when my statement was
recorded."
32. PW-6, Bal Kishan (Maternal uncle of the deceased) narrated the
incident as follows:
"Today I do not recollect the date and month, but in
the last year 2013 about 1 ½ year ago I was present at
my house at about 4 p.m. I heard the noise in the gali
at that time, then my nephew Suresh who is the son of
the brother of my wife, came to me and stated that he
was beaten by Akash and he had kept his hand on his
left side chest and after saying me, he fell down in
front of my house in the gali. Thereafter police came
there and Suresh was taken to the hospital by the police
and his brother Adesh accompanied the police to the
hospital. Thereafter I came to know that Suresh has
expired in the hospital."
CRL.A. 1106/2018 Page 24 of 49
33. Similarly, PW-10, Vinod (brother-in-law of the deceased) narrated
the entire incident as follows:
"On 05.06.2013 there was a pooja function at my
house at about 4pm and all the relatives had come to
my residence to attend the pooja ceremony. After
completion of the pooja ceremony., I along with my
brother in law Sudesh went to the bus stand to see of
my brothers Sukhpal, Suresh and their wives. I
remained stood with my above said brothers and
Bhabhies till the bus is coming and my brother in law
Sudesh came back to my house. When I was standing at
the bus stand, I received a call on my mobile phone
from my another brother-in-law Adesh, that the
accused Akash has committed the murder of my
brother in law Sudesh by inflicting injuries on his
person and I immediately came back to my house and
saw my brother in law/saala Sudesh was lying in a
pool of blood in my house and I along with my other
family enquiries from him as to how he sustained
injuries on his person, then my brother in law/ saala
disclosed me that these injuries have been caused to
him by his brother in law Akash."
34. PW-12 (Ct. Piplad) during his examination-in-chief deposed that:
"On 05.06.2013 when I along with PSI Amrender
Singh reached Phase-I, Manglapuri, New Delhi, we
found that one PCR van present there where injured
Suresh, again Sudesh was also found there'. He
CRL.A. 1106/2018 Page 25 of 49
disclosed that he was assaulted by his brother in law
(saala) Akash with a sharp object from behind.
Thereafter the injured was taken to DDU hospital by
the PCR van."
35. PW-15 (Inspector Amrender Singh) narrated the incident as follows:
"On 05.06.2013, while I working in Delhi Police as
Sub-Inspector and was posted at P.S. Palam Village,
on that day at about 5.55 pm, I received a DD No. 24-
A, the same is already Ex.PW3/A which was marked to
me for its investigation. I along with Ct.Piplad went to
Manglapuri Phase-I where the PCR van was already
found parked there and the person who was having
stabbed injury was brought from the gali by the PCR
official and his family members because the PCR van
was unable to enter in the gali due to narrowness.
When I made enquiry from the injured, he disclosed
me that his brother in law/saala Aakash gave him
blow with sharp edged weapon from his back side. I
also checked his injuries and there was found two
injuries, one was on the back and another was between
the back right and front side right below the place of
hand and armpit. I immediately asked the PCR
officials to take him to the hospital and the PCR
officials took him to the hospital. Thereafter I went to
his house to search regarding lying the blood but I
found no blood over there."
CRL.A. 1106/2018 Page 26 of 49
36. A close examination of above statement made by the witnesses
produced by the State makes it clear that there are various
contradictions in their statements.
• PW-1, Prem Singh (Father of the deceased) (R/o H.No. 54,
Gali No. 2, Manglapuri, Phase-I, Palam, New Delhi) has
deposed that 'At around 5 p.m. my son complainant Adesh
Kumar had brought Sudesh in injured condition having
injuries on his chest and back. Sudesh told us that accused
Akash had assaulted on him with a screw driver and caused
the aforesaid injuries on his person', whereas, PW-6, Bal
Kishan (Maternal uncle of the deceased) (R/o H. No. 72, Gali
No.2, Phase-I, Manglapuri, Palam, New Delhi) has claimed
that the deceased alongwith PW-4 (brother of the deceased)
came to his house and deposed that 'my nephew Suresh who is
the son of the brother of my wife, came to me and stated that
he was beaten by Akash and he had kept his hand on his left
side chest and after saying me, he fell down in front of my
house in the gali'. Both the witnesses, i.e. PW-1 (father of the
deceased) and PW-6 (maternal uncle of the deceased) deposed
that Sudesh (the deceased) after being attacked by the
appellant came to their house alongwith Adesh and claimed to
have been stabbed by the appellant. Contradicting the
testimony of the PW-6 (maternal uncle of the deceased),
PW-4 (brother of the deceased), was silent on this aspect and
stated that after the incident he picked up his brother Sudesh
(the deceased) in an injured condition from the spot and
CRL.A. 1106/2018 Page 27 of 49
brought him to his house i.e. H.No. 54, Gali No. 2,
Manglapuri, Phase-I, Palam, New Delhi. PW-4 (brother of the
deceased) neither in his statement recorded by the police
official i.e. Rukka (Ex. PW-4/A) nor in his testimonies
recorded by the Court has mentioned about taking his brother
Sudesh (the deceased) to the house of PW-6 (maternal uncle of
the deceased) after the alleged incident. PW-4 (brother of the
deceased), in this context deposed that 'It is also correct that
first I brought my brother Sudesh in injured condition to my
home and told the entire facts to the family members and
thereafter informed the police on telephone No.100'.
