Delhi District Court
21) In Parbin Ali & Anr vs State Of Assam, Decided On 7 on 21 September, 2022
IN THE COURT OF MS DEEPALI SHARMA:
ADDITIONAL SESSIONS JUDGE 04: EAST DISTRICT
KARKARDOOMA COURTS: DELHI
CNR No. DLET0100012952013
SC No. 850/2016
FIR No. 735/2007
U/s 304 IPC
P.S. Kalyanpuri
In the matter of :
State
versus
Shyam Lal Raturi,
S/o Sh. Keshwanand Raturi,
R/o Flat No. 203, Plot no. 93,
Alakhnanda Apartment, Sector26,
Vaishali, Ghaziabad, UP.
Date of Institution : 21.12.2015
Date of reserving Judgment : 09.09.2022
Date of pronouncement : 21.09.2022
Appearance
For the State : Shri Rakesh Mehta,
Additional Public Prosecutor.
For accused : Shri P.S.Bisht, Adv.
Sessions Case No. 850/2016 Page 1/32 ASJ-04/East/KKD/Delhi
JUDGMENT
1) Briefly stated the facts of the present case are that on 23.10.2007, at 07.30 pm, information was received at PS Kalyanpuri telephonically from Dr. Ajeet Kumar of St. Stephens Hospital that patient Ajay Kumar s/o Satya Prakash, aged 14 years, was admitted vide MLC No. 798 of 2007 upon getting unconscious after beating by school teacher. DD No. 38A was recorded in this regard and it was assigned to SI Raj Kumar. SI Raj Kumar reached St. Stephens Hospital alongwith Const. Mohd. Khalid where he met Sh. Satya Prakash, father of injured Ajay Kumar. IO collected the MLC of injured Ajay and made efforts to examine him but he was found unfit for statement. IO made inquiries from Sh. Satya Prakash, who told that he will give statement after recovery of his son Ajay. Therefore, IO alongwith Ct. Khalid returned to police station and DD No. 38A was kept pending and IO remained in touch with hospital to know about condition of injured Ajay. Lastly, on 03.11.2007 IO went to St. Stephens Hospital and injured Ajay was found unfit for statement. IO recorded the statement of father of injured on that day.
2) In his statement Ex. PW1/A Sh. Satya Prakash, father of injured Ajay, stated that on 23.10.2007 he dropped his younger son Ajay, aged 14 years, at his school namely Rajkiya Sarvodaya Vidalaya, East Vinod Nagar, Second Shift, at about 12.50 pm and went for his duty. At Sessions Case No. 850/2016 Page 2/32 ASJ-04/East/KKD/Delhi around 2.00 pm his elder son Dhiraj informed him telephonically that he had got a call from the school of Ajay that the legs and arms of Ajay were not working, so they were going to school. He told the complainant, his father, also to come to school. Complainant also reached the school quickly where he found his son was lying on the floor in 8 th Bclassroom in unconscious state. At that time, his son Dhiraj and his wife also reached the spot and they immediately took Ajay to Bimla Devi Hospital, Mayur Vihar, PhaseII, where Ajay was given preliminary treatment. There they asked Ajay about how he suddenly got unwell at which Ajay told them that on that day in the first period his class teacher Shyam Lal Rathuri was checking copies and Ajay had scribbled on the signatures of his teacher. When he showed his copy to his teacher, he got angry upon seeing the signatures and told Ajay that he will teach him a lesson and gave him a hard slap on his face due to which his neck turned and he fell behind, because of that he could not get up and his hands and legs stopped working. Since there was no improvement in condition of Ajay, the complainant took him to St. Stephens Hospital, Delhi, where his treatment was going on. Complainant stated that he thought that Ajay would give his statement after getting well and therefore he did not want any action but the condition of Ajay was deteriorating day by day. He had also taken advise from his known persons that the life of Ajay was in danger due to beating given by Shyam Lal Rathuri, Classteacher of Ajay, and action should be taken against him.
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3) On the basis of the above statement given by the complainant Ex. PW1/A, FIR bearing no. 735/2007 was registered u/s 308 IPC vide Ex. PW4/B. Subsequently, vide DD No. 19A Ex. PW10/B an information was received from Dr. Sushil Kumar of St. Stephens Hospital at 12.10 pm that Ajay had expired during treatment on 06.11.2007. IO reached St. Stephens Hospital and the dead body of deceased Ajay was taken to LBS Hospital. Postmortem was conducted vide Ex. PW2/A and the dead body was handed over to his father. Subsequently, on 04.02.2008 the accused surrendered before the Ld. M.M. and he was arrested. His personal search was conducted and his disclosure statement was recorded. IO collected the attendance register of the relevant period of the school and other relevant documents to prove that the accused was classteacher of class 8 th B from 02.04.2007 till 05.11.2007. He also obtained the document of Rajkiya Sarvodaya Bal Vidhalaya dated 29.11.2007 regarding joining of the said school by the accused as TGT Hindi. IO obtained sanction u/s 197 Cr.P.C. to proceed against accused Shyam Lal Rathuri vide Ex. PW5/A. He recorded the statement of witnesses and upon completion of investigation he filed the charge sheet u/s 304 IPC.
