Delhi District Court
State vs Vishal Kumar on 31 March, 2015
IN THE COURT OF MANOJ JAIN: ADDL SESSIONS JUDGE
FAST TRACK COURT: NORTH-WEST DISTRICT: ROHINI
DELHI
Unique Identification No. 02404R0167572013
Sessions Case No. 121/1/13
FIR No. 128/13
PS Aman Vihar
U/s 302 IPC
State Versus Vishal Kumar
Son of Sh. Kashmire Lal
Resident of D-18,
Inder Enclave-II, Mubarakpur,
Delhi.
Date of institution in Magisterial Court : 21/06/2013
Date on which the case was received
by the Court of Sessions : 05/07/2013
Date of conclusion of final arguments : 23/03/2015
Date of judgment : 27/03/2015
Memo of appearance
Sh. Sanjay Jindal, learned Addl. P.P. for State.
Sh. Yashbir Singh, learned Amicus Curiae for accused.
JUDGMENT
PROSECUTION VERSION 1.0 Madan Lal Soni (victim) used to reside at D-18, Inder Enclave-II, Mubarakpur, Delhi with his family. Name of his wife was Leelawati. Leelawati had a sister, namely, Sulekha and Sulekha was married to one Vijay Malhotra.
1.1 Accused Vishal @ Raju was elder brother of Vijay Malhotra. Madan Lal Soni used to work as driver on TATA 407 and Vishal used to work with him as helper and also used to reside with Madan Lal at his said house.
1.2 Accused Vishal was drug addict and was also keeping an evil eye on Leelawati. Therefore, there used to be frequent altercation between Madan Lal and accused.
FIR No. 128/13 PS Aman Vihar Page 1 1.3 On the occasion of festival of Holi, Vijay Malhotra along with his
family had come to the house of Madan Lal Soni. On 26/03/2013, Madan Lal and Vijay Malhotra were taking drinks at said house of Inder Enclave-II and during conversation, Madan Lal revealed about the said habits of accused i.e. taking drugs and keeping evil eye on Leelawati. In the meanwhile, accused Vishal also happened to came there. He was in inebriated state. He, however, overheard such conversation and became furious. He started abusing and left the house while threatening. It all happened at about 9.00 p.m. Thereafter, Vijay Malhotra also left from there.
1.4 At about 10/10.15 p.m., accused Vishal with a knife. He threatened Madan Lal claiming that he would teach him a lesson for complaining against him and then attacked him with knife and gave knife blow on his abdominal region. Madan Lal raised shouts and on hearing his shouts, his wife and children also came there. Leelawati also saw accused armed with blood stained knife and she also saw accused stabbing her husband with such knife. Accused, after causing said injuries, fled away. However, when he was fleeing away, even Vijay Malhotra saw him running with a knife in his hand. Raj Kumar (brother of Madan Lal) was called. Madan Lal was rushed to SGM hospital where he revealed all the aforesaid facts before SI Ravinder Solanki. On the basis of such statement, FIR was initially registered u/s. 307 IPC. However, Madan Lal succumbed to his injuries and, therefore, case was converted from Section 307 IPC to Section 302 IPC.
1.5 Investigation was carried out. Spot was got inspected through crime team. Statements of various witnesses including Leelawati Soni, Vijay Malhotra and Raj Kumar were recorded. Accused was also arrested on 28/03/2013 and he also got recovered the knife in question as well as the clothes which he had worn at the time of occurrence.
1.6 It is in these circumstances that accused has been sent-up to face trial for commission of offence u/s. 302 IPC.
FIR No. 128/13 PS Aman Vihar Page 2
COGNIZANCE AND CHARGES
2.0 Charge-sheet was filed before the concerned Magisterial Court on
21/06/2013 and learned Metropolitan Magistrate took cognizance of the offence and committed the case to the Court of Session vide order dated 28/06/2013.
2.1 Case was accordingly received by assignment by the Court of Sessions on 05/07/2013.
2.2 Accused was charged for offence u/s. 302 IPC vide order dated 01/08/2013. Charge was framed accordingly to which accused pleaded not guilty and claimed trial.