Moreover, the scaled site plan (Ex. PW-14/A) as also un-
scaled site plan (Ex. PW-21/A) which was prepared at the
instance of PW-4 (brother of the deceased) does not depict the
house of PW-6 (maternal uncle of the deceased).
• As far as the testimony of PW-1 (father of the deceased) that
Sudesh (the deceased) has informed him 'that accused Akash
had assaulted on him with a screw driver' is concerned, the
same is in contradiction with the testimony of PW-2 (Smt.
Monika) (wife of the deceased) who was present at H.No. 54,
Gali No. 2, Manglapuri, Phase-I, Palam, New Delhi where
PW-1 (father of the deceased) claimed to have been present
when the deceased was brought by PW-4. The witness, PW-2
(wife of the deceased) deposed that 'On 05.06.2013 at about
04:30 p.m., my husband Sudesh had gone to bus terminal
Manglapuri to see the son of our relative and after sometime,
CRL.A. 1106/2018 Page 28 of 49
he was brought to our house by my brother in law (jeth)
namely Aadesh in injured condition. Police was informed on
telephone No. 100 and one PCR van came and took my
husband to DDU hospital where he was declared dead.
Sudesh did not tell me anything as to how he sustained
injuries.'. The witness, PW-2 (wife of the deceased) further
during her cross-examination deposed that 'When Sudesh was
brought to our house by Aadesh in injured condition, he was
unconscious. Sudesh did not tell anything to his family
members in my presence at the time when he was brought in
injured condition.'. PW-2, categorically claimed that when
Sudesh (the deceased) was brought by PW-4 (brother of the
deceased) to their house, he was unconscious and no dying
declaration was made by him to any person of his family.
Moreover, PW-4 (brother of the deceased), in his statement
recorded by the police official i.e. Rukka (Ex. PW-4/A) as
well as in his deposition recorded by the Court was silent on
this aspect and he failed to inform about any dying declaration
made by Sudesh (the deceased) to PW-1 (father of the
deceased) when the deceased was brought to his house at
H.No. 54, Gali No. 2, Manglapuri, Phase-I, Palam, New Delhi.
• Further, the testimony of PW-1 (father of the deceased) is
inconsistent with MLC of the deceased (Ex. PW-5/A) recorded
on 05.06.2013 at 06:25 pm., as per which the deceased was
'unresponsive for the last 30 minutes' which fully supports
the testimony of PW-2 (wife of the deceased) who also
CRL.A. 1106/2018 Page 29 of 49
deposed that when Sudesh (the deceased) was brought in the
house he was in an unconscious state of mind.
• PW-10, Vinod (brother-in-law of the deceased) (R/o H. No.
28, Gali no.1, Manglapuri Phase-I) has deposed that 'I
received a call on my mobile phone from my another brother-
in-law Adesh, that the accused Akash has committed the
murder of my brother in law Sudesh by inflicting injuries on
his person and I immediately came back to my house and saw
my brother in law/saala Sudesh was lying in a pool of blood
in my house and I along with my other family enquiries from
him as to how he sustained injuries on his person, then my
brother in law/ saala disclosed me that these injuries have
been caused to him by his brother in law Akash.'