4) After completion of necessary investigation charge sheet was filed u/s 304 IPC against the accused Shyam Lal Rathuri. Vide order dated 10.12.2015 the case was committed to the sessions court for 21.12.2015 by the Ld. CMM (East).
Sessions Case No. 850/2016 Page 4/32 ASJ-04/East/KKD/Delhi Charge :
5) Vide order dated 04.05.2016 charge was framed against accused Shyam Lal Rathuri u/s 304 (Part II) IPC. However, vide order dated 05.10.2016 charge was amended and a charge for the offence u/s 304 (PartI or PartII) was framed against the accused. The charge so framed was read over and explained to the accused to which he did not plead guilty and claimed trial.
Prosecution Evidence :
6) In order to prove its case, the prosecution examined following witnesses.
(i) PW1 complainant Satya Prakash - father of the deceased.
(ii) PW2 Dr. Vinay Kumar Singh, Specialist Forensic Medicine, who conducted the post mortem of the deceased vide his post mortem report No. 295/2007 Ex. PW2/A.
(iii) PW3 Dheeraj - elder brother the deceased.
(iv) PW4 ASI Shiv Murti - Duty Officer, who registered the FIR vide Ex. PW4/B. Sessions Case No. 850/2016 Page 5/32 ASJ-04/East/KKD/Delhi
(v) PW5 Chandra Bhushan Kumar, who was posted as Director of Education, Govt. of NCT of Delhi, on 25.03.2009. He gave sanction u/s 197 Cr.P.C. against accused Shyam Lal. The sanction dated 25.03.2009 is Ex. PW5/A.
vi) PW6 Dr. Amit Aggarwal, who proved the signatures and handwriting of Dr. Ajit Kumar on MLC 798/2007, which is Ex. PW6/A.
vii) PW7 Dr. Sushil Kumar, Professor, Neuro Surgery Department, St. Stephens Hospital, who had given treatment to the deceased while he was in hospital. He proved the discharge summary of the deceased Ex.
PW7/A.
viii) PW8 Hari Om Gupta, Assistant Director of Education (Vigilance Branch), Old Secretariat, Delhi, who forwarded sanction order under section 197 Cr.P.C. against the accused vide his forwarding letter Ex. PW8/A.
ix) PW9 ASI Subhash Chand - part of investigation involved in the arrest of the accused.
x) PW10 Insp. Raj Kumar - IO of the case. Sessions Case No. 850/2016 Page 6/32 ASJ-04/East/KKD/Delhi Statement of accused : 7) After conclusion of prosecution evidence, on 25.04.2022
statement of the accused was recorded under Section 313 Cr.P.C wherein he denied the correctness of all the incriminating circumstances appearing in the evidence against him and stated that he was innocent and was falsely implicated in this case. He stated that the deceased had gone outside the classroom to toilet and he fell down there on his own and other students had brought the deceased in the classroom. He had not slapped the deceased.
8) Accused opted to lead evidence in his defence and led the evidence of DW1 Sh. Vimal Singh, PGT English, at SBV School, East Vinod Nagar, Delhi from November 2004 to October 2012. He deposed that on 23.10.2007 he was taking class of the first period at about 12.45 pm. He heard noise outside the classroom and came out and saw some students were picking a boy namely Ajay, who was lying on the ground. The boys took Ajay in his classroom, where his teacher Shyam Lal Rathuri was present, who tried to sprinkle water on the face of Ajay and the other students rubbed his palm and feet. The office of the school informed the parents of Ajay telephonically about falling and fainting of their son. Within 57 minutes, the guardian of Ajay came there, when they were trying to take Ajay to LBS Hospital, but guardians of Ajay refused by saying that Ajay was receiving treatment from St. Stephens Hospital. DW1 deposed that Ajay was approximately unconscious when Sessions Case No. 850/2016 Page 7/32 ASJ-04/East/KKD/Delhi he first saw him. Later Ajay expired and a case was registered against the accused, which is a false case. No further defence evidence was led by the accused.
Arguments :
9) It is contended by ld. Counsel for the accused that he has been falsely implicated in the present case. It is stated that there is delay in lodging the FIR as the incident occurred on 23.10.2007 and the FIR was lodged after 10 days on 03.11.2007. There is no reason forthcoming for delay in registering the FIR. It is urged that the FIR was lodged as an afterthought as a revealed in the contents of the FIR itself in which it is stated by the complainant that he had lodged the complaint after discussing with his known persons. The said fact is also admitted by the father of the deceased PW2 in his crossexamination. It is urged that even the reason for allegedly slapping the deceased is not proved on record.