EVIDENCE LED BY PROSECUTION 3.0 Prosecution was directed to adduce evidence and has examined 24 witnesses in all. Witnesses can be classified as under:
i) Public witnesses:
a) PW3 Leelawati (wife of victim Madan Lal and eye-witness)
b) PW5 Ram Lal (identifier of dead body)
c)PW7 Vijay Malhotra (brother of accused who had also seen the accused running away with knife)
d) PW22 Raj Kumar (brother of deceased Madan Lal)
ii) Witnesses related to investigation:
a) PW1 ASI Satveer Singh (Duty Officer)
b) PW2 Inspector Mahesh Kumar (Draftsman)
c) PW4 SI Anil Kumar (crime team in-charge)
d) PW6 Ct Kailash (PCR official)
e) PW8 SI Yogender Singh (PCR official)
f) PW9 Ct Harish Kumar (Crime team photographer)
g) PW11 HC Pradeep (MHC(M) PS Aman Vihar)
h) PW14 Ct Anoop (witness to investigation)
i) PW16 HC Sukhbir (witness to investigation) FIR No. 128/13 PS Aman Vihar Page 3
j) PW17 Ct Siya Ram (witness to investigation)
k) PW19 SI Ravinder Solanki (first IO who also recorded dying declaration)
l) PW20 SI Vasant (who took pullanda to concerned doctor to obtain expert opinion)
m) PW21 Inspector Rakesh Kumar (last IO)
n) PW23 Inspector Vijay Kumar Kataria (Second IO)
iii) Doctors and FSL Expert:
a) PW10 Dr. Ashish Kumar Goyal (Doctor from SGM hospital)
b) PW12 Dr. Gurdeep Singh Arora (Doctor from SGM hospital)
c) PW13 Dr. Nitin (Doctor from SGM hospital)
d) PW15 Dr. Monika Chakravarty (FSL expert)
e) PW18 Dr. Manoj Dhingra (Autopsy Surgeon)
f) PW24 Sh. Indresh Kumar Mishra (FSL expert) STATEMENT OF ACCUSED AND DEFENCE VERSION
4.0 Accused, in his statement u/s. 313 Cr.P.C. pleaded innocence. He claimed that he never resided with deceased Madan Lal at his house. According to him, he was having separate accommodation. He pleaded false implication and denied the incident in toto. He denied that he was having evil eye on Leelawati. He rather claimed that when he was working as helper with Madan Lal, Madan Lal owed him some money which he was not returning and, therefore, he has been falsely implicated in the present matter. He also claimed that he was not on good terms with his brother Vijay Malhotra and, therefore, even Vijay Malhotra has deposed against him.
4.1 He, however, did not choose to lead any evidence in defence.
RIVAL CONTENTIONS 5.0 Sh. Sanjay Jindal, ld. Addl. PP for State has contended that prosecution has been able to prove its case to the hilt. He has contended that evidence of PW3 Leelawati and of PW7 Vijay Malhotra clearly go on to show FIR No. 128/13 PS Aman Vihar Page 4 that murder in question had been committed by none other than accused Vishal Kumar. He has also claimed that ocular evidence gets strong impetus from the statement made by Madan Lal himself. It has been argued by him that Madan Lal was immediately rushed to hospital and when he was brought to hospital, he was found fit to make statement even as per the endorsement made by the doctor and when the police official reached there, Madan Lal gave his comprehensive statement raising clear cut accusing finger towards accused Vishal Kumar and such statement given by deceased Madan Lal is relevant and admissible as per Section 32 of Indian Evidence Act. He has also argued that the recovery of weapon of offence at the instance of accused Vishal Kumar and his clothes, which were stained with blood of deceased, act as icing on the cake and all the material links, when read together, point out towards the accused and accused alone.
5.1 Sh. Yashbir Singh, learned Amicus Curiae has refuted the aforesaid contentions.
5.2 He has contended that the alleged dying declaration is a manufactured document which has no credibility in the eyes of law. He has contended that investigating agency did not investigate the matter transparently and fairly and no statement of any neighbour was recorded and the evidence of interested witness is not of any real significance. He has also contended that though Vijay Malhotra was not having good terms with his brother, yet in his cross examination, he did not support the case of prosecution and denied his presence in the house of deceased on the date of incident and, therefore, the prosecution cannot be permitted to dig out any advantage from his testimony which is not believable being incongruous.
5.3 Sh. Yashbir Singh has also contended that Madan Lal, in his alleged statement made before the police, never claimed that his wife had also seen the incident of stabbing and, therefore, it is evident that she has been planted as an eye-witness. He has also argued that the minor daughter of deceased, who was also allegedly an eye-witness to the occurrence, has been held back which also creates doubt in the correctness of the version of prosecution.
FIR No. 128/13 PS Aman Vihar Page 5 5.4 He has also argued that earlier on one occasion in the year 2012,
deceased Madan Lal had rather stabbed accused Vishal with knife and wife of Madan Lal had even taken accused Vishal to hospital for treatment. Sh. Yashbir Singh has contended that it was only on the basis of request made by wife of Madan Lal that accused Vishal did not pursue that matter. It has been, therefore, contended that Madan Lal had an obvious motive to implicate him in the present case. He has also contended that it is not clear as to who had informed the police as the details of such caller have not been collected.
5.5 I have given my thoughtful consideration to the rival contentions and carefully perused the entire material available on record.
EVALUATION OF EVIDENCE 6.0 I would evaluate the evidence under the following heads:
i) Ocular evidence
ii) Dying Declaration
iii) Medical Evidence
iv) Recovery at the instance of accused
v) Other Investigational aspects 6.1 According to prosecution, the testimony of PW3 Leelawati (wife of deceased) and of PW7 Vijay Malhotra (brother of accused) clinches the issue and their testimony clearly establishes the fact that murder in question had been committed by none other than accused Vishal Kumar. Besides this, as per Sh.
