Delhi High Court
Imtiaz Ahmed vs State on 11 March, 1986
Equivalent citations: 1986(2)CRIMES23, ILR1986DELHI1B
JUDGMENT Malik Sharief-Ud-Din, J.
(1) The appellant was charged under section 302 Indian Penal Code by the Addl. Sessions Judge Delhi and was convicted and sentenced to imprisonment for life by orders dated 2-3-82 and 4-3-82 respectively. He was found guilty of committing the murder of one Chottey Lal.
(2) Date of incident is 9th July, 1980 at about 9 P.M. The place of incident is not known. The deceased, however, was found to have sustained stab injuries by Public Witness s 1, 2 and 3 and was picked up from near the house of one Bishen Verma R/o East Azad Nagar. The same set of Public Witness s removed him to J.P.N. Hospital in the van of P.V. I Shri Ashok Kumar, Public Witness 2 is Savitri wife of the deceased.
(3) At 12.10 A.M. one Dev Raj constable on duty in J.P.N. Hospital informed police station Krishan Nagar that the wife of the deceased Chotey Lal admitted him to hospital with stab injuries allegedly sustained in a quarrel. This information was recorded and a copy thereof was sent to A.S.I. Ram Narain Pw 6. He immediately on receipt of information goes to the hospital and procures the M.L.C. of the deceased. He was informed by the duty constable that the wife of the deceased and other persons who were accompanying her have gone back. Ram Narain Public Witness 6 sends an endorsement to the police station that since the man is dead, case under section 302 Indian Penal Code be registered and the investigation be handed over to Sh. Ami Chand S.I. On this a blind F.I.R. with no details is recorded. Shri Ami Chand Pw 18 then goes to the house of the deceased where Public Witness 2 Savitri meets him and unfolds the facts.
(4) The facts unfolded by her are that on the date of incident deceased Chotey Lal, his brother and she were present in her house when Imtiaz (appellant) came there and asked the deceased to accompany him as someone wanted to see him. The appellant and the deceased, thereupon, went towards the house of Bishan Verma. After standing for sometime in the chowk, within her sight, they moved towards the factory of the grandfather of the appellant, that meanwhile brother of the deceased left for his house. After sometime she was informed by one Bishan son of Chedi Lal that deceased has been stabbed and was lying in an injured condition near the house of Bishan Verma. She went there and with the help of Public Witness 2 and Public Witness 3 removed she deceased to J.P.N. Hospital in the van of Public Witness 1. She further stated, that on their way to J.P.N. Hospital her husband regained consciousness and she was informed by the deceased that, the boy who had taken him from the house has stabbed him. She then twice suggested to him if it was Imtiaz and the deceased confirmed that it was he (Imtiaz). That she got the deceased admitted but, soon thereafter when they were informed about the death of the deceased, they left the hospital.
(5) We have heard Mr. Grover for the appellant and Mr. Lao for the State. There are, some peculiar and unique features to this case. The whole case in fact rests on the alleged dying declaration coupled with the circumstance that the deceased was last seen with the appellant. There are no eye witnesses. The ace witness to the dying declaration is P. W. Savitri, wife of the deceased and to some extent P. Ws 1 and 3. None of the three P. Ws. have disclosed to Dr. Harmanjit Singh Public Witness 13 who attended upon the deceased when "brought to hospital the name of the culprit even though they, by then had known it as alleged. P. W. 2 Savitri only tells the doctor that he had been stabbed by someone an hour back. None of these three P. Ws. reported this fact to the duty constable to whom the version apparently given is that the deceased has been stabbed in a quarrel.
(6) The most disturbing feature of the case is that even though the culprit is allegedly known, none of the three P. Ws. No. 1, 2 and 3 has thought it necessary to inform the police or anyone. After the death of the deceased they all quietly go back to thier places. They allegedly only volunteer a version when they are contacted by the police. The F.I.R.with no details is recorded. at 2 A.M. It is received by the Magistrate at 10.45 A.M. on 10-7-80. This we are highlighting for the reason that. even though details, as the court is told were known on the same night, no further details have been posted to the Magistrate concerned.
(7) At this stage we may at once point out, that there are. other two pieces of evidence. One of these is the recovery of a knife consequent to the disclosure statement made by the appellant, the other being the seizure of allegedly blood stained Pajama of the appellant. These piece of evidence will be dealt with at the appropriate place of this judgment. But here, we would like to point out straight away that these two pieces of evidence do not at all further the prosecution case. These are only consistent with the innocence of the appellant. We do not 1, want to overburden this document by referring to the postmortem report. This we do, for the reason that, neither title injuries sustained by the deceased nor, the weapon used in inflicting injuries nor, the cause and other related matters are in controversy. The real question that faces us is whether the incident has occurred in the manner as suggested by the prosecution and whether, the circumstances proved are such as to lead to a sure conclusion that the appellant and appellant alone, has committed this crime.
(8) In a case of circumstantial evidence this field can only be successfully covered by the prosecution, if the evidence led, fulfillls the well recognized rules regarding the appreciation of such evidence. In a case based on circumstantial evidence each circumstance, in the first place must be conclusively proved and. individually and in their totality these must form a chain so complete that it must necessarily lead to the only hypothesis of the guilt of title accused. In a case of circumstantial evidence nothing short of that will fulfilll the requirements of law. If the circumstances proved do not form, a chain, so complete in itself as to lead to the only conclusion of the guilt of the accused, the case will fail.