The IO had not placed on record any notebook of the deceased on which the deceased had allegedly overwritten on the signature of teacher i.e. the accused. No site plan has been placed on record. The alleged statement of the deceased was not recorded in the presence of Magistrate or any public authority or doctor despite the fact that the deceased remained in the hospital for more than ten days and hence cannot be relied upon to convict the accused. It is urged that as per the prosecution version, the accused had slapped the victim on his cheek, however, the cause of death was shock due to brain stem injury on the back of the head, which was not Sessions Case No. 850/2016 Page 8/32 ASJ-04/East/KKD/Delhi possible in case the victim had fallen down after a slap. It is also contended that despite the incident occurring inside the school premises, the statement of Principal or other teachers of the school or the students, who had witnessed the incident, has not been recorded, clearly showing an attempt to frame the teacher by the family members of the complainant merely because the child had sustained injury due to a fall inside school premises. It is stated that the accused was exonerated in the departmental inquiry conducted by the school. The victim had died on 06.11.2007 and as per the complainant, he was also taken to Bimla Devi Hospital initially, however, no record of Bimla Devi Hospital has been placed on record. It is contended that the child victim had sustained injuries in school after a fall outside the classroom and was brought inside the classroom by other students. The accused had never slapped the deceased. It is urged that there was no intention or knowledge as envisaged under section 304 IPC and therefore, accused is not guilty of the offence section 304 IPC. It is accordingly prayed that the accused is liable to be acquitted for the offence he is charged with.
10) On the other hand, it is contended by ld. Addl. PP for the State that the accused had given such a hard slap to the victim that he fell down and sustained injuries, which eventually resulted into his death. The said fact of the accused slapping the deceased was told by the deceased to his family members while he was in the hospital and hence, has to be treated as a dying declaration. It is argued that the FIR was lodged after Sessions Case No. 850/2016 Page 9/32 ASJ-04/East/KKD/Delhi 10 days of the incident as the family members of the deceased were expecting that he would get well and the father of the victim got his statement recorded as the condition of the victim was deteriorating. It is argued that the slap was given with such force by the accused that the victim fell down and injury was sustained by him due to dislocation of Atlanto Axial joint of the neck. The accused therefore had the requisite knowledge that his act was likely to cause death or cause such bodily injury as is likely to cause death. Therefore, the accused is liable to be convicted u/s 304 IPC.
Testimonies of material public witnesses:
11) PW1 Satya Prakash, father of the deceased, deposed that in the year 2007, his son Ajay, aged about 14 years, was studying in 8 th class in Rajkiya Sarvodya Vidhyalaya, East Vinod Nagar, Delhi, in second shift. During those days, he was working as wireman with PWD at Kalyanvas. On 23.10.2007 he had dropped Ajay at about 12.50 pm at his school and after dropping him there, he went to his duties. At about 02.00 pm his elder son Dheeraj called him and informed him that he had received a call from the school of Ajay to the effect that Ajay was not well and his limbs were not moving. He requested him to reach the school and further informed that he himself was also going there. On receipt of this information, PW1 immediately reached school of Ajay and entered in his class room. He saw that Ajay was lying unconscious on the floor of the classroom. Just after sometime, his wife and Dheeraj also arrived there.
Sessions Case No. 850/2016 Page 10/32 ASJ-04/East/KKD/Delhi Ajay was rushed to Bimla Devi Hospital, Mayur Vihar PhaseII. He was medically treated there. After sometime, Ajay regained consciousness and he told that his school teacher Shyam Lal Rathuri was checking copies and when the teacher found that he(Ajay) had overwritten with pen on his (teacher's) signature, the teacher slapped him due to which he fell on the back side. Ajay also told him that he tried to get up but could not do so. At Bimla Devi Hospital condition of Ajay was not improving, therefore, they shifted Ajay from that hospital to St. Stephens Hospital. On 03.11.2007, police came to the St. Stephens Hospital and made inquiries from him and recorded his statement Ex. PW1/A. Prior to 03.11.2007 also, police had met him, but at that time, he did not give statement as he thought that Ajay after recovering would himself give statement about the incident but his condition deteriorated and therefore PW1 gave statement on 03.11.2007. On 03.11.2007 he had accompanied the police to the classroom where his son Ajay was studying and site plan was prepared at his pointing out by police. His son expired on 06.11.2007 at the hospital. He identified the dead body of his son Ajay vide Ex. PW1/B and after postmortem, they had received the dead body of Ajay. He knew the accused as he was resident of Kalyanvas and at that time he was also doing his duties in the said area. Accused had also come to meet Ajay at the hospital on one day in his presence. Police had also recorded his supplementary statement.
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12) PW3 Dheeraj deposed that deceased Ajay Kumar was his younger brother. He was studying in 8 th class in Rajkiya Sarodya Vidhyalaya, 2nd Shift, East Vinod Nagar, Delhi. On 23.10.2007 at about 12.45 pm, his father had dropped Ajay in his school and after that he went away for his job. At about 02.00 pm, they received a phone call from the school and they were told that limbs of Ajay were not functioning. He informed his father immediately and after informing his father, he left his house and reached the school. When he reached in the classroom of Ajay, he saw that Ajay was lying on the floor. His father had also arrived there. On seeing his condition, they immediately took Ajay to Bimla Devi Hospital, Mayur Vihar, PhaseII, where he was provided treatment. During treatment, when Ajay regained consciousness, they asked him as to what had happened, he told that in the first period, his class teacher Shyam Lal was checking copies in which Ajay had overwritten with pen on signature of teacher Sh. Shyam Lal. He further told that after seeing this in the copy, the teacher became furious and told him ' tumhe abhi badmashi ka maja chakhata hu" and while saying so, slapped him very hard on his cheek. Due to this, Ajay fell down on the back side and thereafter he could not get up. After sometime, his mother had also arrived in the hospital. As condition of Ajay was not improving, they took him to St. Stephens Hospital where Ajay was admitted and remained under treatment. On 03.11.2007, police had come to the hospital and made inquiries from him and his father. Police had also visited the class room of Ajay and prepared some site plan there. His statement was also Sessions Case No. 850/2016 Page 12/32 ASJ-04/East/KKD/Delhi recorded by the police on that day. On 06.11.2007, his brother Ajay had expired at St. Stephens Hospital. Police had arrived there and removed the dead body of Ajay to LBS Hospital where police had got conducted the postmortem on the body of Ajay. At that time, he had identified the dead body of Ajay vide memo Ex. PW3/A which bears his signature at PointA. After postmortem, the dead body was handed over to them. He had seen the accused earlier whenever he used to drop Ajay to his school. His brother Ajay had told him about Shyam lal being his class teacher.
