Delhi District Court
State vs 1 Rahul Yadav (A-1) on 21 January, 2016
IN THE COURT OF MANOJ JAIN: ADDL SESSIONS JUDGE
FAST TRACK COURT: NORTH-WEST DISTRICT: ROHINI
DELHI
Unique Identification No. 02404R0227382014
Sessions Case No. 28/1/2014
FIR No. 388/2014
PS Subhash Place
U/s 302/34 IPC
State versus 1 Rahul Yadav (A-1)
Son of Sh. Bijender Yadav,
Resident of WZ-174, Village
Shakur Pur, Delhi.
2 Deepak @ Koki (A-2)
Son of Sh. Vijay Yadav,
Resident of WZ-145, Village
Shakur Pur, Delhi.
Date of institution in Sessions Court : 08.08.2014
Date of conclusion of arguments : 15.12.2015
Date of pronouncement of judgment : 21.01.2016
Memo of Appearance:
Sh. Sanjay Jindal, learned Addl. P.P. for State.
Sh. Manoj Mishra, learned counsel for complainant
Sh. Pradeep Rana, learned defence counsel for A-1.
Sh. Sat Narain Sharma & Sh. S.K. Sharma, learned defence counsels for A-2.
JUDGMENT
PROSECUTION STORY 1.0 Arvind (victim herein) was having affair with Aarti (sister of A-1 Rahul). However, when she, later on, learnt that Arvind was already a married man, she decided to put an end to such relationship. However, Arvind was not interested in terminating such alliance.
1.1 On 20.04.2014, Arvind came to the house of accused Rahul situated at WZ-174, 3rd Floor, Shakur Pur, Delhi. Aarti and Kanta (mother of A-1 Rahul) were present at the house besides accused Rahul (A-1). Arvind pressurized Aarti to continue with the relationship which made accused Rahul furious. He called up his friend Deepak @ Koki (A-2) who came there and then they both gave FIR No. 338/14 PS Subhash Place State Vs. Rahul & Anr. Page 1 of pages 46 trouncing to Arvind with danda, kicks and fists. Arvind started vomiting and since his condition deteriorated, accused Deepak made call to his one friend Sunil (PW10) and asked him to reach there. Sunil reached his house and saw Arvind in a bad shape. He then informed the police by dialing 100.
1.2 On the basis of such call made by Sunil, DD NO. 33A was recorded at PS Subhash Place and SI Vijay Kumar Dahiya (PW15) was deputed to rush to the spot for necessary action. He reached there and met injured Arvind. However, injured was not found in any position to enlighten about the incident. PCR officials also reached at the spot. Injured was rushed to Bhagwan Mahavir Hospital (BMH) where injured Arvind himself gave history of physical assault by lathi. SI Vijay Kumar could not meet any eyewitness at said hospital. Injured was referred to Deen Dayal Upadhayay Hospital (DDU) for better management. FIR was, initially, registered for commission of offence under Section 308 IPC.
1.3 Arvind succumbed to his injuries next day and accordingly FIR was converted from offence under Section 308 IPC to offence under Section 304/34 IPC. Postmortem was got conducted and as per autopsy report, cause of death was multiple injuries to the multiple vital organs of the body caused by the forcible blunt impact directly made over the body of the deceased and all injuries together were sufficient to cause death in ordinary course of nature. In view of such specific report, penal section was further altered from Section 304/34 IPC to Section 302/34 IPC.
1.4 During investigation, police met Sh. Ashok Kumar (PW2) (father of deceased) and Sh. Pramod (PW5) (friend of deceased) at the hospital itself. They both had also reached the hospital on receiving information about the incident and they both revealed that when Arvind was admitted in BMH, he had divulged that he had gone to the house of Aarti to meet her where a quarrel took place with Rahul and accused Rahul along with his accomplice Koki had beaten him up with lathi, legs and fists. Police carried out comprehensive investigation and also collected call details record (CDR) of various mobile phone numbers germane to the present case and sent up both the accused to face trial for commission of offence under Section 302/34 IPC.
FIR No. 338/14 PS Subhash Place State Vs. Rahul & Anr. Page 2 of pages 46 1.5 It will be also important to mention here that in the main charge-sheet, where brief facts were mentioned under column no. 16, not a word regarding involvement of Aarti and Kanta was averred. However, careful perusal of the charge-sheet revealed that their names as well as name of one Ramesh Yadav were mentioned in column no. 12. It was mentioned that as far as Kanta and Aarti were concerned, they were present at the spot at the time of incident but they did not call any neighbour or police. However, it was also concluded by the police that there was no specific allegation against them. As regards Ramesh Yadav, it was mentioned that father of deceased Arvind had raised strong suspicion regarding his complicity as well but his presence at the spot could not be established.
COGNIZANCE AND CHARGES 2.0 Charge-sheet was laid before the concerned Magisterial Court on 22.07.2014.
2.1 Learned Chief Metropolitan Magistrate, while committing the case, also took note of the aforesaid fact regarding mentioning of three names in column no. 12 but she also agreed with the submissions of IO that there was not sufficient material against them to proceed further in the matter and if required, they could be summoned under Section 319 Cr.P.C.
2.2 Case was received on allocation by this Court on 08.08.2014.
2.3 Arguments on charge were heard by my learned Predecessor on 14.10.2014 and both the accused were ordered to be charged under Section 302/34 IPC. They pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE 3.0 Prosecution was directed to adduce evidence and has examined twenty-three witnesses who can be categorized as under: -
FIR No. 338/14 PS Subhash Place State Vs. Rahul & Anr. Page 3 of pages 46 Public witnesses I) PW2 Ashok Kumar (father of victim)
ii) PW3 Deepak (Friend of accused)
iii) PW4 Rashmi (eye-witness to incident dated 14.04.2014)
iv) PW5 Pramod (friend of victim)
v) PW6 Anuj Kumar (witness who identified the dead body of deceased)
vi) PW7 Raju (eye-witness to incident dated 14.04.2014)
vii) PW10 Sunil Kumar Yadav (friend of accused Rahul) Witnesses to investigation
i) PW8 Ct Shyokishan (witness who deposited sealed pullanda in FSL)
ii) PW11 HC Rampal Singh (witness who proved DD No. 33A)
iii) PW15 SI Vijay Kumar ( First investigating Officer)
iv) PW16 HC Mohan Singh (PCR official)
v) PW18 Inspector Om Dutt Vats ( Investigating officer)
vi) PW19 Ct Sandeep (Crime team photographer)
vii) PW20 Ct Ashok Kumar (witness who took sealed pullanda to FSL)
viii) PW21 HC Dinesh Kumar (MHC(M)
ix) PW22 Sh. Pawan Singh (Nodal officer from Idea Cellular Ltd)
x) PW23 Sh. Yogesh Tripathi (Alternate Nodal Officer from Reliance Communication Ltd.) Doctor/expert witnesses:
i) PW1 Dr. Prabhat ( To prove MLC of victim)
ii) PW9 Dr. Komal Singh (doctor who conducted postmortem of
deceased)
iii) PW12 Dr. Kanak Lata Verma (FSL expert)
iv) PW13 Dr. Vikas Sharma (doctor who proved death summary of
deceased)
v) PW14 Dr. Ruchi Sharma (FSL expert)
vi) PW17Dr. Anuj Tripathi (doctor who issued medical certificate
regarding death of deceased)
STATEMENTS OF ACCUSED PERSONS AND DEFENCE EVIDENCE
4.0 Both the accused, in the respective statements under Section 313
Cr.P.C., pleaded innocence and claimed that they had been falsely implicated.
4.1 Though they desired to lead evidence in defence but fact remains that they did not examine anyone in their defence.
FIR No. 338/14 PS Subhash Place State Vs. Rahul & Anr. Page 4 of pages 46 4.2 It will be also worthwhile to mention here that supplementary statements of both the accused were recorded on 07/01/2016. In such statement, accused Rahul reiterated that he had made call to Deepak and also volunteered that he had also called-up Sunil. He also claimed that he was using mobile number 9555624516 and also claimed that mobile number 8750761768 was in the name of his mother. Accused Deepak also admitted that mobile number 9810830930 was his number and he also admitted that he had received a call from PW10 Sunil who also informed that he (Sunil) had received call from Rahul (co-accused).
RIVAL CONTENTIONS 5.0 I have heard learned Addl. P.P. Sh. Sanjay Jindal who is assisted by Sh. Manoj Mishra, learned counsel for complainant party. They both have also filed written synopsis.
5.1 Sh. Pradeep Rana, learned defence counsel has defended A-1 Rahul Yadav and Sh. Sat Narain Sharma & Sh. S.K. Sharma have defended A-2 Deepak @ Koki.
5.2 Learned Addl. P.P. and Sh. Mishra have contended that prosecution has been able to prove its case to the hilt. They both have contended that it stands proved that Arvind had gone to the house of Aarti on 20.04.2014. It also stands proved that he was found in injured condition at such house of Rahul Yadav and Aarti situated at third floor. They both have contended that defence is unnecessarily trying to project as if Arvind had been thrashed by public persons, PCR officials and police officials. It has been argued that accused Rahul had an apparent motive and he became furious when he saw Arvind inside their house and he called up his friend Deepak @ Koki and then they both thrashed him badly and, therefore, only he was initially found in the bathroom of the house of accused situated at third floor. It has been argued that there is nothing on record which may show that injuries had been caused by anyone else. They both have strongly relied upon the dying declaration of victim and have drawn my attention in this regard to the testimony of father as well as friend of the victim. They both FIR No. 338/14 PS Subhash Place State Vs. Rahul & Anr. Page 5 of pages 46 have also relied upon call details record which also, according to them, fully corroborates the case of prosecution.
5.3 All the aforesaid contentions have been refuted by defence.
5.4 Sh. Rana has contended that factum of dying declaration does not stand proved at all. He has argued that it has positively come on record that injured was unfit to make any statement. Sh. Rana has asserted that when injured was unfit for statement, it was not possible for him to have made any statement much less a detailed one and, therefore, evidence of PW2 Ashok Kumar and PW5 Pramod is liable to be discarded out-rightly more so they being interested witnesses. He has also contended that if PW2 Ashok Kumar is to be believed then Arvind had rather been beaten up by police officials. He has stressed that as per version of PW10 Sunil, Arvind was in drunken state and PCR officials had given danda blows to him as he was abusing them. He has thus claimed that prosecution is confused and has not been able to show and establish as to who had inflicted the injuries - whether public or police officials or PCR officials.
5.5 Sh. S.K. Sharma and Sh. S.N. Sharma have also claimed that there is no reason to believe the existence of any dying declaration. They have also asserted that medical record clearly suggests and indicates that injured was unfit for making any statement. They have claimed that father of victim has named the accused persons on the basis of his own fanciful presumption which has no basis or corroboration. They have also claimed that there is nothing on record which may suggest that accused Deepak was also known as Koki.