Jindal, the dying declaration of deceased coupled with evidence related to recovery of weapon offence completes the entire chain. It has also been argued that the weapon of offence, which had been recovered at the instance of accused, was sent to autopsy surgeon and he examined the same and gave specific opinion that the injuries suffered by deceased were possible with such type of knife.
6.2 Let me now take up all these aspects one by one.
FIR No. 128/13 PS Aman Vihar Page 6
OCULAR EVIDENCE
7.0 PW3 Leelawati has deposed that accused was Jeth of her sister
Sulekha and she also testified that accused Vishal @ Raju had been residing with them at their house prior to one year of the occurrence and that he was working as helper on TATA 407 which used to be driven by her husband. She also deposed that accused was keeping an evil eye on her and, therefore, there used to be altercation between accused and her husband.
7.1 According to her further deposition, on 26/03/2013, her sister Sulekha and her husband Vijay Malhotra had come to their house and at about 8.45 p.m., her husband and her Jija Vijay Malhotra were consuming liquor on the roof of their house and at about 7.00 p.m., accused had also gone to that roof where some altercation took place between her husband and accused and then accused left from there. She also deposed that her Jija had also come down from the roof.
7.2 Thus, her deposition does indicate that accused was keeping an evil eye on PW3 Leelawati which was cause of altercation and quarrel between accused and her husband. It also indicates that on the fateful night, accused had come to their house and there was altercation between accused and her husband Madan Lal.
7.3 PW7 Vijay Malhotra is also a key witness. He also happens to be real brother of accused. He has also deposed in his examination in chief that accused had been residing with the family of Madan Lal for last about one year prior to the occurrence and he used to work as helper on TATA 407 of deceased Madan Lal. He also deposed that on 26/03/2013, he had gone to their house along with his wife Sulekha. He also admitted that at about 8.45 p.m., he along with Madan Lal was consuming liquor while sitting on the roof and at that time, Madan Lal revealed that accused Vishal was in the habit of drinking liquor and also used to have evil eye on his wife Leelawati. He also deposed that accused FIR No. 128/13 PS Aman Vihar Page 7 Vishal had also come there and overheard their such conversation and became angry and started abusing Madan Lal and threatened Madan Lal and then came down.
7.4 Defence counsel has, on the contrary, heavily relied upon the cross- examination of this witness who during such cross-examination has evidently taken a somersault.
7.5 I would like to mention right here that PW7 Vijay Malhotra was initially examined in part on 01/11/2013. His further examination was deferred as case property was in forensic laboratory and had not been produced. Thereafter, he graced the witness box after more than a year and his examination was recorded on 03/12/2014 and then on 26/02/2015.
7.6 In his cross-examination dated 03/12/2014, he came up with contradictory answers and deposed that he was not present at the said house at 8.45 p.m. He also deposed that Madan Lal had not revealed anything about the habit of accused of consuming liquor and that accused used to keep bad eye on Leelawati. He also claimed that in his presence, accused Vishal had never threatened Madan Lal. Her also claimed that he never saw accused Vishal inside the house of Madan Lal though he did claim that he was present outside in the gali.
7.7 Naturally, since he was found giving contradictory answers and deviated from the original stand taken by him in his examination-in-chief, learned Prosecutor sought permission to re-examine him. Such request was allowed by the Court and the witness was accordingly re-examined by the prosecution on 26/02/2015. In his such re-examination, he deposed that whatever he had stated in his examination dated 01/11/2013 was correct and he had not deposed anything false that day. It will be appropriate to extract specific question put to him and the answer given by him as well. These are as under:
"Q In your examination-in-chief, you have stated that on 26.03.2013 you along with your wife Shankuntla had gone to the house of Madan Lal, your FIR No. 128/13 PS Aman Vihar Page 8 brother-in-law (saddu) and about 8.45 PM you and Madan Lal were consuming liquor while sitting on the roof whereas in your cross-examination, you had stated that on 26.03.2013 you were not present at the house of Madan Lal at about 8.45 PM?
Ans. I had gone to the house of Madan Lal but I had not gone to the roof of his house and did not consume any liquor with him. I was, however, present at house at 8.45 PM. Therefore, my statement dated 01.11.2013 before the Court was correct and my later statement as appearing in my cross- examination dated 03.12.2014, with respect to the aforesaid fact, is out of some mistake."
7.8 In his further examination dated 26/02/2015, in one breath, he claimed that Madan Lal had told him about the aforesaid habits and conduct of accused Vishal but in the next breath, he claimed that Madan Lal did not tell anything. He, however, categorically deposed that when he left the house of Madan Lal, accused Vishal was still there at that house and when he (PW7 Vijay Malhotra) returned to said house of Madan Lal, he saw accused Vishal coming out of the house while running. He also tried to dilute the impact of his testimony dated 01/11/2013 by claiming that he had come to the Court for the first time and was not able to tell the facts properly and also claimed that he had been threatened by the police also.