13) Accordingly, from the testimonies of PW1 and PW3 it is revealed that when they reached the school of victim Ajay, he was found lying on the floor of classroom. He was rushed to Bimla Devi Hospital, Mayur Vihar, PhaseII, where he was given treatment. Victim Ajay regained consciousness during treatment and he told them that his class teacher Shyam Lal Rathuri was checking copies and when he saw that victim Ajay had overwritten with pen on his (teacher's) signatures, the teacher slapped him due to which he fell on the back side and thereafter he could not get up. As the condition of Ajay was not improving, he was shifted to St. Stephens hospital.
14) The incident occurred on 23.10.2007 at around 02.00 pm, when the information was received by the family of the victim. Information regarding the incident was received at PS Kalyanpuri at 07.30 pm on the same day i.e. 23.10.2007 vide DD No. 38A from St. Stephens Sessions Case No. 850/2016 Page 13/32 ASJ-04/East/KKD/Delhi Hospital. In the intervening period the victim was taken to Bimla Devi Hospital, Mayur Vihar, PhaseII, Delhi, when the victim revealed about the incident to his family members.
15) The statement of father of the victim was recorded on 03.11.2007 vide Ex. PW1/A wherein he stated that his son Ajay told him when he was at Bimla Devi Hospital, Mayur Vihar, PhaseII, they asked Ajay about how he suddenly got unwell at which Ajay told them that on that day in the first period his class teacher Shyam Lal Rathuri was checking copies and Ajay had scribbled on the signatures of his teacher. When he showed his copy to his teacher, he got angry upon seeing the signatures and told Ajay that he will teach him a lesson and gave him a hard slap on his face due to which his neck turned and he fell behind and he could not get up and his hands and legs stopped working.
16) Accordingly, the family of the victim was aware about the reason for victim Ajay falling unwell suddenly on the date of incident itself i.e. 23.10.2007 at Bimla Devi Hospital. The treatment papers of Bimla Devi Hospital have not been placed on record. As per the testimony of PW1 and PW3, the victim was found unconscious/lying on the floor when they reached the school. It is stated by the IO that when he visited the St. Stephens Hospital on 23.10.2007, the victim was found unfit for statement. Subsequently, he remained in touch with hospital authorities to know about the condition of Ajay and lastly when he went Sessions Case No. 850/2016 Page 14/32 ASJ-04/East/KKD/Delhi to the hospital on 03.11.2007, injured Ajay was still unfit for statement and therefore, he recorded the statement of his father Ex. PW1/A. The endorsement of the doctors that the patient was unfit for statement have been noted on MLC of the victim Ex. PW6/A on 23.10.2007 at 08.45 pm, 30.10.2007 at 03.20 pm, 02.11.2007 at 07.10 pm and 03.11.2007 at 09.30 pm. The said MLC Ex. PW6/A mentions an alleged history of fall and indicates that the patient was admitted at 04.50 pm on 23.10.2007. In his crossexamination PW1 deposed that they had reached Bimla Devi Hospital within 5 minutes after reaching school. Victim Ajay remained admitted there for about 23 hours. Victim Ajay informed about the incident to him, his son Dheeraj and his wife after about half an hour of getting admitted at Bimla Devi Hospital. PW1 denied the suggestion that he had not given the treatment papers of Bimla Devi Hospital to the IO as the said papers showed that victim Ajay had never regained consciousness after the incident.
17) Accordingly, since the date of admission on 23.10.2007 the patient was found unfit for statement. The statement of father of the victim was recorded only after ten days on 03.11.2007. However, he explained the delay in giving his statement to the police on 03.11.2007 by deposing that he had not given statement to the police as he thought that his son Ajay would himself give the statement to the police after recovering. However, his condition deteriorated and therefore PW1 gave his statement to the police on 03.11.2007. As per the MLC Ex. PW6/A, Sessions Case No. 850/2016 Page 15/32 ASJ-04/East/KKD/Delhi the patient Ajay was unfit for giving statement on that day i.e. 03.11.2007 at 09.30 pm and on earlier dates i.e. 23.10.2007, when he was admitted at St. Stephens Hospital, on 30.10.2007 and also on 03.11.2007. The assertion of PW1 that he did not give statement to the police till 03.11.2007 hoping that his son Ajay would give statement after recovery appears to be reliable and thereby sufficiently explains the delay in recording his statement by the police.