Contradicting the testimony of the PW-10, Vinod (brother-in-
law of the deceased), as discussed above PW-4 (brother of the
deceased), was silent on this aspect in as much as neither PW-
4, mentioned about any dying declaration made by the
deceased to PW-10 in his statement recorded by the police
officials i.e. Rukka (Ex. PW-4/A) nor in his testimonies
recorded by the Court. PW-4 (brother of the deceased), in this
context deposed that 'It is also correct that first I brought my
brother Sudesh in injured condition to my home and told the
entire facts to the family members and thereafter informed
the police on telephone No.100'.
37. As far as the dying declaration recorded by PW-12 (Ct. Piplad) and
PW-15 (Inspector Amrendra Kumar) is concerned, it is relevant to
CRL.A. 1106/2018 Page 30 of 49
peruse MLC No. 13692/13 of the deceased (Ex. PW-5/A), which
was proved by PW-5, (Dr. Aruna Singh) who deposed on behalf of
Dr. Ritu, Sr. Casualty, DDU Hospital who conducted the medical
examination of the deceased and proved the same as Ex.PW-5/A.
Relevant portion of the testimony of PW-5 is reproduced below:
"I have been deputed by the MS to appear for Dr. Ritu
SR Casualty because Dr. Ritu has worked with me
during her service period in DDU Hospital. So I had
seen her writing and signing. Now Dr. Ritu has left the
service of the hospital and her present whereabouts are
not known to the hospital nor her permanent address is
known to the hospital. I have seen MLC no. 13692/13
dated 05.06.2013 of Sudesh S/o Prem Singh, aged 23
years, male. Same is in the handwriting of Dr, Ritu and
as per the contents of the MLC the patient was
brought dead to the casualty with alleged history of
being unresponsive since 30 minutes and as per
history available from patient attendant the patient
came back from the market at 5 pm today. The
attendant noticed that the patient was stumbling and
not walking steady and that he has been assaulted
while at the market. He also complained of shortness
of breath at the time. Patient fell unresponsive in 30
minutes prior to emergency department arrival."
38. As per the MLC of the deceased (Ex. PW-5/A) recorded on
05.06.2013 at 06:25 pm. the deceased was 'unresponsive for the last
30 minutes'. It is an admitted fact that the police machinery was set
into motion pursuant to DD no. 24-A which was recorded at 05:55
pm in Police Station, Palam Village. The fact that DD No. 24A
which was assigned to PW-15 (Insp. Amrendra Kumar) was recorded
at 05:55 PM coupled with the fact that deceased had been
unresponsive for 30 minutes starting anti-clockwise from 06:25 pm.,
CRL.A. 1106/2018 Page 31 of 49
would only lead to an irresistible conclusion that the deceased was
not in a position to narrate the incident, before 05:55 PM to the
police witnesses i.e. PW-12 (Ct. Piplad) and PW-15 (Inspector
Amrendra Kumar). Moreover, the testimony of PW-2 (wife of the
deceased) confirms the opinion of the examining Doctor which was
recorded in the MLC (Ex. PW-5/A) as per which the deceased was
brought in house No. 54, Gali No. 2, Manglapuri, Phase-I, Palam,
New Delhi in an unconscious state of mind. Accordingly, we do not
find the testimony of police witnesses i.e. PW-12 (Ct. Piplad) and
PW-15 (Inspector Amrendra Kumar) to be of a sterling quality that
Sudesh (the deceased) had made dying declaration to them.
39. In view of the above discussions, the statements of PW-1, Prem
Singh (Father of the deceased), PW-6, Bal Kishan (Maternal uncle of
the deceased), PW-10, Vinod (brother-in-law of the deceased),
PW-12 (Ct. Piplad) and PW-15 (Inspector Amrender Singh) who
disclosed the dying declaration made by the deceased, when
analyzed, suffer from discrepancies and cannot be relied upon for
basing the conviction of the appellant/Akash.
Medical & Scientific Evidence
40. Dr. Narayan Dabas (PW-16) Sr. Resident, Department of Forensic
Medicine, DDU Hospital, Delhi appeared on behalf of Dr. Santosh
Kumar, Sr. Resident, Department of Forensic Medicine, DDU
Hospital who had conducted the post-mortem of the deceased and
proved the post mortem report as (Ex.PW-16/A) wherein he opined
that "cause of death was due to hemorrhage shock caused by a
CRL.A. 1106/2018 Page 32 of 49
pointed weapon". The relevant portion from his statement recorded
is reproduced below:
"I have been deputed by the M.S. of DDU hospital to
depose in the court in respect of the postmortem report
No. 718/2013 which was prepared by Dr.Santosh who has
left the services of the hospital and his present
whereabouts are not known. I am acquainted with the
handwriting and signatures of Dr.Santosh as I have seen
him while writing and signing in the hospital. I have seen
the postmortem report No. 718/2013 dated 06.06.2013
pertaining to deceased Sudesh Kumar, male, aged about
25 years. As per report, the date and hour of starting
autopsy is 06.06.2013 at about 3.30 pm. and autopsy
completed at 4.30 p.m. on the same day.