7.9 I can understand his dilemma. He, though, is a material prosecution witness who prosecution claims to know a lot, yet he also happens to be the real brother of accused.
7.10 Hiatus between his aforesaid two depositions is of more than one year and I am not inclined to believe that he had not visited the house of Madan Lal or that Madan Lal did not reveal anything to him. I do not find any reason to reject or discard the deposition made by him on 01/11/2013. Whatever he tried to project in his cross-examination conducted by defence is not worthy of any credence and it seems to me that it was simply a feeble and futile attempt to save his brother. Simply because in the cross-examination, the witness turned hostile and did not implicate the accused, the version given in the examination-
FIR No. 128/13 PS Aman Vihar Page 9 in-chief recorded on oath on a prior date cannot be disbelieved and discarded. Reference be made to Deepak Vs. State CRL.A. 149/2000, DoD: 03/12/2013 Delhi High Court.
7.11 I would, at the cost of repetition, say that in his re-examination dated 26/02/2015, he did admit that he had gone to the house of Madan Lal. He did admit that he was present there at about 8.45 p.m. and he did admit that when he left the house of Madan Lal, accused Vishal was still there and when he returned, he saw accused running and while coming out of the house of deceased. In view of aforesaid, I have no hesitation in holding that he was very much present in the house of deceased and Madan Lal told him about the fact that accused was keeping evil eye on Leelawati. Testimony of PW7 Vijay Malhotra also clearly indicates that when accused overheard such conversation, he became furious. I would also discuss all these things when I take up the issue of dying declaration.
7.12 As per further deposition of PW3 Leelawati, accused Vishal and PW7 Vijay Malhotra both had left the house and at about 10-10.15 p.m., she heard shouts of her husband and she came out of her room near the gate and saw her husband in a pool of blood who was crying at that time. She also saw accused Vishal standing near him. Accused was having a blood stained knife in his hand. She also deposed that accused Vishal again stabbed her husband in his abdomen and thereafter ran away from there. In the meanwhile, her Jija PW7 Vijay Malhotra returned and he also saw accused Vishal running away.
7.13 I have seen the exhaustive cross examination of PW3 Leelawati and defence has not been able to impeach or discredit her testimony in any manner whatsoever. It has not been explained as to why Leelawati would depose falsely and would try to implicate accused who also happens to be her relative. It is more often than not that a relation would not conceal the actual culprit and make allegations against an innocent person. A very strong foundation has to be laid if a plea of false implication is made. There is no material before me which may even remotely indicate that Leelawati would try to screen the murderer of her husband and would raise accusing finger towards some innocent fellow.
FIR No. 128/13 PS Aman Vihar Page 10 7.14 According to Sh. Yashbir Singh, learned Amicus Curiae for accused,
PW3 Leelawati was having dubious character and she had eloped with one Surender and was living in sort of live-in relationship with such Surender. According to defence, deceased had friends with the names of Avtar, Rahul, Chhote, Chander, Vijay, Surender and Shauki and they all used to consume liquor with Madan Lal and used to visit their house frequently. PW3 Leelawati did admit that all those persons were friends of her husband and used to visit her house but she out-rightly denied that she eloped with any Surender or that she was into any living in live-in relationship with Surender.
7.15 Surprisingly on one hand, accused, in his statement u/s. 313 Cr.P.C., denies that he had ever visited the house of Madan Lal that day but on the other, the suggestions put forth by his counsel to PW3 Leelawati tell a different tale. As per these suggestions, defence wants me to believe that on the night of the incident, all such friends of deceased i.e. Avtar, Shauki, Rahul, Chhote, Chander, Surender and Vijay had come to the house of deceased and were consuming liquor. It was also suggested to PW3 Leelawati that her husband Madan Lal, PW7 Vijay Malhotra and accused Vishal had seen her in compromising position with Shauki and then she, in connivance with all those friends, got her husband Madan Lal killed and falsely implicated accused Vishal and also threatened PW7 Vijay Malhotra not to open his mouth. Surprisingly, no such suggestion has been put to PW7 Vijay Malhotra which clearly indicates that the aforesaid story projected by the defence is nothing but a sham and concocted one.
7.16 PW7 Vijay Malhotra has also deposed that when he returned to said house of Madan Lal, he saw accused Vishal coming out of house of Madan Lal and running and at that time, accused was carrying a knife in his hand and when he (PW7 Vijay Malhotra) entered the house of Madan Lal, he saw him lying in a pool of blood. Undoubtedly, in his subsequent deposition, PW7 Vijay Malhotra tried to exonerate accused Vishal by claiming that he had not seen any knife in his hand but his re-examination clearly indicates that he had seen the accused rushing out of house of deceased. Accused, in his statement u/s. 313 Cr.P.C., FIR No. 128/13 PS Aman Vihar Page 11 has not even dared to admit his simple presence in the house of deceased. This is despite the fact that defence has given suggestions which rather indicate that he was very much inside the house and had even allegedly seen Leelawati in a compromising situation with one friend of Madan Lal.