18) In the present case PW1, father of the deceased, has deposed that deceased Ajay regained consciousness while he was admitted at Bimla Devi Hospital, Mayur Vihar, PhaseII, and he told him that his school teacher Shyam Lal Rathuri was checking copies and when the teacher found that he(Ajay) had overwritten with pen on his (teacher's) signature, the teacher slapped him due to which he fell on the back side. Ajay also told him that he tried to get up but he could not do so.
19) In this regard PW3 Dheeraj, brother of deceased, deposed that during treatment at Bimla Devi Hospital, Mayur Vihar, PhaseII, when Ajay regained consciousness, they asked him as to what had happened, he told that in the first period, his class teacher Shyam Lal was checking copies, in which he (Ajay) had overwritten with pen on signature of teacher Shyam Lal. After seeing this in the copy the teacher became furious and stated to him "Tumhe abhi badmashi ka maja chakhata hu"
Sessions Case No. 850/2016 Page 16/32 ASJ-04/East/KKD/Delhi and while saying so slapped him (Ajay) very hard on his cheek. Due to this Ajay fell down on the back side and thereafter he could not get up.
20) It is contended by ld. Addl.P.P. for the State that the statement given by deceased Ajay to his father PW1 and his brother PW3 relates to cause of his death in the present case where the death of Ajay is in question and therefore, is in the nature of a dying declaration which can be basis for conviction of the accused. It is urged that nonavailability of medical record of Bimla Devi Hospital is not fatal to placing reliance upon the said dying declaration.
21) In Parbin Ali & Anr vs State of Assam, decided on 7 January, 2013, Crl Appel No. 1037/2008, the Hon'ble Supreme Court discussed the law relating to evidentiary value of dying declaration and made the following observations:
"12. Before we proceed to scrutinize the legal acceptability of the oral dying declaration, we think it seemly to refer to certain decisions in regard to the admissibility and evidentiary value of a dying declaration. In Khushal Rao v. State of Bombay [1], Kusav v. State of Orissa [2] and in Meesala Ramakrishan v. State of A.P. [3], it has been held that the law is well settled that the conviction can be founded solely on the basis of dying declaration if the same inspires full confidence.
13. In Ranjit Singh v. State of Punjab[4], it has been held that the conviction can be recorded on the basis of dying declaration alone, if the same is wholly reliable, but in the event there exists any suspicion as regards the correctness or Sessions Case No. 850/2016 Page 17/32 ASJ-04/East/KKD/Delhi otherwise of the said dying declaration, the courts, in arriving at the judgment of conviction, shall look for some corroborating evidence. In this context, we may also notice the judgment in Nanhau Ram v. State of M.P.[5] wherein it has been stated that normally, 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 eye witness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail.
14. While dealing with the evidence of the declarant's mind, the Constitution Bench, in Laxman v. State of Maharashtra[6], has laid down thus: "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 crossexamination are dispensed with. Since the accused has no power of crossexamination, 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 Sessions Case No. 850/2016 Page 18/32 ASJ-04/East/KKD/Delhi 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."
15. In this context, it will be useful to refer to the decision in Puran Chand v. State of Haryana[7] wherein it has been stated that a mechanical approach in relying upon a dying declaration just because it is there is extremely dangerous and it is the duty of the court to examine a dying declaration scrupulously with a microscopic eye to find out whether the dying declaration is voluntary, truthful, made in a conscious state of mind and without being influenced by the relatives present or by the investigating agency who may be interested in the success of investigation or which may be negligent while recording the dying declaration. The Court further opined that the law is now well settled that a dying declaration which has been found to be voluntary and truthful and which is free from any doubts can be the sole basis for convicting the accused.
16. Regard being had to the aforesaid principles, we shall presently advert how to weigh the veracity of an oral dying declaration. As has been laid down in Laxman (supra) by the Constitution Bench, a dying declaration can be oral. The said principle has been reiterated by the Constitution Bench. Here we may refer to a two Judge Bench decision in Prakash and another v. State of Madhya Pradesh[8] wherein it has been held as follows: "In the ordinary course, the members of the family including the father were expected to ask the victim the names of the assailants at the first opportunity and if the victim was in a position to communicate, it is reasonably expected that he would give the names of the assailants if he had recognised the assailants. In the instance case there is no occasion to hold that the deceased was not in a position to identify the assailants because it is nobody's case that the deceased did not know the accused persons. It is therefore quite likely that on being asked the deceased would name the assailants. In the facts and circumstances of the case the High Court has Sessions Case No. 850/2016 Page 19/32 ASJ-04/East/KKD/Delhi accepted the dying declaration and we do not think that such a finding is perverse and requires to be interfered with."
17. It is worthy to note that in the aforesaid case this Court had laid down that when it is not borne out from the evidence of the doctor that the injuries were so grave and the condition of the patient was so critical that it was unlikely that he could make any dying declaration, there was no justification or warrant to discard the credibility of such a dying declaration.
18. In Darshana Devi v. State of Punjab[9], this Court referred to the evidence of the doctor who had stated that the deceased was semi conscious, his pulse was not palpable and his blood pressure was not recordable and had certified that he was not in a fit condition to make a statement after the police had arrived at the hospital and expressed the view that the deceased could not have made an oral statement that he had been burnt by his wife. Thus, emphasis was laid on the physical and mental condition of the deceased and the veracity of the testimony of the witnesses who depose as regards the oral dying declaration.