5.6 Reliance has been placed upon following judgments by both the sides:-
5.7 Judgments relied upon by prosecution and Complainant are as under:-
(i) Patel Hira Lal Joitaram Vs. State of Gujarat 2001 (4) RCC 507 SC
(ii) Pothakamuri Srinivasulu @ Mooga Subbash Vs. State of AP 2003 (1) RCC SC 317
(iii) State of Punjab Vs. Virsa Singh & Ors. 1997 (3) RCC P&H
(iv) Allarakha K. Mansuri Vs. State of Gujarat 2002 (1) RCC 669 SC FIR No. 338/14 PS Subhash Place State Vs. Rahul & Anr. Page 6 of pages 46
(v) Pipal Singh Vs. State of Punjab 2002 (1) RCC 177 SC
(vi) Ronald Kirprono Ramkat Vs. State of Haryana 1998 (2)RCC P&H (DB) Page 367
(vii) Sucha Singh Vs. State of Punjab 2001 (2) RCC 119 (SC) 5.8 Sh. Pradeep Rana, learned counsel for A-1 has referred to following judgments:-
(i) State of Orissa Vs. Parasuram Naik 1997 Cri.L.J. 4404.
(ii) Shakuntala Vs. State of Punjab 1994 Cri.L.J. 246.
(iii) Ramsaray Pandey & Ors. Vs. State of Bihar 1976 Cri.L.J. 1704.
(iv) Shaikh Rafiq & Anr. Vs. State of Maharashtra 2008 Cri.L.J. 592
(v) Appanna Yellawwa Madar & Ors. Vs. State 1956 Cri.L.J. 869 Bom.
(vi) Vicky Kumar & Ors. Vs. State of Delhi & Ors. Manu/DE/43/61/2011, DHC
(vii) Ashraf Hussain Shah Vs. State of Maharashtra 1996 Cri.L.J. 3147 Bom
(viii) Kanhai Mishra @ Kanhaiya Misar Vs. State of Bihar AIR 2001 SC 1113
5.9 Judgments cited by Sh. S.K. Sharma, learned counsel for A-2 are as
mentioned below:-
(i) Sarvesh Narain Shukla Vs. Daroga Singh AIR 2008 SC 320
(ii) Vinay D. Nagar Vs. State of Rajasthan AIR 2008 SC 1558
(iii) Panchdeo Singh Vs. State of Bihar AIR 2002 SC 526
(iv) Mohar Singh Vs. State of Rajasthan AIR 1998 SC 2912
(v) Ramsai Vs. State of MP AIR 1994 SC 464
(vi) State of Orissa Vs. Parasuram Naik AIR 1997 SC 3569
(vii) Kishan Lal Vs. State of Rajasthan AIR 1999 SC 3062
(viii) Sabbita Satyavathi Vs. Bandala Srinivasa Rao AIR 2004 SC 4540
(ix) Narain Singh Vs. State of Haryana AIR 2004 SC 1616
(x) B. Shashikala Vs. State of Andhra Pradesh AIR 2004 SC 1610
(xi) State of Gujarat Vs. Khumansingh Karsan Singh AIR 1994 SC 1641
(xii) State of Punjab Vs. Parveen Kumar AIR 2005 SC 1277
(xiii) Surender Kumar Vs. State of Haryana (2011) 10 SCC 173
EVALUATION OF EVIDENCE
6.0 I have given my thoughtful consideration to the rival contentions and
carefully perused the entire material available on record and gone through authorities cited at the bar.
6.1 I would like to evaluate the evidence and the aforesaid rival contentions under following heads:-
FIR No. 338/14 PS Subhash Place State Vs. Rahul & Anr. Page 7 of pages 46
a) Whether Victim was a stranger to accused(s)
b) Incident, which took place on 20.04.2014 at the house of accused Rahul
c) Corroboration from call details record (CDR).
d) Whether injured Arvind was fit to make statement
e) Factum of Dying declaration made by Arvind.
f) Alleged incident dated 14.04.204
g) Role of Kanta, Aarti and Ramesh and impact, if any, of non-citing Kanta & Aarti as prosecution witnesses
h) Whether A-2 Deepak is same Koki
i) Cause of death.
j) Whether accused had any onus to discharge
k) Other Investigational aspects
l) Discussion on precedents cited at the Bar
m) Conclusion WHETHER VICTIM ARVIND WAS STRANGER TO ACCUSED(S)
7.0 As per the case of prosecution, Arvind was having love affair with Aarti (sister of A1). Such fact has, however, been out-rightly discarded by accused Rahul Yadav and he has pleaded his ignorance about any such fact. According to him, he did not know Arvind at all.
7.1 It will be worthwhile to mention here that prior to registration of FIR and on the same day of the incident, the police had met Aarti as well as her mother and even recorded their statements. Fact, however, remains that their names were not cited in the list of witnesses as prosecution witnesses. More importantly, since according to State, at the time of alleged incident, they both were also present in the house and did not take any action when Arvind was being beaten-up, the needle of suspicion had even swung towards them and they were also very much in the radar. However, since enough evidence did not surface despite best efforts, they were not sent-up to face trial. Rather, their names were kept in column no. 12 of the charge-sheet.
FIR No. 338/14 PS Subhash Place State Vs. Rahul & Anr. Page 8 of pages 46 7.2 PW15 SI Vijay Kumar had reached the spot and met Kanta and Aarti and made inquiries from them. PW15 SI Vijay Kumar has deposed that Aarti had told that the name of the injured was Arvind and she was having love affair with him in the past but when she learnt that Arvind was already married, she stopped talking to him but Arvind kept on approaching her. PCR also reached the spot in his presence only. He further deposed that after inquiring from Aarti and Kanta, he went to BSA hospital where injured Arvind had already been removed by PCR.
7.3 A specific question with respect to such alleged affair was put to accused Rahul Yadav when his statement u/s 313 Cr.P.C. was recorded and he claimed that he did not know anything in this regard. It will be also important to weigh up the stand taken by accused Rahul Yadav.
7.4 Answer given by him, in response to question no. 4, reads as under:
On 20.04.2014 I received phone call from my mother when I was in market. She told me that one boy was standing outside our house and was abusing and people were beating him up. Since I was at some distance from my house, I called up my co-accused Deepak. He, however, also told that he was in some meeting and even he could not reach at my house.
Then I rang up my another friend Sunil who then went to our house. By that time, I also reached at my house and I saw public persons beating up Arvind. I also told Sunil to call up the police. Since Arvind was being beaten up by public persons, in order to rescue him, we took him inside our house. Police arrived within 20 minutes of our call. Arvind, however, started abusing even the police officials. On which, police started beating him with dandas. Sunil left from there. However, I along with police officials of PCR and Arvind went to Bhagwan Mahavir Hospital in PCR van. Thus, I was with PCR officials.
FIR No. 338/14 PS Subhash Place State Vs. Rahul & Anr. Page 9 of pages 46 7.5 Thus, according to accused Rahul Yadav, he was not at his home on the fateful day. He received a phone call from his mother and since he was at some distance from his house, he called up Deepak and then he rang-up his another friend Sunil. When he reached his house, he saw public persons beating-
up Arvind and in order to rescue him, they took him inside their house.
7.6 Stance of accused Deepak is that of total denial. According to him, he did not know any Arvind and never went to house of Rahul that day and was at his shop all along.
7.7 Let me now evaluate as to what happened that day as per the various documents appearing on record and as per those witnesses who had reached the spot after receipt of information.
7.8 Police learnt about the incident at 2.55 pm through PCR. Reference in this regard may be made to DD No. 33A which has been proved as Ex. PW11/A. PW11 HC Ram Pal was posted as Duty Officer and he had recorded aforesaid DD No. 33A on the basis of information received from wireless operator that a quarrel had taken place at WZ-174, Shakur Pur Village. Investigation was handed over to SI Vijay Kumar and he was directed to go to the spot. Unfortunately, PCR Operator has not been examined and PCR form is also lying unproved albeit not to any adverse effect upon state.
7.9 PW15 SI Vijay Kumar has deposed that on receipt of information from Duty Officer regarding said quarrel, he along with Ct Rameshwar had reached third floor of H.No. WZ-174, Village Shakur Pur where one person aged 30 years was found in injured condition. Such injured person was vomiting as well. Such person was sent to Bhagwan Mahavir Hospital through PCR officials.
7.10 PW16 HC Mohan Singh was posted in PCR, North-West Zone and he was on duty on PCR Van C-27 as its in-charge. On receipt of information at about 2.54 p.m. from control room regarding said quarrel at WZ-174, Shakur Pur village, he also reached at the spot in PCR vehicle. He deposed that since the streets of that village were very narrow, the PCR vehicle could not reach there and he FIR No. 338/14 PS Subhash Place State Vs. Rahul & Anr. Page 10 of pages 46 accordingly called-up the concerned caller to ascertain the exact location and then they reached said house. He further deposed that he saw Arvind lying in the courtyard (open place outside the room) of said house at third floor and that person was vomiting. He also met Rahul, his sister and mother. He also deposed that when he asked Arvind as to what had happened, Arvind said nothing except "theek hai-theek hai". Accused Rahul also told him that said Arvind had chased his sister Aarti and had entered their house and he had consumed something. When he questioned Arvind about any such consumption, Arvind gave answer that everything was okay and reiterated those words "sab theek hai, theek hai". Arvind was then brought down. In the meanwhile, officials from local police station had also reached the spot and he along with one constable took injured to PCR vehicle with the help of one handcart (rehri).
7.11 As per PW16 HC Mohan Singh, Arvind also wanted to ease himself and they took him to a public convenience situated near the place where PCR vehicle was stationed where Arvind took 10 minutes in easing himself. He also deposed that Arvind was having one mobile, on which, one call had been received from his father which he (HC Mohan Singh) attended. PW16 HC Mohan Singh also deposed that he told about the condition of Arvind to his father and asked him to reach Bhagwan Mahavir hospital directly and then injured was taken to that hospital and was got admitted there. He also deposed that IO reached the hospital and then he told the IO about all the aforesaid facts and also handed over him the mobile phone of Arvind. According to him, though he did not notice any injury on the person of Arvind but it looked as if he was under the influence of some intoxicating substance. Learned Addl. PP was permitted to put leading question to this witness and during such examination, HC Mohan Singh further deposed that he could not notice any external injury but could not say about any internal injuries.
7.12 PW15 SI Vijay Kumar had also reached the hospital from the spot and collected MLC of Arvind who had been declared unfit for statement. Since the statement of injured could not be recorded, he kept the matter pending. Later on, he learnt that injured had been referred to DDU hospital and then he reached DDU hospital but doctor at DDU hospital also informed him that injured was not fit FIR No. 338/14 PS Subhash Place State Vs. Rahul & Anr. Page 11 of pages 46 for statement. He deposed that keeping in mind the condition of the injured, the FIR was registered u/s 308 IPC and he accordingly prepared rukka Ex. PW15/A and sent the same to PS Subhash Place for registration of FIR. He also visited the spot again and called the crime team. PW15 SI Vijay Kumar has also deposed that he prepared site plan of his own and such site plan has been proved by him as Ex. PW15/B. 7.13 Right here, I would also like to discuss about PW3 Deepak. He resides at the ground floor of same premises i.e. WZ -174 and he had revealed during investigation that police had come to their premises i.e. WZ-174 on 20/04/2014 at 3.00 p.m. and had gone upstairs and after a little while, police along with Rahul and one more person came down. That person was not able to walk properly and, therefore, he was put in one rickshaw. He also claimed that he did not hear any quarrel at all. During investigation, Deepak had also claimed that said person was the same who had accompanied Rahul 1½-2 hours before and they both had gone together upstairs.