7.17 It really does not matter if the statements of Leelawati and Vijay Malhotra were recorded next day. It also does not matter if the minor daughter of deceased was not cited as prosecution witness. It is the quality of evidence which matters and not the quantity of prosecution witnesses. Undoubtedly, in DD no. 102B (Ex. PW16/A), name of the caller is not mentioned though the mobile number of said caller is mentioned as 8097150539. It would have been certainly better if prosecution had collected the complete address of such caller but nonetheless, the lapse in this regard is not fatal keeping in mind the overall facts and circumstances of the case in hand.
7.18 According to Sh. Yashbir Singh, accused had been earlier stabbed by Madan Lal and it was only at the request of PW3 Leelawati, he did not lodge any report with the police. However, such version does not stand corroborated in any manner whatsoever. When a suggestion in this regard was put to Leelawati, she also out-rightly denied such fact. Moreover, no medical record pertaining to such previous incident has been placed on record which may even remotely indicate that accused had received any stab injuries much less that such injuries were caused by Madan Lal. No police complaint to that effect has surfaced either.
7.19 Be that as it may, the testimony of PW3 Leelawati clearly reveals that it was accused and accused Vishal alone who had stabbed her husband. PW7 Vijay Malhotra has also given corroboration to the fact that accused was present in the house and was seen running away from his house just after the murder.
DYING DECLARATION 8.0 As per PW3 Leelawati, after the incident, PW7 Vijay Malhotra made call to her Devar Raj Kumar who also reached at the spot. After his arrival, the FIR No. 128/13 PS Aman Vihar Page 12 bloodstained T-shirt of her husband was changed and a cloth was wrapped on his abdomen and then he was taken to hospital.
8.1 PW7 Vijay Malhotra has also deposed on the same lines.
8.2 PW22 Raj Kumar has also claimed that he reached house of Madan Lal when he received a call from PW7 Vijay Malhotra who informed that "jaldi aa jao, tumhare bhai ko chaaku lag gaya hai". He also saw his brother lying in a pool of blood and he also deposed that PW7 Vijay Malhotra told him that Vishal had caused injuries to Madan Lal with knife. He also deposed that then he along with PW7 Vijay Malhotra removed the bloodstained T-shirt of Madan Lal and took Madan Lal to hospital on a bike. Madan Lal was taken to SGM hospital where police also reached.
8.3 I have seen the MLC of Madan Lal as prepared by SGM hospital. Such MLC has been proved as Ex. PW10/A and it clearly indicates that Madan Lal was brought by PW7 Vijay Malhotra and Madan Lal was having history of stab injuries as told by self i.e. Madan Lal himself. As per MLC Ex. PW10/A, the patient was also found fit for statement. Endorsement in this regard is appearing at point 'D'. Such opinion regarding fitness for statement had been given by Dr. Alok and such fact has been proved by PW12 Dr. Gurdeep Singh Arora and testimony of PW12 Dr. Gurdeep Singh Arora is completely unrebutted and uncontroverted.
8.4 PW19 SI Ravinder Solanki had reached the hospital on receipt of DD no. 102 B. He learnt that injured Madan Lal was under treatment in minor OT and after sometime, injured was brought out from minor OT and was declared fit to make statement as per opinion of doctors and accordingly he recorded statement of injured Madan Lal. He has also proved such statement as Ex. PW3/A which bears his attestation at point 'Y'. Such statement is also found to be duly signed by Madan Lal at point 'A' and his such signatures have also been identified by Leelawati.
8.5 In such statement, Madan Lal Soni revealed the entire facts. He stated FIR No. 128/13 PS Aman Vihar Page 13
that he was a driver on TATA 407 and accused Vishal was also working as helper in said vehicle. He also stated that accused Vishal was a drug addict and used to keep an evil eye on his wife and there used to be frequent altercation between them. He also stated that on the occasion of Holi festival, family of his co-brother Vijay Malhotra had come to his house and he revealed about the habit of accused Vishal and also about his keeping bad eye over Leelawati to Vijay Malhotra. In the meanwhile, accused Vishal also came there in a drunken state and he overheard such conversation and became furious and started abusing him and left while threatening him. He also stated that at about 10-10.15 p.m., accused Vishal returned with knife and told that he would teach him a lesson for making complaint against him and gave knife blows to him in his abdominal region with intention to kill him. On hearing his shouts, his wife and children came out and then accused Vishal fled away from there.
8.6 I do not find any single reason to disbelieve such dying declaration Ex. PW3/A. There is nothing which may suggest that such statement is fabricated or concocted one. As a general rule, hearsay evidence is excluded but Section 32 of Indian Evidence Act contains exceptional situations, where such hearsay evidence can be admitted. Relevant part of Section 32 of Indian Evidence Act reads as under:
"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 the nature of the proceeding in which the cause of his death comes into question. ....."