On external examination, following external injuries
were found on the body of the deceased.
1. One abrasion of size 1 cm x 0.5 cm present on
the medical aspect of mid left arm with reddish
brown in colour.
2. On penetrating injury present on the lateral
aspect of the left side of chest at mid auxiliary
line in fifth costal space with dimension of 0.6
cm x 0.5 cm and deep to thoracic cavity with
ragged and beveled margins. The penetrating
injury placed 9cm below and lateral from left
nipple and 28 cm above left anterior superior
iliac spine with 121 cm from left heel. On
exploration of the wound penetrating injury
CRL.A. 1106/2018 Page 33 of 49
pierces 5th intercostal space, pleura and making
tear in lower lobe of left lung and pericardial
sac and pierces the left ventricle wall of the
heart and reached up to left ventricle cavity and
penetrated whole thickness of the myocardium of
the left ventricle with collection of massive
amount of liquid and clotted blood into the
mediastinum and left thoracic cavity.
3. One penetrating injury oval in shape with
present over the right middle part of back 2 cm
lateral to the mid spinal line at the level of D12
vertebrate 21 cm below from the angle of right
scapula with dimension of 0.6 cm x 0.5 cm and
deep to abdominal cavity with ragged and
beveled margins. On further exploration the
said injury pierced the whole thickness of the
abdominal wall and making tear in the infero
lateral aspect of right lobe of liver of size 1 cm x
0.6 cm x 5 cm with collection of liquid and
clotted blood about 1000 ml in the peritoneal
cavity.
On examination of chest (thorax), the following
injuries were found in the heart and pericardial
sac:
The left ventricle of the heart pierced by making
a tear of 0.5 cm in diameter. The whole
pericardial sac including retro pericardial area
CRL.A. 1106/2018 Page 34 of 49
(mediastinum) contained massive blood (clotted)
dark red in colour.
Preserved items: (1) Blood on gauge piece (2)
clothes. All exhibits sealed with seal of DFMT
DDU Hospital and handed over to the
concerned IO.
The cause of death was due to
hemorrhagic shock caused by penetrating
injury to heart, on left lung and live inflicted by
blunt and pointed weapon like screw driver or
other conformable articles/weapons. The
manner of death was homicide and the time
since death of the deceased was approximately
20-22 hours prior to the postmortem
examination. I identify the signature of Dr.
Santosh Kumar on the postmortem report
Ex.PW16/A which bears the signatures of Dr.
Santosh Kumar at point A on each page.
I have also seen the subsequent opinion
given by Dr. Santosh Kumar regarding
consistency of produced weapon of offence in
respect of injuries mentioned in PM report no.
718/13 (Ex.PW16/A) of deceased Sudesh and
tears on the clothes i.e. shirt and pant. The
opinion is Ex.PW-16/B which bears the
signature of Dr. Santosh at point A and B."
41. After examining the testimony of Dr. Narayan Dabas and the post
mortem report (Ex.PW16/A), it is observed that as per the medical
CRL.A. 1106/2018 Page 35 of 49
evidence on record the cause of death was due to hemorrhage shock
caused by penetrating injury to heart, on the left lung and liver
inflicted by blunt and pointed weapon like a screw driver.
42. Further, Dr. Narayan Dabas (PW-16) Sr. Resident, Department of
Forensic Medicine, DDU Hospital, Delhi also proved the subsequent
opinion regarding consistency of produced weapon of offence in
respect of injuries mentioned in PM report No. 718/13 of deceased
Sudesh (Ex. PW-16-B) which reads as under:-
"On dated 15.07.2013, IO of the case Insp. Sunder
Singh, SHO PS: Palm Village submitted an
application alongwith PM report No. 7158/13 of
deceased Sudesh and two separately parcels
containing weapon of offence (i.e screw driver
sealed with seal of 'SSY') and clothes of deceased
sealed with the seal of DFMT alongwith sample
seal seeking subsequent opinion about the above
cited matter.