7.14 PW3 Deepak, however, did not support the case of prosecution. He has not whispered anything about the present case at all. He rather claimed that he was not in Delhi and had gone Madhubani, Bihar by a train on 15/04/2014 and returned only on 25/04/2014. Since he was not supporting the case of prosecution, he was declared hostile by the prosecution and was cross-examined and grilled by the State but despite such grilling, he did not assert any fact in consonance with his statement which he had made during investigation i.e. statement Mark PW3/A. However, case of prosecution does not rest solely on his testimony and, therefore, his hostile version cannot be said to be sufficient for inferring any suspicion over the prosecution story.
7.15 PW10 Sunil Kumar Yadav is also an important witness.
7.16 He is resident of same village and is neighbour of accused Rahul. During investigation, he had revealed that Arvind used to trouble Aarti and during investigation, he also told the police that on 20/04/2014 at 2.30 p.m., he had received a phone call from accused Koki who informed that Arvind had come at FIR No. 338/14 PS Subhash Place State Vs. Rahul & Anr. Page 12 of pages 46 the residence of Rahul and that they both i.e. Koki and Rahul had roughed him up and requested him to reach there immediately. He reached there and he was again told by both the accused that they both had beaten-up Arvind and wanted his further advice in the matter. Since Arvind was not looking alright, he informed the police from his mobile number 7838454174. He had also assisted the police in reaching the house in question. He also revealed mobile numbers of both the accused persons when his such statement during investigation was recorded.
7.17 Let me now evaluate what PW10 Sunil Kumar Yadav is to offer in witness box.
7.18 It is very much manifest that PW10 Sunil Kumar Yadav has not supported the case of prosecution. According to his testimony, he did receive a call from accused Deepak at 2.45 PM but he supplemented that accused Deepak had simply informed on the phone that he (Deepak) had received a call from Rahul and Rahul had told him that one person, standing outside his house, was abusing. PW10 Sunil also deposed that Deepak requested him (Sunil) to go his house and to see the situation as he himself was unable to come as his father would not allow him. PW10 Sunil reached the street outside the hose of accused Rahul and saw many people outside his house who were beating up one person and mother of accused Rahul was standing in the balcony of her house and was shouting not to beat that person. In the meanwhile, Rahul also came there. Rahul asked PW10 Sunil Kumar Yadav to make a call to police by dialing 100 and Rahul also claimed that he would try to rescue that person who was being beaten up. Accordingly, PW10 Sunil Kumar made call to the police. Thereafter, PW10 Sunil and Rahul saved that person and took him inside the house of Rahul. As per further testimony of PW10 Sunil Kumar Yadav, he also received call from the police in order to ascertain the location and thereafter two PCR officials reached the house of Rahul. Those two PCR officials wanted to take away that boy from there but that boy was not willing to go without Aarti, sister of accused Rahul. PW10 Sunil also deposed that that boy was in drunken state and those PCR officials had also given danda blow as he was abusing them.
FIR No. 338/14 PS Subhash Place State Vs. Rahul & Anr. Page 13 of pages 46 7.19 Since PW10 Sunil did not support the case of prosecution, learned Prosecutor sought permission of the Court to cross-examine him. Despite cross- examination, he stuck to his aforesaid deviated stand. Certainly, he seems to be a crucial witness and his unsupportive testimony is causing some flutter but at the same time, it is discernible that he is only trying to rally round his accused-friends.
7.20 PW10 Sunil has though claimed that he is not a friend of Rahul but his such version is not digestible at all. He rather seems to be a close pal of Rahul as in the time of distress, he received a call from none other than Rahul only. Had Sunil not been intimate friend of Rahul then Rahul would not have, surely, called him up. Therefore, to that extent, the testimony of PW10 Sunil does not seem to be inspiring at all. I am also quite convinced that being a good friend of accused Rahul, Sunil Yadav has rather tried to help him out in a very astute and crafty manner and has attempted to create a sort of confusion by claiming that said person had been given danda blows by PCR officials. Such version is totally implausible. I have already discussed above the testimony of PW16 HC Mohan Singh (PCR official). It becomes evident that he alone from PCR could reach the house of accused Rahul as PCR vehicle was unable to pass through the narrow streets of that locality. Undoubtedly, local police officials had also reached there but there is no truth in the fact that PCR officials had given any thrashing to Arvind. Moreover, no suggestion to that effect has been put to PW16 HC Mohan Singh by the defence and, therefore, I do not find any merit in the defence contention that Arvind had been given danda blows by PCR officials.
7.21 It is admitted fact that accused Rahul had a sister with the name of Aarti and even as per the hostile witness PW10 Sunil Kumar, that person, who was being beaten up, was unwilling to return without Aarti. Here also, he tried to project his ignorance in a very clever manner and added words "perhaps" in his deposition. However, his such act of hiding true facts is not in good taste. He can always be loyal to his friend by that does not mean that, in such pursuit, he would have leverage to tell lie on oath. I am convinced that there was some sort of affair or relationship between Arvind and Aarti. It is also evident from the call details record as well.
FIR No. 338/14 PS Subhash Place State Vs. Rahul & Anr. Page 14 of pages 46 CALL DETAILS RECORD 8.0 As per learned Prosecutor, following mobile numbers are important:-
S. No. Name of user Mobile Number Exhibit Number of
CDR, if any
(As per State)
1 Arvind 9718190119 Ex. PW22/J
2 Arvind 8010536378
3 Deepak @ Koki 9560454140
4 Deepak @ Koki 9810830930 Ex. PW22/B
5 Rahul Yadav 9555624516 Ex. PW23/B
6 Rahul Yadav 8750761768 Ex. PW22/G
7 Sunil Kumar Yadav 7838454174
8 Aarti 9540128810 Ex. PW22/E
9 Aarti 8285996636
10 Ashok Kumar 9868461634
8.1 As per chain of events, accused Rahul had called up his friend i.e. co-
accused Deepak @ Koki at 14:31:15 hours. Accused Deepak @ Koki called up PW10 Sunil Kumar Yadav twice at 2.25 PM and 2.43 PM and finally PW10 Sunil called up police at 2.50 PM. Call details record of accused Rahul and Deepak @ Koki have been duly proved and it becomes apparent that initially call was made by accused Rahul to his co-accused Deepak @ Koki and thereafter, Deepak @ Koki had called up PW10 Sunil. Such CDRs indicates that there used to be frequent calls between said numbers alleged to be of accused Deepak @ Koki and of PW10 Sunil i.e. 7838454174. On 20.04.2014, there was initial conversation of duration of 228 seconds at 13:45:38 hours followed by another call of duration of 320 seconds at 14:25:14 hours.
8.2 Customer application form regarding mobile number 9810830930 has been proved as Ex. PW22/A. It happens to be in the name of Vijay Yadav resident of WZ-145, Village Shakur Pur, Delhi. Said address is of accused FIR No. 338/14 PS Subhash Place State Vs. Rahul & Anr. Page 15 of pages 46 Deepak @ Koki and Sh. Vijay Yadav is his father. Accused Deepak had admitted said number to be his.
8.3 Customer application form of mobile number 9555624516 has been proved as Ex. PW23/A. Undoubtedly, it shows name of subscriber as one Arun Vishkarma and though prosecution has not made it abundantly clear as to who is this Arun Vishkarma but nonetheless call details record clearly go on to show that such number was being used by accused Rahul only as he himself had admitted that he had called up his friend Deepak that day and such call is reflected in the CDR. Fact, however, remains that when supplementary statement of accused Rahul was recorded u/s 313 Cr.P.C., he admitted that he was using said mobile number 9555624516.
8.4 It also becomes very much evident that there is a close connection between all these three friends i.e. both the accused herein and PW10 Sunil Kumar Yadav. CDR of PW10 Sunil Kumar Yadav has not been got proved by the prosecution and for the reason best known to the prosecution, even CDR of Ashok, father of victim Arvind has not been got proved 8.5 It is disheartening to note that investigating agency does not take advantage of technology to the optimum when it comes to electronic evidence. These days, there are number of software which can analyze the CDRs in comprehensive and customized manner. If such software had been applied and facts have been averred qua the same during trial as well, it would have become very clear that there were number of calls between Arvind and Aarti which would have also naturally established a close relationship between them. Same would have also shown that there were frequent calls amongst these three friends.
8.6 However, even if, for a moment, I ignore the call details record, there is no escape from the fact that even as per the stand taken by defence, it is very much clear that call was made by accused Rahul to his friend i.e. accused Deepak and then Sunil was informed telephonically.
FIR No. 338/14 PS Subhash Place State Vs. Rahul & Anr. Page 16 of pages 46 WHETHER INJURED ARVIND WAS FIT TO MAKE STATEMENT 9.0 Let me now come to most crucial aspect of the case i.e. dying declaration made by the deceased and factum regarding his being fit to make such statement.
9.1 Let me, first of all, weigh up whether victim was in a position to make any statement or not.
9.2 In this regard, defence has strongly relied upon MLC. Injured Arvind was rushed to Bhagwan Mahavir Hospital, Pitam Pura and from there he was shifted to DDU Hospital. MLC prepared by Bhagwan Mahavir Hospital has been proved as Ex. PW1/A. PW1 Dr. Prabhat was posted in Casualty at the relevant date i.e. 20.04.2014 and he has deposed that Arvind was brought in the Casualty with the alleged history of being beaten by lathi as stated by the patient. Such fact is also clearly stated in MLC as well. Arvind was brought at the hospital by PCR officials.
9.3 Naturally, once any such patient is brought in the hospital, he is, first of all, examined in the Casualty and then if referred, is taken to Surgery Department. As per testimony of PW1 Dr. Prabhat, patient was initially examined by Dr. M.K. Kaushal, Casualty Medical Officer and thereafter patient was referred to Surgery Department for further management and treatment and thereafter he (Dr. Prabhat) examined the injured and made note on MLC from point A to A1. He has also deposed that as patient had received head injury and CT Scan was not available in the hospital, patient was referred to higher centre for NCCT brain and further management. He also deposed that as per his examination, there was no history of IOC, ENT bleeding, vomiting and seizure. Patient was conscious, oriented and obeying all commands. He also deposed that GCS score of the patient was 15/15. In his cross-examination, he also claimed that he could not say as to who else was present from the side of patient at the relevant time but he supplemented that he had examined the patient at 4.10 PM. He also reiterated that when he examined the patient, patient was conscious and oriented. He also deposed that remarks regarding history were recorded as per the information FIR No. 338/14 PS Subhash Place State Vs. Rahul & Anr. Page 17 of pages 46 given by the patient himself. Interestingly, there is no suggestion to him that during the time patient remained in Bhagwan Mahavir Hospital and during the time, he had examined the patient, patient was not in any condition to make any statement. As noted above, deposition of PW1 Dr. Prabhat tells a different story altogether and as per him, patient himself had revealed the history of assault and was obeying all his commands and was conscious and oriented.