19. In Pothakamuri Srinivasulu alias Mooga Subbaiah v. State of A.P.[10], this Court, while dealing with the issue whether reliance on the dying declaration made by the deceased to PWs1, 2 and 3 therein could be believed, observed thus: "7. We find no reason to disbelieve the dying declaration made by the deceased to the witnesses PWs 1, 2 and 3. They are all residents of the same village and are natural witnesses to the dying declaration made by the deceased. No reason is assigned, nor even suggested to any of the three witnesses, as to why at all any of them would tell a lie and attribute falsely a dying declaration to the deceased implicating the accusedappellant." (emphasis supplied)
22) In Pawan Kumar vs State of H.P, on 28 April, 2017, Criminal Appeal No. 775 of 2017, the Hon'ble Supreme Court held s follows:
Sessions Case No. 850/2016 Page 20/32 ASJ-04/East/KKD/Delhi "22. The analysis of the above decisions clearly shows that:
(i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the court.
(ii) The court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination.
(iii) Where the court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration.
(iv) It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence.
(v) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence.
(vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction.
(vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected.
(viii) Even if it is a brief statement, it is not to be discarded.
(ix) When the eyewitness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail.
(x) If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration."
23) Thus in view of the law discussed hereinabove, conviction can be recorded on the basis of dying declaration alone, if the same is wholly reliable, but in the event there exists any suspicion as regards the correctness or otherwise of the said dying declaration, the court has to look for some corroborating evidence. Normally, the court, as held in Nanhau Ram v. State of M.P.,AIR 1989 SC 912, in order to satisfy Sessions Case No. 850/2016 Page 21/32 ASJ-04/East/KKD/Delhi whether the deceased was in a fit mental condition to make the dying declaration, looks up to the medical opinion. But where the eye witness state that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. In Prakash and another v.
State of Madhya Pradesh, AIR 1993 SC 65 it was observed by the Hon'ble Supreme Court the in the ordinary course, the members of the family including the father were expected to ask the victim the names of the assailants at the first opportunity and if the victim was in a position to communicate, it is reasonably expected that he would give the names of the assailants if he had recognised the assailants.
24) Facts of the present case have to be viewed in light of the law discussed hereinabove. In the present case, both PW1 and PW3 have given a similar account of the incident as told to them by deceased Ajay while he was being treated at Bimla Devi Hospital. As per the post mortem report Ex. PW2/A, the cause of death was shock due to brain stem injury consequent upon Atlanto Axial Dislocation.
25) The deceased Ajay Kumar was examined vide MLC Ex. PW6/A at St. Stephens Hospital, Tis Hazari. The said MLC was prepared by Dr. Ajeet Kumar, whose handwriting and signatures were verified by PW6 Dr. Amit Aggarwal. As per MLC Ex. PW6/A patient Ajay, aged 14 years, was brought in the hospital on 23.10.2007at about 04.50 pm with alleged history of fall. He was diagnosed with Cervical Spine injury with Sessions Case No. 850/2016 Page 22/32 ASJ-04/East/KKD/Delhi quadriparesis. Nature of injury was kept under observation. After examination patient was referred to Ortho Department for further examination and management.
26) On 23.10.2007 injured Ajay Kumar was examined at the Ortho Department of St. Stephens Hospital, Delhi. He was treated and subsequently he expired on 06.11.2007 at 11.30 am and his discharge summery Ex. PW7/A was prepared by Dr. Nitin Kumar under supervision of Dr. Sushil Kumar (PW7), Prof. Neuro Surgery Department, St. Stephens Hospital. PW7 deposed that the patient was admitted in the Ortho Department with complaints of weakness of all four limbs after having allegedly slapped by the teacher in the school. Weakness was of sudden onset. As per Ex. PW7/A, the patient was admitted to Orthopedic Department of St. Stephens Hospital from where he was shifted to Neuro Surgery. PW7 also deposed that on examination patient was conscious, his vitals were stable, glasgow coma scale was 15/15, blood pressure was 90/60 mmHg.
27) In his crossexamination PW7 deposed that the patient had told the history of slapping by teacher but PW7 could not recall the date. He denied the suggestion that no such history was told by the patient to him. He also denied that the patient was not conscious or was not in a position to tell the history when he was transferred to Neuro Surgery Department. He also denied that he came to know about the slapping by Sessions Case No. 850/2016 Page 23/32 ASJ-04/East/KKD/Delhi teacher to the patient on 03.11.2007 after the father of the patient had given his statement to the police.
28) Accordingly, from the testimonies of PW6 and PW7 it emerges that on his examination by the Neuro Surgery Department, patient Ajay was found conscious and the patient complained of weakness in all four limbs after having allegedly slapped by the teacher in the school. PW7 stated that the patient had given history of slapping by the teacher, though he could not recall the date and he denied the suggestion to the contrary. Pertinently, PW7 also denied that the patient was not conscious or not in the position to tell the history when he was transferred to the Neuro Surgery Department.