On opening of parcel containing weapon of
offence, received one screw driver. On
examination of the same I observe that the screw
driver is made of steel like metal part appearing
cylindrical in shape with flattened apical part
showing the 5.92 mm in diameter (at cylindrical
parts) and 5.90 mm (at apical part). The
flattened/apical part bears semi sharp edge and
rectangular shape. The handle part is made of
PVC like material blue in colour and quite
CRL.A. 1106/2018 Page 36 of 49
facilitated for holding in hand in the event of
infliction. There is no obvious blood staining
observed, however 1-2 minor reddish brown
patches (Blood staining) seen on the metallic part.
XXXX XXXX XXX
OPINION:- After the perusal of PM report No.
718/13 and observations on the part of produced
weapon of offence and cut marks on the clothes I
am of the considered opinion that the produced
weapon of offence i.e. a screw driver could have
inflicted on the body of deceased which caused
tearing of the clothe and injuries mentioned in PM
report."
43. Perusal of the aforesaid opinion (Ex. PW-16-B) reveals that the
injuries on the body of deceased could have been inflicted by the
weapon produced before Dr. Narayan Dabas (PW-16) i.e.
screwdriver.
44. The weapon of offence (screwdriver) was sent to forensic science
laboratory for analysis and the same has been exhibited on record as
(Ex-PW-21/H). Relevant portion of FSL.2013/DNA-5886
(Ex-PW-21/H) is reproduced below:
"DESCRIPTION OF PARCELS & CONDITION OF SEALS
(SEALS INTACT AS PER F.A'S LETTER)
Sealed cloth parcel - 1
Sealed envelope - 1
Sealed polythene bag - 1
Total - 3 (three)
DESCRIPTION OF ARTICLES CONTAINED IN PARCELS
Parcel '1' : One sealed cloth parcel with the seal of 'DFMT
CRL.A. 1106/2018 Page 37 of 49
DDU Hospital' containing exhibit '1'.
Exhibit '1' : One screw-driver.
Parcel '2' : One sealed polythene bag sealed with the seal
'DFMT DDU HOSPITAL' said to contain exhibit
'2', returned in original, unexamined.
Parcel '3': One sealed envelope sealed with the seal of
'DFMT DDU HOSPITAL' containing exhibit
'3'.
Exhibit '3: Damp Foul smelling brown gauze cloth piece
described as 'blood on gauze piece of deceased
Sudesh'
RESULTS OF ANALYSIS
1. Blood was detected on exhibits '3'.
2. Blood could not be detected on exhibits '1'."
45. As per (Ex. PW-16/B), the opinion of Dr. Santosh Kumar, Senior
Resident, Department of Forensic Medicine, DDU Hospital, the
injuries inflicted on the body of deceased could have been inflicted
by the weapon of offence i.e. screw driver. However, from the
perusal of the FSL Report (Ex. PW-21/H), it has emerged that no
blood stains were found on exhibit '1' i.e. screw driver which
demolishes the case of the prosecution.
Recovery of Weapon of Offence
46. Learned counsel for the Appellant laboured hard to bring forth that
the recovery of screwdriver made pursuant to the disclosure
statement of the appellant/Akash is not admissible in the eyes of law
as the same was planted in order to incriminate him.
47. From the perusal of the record, we find that the prosecution in the
present case has relied upon the recovery of weapon of offence i.e.
the screwdriver, which was recovered on the pointing out of
appellant/Akash. The story of the prosecution in relation to recovery
of alleged weapon of offence finds corroboration from the testimony
CRL.A. 1106/2018 Page 38 of 49
of police witnesses PW-9 (HC Sunder Lal) PW-18 (SI Jagdish Rathi)
and PW-21 (ACP Sunder Singh). Relevant portion of the testimony
of PW-9 (HC Sunder Lal) reads as under:-
"...On the same day in the evening hours at about
7/7:30 p.m. I alongwith Inspector Sunder Singh, ASI
Jagdish Rathi went to Sultanpuri G-Block where the IO
asked some public persons to join the raiding team but
none agreed to join the raiding team and went away
showing their inability without telling their names and
addresses. Thereafter the secret informer who was with
us at the time disclosed that in the house no. G-32,
Sultanpuri the boys who committed the murder of
Sudesh is hiding himself in this house. Thereafter we
went there and at the instance of secret informer the
accused Akash, present in the court today (correctly
identified), was arrested vide arrest memo Ex. PW-9/A
which bears my signatures at point A and of accused
Akash at point B......