9.4 Undoubtedly, there is one remark Mark A (encircled in red) in said MLC Ex. PW1/A according to which the patient had been declared 'unfit for statement'. According to PW1 Dr. Prabhat, such remark was made by CMO Mr. Kaushal. CMO Dr. Kaushal has not graced the witness box.
9.5 I would, however, like to highlight that a watchful and minute examination of such remark somewhat indicates that letters "Un" before word "fit" seem mentioned in a different ink and has been inserted later. There was normal space and gap between words "is" and originally used word "fit". This space, it seems, has been mis-utilized by someone disgruntled and letters "Un" were put before word "fit" so as to wrongly portray that patient was unfit.
9.6 I would, however, not fall into this controversy any deeper as I am absolutely convinced with the testimony of PW1 Dr. Prabhat who has categorically deposed that patient was conscious and oriented and patient himself had given the details about his assault. Moreover, as per GCS score i.e. Glasgow Scale, patient was given 15 out of 15. GCS, a neurological scale, aims to give a reliable and objective way of recording the conscious state of a person for initial as well as subsequent assessment. It comprises various elements like eye opening response, verbal response and motor response. Such score as well as various other aspects mentioned in the MLC clearly indicate that the patient was conscious, well oriented and in a position to speak when was brought at Bhagwan Mahavir Hospital.
9.7 It will be also important to take note as to what PCR official has deposed in this regard.
FIR No. 338/14 PS Subhash Place State Vs. Rahul & Anr. Page 18 of pages 46 9.8 PW16 HC Mohan Singh has deposed that when he saw Arvind lying in the courtyard of house of accused Rahul situated at third floor, Arvind was vomiting and when he made inquiries from Arvind as to what had happened, Arvind replied that there was nothing and he also stated that "theek hai theek hai". He also deposed that when he made inquiries as to whether he had consumed anything, he again replied that everything was okay. He was brought to the ground floor and was taken to PCR vehicle with the help of one handcart. Arvind also wanted to ease himself and, therefore, he was taken to public conveniences situated near the place where PCR vehicle was stationed and he took ten minutes in easing himself. He also deposed that he had received a phone call on the mobile phone of Arvind which he attended and he then told about the condition of Arvind to the concerned caller and asked him to reach Bhagwan Mahavir Hospital directly. This also shows that when injured was taken from spot to the hospital, he was in a condition to speak.
9.9 Moreover, words "fit for statement" cannot be understood in rigid sense. Sometime it may happen that a person is though in a position to state few words or sentences but may not be able to give a comprehensive and detailed statement. Moreover, even doctors may, on some occasions, not permit the con- cerned police officer to take even such small statement of such patient lest condi- tion of the patient gets deteriorated further. In such eventuality, even if it is men- tioned in MLC that patient was unfit for statement would not robotically mean that patient was not in a position to say even a word. I, therefore, cannot permit my- self to get swayed by such remarks appearing on MLC and cannot go on to hold that patient was in fact unfit to make statement while completely ignoring all the surrounding and attendant circumstances. Moreover, deposition of PW1 Dr. Prab- hat is very categoric and specific and could not be dislodged by the defence in any manner whatsoever.
9.10 Arvind was transferred from Bhagwan Mahavir Hospital to DDU Hospital but fact remains that as per the case of prosecution, he had made dying declaration in Bhagwan Mahavir Hospital itself and, therefore, MLC prepared by DDU Hospital may not of that significance in the aforesaid context at least. I FIR No. 338/14 PS Subhash Place State Vs. Rahul & Anr. Page 19 of pages 46 would, however, like to point out that PW13 Dr. Vikas Sharma, posted in Neurosurgery Department of DDU Hospital, has deposed that patient Arvind was brought to DDU Hospital with GCS E1, Vt & M1. It is thus clear that by the time patient was brought to DDU Hospital, his condition got worsened further. Therefore, his GCS score also fell drastically. PW17 Dr. Anuj Tripathi from DDU Hospital has deposed that Arvind was admitted in DDU Hospital on 20.04.2014 and he died on 21.04.2014. He has proved death report as Ex. PW17/A. He deposed that CPR was done over the patient and DC shock was also given and since no ECG activity was noticed, patient was declared dead on 21.04.2014 at 9.30 AM. He also claimed that cause of death was cardio pulmonary arrest. However, it is but obvious that he had given such remarks since he did not notice any ECG activity. Needless to say that cause of death in such type of homicidal cases can be established by way of comprehensive internal examination in the shape of postmortem only. Therefore, I do not find any requirement of giving much weightage to such observation given by PW17 Dr. Anuj Tripathi.
9.11 Net conclusion is inescapable and inevitable. Defence contention does not hold any water on this score and it cannot be said that patient was unfit for statement when he was under treatment at Bhagwan Mahavir Hospital, Pitam Pura.
FACTUM OF DYING DECLARATION MADE BY ARVIND 10.0 Let me now come to the dying declaration.
10.1 In this regard, I would like to refer to the testimony of PW2 Ashok Kumar and PW5 Pramod.
10.2 PW2 Ashok Kumar has deposed that on 20.04.2014 he was at Peera Garhi, when he received a call from one police official Vijay Dahiya who called him up from the mobile phone of his son Arvind and asked him whether Arvind was his son and also revealed that they had apprehended Arvind at Shakur Pur and told him to reach quickly else he would be beaten up. PW2 Ashok Kumar also deposed that he could overhear in the background of said telephonic FIR No. 338/14 PS Subhash Place State Vs. Rahul & Anr. Page 20 of pages 46 conversation that Arvind was being beaten up. He told Vijay Dahiya to send him SMS regarding his location. When he received SMS, he reached the spot. In between, he called up Pramod and took him along and then they received another call from same Vijay Dahiya who asked them to reach Bhagwan Mahavir Hospital. He deposed that at the gate of said hospital, 6-7 persons were found standing who stopped them from entering the hospital and one of them was accused Rahul. Despite the resistance, he reached inside the hospital and could see his son Arvind in Emergency lying on a bed. Arvind got up on seeing his father and sat. PW2 Ashok Kumar could see injuries on his forehead, chest region and back. He further deposed that when he asked his son as to who had beaten him up, his son gave him three names i.e. Ramesh, Deepak, who was also known as Koki, and Rahul. He also claimed that he did not know the names of other assailants but supplemented that he had been beaten up with lathies, kicks, fist blows and some heavy objects. He also deposed that when he demanded water from those assailants, he was tried to be administered with some poison. However, they were not successful. PW2 Ashok Kumar also deposed that Arvind also told him that such incident had taken place at the residence of Rahul. PW2 Ashok Kumar further deposed that, in the hospital, Pramod took Arvind to washroom and then they both returned to Emergency. Thereafter, he received a call from Pramod to come inside the Emergency quickly and he ran inside and doctors were also called. At that time Arvind was looking unconscious and he was then referred to DDU Hospital.
10.3 PW5 Pramod has also supported the case of prosecution and has corroborated the version of father of victim. He deposed that he had received a call from his uncle Ashok who told that someone had apprehended Arvind and he told him to come immediately to Shakur Pur. Thereafter, they both had gone to Bhagwan Mahavir Hospital where several persons were present at the gate of the hospital but he did not know them. He deposed that on seeing his father, Arvind got up and sat on the bed. He deposed that when Ashok uncle asked Arvind as to what had happened, he simply claimed that he was in pain and would tell little later and then Ashok uncle asked Arvind as to where (on which part of the body) he had received injuries and then Arvind replied that he had received injuries on his head and back. He responded by indication and verbally also told that he was FIR No. 338/14 PS Subhash Place State Vs. Rahul & Anr. Page 21 of pages 46 feeling acute pain in abdomen. When Ashok uncle further asked as to how the incident had happened and who had done the same, Arvind told that 6-7 people had collectively beaten him up. Ashok uncle then asked about the names of those offenders and the place of incident to which Arvind answered that he had been beaten up inside the house of accused Rahul at Shakur Pur and that the door was bolted from inside. PW5 Pramod further deposed that Arvind also told that he did not know the names of all the accused persons but one was Rahul and Rahul was addressing one other person as Koki and one third person was Ramesh and names of rest of the persons he (Arvind) did not know. Arvind also told that he could not tell about the description of others claiming that he was feeling pain and wanted to take rest and after 5-10 minutes, he also divulged that he had been beaten up by dandas, legs and fist. He also deposed that he helped Arvind in standing up and going towards washroom. He also deposed that when Arvind was brought back to the bed, he starting claiming that he was feeling cold. He went out to arrange for a blanket. Thereafter, MLC was prepared and his thumb impression was taken on MLC by the staff of the hospital. According to further deposition of PW5 Pramod, thereafter, Arvind started feeling uneasy and he rushed out to call his father and then doctors and other staff attended him and put him on oxygen. Thereafter, he was referred to DDU Hospital where he expired next day. He also mentioned about the description of those persons as given by Arvind. He also deposed that police had contacted but police did not record his complete statement.
10.4 There are two things which I need to mention right here.
10.5 If the deposition of Ashok and Parmod is read in the backdrop of what they had stated before the police during investigation, it becomes abundantly clear that there are two additions. First is regarding act of prevention from entry by some persons at the gate of the hospital and second is regarding name of 'Ramesh' as one of those assailants. During investigation, Ashok and Pramod had made statements to the police and fact remains that no such fact is found mentioned in their respective statements. I would also like to mention here that one Ramesh also happens to be brother-in-law of accused Rahul and it seems that during investigation Ashok had expressed his suspicion over the involvement FIR No. 338/14 PS Subhash Place State Vs. Rahul & Anr. Page 22 of pages 46 of same Ramesh but since there was not enough material on record, name of Ramesh was put in column no. 12. Suspicion, howsoever strong, cannot take place of the proof. Moreover, burden of proof is much higher in a serious criminal trial like this. Therefore, as far as Ramesh is concerned, I do not find enough material to either assume him as one of the assailants or to summon him under Section 319 Cr.P.C.
10.6 I have gone through the exhaustive cross-examination of both the aforesaid important witnesses related to dying declaration and have no hesitation in holding that defence has not been able to impeach or discredit their testimony in any manner whatsoever. PW2 Ashok Kumar has claimed in his cross- examination that dying declaration was made by Arvind at Bhagwan Mahavir Hospital and it might be around 5.00 PM or 6.00 PM when he was in Emergency (Casualty). He also deposed that at that time doctors were not present besides them though they were at their seats. He also claimed that no nurse or attending staff was present within the audible distance and no other public person was there except for Parmod. He also deposed that after such dying declaration, he told about the aforesaid facts to the concerned doctor who had prepared the MLC but he also volunteered that he was not sure about the time when MLC was prepared as it was not prepared by the doctor in his presence. He also deposed that he along with Pramod shifted Arvind to DDU hospital from Bhagwan Mahavir Hospital in ambulance and no police official was inside the ambulance. They reached DDU Hospital at about 8.00 PM. At DDU Hospital, he did not tell the doctors about the history and about the names of assailants. He also met SI Vijay Dahiya in DDU hospital during night hours but did not disclose anything in this regard to SI Vijay Dahiya.