29) From the aforesaid, it is manifest that injured Ajay was conscious and was in a position to tell the history when he was transferred to the Neuro Surgery Department. Hence, it can be safely concluded that victim Ajay was in a position to have told his parents about slapping by the teacher, accused herein, even though subsequently he was found unfit for giving statement to the police at the hospital. Both PW1, father of the deceased, and PW3 also denied the suggestion that deceased Ajay did not regain consciousness or that he did not talk to them at any point of time. Accordingly, the contention of the accused that deceased Ajay never regained consciousness after the incident is untenable in light of medical and oral evidence available on record.
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30) Merely because the treatment papers of Bimla Devi Hospital are not available on record, would not be a ground to reject the above said dying declaration made by deceased Ajay to his family members i.e. his father and brother, who were present with injured Ajay while he was being treated at the hospital. PW1 has deposed that injured Ajay remained at Bimla Devi Hospital for about 23 hours and Ajay informed about the incident after about half an hour of admission there. He further deposed that Ajay told him about the incident in presence of his wife and Dheeraj PW3. The statement was given by deceased Ajay to his family members at the first opportunity when he was in a position to communicate as it was natural for the family members to have asked him the reason for his condition. Deceased Ajay was aware of the name of his teacher and could identify him which fact is not disputed.
31) The counsel for the accused has further argued that the statement of father of the victim, Ex PW1/A was recorded only after ten days on 03.11.2007. The father of the victim in his initial complaint as well as in his statement recorded before the court stated that he had discussed the matter with his known persons, who had said that it was not good behaviour of the school teacher i.e. the accused, who even did not take Ajay to the hospital nor came to meet him and therefore, such a person should be taught a lesson. It is accordingly contended that the statement given by the father of the deceased Ajay to the police on Sessions Case No. 850/2016 Page 25/32 ASJ-04/East/KKD/Delhi 03.11.2007 was made only after due deliberations by the father of the victim with his known persons only out of anger as the accused had not taken the deceased to the hospital nor went to meet the deceased at the hospital.
32) In this regard, it is noteworthy that PW1 in his examination inchief stated that the accused had come to meet Ajay in his presence on one day. No suggestion was put to PW1 that he had given his statement on 03.11.2007 that he had filed the present case at the instance of his relatives. PW3 denied the suggestion that a false case had been lodged on the advise of relatives and friends. Moreover, the police machinery in the present case was set into motion after information was received at PS Kalyanpuri on 23.10.2007, at 07.30 pm, telephonically from Dr. Ajeet Kumar of St. Stephens Hospital that patient Ajay Kumar s/o Satya Prakash, aged 14 years, was admitted vide MLC No. 798 of 2007 upon getting unconscious after beating by school teacher. DD No. 38A was recorded in this regard. Accordingly, even as per the earliest information received on 23.10.2007, it was alleged that the patient Ajay had been admitted in the hospital after beating by school teacher. Infact PW7 Dr. Sushil Kumar in his crossexamination also deposed that the patient had told history of slapping by teacher, though he could not recall the date. In the discharge summery Ex. PW7/A also it is mentioned that the patient complained of weakness of all four limbs after he was allegedly slapped by the teacher in school. In these circumstances, it cannot be concluded Sessions Case No. 850/2016 Page 26/32 ASJ-04/East/KKD/Delhi that the statement was made by the father of the victim to the police on 03.11.2007 at the behest of his known persons. Hence, no reason has been proved on record as to why the father or the brother of the victim deceased Ajay would attribute falsely a dying declaration to the deceased implicating the accused.
33) Both PW1 and PW3 have given a similar account of the circumstances leading to the death of Ajay as was told to them by deceased Ajay and there is no major contradiction in their account and hence, the same is reliable. There is no cogent reason brought on record to disbelieve their testimonies. After considering the evidence on record it can be safely concluded that the dying declaration was made by deceased Ajay to his family members, who were in his proximity in a conscious state at the first possible opportunity and it has not been proved on record that the said dying declaration was motivated or influenced by his parents or other relatives.
34) In his statement recorded u/s 313 Cr.P.C. the accused has stated that the deceased had gone outside the classroom to toilet and he fell down there of his own and other students had brought him to the classroom. He had not slapped the deceased. The accused led the evidence of DW1 Sh. Vimal Singh, who was PGT English at the School, at the time of incident. He deposed that on 23.10.2007 when he was taking class of the first period at about 12.45 pm, he heard noise outside Sessions Case No. 850/2016 Page 27/32 ASJ-04/East/KKD/Delhi the classroom. He came out of the classroom and saw some students picking up injured Ajay and took him to the classroom where the accused was present. The accused tried to sprinkle water on the face of injured Ajay and other students rubbed his palm and feet. The office of school informed parents of Ajay telephonically and within 57 minutes the guardians of the injured arrived there. He also deposed that injured Ajay was approximately unconscious when he first saw him. Hence, in his statement recorded u/s 313 Cr.P.C. the accused for the first time took the defence that deceased Ajay fell down outside the classroom and subsequently the accused also led the evidence of DW1 Sh. Vimal Singh in support of the said defence. No suggestion in this regard has been given to any of prosecution witnesses including the father of the victim PW1 or the brother of the victim PW3. The only defence put to the prosecution witnesses namely PW1 and PW3 was that deceased Ajay fell down and therefore he sustained injuries or that the accused never slapped deceased Ajay. Hence, it is only at the stage of recording of the statement u/s 313 Cr.P.C. the defence of the deceased going out of the classroom and falling down outside the classroom was taken for the first time. In the event the deceased had fallen down outside the classroom, the said fact ought to have been put to the prosecution witnesses at the outset. Deceased Ajay was found lying on the floor in the classroom by PW1, father of the victim, and also by PW3 Dheeraj, brother of the victim. It may thus be noted that there is no dispute regarding the place where the deceased was found. Hence, the said defence put forth by the accused that Sessions Case No. 850/2016 Page 28/32 ASJ-04/East/KKD/Delhi deceased Ajay fell down outside the classroom and was brought inside the classroom by other students appears to be an afterthought. Accordingly, the contention of ld. Counsel for the accused that no site plan has been placed on record by the IO is fatal to the prosecution case is without substance in view of the fact that admittedly injured Ajay was found in his classroom by his family members.