8.7 Here, the aforesaid statement made by Madan Lal Soni is naturally about the cause of his own death and the present trial is also for finding out as to FIR No. 128/13 PS Aman Vihar Page 14 who had murdered him.
8.8 Admissibility of a dying declaration rests on a principle that a sense of impending death produces in a man's mind the same feeling as that of a conscientious and virtuous man under oath. A man will not meet his maker with a lie in his mouth. This precisely is the meaning of Latin phrase Nemo moriturus praesumuntur mentire. The general principle on which this species of evidence is admitted is that they are declarations made in extremity, when one is virtually at the point of death, and when every hope of this world is gone, when every motive to falsehood is silenced, and the mind induced by the most powerful considerations to speak the truth; a situation so solemn and so awful is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a court of justice.
8.9 Undoubtedly, though there is no impediment in believing the dying declaration, yet, as a caution, the Court can also looks for corroboration. In the present case, the Court has the benefit of ocular evidence. Though dying declaration is a sort of untested evidence as the defence never got any opportunity to cross examine its maker, yet keeping in mind the aforesaid legal provision, such statement is a relevant fact and is admissible in evidence and it fully supports and corroborates the prosecution version when read in conjunction with the ocular evidence i.e. testimony of PW3 Leelawati and PW7 Vijay Malhotra. Thus the version appearing in such dying declaration is nothing but unalloyed truth and is absolutely safe to act upon.
8.10 It really does not matter much that Madan Lal did not say in his dying declaration that even his wife Leelawati had witnessed the incident after he raised cries. I cannot be oblivious of the fact that though he was in a fit condition to make statement, yet he had received multiple stab injuries and in such a situation, it is not expected that each and every minute detail would be described by him more so when he was virtually on a death bed. Omission on this score would not, therefore, tantamount to hold that Leelawati was a planted witness and that she did not see the incident or that dying declaration is manufactured one.
FIR No. 128/13 PS Aman Vihar Page 15
MEDICAL EVIDENCE
9.0 Medical evidence is fully compatible with the ocular version. I have
seen the testimony of the concerned doctors and also scrutinized the MLC as well as postmortem report. Madan Lal was immediately rushed to SGM hospital and his MLC 4949 has been proved as Ex. PW10/A. On examination, following injuries were observed on the body of patient:
i) a wound of 3 x 1 muscle deep in the left side of abdomen with protrusion of bowel loops with active bleeding.
ii) incised wound over right chest valve in 6 th intra coastal space deep into muscle measuring 2 x .5 c.m. in size.
iii) incised wound of approximately 2 x .5 x .25 cm on forearm with active bleeding.
9.1 Postmortem report has been proved as Ex. PW18/A and as per PW18 Dr. Manoj Dhingra, the cause of death was due to shock associated with damage of chest and abdominal structures under injury no. 1 & 4. Following injuries were noticed by the Autopsy Surgeon:
i) Stitched stab wound 3 x 0.3 cm x cavity deep (up to liver & lung), wedge shaped, seen over right lower lateral aspect of chest in the 7 th intercostal space along the anterior axillary line.
ii) Stitched stab wound 1 x 0.3 cm x cavity deep, wedge shaped, seen over mid front of right iliac fossa.
iii) Stitched stab wound 1.2 x 0.3 cm x cavity deep, wedge shaped, seen over mid front of left iliac fossa.
iv) Stitched stab wound 3 x 0.3 cm x cavity deep (resulting in perforation of anterior wall of stomach & transaction of mid transverse colon), wedge shaped, seen over left hypochondrium area, 7 cm vertically down from xiphisternum & 5 cm lateral to midline.
v) Stitched stab wound 2 x 0.3 x 2.2 cm over mid part of inner aspect of left forearm.
vi) Stitched laprotomy wound 21 x 0.3 cm cavity deep seen over mid front of abdomen along the midline.
FIR No. 128/13 PS Aman Vihar Page 16 9.2 I need not remind myself that PW3 Leelawati has deposed that she
came out of her room on hearing cries of her husband and she also claimed that even in her presence, accused had inflicted further knife blow on the person of her husband. The aforesaid medical evidence clearly indicates multiple injuries around abdominal region and, therefore, there is no reason to disbelieve the version of PW3 Leelawati. Moreover, the knife in question was also sent to forensic expert for opinion and vide application Ex. PW21/A, it was specifically asked from the doctor whether the injuries found on the body of deceased were possible with the knife in question or not and PW18 Dr. Manoj Dhingra had opined that injuries in question were possible with such knife.
9.3 Such opinion has been proved as Ex. PW18/B and Dr. Manoj Dhingra has also identified the knife as Ex. P7.
RECOVERY AT THE INSTANCE OF ACCUSED 10.0 Accused was not immediately apprehended. The incident is of 26/03/2013 and PW19 SI Ravinder Solanki had done the initial investigation and he was able to gather from the statement of injured Madan Lal Soni that it was accused Vishal who was the offender. He visited the spot and crime team was also called by him. Such crime team inspected the spot and took the photographs as well. These aspects, I would discuss when I take up other investigational aspects.