10.7 Sh. Pradeep Rana, learned defence counsel has expressed his astonishment over such fact. According to him, if by that time Ashok already knew about the names of the assailants and if by that time, he has also been able to meet the police, logically and commonsensically, he would have immediately disclosed about the factum of such dying declaration and about the names of assailants to SI Vijay Dahiya. No such thing was done by him and rather as per Sh. Rana, Ashok left for his house and stayed there till next morning. Sh. Rana FIR No. 338/14 PS Subhash Place State Vs. Rahul & Anr. Page 23 of pages 46 has also contended that story of dying declaration falls flat because if at all father and friend of deceased had come to know about the names of the assailants, they would not have waited even for a second and would have disclosed such names to the police for immediate and appropriate legal action.
10.8 I, however, do not find any merit in such defence contention. I can understand and appreciate the state of mind of PW2 Ashok Kumar at that particular moment. His son was in critical state. His son himself had revealed to the doctor that he had been assaulted with lathi. Since his condition deteriorated, he was shifted to another hospital for better management and treatment and in such a situation, prime concern of any such father would be to take care of his such badly injured son instead of informing the police and getting the culprits behind the bars. Undoubtedly, it would have been better if he had kept police in loop but omission in this regard cannot be said to be fatal and cannot tantamount to hold that no dying declaration was ever made by Arvind.
10.9 PW5 Pramod has not deviated from the case of prosecution. Undoubtedly, according to him, police had not recorded his complete statement but it is not expected that in such a situation, he would have started taking rounds of police station and would have moved a complaint before the Court. After all, he was only a friend of deceased. If at all, any such action was to be taken, it was to be taken by the close relatives of the deceased. In his further cross-examination, PW5 Pramod also deposed that MLC might have been prepared after 5.00 or 6.00 PM. He also claimed that neither he himself nor Ashok revealed anything to doctor when MLC was being prepared. He also told that Arvind had disclosed the names of the assailants between 4.30 to 5.30 PM. He also deposed that after hearing the version of Arvind, they did not make any police-call nor they called doctor or informed any other friend or relative of theirs. He also deposed that he met the police officials in DDU Hospital next morning only and even at that time, he did not inform the police about the fact that Arvind had told him about the incident and names of the assailants. As I have already discussed above, I do not find anything unusual in this regard and simply because father and friend of deceased revealed the details regarding the dying declaration after the demise of Arvind seem would not signify that there was no dying declaration. Their conduct FIR No. 338/14 PS Subhash Place State Vs. Rahul & Anr. Page 24 of pages 46 seems quite natural and not made-up from any angle whatsoever.
10.10 SI Vijay Dahiya is also an important character in the prosecution story. He has deposed that he had received information that a quarrel had taken place at WZ-174, Village Shakur Pur, Delhi and reached there. Such initial part of his testimony has already been discussed above. He then also went to Bhagwan Mahavir Hospital since injured had already been rushed to said hospital by PCR officials. He collected MLC of injured and deposed that injured had been declared unfit for statement. He returned to PS and call was kept pending. Same day, he again visited Bhagwan Mahavir Hospital to inquire whether the injured was fit for statement or not and learnt that injured had been referred to DDU hospital. He went to DDU hospital and again made inquires whether the injured was fit for statement or not. However, the doctor at DDU hospital also claimed that injured was not fit for statement, therefore, matter was kept pending since no eyewitness was available. Next day, it was decided to register FIR under Section 308 IPC keeping in mind the condition of the injured and, therefore, he prepared rukka. Such rukka has been proved as Ex. PW15/A and it becomes apparent that it had been prepared and sent for registration of FIR at PS at 9.20 AM.
10.11 Thus, by 9.20 AM, SI Vijay Dahiya did not learn anything about dying declaration.
10.12 As per record of DDU Hospital, patient expired and was declared dead on 21.04.2014 at 9.30 AM.
10.13 It may be a sheer coincidence that patient expired barely 10 minutes after recording of rukka.
10.14 Right here, I would also like to make reference to earlier part of testimony of PW2 Ashok Kumar.
10.15 He claimed to have received a call from police official i.e. SI Vijay Dahiya who informed him that his son had been apprehended and also told him to reach quickly else his son would be beaten up. So much so, as per PW2 Ashok, FIR No. 338/14 PS Subhash Place State Vs. Rahul & Anr. Page 25 of pages 46 he could overhear in the background of such telephonic conversation that he was being beaten up. As per defence counsels, it is clear that even police officials had indulged in beating up Arvind. I, however, cannot assume any such thing at all. If such version of PW2 Ashok is accepted as it is, it would merely denote that Arvind was being thrashed even in the presence of police. It would not connote that he was being beaten up by police only. Naturally, since conversation was going on phone, it was obviously impossible for Ashok to tell as to who were those persons beating up his son Arvind. Be that as it may, it merely depicts that even the police was not able to keep those assailants in check. SI Vijay Dahiya should have controlled the things and should have shown managed the situation in effective manner instead of letting the incident continue. It would also have been certainly better had prosecution collected CDR of mobile of SI Vijay Dahiya.
10.16 Be that as it may, relevant testimony of PW2 Ashok in this regard does not, at all, go on to suggest that Arvind had been beaten up by police officials. It only shows as to how inefficient and ineffective the police was at the relevant time.
10.17 PW18 Insp. Om Dutt Vats is the investigating officer of the case.
10.18 He has also deposed that initially, SI Vijay had informed him regarding receiving one call from Shakur Pur village about quarrel. He also deposed that injured had reportedly been admitted in Bhagwan Mahavir Hospital and was unfit to make statement. He also deposed that SI Vijay also informed him that no eye witness had met him. PW18 Insp. Om Dutt Vats instructed SI Vijay to visit the hospital again to find out whether injured was able to make statement or not.
10.19 SI Vijay informed him next morning that injured had been referred to DDU Hospital in the night itself and that he was still unable to make statement. Then, he instructed him to get registered the case on the basis of DD entry and MLC. When he reached at the hospital with his staff, he learnt that injured Arvind had succumbed to his injuries. Thereafter, he took up the investigation of the case and informed his seniors. He then met Ashok and Pramod and some other relatives in the hospital. Ashok then handed over shoes and wearing clothes of FIR No. 338/14 PS Subhash Place State Vs. Rahul & Anr. Page 26 of pages 46 the deceased which were seized by IO-Insp. Vats vide seizure memo Ex. PW2/A and when he further asked whether they knew anything about the incident, they both i.e. Pramod and Ashok told him about the facts related to dying declaration and accordingly he recorded their statements under Section 161 Cr.P.C.
10.20 Thus, I do not find any inordinate delay on the part of PW2 Ashok and PW5 Ashok in making statements to the police. The moment Arvind succumbed to his injuries, they met Insp. Vats at the hospital itself and divulged about such dying declaration and names of assailants. There cannot be said to be any artificiality in such version. It also cannot be said that anything has been concocted or cooked up after any deliberation.
INCIDENT DATED 14.04.2014 11.0 As per prosecution, on 14.04.2014 several persons had come outside the house of Ashok (father of deceased) and they had manhandled Arvind. Then it was learnt that Arvind was having affair with one girl Aarti of Shakur Pur and those persons, who had scuffled with Arvind, were from the side of Aarti.
11.1 In this regard, it would be useful to make reference to the testimony of PW4 Rashmi, PW7 Raju and PW2 Ashok Kumar.
11.2 PW4 Rashmi is neighbour of Ashok and has deposed that on 14.04.2014 at about 1.30 noon, her son Deven informed her that four persons were beating up Arvind son of Ashok. She came outside from her house and saw four persons beating up Arvind and then she and Raju intervened and saved Arvind from the aforesaid four person. Those persons had threatened Arvind that if he was seen again by them, they will not spare him. Arvind had also revealed that name of one of those four persons was Ramesh. Mother of Arvind had also intervened and she was even weeping at that time. PW4 Rashmi has made vital improvement with respect to the involvement of Ramesh. In her statement, which she had made before the police, she never claimed that she had been informed by Arvind that one of those assailants was Ramesh. She was duly confronted with her previous statement Ex. PW4/A and fact remains that no such fact was FIR No. 338/14 PS Subhash Place State Vs. Rahul & Anr. Page 27 of pages 46 found mentioned in her such previous statement at all.
11.3 PW7 Raju has also deposed that on hearing the noise, which was coming from outside, he came out of his house and saw four persons threatening and beating Arvind son of Sh. Ashok and he along with Rashmi reached there and intervened and saved Arvind from the aforesaid four persons. He has deposed that he did not know the reason behind the quarrel but he reached there in order to save Arvind. He also, however, claimed that all such assailants were threatening Arvind that if he was seen subsequently, he would not be spared. It is also important to mention that PW7 Raju has also not fully supported the case of prosecution. In his statement, which he had made before the police, he had categorically claimed that when they intervened and saved Arvind, they also learnt that Arvind was having affair with Aarti of Shakur Pur but he denied having made any such statement to the police and he was also duly confronted with his previous statement Ex. PW7/A in this regard by the prosecution with the permission of the Court, he, however, denied having said any such thing to the police.
11.4 As far as PW2 Ashok is concerned, he has deposed that on 14.04.2014, 4-5 persons had come to their house and had beaten up Arvind. At the same time, he also very fairly admits that at that time, he was not at his house and was told about the aforesaid incident dated 14.04.2014 by his wife and daughter. Thus, his testimony is hearsay in nature as neither his wife nor his daughter has graced the witness box.
11.5 On collective scrutiny and appreciation of the evidence of the aforesaid three witnesses, at best, prosecution can show that some persons had beaten up Arvind and had threatened him that he was seen again, he would not be spared. It is not clear as to who were those persons. It is also not amply clear as to why they had beaten up Arvind. Thus, prosecution has not been able to bring on record sufficient material which may clearly indicate that the acquaintances of Aarti had roughed up Arvind on 14.04.2014.
FIR No. 338/14 PS Subhash Place State Vs. Rahul & Anr. Page 28 of pages 46 ROLE OF KANTA, RAMESH & AARTI AND IMPACT, IF ANY, OF NON-CITING KANTA & AARTI AS WITNESSES 12.0 I have already noticed above that before registration of FIR, SI Vijay Dahiya had made inquiries at the spot on 20.04.2014 itself from Kanta and Aarti and recorded their statements as well. At that time, Aarti had revealed that she was having love affair with Arvind and when she came to know that Arvind was already married, she stopped talking to him but Arvind kept on approaching her. She also disclosed that her relatives had also gone at the house of Arvind to make him understand but despite that Arvind again came at their house and was trying to talk to her.
12.1 Undoubtedly, as per prosecution case, Arvind had gone to the house of accused Rahul that day. He probably wanted to still convince Aarti to continue with the affair. It is quite evident that incident had taken inside the house of accused Rahul and very evidently even Aarti and her mother Kanta must have seen the incident. Investigating agency, however, did not cite them as witnesses. They felt that being closely related to accused Rahul, they would not testify against him. Moreover, it seems that investigating agency was in some sort of quandary. During investigation, it also felt that perhaps these two ladies were involved in the incident by not taking any positive action and by turning mute spectators. Be that as it may, eventually, they were neither charge-sheeted as accused nor cited as witnesses.