XXXX XXXX XXXXX
On 06.06.2013 after the arrest of accused Aakash,
present in the court today (correctly identified by
witness) was arrested by IO Inspector Sunder Singh.
The accused was interrogated and his disclosure
statement was recorded in which he disclosed that he
can get recover the screw driver (pechkas) from a place
in Manglapuri, Phase-I, New Delhi. In pursuance of
the said disclosure statement, the accused led the police
party including me, ASI Jagdish Rathi and Inspector
CRL.A. 1106/2018 Page 39 of 49
Sunder Singh to a place in Manglapuri and from a
gatta (kudedaan) got recovered a screw driver. The
handle of the said screw driver was of blue colour. IO
Inspector Sunder Singh sealed the recovered screw
driver in a pulanda with the seal of SSY and seized the
same vide seizure memo Ex. PW-9/D which bears my
signatures at Pt. A...."
48. SI Jagdish Rathi stepped into the witness box as PW-18 and deposed
that:
"Accused was interrogated and his disclosure
statement was recorded in which he disclosed that he
can get recover the screwdriver form Khatta,
Kabristan, Manglapuri, New Delhi. The disclosure
statement of the accused was recorded by IO and the
same is already Ex. PW9/C bearing my signatures at
point C. Thereafter, accused Akash led the police
party including me to Kabristan, Manglapuri and got
recovered a screw driver from Khatta to Kabristan.
The handle of the screwdriver was of blue colour. The
length of screwdriver was found to be 9 inches. The
screw driver was having blood stains. IO Inspector
Sunder Singh sealed the recovered screw driver in a
pulanda with a seal of SSY. Seal after use was handed
over to HC Sunder by him. The seizure memo of the
screw driver is already Ex.PW9/D which bears my
signatures at Point B. IO Inspector Sunder Singh
prepared a site plan of the place of recovery.
CRL.A. 1106/2018 Page 40 of 49
Thereafter, we came to the police station alongwith the
accused. The case property i.e the pulanda of the screw
driver was deposited in the Malkhana by the IO. My
statement was recorded by the IO."
49. Further during his cross examination, he has deposed that:
"It is correct that the place of alleged recovery of screw
driver is a public place. No public person was found at
the spot at the time of the alleged recovery because it
was midnight."
50. ACP Sunder Singh stepped into the witness box as PW-21 and
deposed that:
" On 07.06.2013, in the morning, at about 8 o'clock ,
accused Akash led the police including me, ASI
Jagdish Rathi and HC Sunder to a Kudaghar near the
gate of Kabristan, Manglapuri, Phase-I, New Delhi
and he took out a screw driver from Khatta and
produced the same before me and stated that he had
used the said screw driver in committing murder of
Sudesh. I inspected the screwdriver and found that it
was having blood stains. The handle of the screwdriver
was of blue colour. The screw driver was of 7 inch in
total. I sealed the screw driver in a pulanda with a seal
of SSY. The seal after use was handed over to HC
Sunder . I seized the pulanda of screw driver vide a
seizure memo and the same is already Ex.PW9/D. I
prepared site plan of the place of recovery of screw
CRL.A. 1106/2018 Page 41 of 49
driver and the same is PW21/F. Thereafter, we
returned to the police station and I deposited the
pulanda of screw driver in the malkhana with
MHC(M). The accused was present in court and was
sent to judicial custody."
51. Conjoint reading of the aforementioned testimonies of the
prosecution witnesses reveal that the blood-stained screwdriver was
recovered pursuant to the disclosure statement (Ex. PW9/C) of the
appellant/Akash from the Kabristan vide seizure memo (Ex.PW9/F).