35) In his dying declaration made to his family members including PW1, father of the deceased and PW3, brother of the deceased, deceased Ajay had told them that his class teacher Shyam Lal was checking copies in which he (Ajay) had overwritten with pen on signature of the teacher Sh. Shyam Lal, who after seeing this became furious and slapped him very hard on his cheek due to which he (Ajay) fell down on the back side and thereafter he could not get up.
36) The accused has been charged for the offence u/s 304Part I or PartII IPC i.e. culpable homicide not amounting to murder. There are two kind of punishments provided under section 304 IPC which apply to two different circumstances :
(1) If the act by which death is caused is done with intention of causing death or such bodily injury as is likely to cause death, the punishment is imprisonment for life, or imprisonment of either description for a term which may extend to ten years and fine.
Sessions Case No. 850/2016 Page 29/32 ASJ-04/East/KKD/Delhi (2) It the act is done with knowledge that it is likely to cause death but without any intention to cause death or such bodily injury as is likely to cause death, the punishment is imprisonment of either description for a term which may extend to ten years, or with fine, or with both.
37) If there is intent and knowledge then the same would be a case of Section 304 Part I and if it is only a case of knowledge and not intention to cause murder and bodily injury then the same would fall under Section 304 PartII.
38) In this regard the decision of the Hon'ble Orissa High Court in State of Orissa v. Udayanath Pradhan, date of decision 17.07.2013 in Crl. Appeal No. 77/1998 may be referred to. In the said case, the accused/respondent gave two fist blows on the head of the deceased and eventually the deceased succumbed to injuries. The Ld. Sessions Judge acquitted the accused/respondent of the charge u/s 302 IPC and convicted him u/s 323 IPC. The Hon'ble High Court while upholding the decision of the Ld. Trial Court observed that there was neither any pre meditation nor was it established on record that the accused/respondent had any intention to cause the death of deceased and further observed that the accused/ respondent gave two slaps without knowledge that the same would ultimately cause the death of the deceased.
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39) In the present case the deceased Ajay had given a dying declaration in the presence of his father PW1, his brother PW3 wherein he had stated that the accused had slapped him hard on his cheek due to which he fell down on his back side and thereafter he could not get up.
Thereafter, the deceased Ajay did not recover and remained admitted at St. Stephens Hospital and eventually he expired on 06.11.2007. Hence, the incident that eventually led to the demise of deceased Ajay was a slap by his teacher, accused Shyam Lal Rathuri. The reason as told by deceased Ajay to his father PW1 and brother PW3 for slapping him was that Ajay had overwritten with pen on his teacher's/accused signature. The copy on which the deceased had overwritten on signature of the accused was not seized by the IO. However, even as per the prosecution case, the accused Shyam Lal Rathuri had slapped deceased Ajay once on his face due to which he fell down on his back side and which eventually resulted in his death on 06.11.2007. From the aforesaid discussion, it is manifest that the accused who was a teacher of the deceased had slapped the deceased 'once'. The evidence brought on record does not indicate that the accused had any intention to cause death of the deceased. There is no evidence to show that the slap had been given with any external force causing bodily injury which would be sufficient in the ordinary course of nature to cause death. Admittedly, the accused had inflicted only one slap to the deceased and therefore, it cannot be stated that the accused had the knowledge that his act is likely to cause death. There is no evidence to show that the accused had any illwill towards the Sessions Case No. 850/2016 Page 31/32 ASJ-04/East/KKD/Delhi deceased. The reason for slapping the deceased was that he had scribbled on the signatures of the accused. The incident thus took place on a spur of moment without premeditation.
40) Hence, in view of the abovesaid discussion, the ingredients of Section 304 IPC are not fulfilled in the present case. Since the accused had given one slap to the deceased, the present case falls within the ambit of Section 321 IPC, which provides that whoever does any act with the intention of causing hurt or with knowledge that he is likely thereby to cause hurt to any person is said "voluntarily" to cause hurt. Section 321 IPC is punishable u/s 323 IPC.
41) Hence, in view of aforesaid discussion, accused Shyam Lal Rathuri is held guilty and is convicted for the offence of voluntarily causing hurt punishable u/s 323 IPC.
Announced in the open Court on this 21st day of September, 2022 (Deepali Sharma) Additional Sessions Judge04 East District/KKD Courts/Delhi.
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