12.2 I would also hasten to supplement here that this Court was also under lot of dilemma whether to examine them as court witnesses or not. After the statements of accused were recorded, this Court was anticipating and expecting that these two ladies would be surely examined by Rahul himself and, therefore, this court did not think it appropriate to call them as court witnesses. However, surprisingly, even accused Rahul did not examine them in his defence. Such omission on his part goes against him. If at all, he was of the opinion that he was not involved in the incident of beating up Arvind and that Arvind had been thrashed by public persons, he could have easily and conveniently called them in his defence and could have examined them. Nothing of that sort was done by accused Rahul despite the fact that after recording of his statement under Section FIR No. 338/14 PS Subhash Place State Vs. Rahul & Anr. Page 29 of pages 46 313 Cr.P.C., case was fixed for defence evidence as he wanted to lead evidence in defence. He also did not make any attempt to enter in witness box under sec 315 CR.P.C. In such peculiar backdrop, I am rather compelled to draw adverse inference against accused Rahul. I am also cognizant of the fact that since defence itself did not examine them despite they being close relatives of accused Rahul, there seemed no chance of their spilling the beans and precisely, therefore, they were not called as court witnesses.
12.3 I would also like to reiterate here that there is nothing substantial before the Court which may compel these two ladies and said Ramesh to be summoned under Section 319 Cr.P.C. and, therefore, I do not propose any further action in this regard. Be that as it may, non-citing of Aarti and Kanta as witnesses does not seem to be fatal to the case of prosecution either.
WHETHER A-2 IS SAME KOKI 13.0 It has been vehemently contended by Sh. Sharma, learned defence counsel for A-2 that as far as accused Deepak Yadav is concerned, he has been unnecessarily dragged into the present case. He has also claimed that accused Deepak Yadav was never known as Koki.
13.1 It is important to mention that accused Deepak Yadav had also moved an application seeking bail and had taken similar plea in his such application that he was never known as Koki and that he had been falsely implicated. Such application was opposed by prosecution and along with the reply, police had also annexed statements of various neighbours who had claimed that Deepak was also known as Koki.
13.2 However, as far as present trial is concerned, prosecution has not examined anyone in order to substantiate such fact.
13.3 Nonetheless, I am very much convinced that accused Deepak is also involved in the incident. It would be again useful to refer to the most-earliest FIR No. 338/14 PS Subhash Place State Vs. Rahul & Anr. Page 30 of pages 46 version in which name of accused Deepak or name of Koki surfaced. Insp. Om Dutt Vats recorded statement of Ashok and Pramod on 21.04.2014 itself and Ashok revealed in his such statement that when Arvind gave dying declaration, he mentioned that a quarrel had taken place at the house of accused Rahul and Rahul had then called up his one friend whom he was addressing him as Koki and then they both had beaten him up. Accused Rahul has himself admitted in his statement under Section 313 Cr.P.C. that he had called up his co-accused Deepak and even Deepak has admitted in his supplementary statement under Section 313 Cr.P.C. that he had received a call from PW10 Sunil Kumar Yadav who told him about the call made by accused Rahul. PW2 Ashok Kumar has also deposed during trial that Arvind had told that he had been beaten up by Ramesh, Deepak (who was also known as Koki as revealed by Arvind) and accused Rahul. Similarly, PW5 Pramod has also deposed that Arvind had revealed the names of assailants as Rahul, Ramesh and one Koki. There were other assailants also besides them and fact remains that since Arvind did not know the name of other assailants, he could not reveal their names to his father and friend.
13.4 As regards Ramesh, I have also observed above that since name of Ramesh was not revealed by Ashok and Pramod during investigation, it would not be possible to conclusively hold him as one of those assailants. Moreover, there is no corroborative evidence against Ramesh either. However, as far as accused Deepak is concerned, it becomes evident that accused Rahul had immediately requested him to reach the spot. CDR also confirmed the same and, therefore, I do not find any merit in the defence contention that accused Deepak has no involvement in the present matter. Moreover, defence has not been able to explain as to why investigating agency would frame Deepak with whom it has no animosity. There is nothing on record which may show that PW2 Ashok Kumar and PW5 Pramod have tried to falsely implicate Deepak in the present matter. Undoubtedly, it would have been better if prosecution had collected some evidence in order that Deepak was also known as Koki but keeping in mind the totality of the case and the facts and circumstances proved on record, I am persuaded to conclude that Deepak was called at the spot by accused Rahul and then they both had beaten up Arvind.
FIR No. 338/14 PS Subhash Place State Vs. Rahul & Anr. Page 31 of pages 46 13.5 Learned Addl. PP has also contended that accused Deepak Yadav had earlier moved an application seeking bail which was marked to the concerned Court of Sessions for 20/05/2014 and in such application moved through counsel, the contention raised from the side of accused Deepak Yadav was to the effect that Arvind had forcibly entered the house of accused Rahul and teased and molested his sister due to which a quarrel had taken place and the people of the neighbourhood had also gathered at the spot and had beaten Arvind up. It was also claimed therein that he (Deepak) was called by Rahul after beatings had already been given to Arvind and thereafter, he was falsely roped in the present matter on the disclosure statement of main accused. He also claimed that incident had taken place due to sudden provocation, due to eve-teasing.
13.6 Aforesaid stand has been taken by the accused, at the first available opportunity, cannot be ignored casually or nonchalantly and it goes on to confirm that accused Deepak facing trial at the moment is the same Koki who had been named by victim Arvind in his dying declaration. Sh. Jindal has also contended that during investigation, accused Rahul was apprehended and he made disclosure in which he also categorically named his co-accused Deepak @ Koki and thereafter, police had reached the house of accused Deepak @ Koki and apprehended him. This also, according to him, strengthens the fact that accused Deppak @ Koki is the same person.
13.7 Be that as it may, keeping in mind the deposition made during the trial, it becomes abundantly clear that defence contention in this regard is a feeble attempt to escape the clutches of law.
CAUSE OF DEATH 14.0 Autopsy had been conducted by PW9 Dr. Komal Singh and he has deposed that on external examination, he found multiple injuries. These injuries have been described as under:
i) Abrasion on the left side of forehead of size 4 cm x 1 cm, FIR No. 338/14 PS Subhash Place State Vs. Rahul & Anr. Page 32 of pages 46 obliquely placed linear in shape underneath of it has presence of clotted blood.
ii) Periorbital oedema on left side underneath of it has presence of clotted blood.
iii) On left lateral side near angle of mouth over lower lip there was bruise of size 2.5 cm. X 1 cm, underneath of it has presence of clotted blood.
iv) Linear parallel rail line pattern abrasion present on the outer surface of left elbow about 7 cm. X 2.8 cm in size, underneath of it has presence of clotted blood.
v) On the left lateral side of left leg linear parallel rail line pattern bruise present, underneath of it has presence of clotted blood.
vi) Bruise/contusion present over the supra pubic area on left side spreading in area of 4cm x 3 cm in size.
vii) Scattered small size abrasion present over the upper surface of right supra scapular area in an area of size 7 cm. X 5 cm, clotted blood present around it.
viii) Nail mark present on the posterior auricular area.
14.1 PW9 Dr. Komal Singh further deposed that the cause of death was said multiple injuries to the multiple vital organs of the body caused by the forcible blunt impact directly made over the body of the deceased. He has further deposed that all injuries together were sufficient to cause death in ordinary course of nature and the manner of death was homicidal. All the injuries were antemortem and were of same duration. He has also proved his report as Ex. PW9/A. 14.2 It will be also important to mention that one danda was also recovered by the police during investigation from the house of accused Rahul and such danda (bamboo stick) was also sent to PW9 Dr. Komal Singh for opining whether any injury was possible with such danda or not and PW9 Dr. Komal Singh deposed that injuries No.4, 5 and 6 (as described above) could have been inflicted by such bamboo stick. I would also like to point out right here that PW9 Dr. Komal Singh was posted in DDU hospital. As already noticed above, initially, FIR No. 338/14 PS Subhash Place State Vs. Rahul & Anr. Page 33 of pages 46 Arvind was brought to Bhagwan Mahavir Hospital and since his condition worsened, he was shifted to DDU Hospital where he eventually expired. Defence showed him MLC of Bhagwan Mahavir Hospital and on seeing such MLC, PW9 Dr. Komal Singh also deposed that there was observation that 'patient was not fit for statement'. However, he also volunteered that there were no signatures beneath it. Such question and consequent answer have no relevancy or connection with Dr. Komal Singh and, therefore, I cannot give any weightage to such question and answer.
14.3 It was also asked from him whether in case of consumption of any Indian Hemps, urine sample is required to be taken for confirmation of such consumption, to which, he answered that such thing can be analyzed even by blood sample and viscera.
14.4 Be that as it may, fact remains that a careful perusal of the MLC as well postmortem report and keeping in mind the deposition of PW9 Dr. Komal Singh, it becomes very much evident that multiple injuries had been given to victim Arvind with the help of forcible blunt impact directly made over his body and all such injuries together were sufficient to cause death in ordinary course of nature. It also becomes clear that all the injuries were ante mortem and were of the same duration.
BURDEN OF PROOF ON ACCUSED 15.0 I have already discussed above the sequence of events. It becomes quite evident that Arvind had gone to the house of accused Rahul Yadav on 20/04/2014. As per the testimony of PCR official PW16 HC Mohan Singh, when he reached the spot, he saw Arvind lying in the courtyard (open place outside the room) at third floor of said house of Shakur Pur village. Arvind, at that time, was vomiting. Accused Rahul was also present in his house at that time. PW15 SI Vijay had also reached the said house and he also found Arvind at third floor vomiting and in wounded condition. Thus, it becomes very much evident that Arvind was found in injured condition at the third floor house of accused Rahul. Site plan rather indicates that when police reached at the spot, Arvind was lying FIR No. 338/14 PS Subhash Place State Vs. Rahul & Anr. Page 34 of pages 46 unconscious in bathroom situated at third floor. Accused Rahul has tried to project himself as a good Samaritan and has claimed that Arvind had been beaten-up by public persons when he was shouting and abusing outside his house. His love towards alleged victim had been understandable if victim was stranger. Here, victim had been chasing his sister and it would hardly be palatable that he would lend a hand to such person and would bring him up and would save him from alleged public fury. Such version has already been rejected and now, therefore, onus shifts on to accused Rahul as to how and under what circumstances, a person, in a badly injured condition, was found inside his house situated at third floor. False explanation given by him in fact becomes a circumstance against him. He has not bothered to examine anyone in his defence. He has not bothered to call his sister and his mother who were very much present in the house at the relevant point of time and, therefore, I am compelled to draw adverse inference against him in this regard.
15.1 Law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. A fact which is within the special knowledge of accused has to be established by him alone. Needless to declare, false plea taken by the accused is liable to be read against him. It will be noteworthy to extract following observations appearing in Trimukh Maroti Kirkan v State of Maharashtra (2006) 10 SCC 681:-
"If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the Courts. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland v. Director of Public Prosecution 1944 AC 315 quoted with approval by Arijit Pasayat, J. in State of Punjab vs. Karnail Singh (2003) 11 SCC
271). The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the FIR No. 338/14 PS Subhash Place State Vs. Rahul & Anr. Page 35 of pages 46 content and scope of this provision and it reads:
(b) A is charged with traveling on a railway without ticket. The burden of proving that he had a ticket is on him."
Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation."
15.2 Reference, in this regard, be also made to one recent judgment of our own High Court titled as Pawan Singh vs State & Ors. Criminal Appeal 929/2011 DOD: 4 February, 2015, 15.3 Thus if a fact is especially in the knowledge of accused, then burden of proving that fact is upon him. It is impossible for the prosecution to prove certain facts particularly within the knowledge of the accused. Section 106 is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference. Section 106 of the Evidence Act is designed to meet certain exceptional cases, in which, it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused.
15.4 I also cannot be unmindful of the fact that a danda was recovered from the house of accused Rahul. Such danda was sent to forensic laboratory for examination. PW14 Dr. Ruchi Sharma had examined the same and gave her report. As per her reports Ex. PW14/A and Ex. PW14/B, such danda (wooden rod) was found having human blood. She, however, could not ascertain blood grouping.
FIR No. 338/14 PS Subhash Place State Vs. Rahul & Anr. Page 36 of pages 46 15.5 This again is a very strong and compelling piece of evidence. A danda is recovered from his house which is having stains of human blood over it and in such a circumstance, it becomes the bounden duty of accused Rahul to explain as to how such danda containing human blood was found recovered from his house. This clearly deflates the defence version that Arvind had been beaten-up by public persons and Rahul had merely rescued him and brought him to third floor. In such eventuality, he would not have brought along any such danda with him to the third floor and would not have concealed the same at the top floor of his house.
OTHER INVESTIGATIONAL ASPECTS 16.0 Investigation had been conducted by PW18 Inspector Om Dutt Vats. He has supported the case of prosecution and has deposed about various crucial investigational aspects. He had recorded the statement of Ashok Kumar as well as of Pramod on 22/04/2014. He also recorded statement of PCR official HC Mohan Singh. He even met mother and sister of accused Rahul and made inquiries from them but they did not state details of the incident to him. On 24/04/2014, he reached the house of accused Rahul, on the basis of secret information, and apprehended him. He has proved his arrest memo and personal search memo. He has also deposed that one mobile phone was recovered in his personal search.
16.1 Accused Rahul then led them to top floor of his house and from a small room built on the roof, he got recovered one danda/lathi and handed over the same to the police claiming that same had been used in causing injuries to Arvind. Such danda was measured and its length was found 3 feet and 10 inches and it was seized vide memo Ex. PW15/F. Such danda/lathi has been proved as Ex. P1. Thereafter, accused Rahul led the police party to the house of accused Deepak @ Koki situated at WZ-145, Village Shakur Pur. Accused Deepak @ Koki also admitted his involvement in the present matter and he was also arrested. His arrest memo has been proved as Ex. PW15/G and his personal search memo is Ex. PW15/H. Accused Deepak @ Koki also got recovered his mobile phone from his house which was seized vide memo Ex. PW15/J. Such mobile phone has been proved as Ex. P2. Thereafter, accused Deepak @ Koki also led the police to the place of incident where they had beaten Arvind and pointing out memo Ex.
FIR No. 338/14 PS Subhash Place State Vs. Rahul & Anr. Page 37 of pages 46 PW15/K was accordingly prepared. Disclosure statements of both the accused were also recorded and thereafter, seized articles were deposited in malkhana and accused were put in lock-up.
16.2 PW18 Inspector Om Dutt Vats also deposed that initially, the case had been registered u/s 308 IPC which was converted to Section 304/34 IPC. After receiving postmortem report, it was further converted to Section 302/34 IPC. He has also deposed about sending the case property i.e. danda to FSL and regarding obtaining postmortem report and expert opinion from the doctor. He has also deposed regarding collecting call details of mobile phones of accused as well as of Sunil who had informed the PCR. He also got the spot investigated through Inspector Manohar Lal, draftsman and scaled site plan has also been proved as Ex. PW18/F. 16.3 In his cross-examination, he also claimed that lathi was recovered at 10.30 p.m. from the house of accused Rahul. He did admit that no neighbour or other occupants of the said house were called at the time of effecting recovery of lathi and no photograph was taken and no site plan was prepared at the time of recovery. He also deposed that door of said room was not locked. But merely because Inspector Om Dutt Vats did not make any attempt in this regard would not mean and indicate that such danda has been planted. Undoubtedly, Inspector Om Dutt Vats should have made sincere effort in this regard even if he reached at the house of accused at late hour of night, but nonetheless, omission, in itself, cannot be said to be fatal to the case of prosecution.
16.4 As regards PW3 Deepak who has turned hostile, it was suggested to him that Deepak was away to Bihar during the relevant period and he has been falsely introduced as a witness. He, however, denied such suggestion as wrong and incorrect. I would like to highlight here itself that PW3 Deepak came prepared with one compact disc in order to show that he was away to Madhubani, Bihar where he had gone to attend marriage. According to him, he had participated in the marriage and a video C.D. was also prepared in this regard. Fact remains that he thereafter brought the CD and placed on the same on record. These were taken on record as Mark PW3/DA. Neither PW3 Deepak bothered to make a FIR No. 338/14 PS Subhash Place State Vs. Rahul & Anr. Page 38 of pages 46 request to play the same nor defence counsel made any such request. Moreover, it happens to be an electronic piece of evidence and CD was allegedly got prepared later on and, therefore, the requirement u/s 65B of Indian Evidence Act was also required to be fulfilled. Such indispensable certificate has not been brought on record.
16.5 Crime team had also visited the spot and PW19 Ct Sandeep had taken the photographs of the spot. Such photographs have been proved as Ex. PW19/A1 to A6. PW20 Constable Ashok Kumar had taken the sealed pullanda containing danda to FSL and he has also deposed that during the time such pullanda remained in his possession, it was not tampered with by anyone. Concerned MHC(M) i.e. PW21 HC Dinesh Kumar has also proved various entries appearing in register No. 19 and register No. 21.
16.6 Defence has contended that it's not clear as to who and where handed over mobile of victim to his father. I am, however, of considered view that contradiction on this score is too trivial to improbablize the entire case.
DISCUSSION ON PRECEDENTS CITED AT THE BAR 17.0 I have carefully gone through the various judgments cited at bar. I need not remind myself that it is a serious trial pertaining to murder and case is based on circumstantial evidence and on dying declaration. Onus was on ac- cused Rahul as well and injured was found inside his house situated at third floor. No such special fact exists in the judgments relied upon by defence.
17.1 Moreover, the factual matrix of no two cases would be identical and similar and needless to say that one tiny difference in fact case can make a huge difference and, therefore, the precedents cannot be applied mechanically and blindly in such type of serious trials. Reference in this regard be made to Union of India & Anr. vs. Arulmozhi Iniarasu & Ors (2011) 9 SCR 12.
17.2 However, before adverting to the precedents cited before me, let me have a look on the legal proposition as regards dying declaration.
FIR No. 338/14 PS Subhash Place State Vs. Rahul & Anr. Page 39 of pages 46 17.3 The doctrine of dying declaration is enshrined in the legal maxim nemo moriturus praesumitur mentire, which means "a man will not meet his Maker with a lie in his mouth". The doctrine of dying declaration is enshrined in Section 32 of the Evidence Act, 1872 as an exception to the general rule of evidence which requires that oral evidence in all cases must be direct i.e. it must be the evidence of a witness, who says he saw it. The dying declaration is, in fact, the statement of a person, who cannot be called as witness and, therefore, cannot be cross-examined. Such statements themselves are relevant facts in certain cases. The law is that if the court is satisfied that the dying declaration is true and made voluntarily by the deceased, conviction can be based solely on it, without any further corroboration. It is neither a rule of law nor of prudence that a dying declaration cannot be relied upon without corroboration. When a dying declaration is suspicious, it should not be relied upon without having corroborative evidence. The court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased must be in a fit state of mind to make the declaration and must identify the assailants. Merely because a dying declaration does not contain the details of the occurrence, it cannot be rejected and in case there is merely a brief statement, it is more reliable for the reason that the shortness of the statement is itself a guarantee of its veracity.
17.4 In Sher Singh & Anr. v. State of Punjab [(2008) 4 SCC 265], the Apex Court held that absence of doctor's certification was not fatal and the requirement of doctor's certificate was essentially a rule of caution.
17.5 In the case of Chirra Shivraj v. State of Andhra Pradesh [(2010) 14 SCC 444], the Apex Court expressed a caution that a mechanical approach in relying upon the dying declaration just because it was there, was extremely dangerous approach. It was observed that court is required to examine dying declaration scrupulously with a microscopic eye to find out whether the dying declaration is voluntary, truthful, made in a conscious state of mind and made without being influenced by other persons and where these ingredients are satisfied, it cannot be said that on the sole basis of a dying declaration, the order FIR No. 338/14 PS Subhash Place State Vs. Rahul & Anr. Page 40 of pages 46 of conviction could not have been passed.
17.6 In Lakhan v. State of M.P. [(2010) 8 SCC 514], while dealing with the argument that dying declaration must be recorded by a Magistrate and the certificate of fitness was an essential feature, Apex court made the following observations:
"3. The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on the deathbed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the courts insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a Magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a Magistrate absolutely necessary, although to assure authenticity it is usual to call a Magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on FIR No. 338/14 PS Subhash Place State Vs. Rahul & Anr. Page 41 of pages 46 the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise."( emphasis added) 17.7 Thus, if court is satisfied that the dying declaration is true and made voluntarily by the deceased, conviction can be based solely on it, without any further corroboration. It is neither a rule of law nor of prudence that a dying declaration cannot be relied upon without corroboration. However, when a dying declaration is suspicious, it should not be relied upon without having corroborative evidence. The court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased must be in a fit state of mind to make the declaration and must identify the assailants. Merely because a dying declaration does not contain the details of the occurrence, it cannot be rejected and in case there is merely a brief statement, it is more reliable for the reason that the shortness of the statement is itself a guarantee of its veracity. Certification from doctor is mere rule of caution and not absolute and indispensible prerequisite.
17.8 Let me now see the judgments cited at the bar.
17.9 In State of Orissa Vs. Parasuram Naik (supra), the circumstances were different as victim therein had died due to extensive burn injuries. In that case, the Hon'ble High Court did not feel it safe to rely upon the dying declaration and Apex Court held that such view cannot be said to be unreasonable one. It was held that since the victim had sustained extensive burn injuries and died within 15 minutes after recording of her dying declaration, it appeared that she might not be in a proper and fit condition to make a statement as regards her death. Here, the incident is of 20/04/2014 and victim had died next day and moreover, testimony of Ashok and Pramod seems fully inspiring and there is no reason to discard the same.
FIR No. 338/14 PS Subhash Place State Vs. Rahul & Anr. Page 42 of pages 46 17.10 In Shakuntala Vs. State of Punjab (Supra), the burns were cent percent and the victim was not in a fit condition to make statement and she was unconscious and, therefore, it was held that it was doubtful whether she was in a proper mental condition or not to make any statement. In the present case, whereas the attending doctor himself reported that the patient was speaking and was conscious and oriented and patient himself had apprised about the history of assault given to him.