There is a major contradiction with regard to the time of recovery of
the screwdriver from the Kabristan. PW-21 (ACP. Sunder Singh) in
his examination-in-chief revealed the time of recovery as '8 o'clock
in the morning' and deposed that 'On 07.06.2013, in the morning, at
about 8 o'clock , accused Akash led the police including me, ASI
Jagdish Rathi and HC Sunder to a Kudaghar near the gate of
Kabristan, Manglapuri, Phase-I, New Delhi' whereas to the
contrary PW-18 (SI Jagdish Rathi) in his cross-examination has
mentioned the time of recovery of alleged weapon of offence as
'midnight' and stated that "It is correct that the place of alleged
recovery of screw driver is a public place. No public person was
found at the spot at the time of the alleged recovery because it was
midnight.". PW-9 (HC Sunder Lal) failed to give complete details
as to what time the recovery of the screw driver has been affected by
the Investigating team. In our view, the contradiction in the
testimonies of police witnesses in relation to recovery of weapon of
CRL.A. 1106/2018 Page 42 of 49
offence is a major defect on the part of the prosecution which cannot
be overlooked. Further, the pointing out memo (Ex.PW-9/D) also
does not lend any support to the story of the prosecution in relation
to recovery of weapon of offence, as no public witness has
participated in the recovery proceedings. Moreso, as discussed
above, in the preceding paragraphs, as per FSL report (Ex. PW-
21/H) no blood stains were found on exhibit '1' i.e. (screw driver)
which weakens the case of prosecution in relation to recovery of the
alleged weapon of offence. Hence, we are of the opinion that in the
instant case, the recovery of weapon of offence is doubtful and it
cannot be safely concluded that the screw driver recovered pursuant
to the disclosure of the appellant is the same weapon which was used
in commission of crime.
Defective Investigation
52. The argument by learned counsel for the appellant that the police while
conducting the investigation failed to follow the procedure prescribed
under the Code of Criminal Procedure and the weapon of offence
(screw driver) was recovered from an open place in absence of an
independent witness and further that the investigating officer made no
endeavors to lift the chance prints from the screw driver and that the
investigating officer has failed to prove from whose mobile number the
initial PCR call was made. It is true that there are some procedural
minor faults in the investigation but in our view the same are not fatal
to the case of the prosecution and benefit of the same cannot be given
to the accused person. In this regard, reliance can be placed on State of
Karnataka v. K. Yarappa Reddy reported in 1999 8 SCC 715 wherein,
CRL.A. 1106/2018 Page 43 of 49
Supreme Court occasioned to consider the similar question of defective
investigation and observed that criminal justice should not be made a
casualty for the wrongs committed by the investigating officers.
Supreme Court, in Paragraph 19, held as follows:
"19. But can the above finding (that the station house
diary is not genuine) have any inevitable bearing on the
other evidence in this case? If the other evidence, on
scrutiny, is found credible and acceptable, should the
Court be influenced by the machinations demonstrated by
the Investigating Officer in conducting investigation or in
preparing the records so unscrupulously? It can be a
guiding principle that as investigation is not the solitary
area for judicial scrutiny in a criminal trial, the
conclusion of the Court in the case cannot be allowed to
depend solely on the probity of investigation. It is well-
nigh settled that even if the investigation is illegal or
even suspicious the rest of the evidence must be
scrutinised independently of the impact of it. Otherwise
the criminal trial will plummet to the level of the
investigating officers ruling the roost. The Court must
have predominance and pre-eminence in criminal trials
over the action taken by the investigation officers.
Criminal Justice should not be made a casualty for the
wrongs committed by the investigating officers in the
case. In other words, if the Court is convinced that the
testimony of a witness to the occurrence is true the Court
CRL.A. 1106/2018 Page 44 of 49
is free to act on it albeit the investigating officer's
suspicious role in the case."
53. In this regard, reliance can also be placed upon the case of
C. Muniappan v. State of T.N., (2010) 9 SCC 567, wherein it has been
held:
"55. There may be highly defective investigation in a case.
However, it is to be examined as to whether there is any
lapse by the IO and whether due to such lapse any benefit
should be given to Crl. Appeal No. 1349/2014 Page 18 of
19 the accused. The law on this issue is well settled that
the defect in the investigation by itself cannot be a ground
for acquittal. If primacy is given to such designed or
negligent investigations or to the omissions or lapses by
perfunctory investigation, the faith and confidence of the
people in the criminal justice administration would be
eroded. Where there has been negligence on the part of
the investigating agency or omissions, etc. which resulted
in defective investigation, there is a legal obligation on
the part of the court to examine the prosecution evidence
dehors such lapses, carefully, to find out whether the said
evidence is reliable or not and to what extent it is reliable
and as to whether such lapses affected the object of
finding out the truth. Therefore, the investigation is not the
solitary area for judicial scrutiny in a criminal trial. The
conclusion of the trial in the case cannot be allowed to
depend solely on the probity of investigation."