10.1 After the information was received that Madan Lal had expired, the investigation was entrusted to PW23 Inspector Vijay Kumar Kataria. He got conducted the postmortem report and according to his deposition, they, in search of accused Vishal, reached the house of Rahul (younger brother of accused Vishal) at K-1243, Mangol Puri. PW19 SI Ravinder Solanki and PW17 Constable Siya Ram were also with him and on 28/03/2013, when they knocked the door of said house, the door was opened by none other than accused Vishal. He was identified as police was carrying his photograph. Thereafter, he was arrested. His arrest memo has been proved as Ex. PW17/A and his personal FIR No. 128/13 PS Aman Vihar Page 17 search memo has been proved as Ex. PW17/B. He also disclosed that he could get recovered the weapon of offence i.e. knife and his clothes, which he was wearing at the time of commission of offence. He then took out bloodstained knife which had been kept by him under the suitcase, kept on the 'taand' (slab just below the ceiling) from the first room of the first floor. Accused also took out one bloodstained T-shirt and one jeans, which he had kept on the back of said suitcase on the said 'taand' (slab). Sketch (Ex. PW17/D) of the bloodstained knife was prepared which is and it was seized and sealed vide memo Ex.PW17/E. Said clothes were also sealed with the seal of 'VK' and were seized vide memo Ex. PW17/F and seal after use was handed over by PW23 Inspector Vijay Kumar Kataria to PW19 SI Ravinder Solanki. Site plan Ex. PW23/B was also prepared with respect to the aforesaid recovery.
10.2 I have seen said memos and sketch and also the site plan. I have also seen the testimony of all the aforesaid three recovery witnesses and defence has not been able to impeach the aspect related to such recovery at the instance of accused. Undoubtedly, PW19 SI Ravinder Solanki does not remember as to how many storeys were there in the said house of brother of accused Vishal but he is very specific that the recovery has been effected from first floor. Unquestionably, the accused was arrested from an area which was thickly populated one. It would have been certainly better, if the police had joined some independent witnesses at the time of such search but it is also a harsh reality that general public is normally reluctant to associate themselves with such type of investigation and the recovery cannot be disputed merely because of non- joining of independent witnesses. There is nothing before me which may show that such recovery did not take place or that signatures were obtained on blank papers and those papers were later on converted into some incriminating documents. There is nothing to show that the knife had been planted. Moreover, defence has not explained as to why the police officials would try to falsely implicate the accused. No animosity has either been suggested in this regard. I have also noted above that the injuries found on the person of deceased were possible with such type of knife. It will be also useful to make reference to the testimony of PW15 Monika Chakravarty who had examined the exhibits from the forensic angle. DNA examination was conducted and she has proved her FIR No. 128/13 PS Aman Vihar Page 18 detailed report as Ex. PW15/A and the allelic data as Ex. PW15/B. As per DNA profiling (STR analysis) performed on the exhibits, DNA profile from the source i.e. blood sample of deceased was found similar with DNA profile from the source of T-shirt of accused, jeans of accused and also T-shirt of deceased. Defence has no explanation as to how clothes of accused, which had been recovered from the house of his younger brother and at his instance, were found smeared with blood of deceased. Unfortunately, the sufficient data could not be picked-up from the weapon of offence i.e. knife which might be due to degradation. Nonetheless, the clothes recovered at the instance of accused and which the accused was wearing at the relevant time matched with the DNA profile of the blood group of deceased and, therefore, such crucial scientific fact also points towards accused only.
10.3 PW24 Sh. Indresh Kumar Mishra was posted as Senior Scientific Officer (Biology). He has proved his report as Ex. PW24/A which indicates that blood was detected on knife in question which had been recovered at the instance of accused. It was found to be human blood but its group could not be ascertained due to degeneration of data. I would like to lay emphasis here that these are very crucial scientific evidence and such type of articles should be seized in the most appropriate manner and should be sent to forensic laboratory without any delay so that the Court also has the re-assurance from scientific angle. Be that as it may, the fact remains that the knife recovered at the instance of accused was having human blood over it and accused has not been able to explain about this vital aspect.
OTHER INVESTIGATIONAL ASPECTS 11.0 I have seen the testimony of various other witnesses and all other investigational aspects have been duly proved by the prosecution. FIR has been proved as Ex. PW1/A. The crime team had reached at the spot immediately and report prepared by the crime team has been proved as Ex.PW4/A and the photographs clicked by crime team have been proved as Ex. PW9/1 to 17. Negatives have also been produced on record and have been duly proved. PW6 Constable Kailash and PW8 SI Yogender Singh are officials from PCR have FIR No. 128/13 PS Aman Vihar Page 19 proved PCR form Ex. PW6/A. Their testimony is also unrebutted. PW11 HC Pradeep was posted as MHC(M) and he has proved various entries as appearing in register no. 19 as well as in register no. 21. PW20 SI Vasant had taken the sealed pullandas to SGM hospital for obtaining opinion with respect to use of weapon of offence. Scaled site plan has also been duly proved.