17.11 Defence also cannot dig out any advantage from Ramasray Pandey & ors. Vs. State of Bihar (Supra) and Ashraf Hussain Shah Vs. Sate of Maharashtra (supra) as in the present case, there is nothing to show that the evidence of witnesses is replete with material discrepancies and lies. There is nothing to show that dying declaration has been cooked-up or falsely introduced. I have already noted above that there does not seem to be any delay in intimating the police and immediately after Arvind succumbed to his injuries, Ashok and his friend Pramod revealed all the facts to IO. Defence counsel cannot also dig out any advantage from the judgment of Apex Court given in the case of Shaikh Rafiq & anr. Vs. State of Maharashtra (supra). In that case, no Executive Magistrate was called for recording of dying declaration and no certificate was obtained from the doctor whether the patient was fit to make statement or not and, therefore, the dying declaration was not relied upon. Undoubtedly, in the present case, the dying declaration is verbal. Obviously, the prime objective was to provide immediate treatment to the injured. It is quite evident that victim, despite being thrashed upon, was in a position to make statement. This is apparent from the testimony of PCR official HC Mohan Singh as well as by the concerned doctor of Bhagwan Mahavir Hospital. I do not find any material improvement which can cause serious dent over the case of prosecution and, therefore, no benefit can be taken by defence from the observations appearing in Appanna Yellawwa Madar & Ors. Vs. State (supra) and Vicky Kumar & Ors. Vs. State of Delhi & Ors. (supra). I also do not find any deliberate delay in lodging the FIR. Facts in Ashraf Hussain( supra) were different and said precedent is inapplicable here in the backdrop of peculiarity of the present case.
17.12 Precedents cited by Sh. Sharma are also not attracted herein. It FIR No. 338/14 PS Subhash Place State Vs. Rahul & Anr. Page 43 of pages 46 cannot be said that there was no motive for accused to kill Arvind. Rahul was ostensibly furious and angry when he saw Arvind inside his house. He called up his friend i.e. co accused Deepak who also came there and then they both gave serious thrashing to Arvind. There is also no real variance between the facts emerging from dying declaration and medical evidence. These both are rather in complete synchronization with each other. There is no material infirmity in dying declaration. It is also not a case having multiple dying declarations. There is no absolute prohibition that dying declaration made to relatives cannot be accepted and that same is liable to be rejected out-rightly. Their presence at hospital is established and natural one. In Salim Gulab Pathan v. State of Maharashtra, (2012) 6 SCC 606, Apex court had upheld the conviction of accused while placing reliance upon the oral dying declarations made by victim to her relatives including father.
CONCLUSION 18.0 In the present case, I do not find any crucial infirmity in the dying declaration except the fact that name of one Ramesh has also been mentioned as one of the assailants when the statements of concerned witnesses were recorded during the trial. That, in itself, would not lean on me to throw out the entire case. Moreover, there is corroborative evidence as Arvind was found in badly injured condition in the house of none other than accused Rahul only and Rahul has failed to explain as to how, Arvind had received injuries. Rather, the defence story propounded by him seems completely hollow and imaginary. Moreover, accused Rahul had also a motive against Arvind as Arvind was after his sister Aarti and had even shown the audacity of going to her house during noon hours which naturally irked and hacked him off. Testimony of PW2 Ashok Kumar and PW5 Parmod cannot be rejected merely due to the fact that they are interested witnesses. Their presence beside the deceased in the hospital is nothing but natural. They reached hospital immediately after hearing about that Arvind was being taken there. As per PCR as well as concerned doctor, injured was in a position to speak. His confiding in his father and close friend cannot be said to be artificial or improbable in said backdrop.
FIR No. 338/14 PS Subhash Place State Vs. Rahul & Anr. Page 44 of pages 46 18.1 However, PCR official and policeman who reached the spot should have also made sincere endeavour to find out from him as to who were those assailants. They merely helped in his transportation. They need to be sensitized in this regard. Naturally, first endeavour should be to provide medical attention but at the same time, they should also show enough presence of mind and should, wherever possible, make enquiries as to who were those persons responsible for the incident. It is their paramount duty to reach to the culprit. I have never ever come across any case where PCR official might have entered in witness box as witness to any dying declaration whereas fact remains that lot many such victims die during transportation. I can only wish that PCR officials are sensitized in this regard sooner than later so that no guilty goes scot free. In the present case, somehow, the logs maintained in connection with PCR call are lying unproved and as per one such log, Rahul son of Vijay (accused herein) had himself revealed to the PCR officials that Arvind had entered their house while chasing Aarti and wanted to converse with him forcibly. PW16 HC Mohan Singh should have clearly mentioned such fact. It is not understandable as to why PCR officials do not come to fore on such crucial aspect. They should not be shy or afraid of facing cross-examination or grilling by defence on such critical aspects and as far as possible, all such fine details should be categorically mentioned in the log diary and all concerned PCR officials should also muster courage to say so in the Court as they are normally the first official who meet any such injured and in whom, even the injured can repose faith. Be that as it may, the omission in this regard, to the good fortune of prosecution, is not very significant.
18.2 All the circumstances indicate towards the involvement of accused persons alone. Motive stands established. Recovery of blood-stained danda from house of one accused stands proved. Both the accused were in touch at the alleged time and the dying declaration seems believable every inch which nails down both the accused. It hardly matters whether name of Deepak was mentioned as Koki during investigation. Fact remains that PW2 Ashok has clarified the same and I do not find his evidence given out of any vindictiveness or with objective to falsely implicate someone innocent. Injuries in question were found to be sufficient to cause death. Accused have also failed to discharge their onus. It is well settled that the prosecution must stand or fall on its own legs and it FIR No. 338/14 PS Subhash Place State Vs. Rahul & Anr. Page 45 of pages 46 cannot derive any strength from the weakness of the defence. This is trite law. However, where various links in a chain are in themselves complete, then a false plea or a false defence can also be called into aid to lend assurance as additional link.
18.3 As a necessary sequel, I hereby hold both the accused guilty and convict them under sec 302 read with sec 34 IPC.
Announced in the open Court (MANOJ JAIN) On this 21st day of January 2016. Addl. Sessions Judge (FTC) North-West District: Rohini: Delhi FIR No. 338/14 PS Subhash Place State Vs. Rahul & Anr. Page 46 of pages 46 State Vs. Rahul Yadav FIR No. 388/2014 PS Saraswati Vihar (Now known as PS Subhash Place) Thursday 28 January 2016 Present: Sh. J.S. Malik, learned substituted Addl. P.P. for State Both the convicts in JC Sh. Pradeep Rana, learned defence counsel for A-1 Sh. S.K. Sharma, learned defence counsel for A-2 Sh. Manoj Mishra, learned counsel for complainant 1 One application has been moved under Section 439 Cr.P.C. for grant of interim bail for eight days to convict Deepak on the ground that his cousin is getting married. Marriage card of such cousin Nakul has also been annexed with the application. Heard. Marriage is reportedly scheduled for 05.02.2016. However, keeping in mind the overall facts and circumstances of the case and particularly the fact that convict Deepak has been held guilty under Section 302/34 IPC, I would not be in a position to accede to such request. Such application is accordingly dismissed.
2 Heard arguments on sentence.
3 Learned Addl. P.P. has prayed that it is a fit case where both the convicts should be sent to gallows. It has been contended that convict Rahul could not digest his sister having affair with someone else and when Arvind (deceased) had come to their home to meet her, he became frenzy and infuriated and called for his co-accused and then they both gave awful thrashing and hammering to such hapless lover. He has also asserted that convicts had palpable malafide intention as they, wrongfully and unjustifiably, tried to project as if Arvind had rather been beaten up by police and PCR officials.
4 Sh. Mishra has also contended that convicts do not deserve any compassion. He has argued that Arvind has left behind his widow who is FIR No. 338/14 PS Subhash Place State Vs. Rahul & Anr. Page 47 of pages 46 housewife and a minor son aged three years and because of his unfortunate demise, his family as well as his parents are in the state of complete disarray.
5 Both the defence counsels, on the other hand, have contended that neither of the convict has any previous bad antecedents. They have also reiterated that convicts are innocents and not responsible for the death of Arvind. They have also supplemented that both the convicts are young persons and there is every likelihood of their rehabilitation and, therefore, this case does not fit within the doctrine of rarest of rare.
6 I have given my anxious consideration to the rival contentions and carefully gone through the entire material available on record.
7 Undoubtedly, though any criminal court is left with mere two options for the purpose of adjudicating the quantum of sentence in any case of murder, nonetheless, the task is tricky and complicated. If on one hand, it is to be ensured that proposed sentence automatically conveys a message to everyone that no person, situated in similar circumstance, would be spared if he shows the audacity of taking law into his own hands, on the other, the factors related to young age and the previous clean antecedents are also bound to weigh very heavily in the mind of the Court. Court is thus required to strike a sort of balance while keeping in mind all the aggravating and mitigating factors.
8 Undoubtedly, the conduct of convicts was not above board and they had no reason or business to give such bashing to Arvind but their young age and clean background compels me to shower clemency. I cannot, in the present factual matrix and peculiar backdrop, hold that the alternative option of life sentence is foreclosed unquestionably.
9 As an upshot, I am, therefore, of the firm opinion that interest of justice would be served if both the convicts are rather handed out life-sentence.
10 Accordingly, I hereby order that both the convicts be sentenced to undergo imprisonment for life. In addition, each convict is also directed FIR No. 338/14 PS Subhash Place State Vs. Rahul & Anr. Page 48 of pages 46 to pay fine of Rs. 50,000/-. In default thereof, each would undergo further ten months simple imprisonment.
11 In case fine amount is realized, the entire such amount would go to the widow of deceased Arvind.
12 A copy of the judgment and order on sentence be given to the convicts free of cost.
13 Convicts have also been made aware that they can challenge the order of conviction and order on sentence by filing an appeal before High Court of Delhi. They can also avail services of Delhi High Court Legal Services Committee having office at 34-38, Lawyers Chamber Block, Delhi High Court, New Delhi.
14 Superintendent (Jail) would also ensure that in case convicts seek any legal aid for the purposes of filing of appeal, immediate and requisite help be provided to them. A separate copy of this order be sent to him.
15 Needless to state that convicts would be entitled to benefit of Section 428 Cr.P.C.
16 This court feels that the widow and minor son of deceased Arvind are entitled for further compensation u/s 357-A Cr.P.C. and the matter is accordingly recommended and referred to District Legal Services Authority, North West, New Delhi for deciding the quantum of compensation.
17 Copy of this order be sent to Ld. Secretary, District Legal Services Authority, North-West, New Delhi.
18 Sh. Manoj Mishra, ld. Counsel for complainant has also been apprised in this regard.
FIR No. 338/14 PS Subhash Place State Vs. Rahul & Anr. Page 49 of pages 46 19 Convicts be sent to Jail under appropriate warrants. Fine amount has been deposited by convict Rahul.
20 File be consigned to Record Room.
Announced in the Open Court
On this 28th day of January 2016 (MANOJ JAIN)
Addl. Sessions Judge (FTC)
North-West District: Rohini: Delhi
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