CRL.A. 1106/2018 Page 45 of 49
and in Sunil Kundu v. State of Jharkhand, reported in (2013) 4
SCC 422: (2013) 2 SCC (Cri) 427: 2013 SCC Online SC 316, which
reads as under:
"29...It is true that acquitting the accused merely on the
ground of lapses or irregularities in the investigation of a
case would amount to putting premium on the deprecable
conduct of an incompetent investigating agency at the cost
of the victims which may lead to encouraging perpetrators
of crimes. This Court has laid down that the lapses or
irregularities in the investigation could be ignored subject
to a rider. They can be ignored only if despite their
existence, the evidence on record bears out the case of the
prosecution and the evidence is of sterling quality. If the
lapses or irregularities do not go to the root of the matter,
if they do not dislodge the substratum of the prosecution
case, they can be ignored...."
and further in Hema v. State, (2013) 10 SCC 192 : (2013) 4 SCC
(Cri) 755 : 2013 SCC Online SC 20, it has been held:
"18. It is clear that merely because of some defect in the
investigation, lapse on the part of the investigating officer,
it cannot be a ground for acquittal. Further, even if there
had been negligence on the part of the investigating agency
or omissions, etc. it is the obligation on the part of the
court to scrutinise the prosecution evidence dehors such
lapses to find out whether the said evidence is reliable or
not and whether such lapses affect the object of finding out
the truth."
CRL.A. 1106/2018 Page 46 of 49
Conclusion
54. In our view, in the instant appeal before us, the prosecution has
failed to link the role of the appellant with the commission of the
crime. As discussed above, in our view, there are various
discrepancies and improvements in the testimony of PW-4, Adesh
Kumar who was canvassed as the eye witness of the alleged crime
and the same cannot form the basis of conviction of the appellant.
Similarly, the testimonies of PW-1, Prem Singh (Father of the
deceased), PW-6, Bal Kishan (Maternal uncle of the deceased),
PW-10, Vinod (brother-in-law of the deceased), PW-12 (Ct. Piplad)
and PW-15 (Inspector Amrender Singh) who narrated the statement
given by the deceased to them, suffer from major contradictions
being unreliable, would be unsafe to act upon the evidence of these
prosecution witnesses. Moreover, the recovery of the alleged
weapon of offence at the instance of the appellant is also doubtful
and does not find support from scientific evidence.
55. It is settled law that while deciding an appeal filed by the appellant,
in case two views are possible, then the benefit of doubt must be
given to the accused. The Apex Court in P. Satyanarayana Murthy
vs. The Dist. Inspector of Police and Ors.: (2015) 10 SCC 152, has
held as under:-
"25. In reiteration of the golden principle which runs
through the web of administration of justice in criminal
cases, this Court in Sujit Biswas v. State of Assam: (2013)
12 SCC 406 had held that suspicion, however grave,
cannot take the place of proof and the prosecution cannot
CRL.A. 1106/2018 Page 47 of 49
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. It was
held, that the Court must ensure that miscarriage of
justice is avoided and if in the facts and circumstances,
two views are plausible, then the benefit of doubt must
be given to the accused."
56. In the case Jose vs. The Sub-Inspector of Police, Koyilandy and
Ors.: (2016) 10 SCC 519, the Apex Court has held as under:
"53. It is a trite proposition of law, that suspicion
however grave, it cannot take the place of proof and that
the prosecution in order to succeed on a criminal charge
cannot afford to lodge its case in the realm of "may be
true" but has to essentially elevate it to the grade of "must
be true". 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
CRL.A. 1106/2018 Page 48 of 49
innocence, the one favourable to the accused ought to be
adopted."
57. Keeping in view the aforesaid settled law and the material available
on record, we conclude that the prosecution has failed to prove its
case beyond all reasonable doubts and it would be highly unsafe to
convict the appellant. Accordingly, the present appeal is allowed.
The judgment dated 13.07.2018 and order on sentence dated
18.07.2018 of the trial court are set aside.
58. The appellant stands acquitted and be released forthwith, if not
required in any other case.
59. Trial Court Record be sent back along with a copy of this order.
Copy of this order be also communicated to the Superintendent Jail,
Tihar Jail.
SANGITA DHINGRA SEHGAL, J.
MANMOHAN, J. OCTOBER 23, 2019 gr CRL.A. 1106/2018 Page 49 of 49