CONCLUSION 12.0 In view of my foregoing discussion, I have no hesitation in holding that prosecution has been able to prove its case beyond shadow of doubt. It stands proved that accused had murdered Madan Lal Soni on 26/03/2013. He gave knife blows on vital parts of his body which is clearly indicative of his intention to eliminate Madan Lal Soni. There is no material suggesting that his act was on the basis of any grave and sudden provocation. His act reflects pre-meditation. He left the house and returned with some planning while armed with knife. Thus he had intention to commit culpable homicide amounting to murder.
12.1 Resultantly, I hold accused guilty and convict him under section 302 IPC.
Announced in the open Court On this 27th March of 2015.
(MANOJ JAIN)
Addl. Sessions Judge (FTC)
North-West District, Rohini: Delhi
FIR No. 128/13 PS Aman Vihar Page 20
FIR No.: 128/13.
PS Aman Vihar
State Vs Vishal Kumar
31.03.2015.
Present: Sh. Sanjay Jindal, Ld. Addl. P.P. for the State.
Convict Vishal Kumar in JC with Sh. Yashvir Singh, Amicus Curiae.
PW3 Leelawati (wife of the deceased Madan Lal).
1. Heard arguments on sentence.
2. Ld. Addl. P.P. for the State has prayed for appropriate sentence. He has, however, also contented that convict does not deserve any compassion and should be given maximum dosage.
3. Sh. Yashvir Singh, Ld. Defence counsel has, on the other hand, prayed for maximum leniency. He has reiterated that accused has been framed. Simultaneously, according to him, the financial position of accused is miserable. Even as per the case of prosecution, he was merely working as a helper on a truck which used to driven by deceased Madan Lal. Both the sides are also related to each other. It has also been supplemented that age of the convict is 38 years and he is having wife and one minor daughter dependent upon him and that he is the sole bread earner for them.
4. I had also called the report regarding family background and family status of the LR's of deceased. His widow is also present today and as per the report presented to the court, the financial status of the family of the deceased is virtually in shambles. Leelawati is residing in a rented accommodation and has two sons and she has no permanent source of income and she is able to make her both ends meet by doing some casual labour work.
5. I have given thoughtful consideration to the aggravating circumstances as well as to the mitigating circumstances. I have also considered the entire factual matrix of the case all over again. Keeping in mind the overall facts and circumstances of the case and also the age of the convict and his previous antecedents, I have every hope that he would be able to reform FIR No. 128/13 PS Aman Vihar Page 21 himself and the present case, therefore, does not fall within the category of 'rarest of the rare'.
6. Resultantly, convict is sentenced to life imprisonment for offence u/s 302 IPC and also imposed a fine of Rs 20,000/- in default of which, he would undergo further 6 months simple imprisonment. It is also ordered that if such fine is deposited, same would go to the widow of the deceased Madan Lal.
7. It is a fit case where the Court should invoke its powers u/s 357-A Cr.P.C. Keeping in mind the present financial condition of the convict, whose family is living in penury, no exorbitant fine is imposed upon him. He has also not been asked to pay any compensation, therefore.
8. In view of the aforesaid, this court recommends that the LR's of deceased Madan Lal are entitled for compensation u/s 357-A Cr.P.C. and the matter is accordingly referred to District Legal Services Authority, North West, New Delhi for deciding the quantum of compensation.
9. Copy of this order be sent to Ld. Secretary, District Legal Services Authority, North West, New Delhi.
10.Attested copy be also given to Leelawati for pursuing her matter before concerned authority. It is also apprised to her that office of the said authority is in Room No. 306, Rohini Courts complex, Delhi.
11. Copy of the judgment and order on sentence be given to the convict free of cost. Convict be sent to Jail under appropriate warrants.
12. Convict has also been made aware that he can challenge the order of his conviction and order on sentence by filing an appeal before High Court of Delhi. He can also avail services of Delhi High Court Legal Services Committee having office at 34-38, Lawyers Chamber Block, Delhi High Court, New Delhi.
13. Sh. Yashvir Singh, ld. Counsel for defence has also apprised about all these remedies to the convict.
14. Superintendent (Jail) would also ensure that in case accused seeks any legal aid for the purposes of filing of an appeal, immediate and requisite help is provided to him.
15. Needless to state that convict would be entitled to benefit of section 428 Cr.P.C.
FIR No. 128/13 PS Aman Vihar Page 22
16. Fine not deposited.
17.Convict be sent to Jail under appropriate warrants.
18. File be consigned to Record Room.
(MANOJ JAIN)
Addl. Sessions Judge (FTC)
North-West Distt: Rohini: Delhi
31.03.2015
FIR No. 128/13 PS Aman Vihar Page 23