(9) In our view, the whole case rests on the appreciation of oral dying declaration allegedly made to Public Witness s 1, 2 and 3. It is now a settled law that in a criminal case the conviction can be based on a mere dying declaration provided it inspires confidence. There is a catena of judgments on this point, though we believe that each judgment in this regard is based on the facts and circumstances of each case. But even though that is so, a precedent in law, is a precedent to be observed in letter and spirit. The dying declaration should be a clean and unadulterated statement of a dying man, a statement which inspires confidence as to the circumstances regarding the cause of his death. A dying declaration before a Magistrate, if free from any doubt is very often respected, a dying declaration made before a doctor hv the injured is also valuable but a dying declaration before a police officer when he has the chance of fetching a Magistrate does not enjoy the same respect. An oral dying declaration, if we may say so, before persons not amenable to the outside influence, respectable and independent cannot be devalued, but it should satisfy the basic tests. One of the basic tests for such dying declarations would be that it is made known at the earliest possible occasion, meaning thereby that if the culprit on the basis of a dying declaration is known, a disclosure about it should at once be made.
(10) A dying declaration in .which none of the culprit is suggested to the dying man and he nods, it is difficult to believe that he has approved of the suggestion. The very fact that a suggestion has to be made would go to indicate that the dying man is not in a frame of mind to state who the culprit is. In the case in hand, if the appellant was known to the family where is the occasion for the deceased to tell Public Witness s. 1. 2 and 3 that the man who had taken him from home had stabbed him? He could as well disclose that Imtiaz has stabbed him. Why then this suggestion and what necessitated it, one does not know ? To us it appears, that this oral dying declaration does not really display the views of the deceased. This has been suggested to the deceased by P. W. 2. The deceased even if it is believed that he did speak has only said that the man who took him stabbed him, rest is suggestive. How can one depend and rely on such evidence ? All this we have said on the assumption that the deceased had regained consciousness-for 5 minutes as suggested by P. W. 2 Savitri. We. however, do not believe in what she says. She herself has said that the deceased had Bleeded profusely. The man who informed her about the deceased lying stabbed was not told anything by the deceased. If he was not able to communicate with him, how could he regain consciousness to talk to his wife. The fact that deceased died soon after entering the hospital also goes to show that he could not be in that frame of mind as to make a statement as alleged.
(11) P. W. I has deposed that while Savitri was with her deceased husband in the back seat of the van she asked the deceased repeatedly as to who stabbed him in reply to which the deceased told her that the same person who had taken him from his house had stabbed him. He has denied that P. W. 2 Savitri 'had suggested the name of the appellant to which suggestion the deceased has replied in affirmative. Similar version has been tendered by P. W. 3 Rattan Singh, P. W. 2 Savitri has also stated that tha deceased regained consciousness for five minutes and told her that the same person who had taken him from his house had stabbed him. On her suggestion . that it was Imtiaz,, who had taken him from the house and whether Imtiaz had stabbed him, the deceased affirmed it.
(12) The deceased had sustained injuries about an hour before he was removed to hospital. He had bleeded profusely and seen after reaching the hospital he died. Under these circumstances his condition obviously was very critical and even on his way to hospital he was dying. It is difficult to believe that he had regained consciousness for five minutes to answer the query and after reply to the query of his wife he again went into unconsciousness. P. W. 2, Savitri seems to suggest that the deceased regained consciousness only to make this dying declaration. To us it appears, that this dying declaration was not in existence at all. If the name of culprit was known to Savitri, Pw 2, she would definitely have told Dr. Harmanjit. Public Witness 13 that the deceased had been stabbed by one Imtiaz. Instead she told him that the deceased had been stabbed by someone. Why, if we may so ask, neither Public Witness 2 nor her companions Public Witness s I and 3 inform the duty constable about it ? If the name of the culprit was known to her and other, why, they go to their houses, soon after the death of the deceased and do not inform the police ? Savitri comes forward with this version allegedly only after she is contacted by the police. It is highly improbable that either Pw 2 or Public Witness s I and 3 would have remained tight lipped if the culprit were known to them. Why, if we may so ask, these details which were known to the police on the same night have not gone to the magistrate even though Fir reaches him at 10.45 a.m. on 10-7-80? All this goes to show that the dying declaration alleged to have been made was not in existence. It may be that the deceased on that evening had gone with the appellant and Public Witness 2 was made to believe that appellant had stabbed the deceased. There was no cause for the appellant to kill him.
(13) Pw 13. Dr. Harmanjit Singh has deposed that the breath of the deceased was alcoholic .C.F.S.L. on examination of viscera found positive tests for ethal alcohol. That clearly goes to show that the deceased was drunk. Savitri Public Witness 2 does not state that the deceased had taken arcohol. That goes to show that the deceased had not gone with the appellant half an hour before the incident but he must have been away from his house for quite sometime. That goes to show that the deceased had sustained injuries under circumstances different than the one suggested by the prosecution.
(14) The other pieces of evidence are blood stained pajama recovered from the appellant. This is not connected as C.F.S.L. found no human blood on it. Another piece of evidence is the knife seized at the instance of the appellant consequent to his disclosure statement. This knife also has no blood and is not connected with the crime. The knife has been seized in strange circumstances. We are told by Public Witness 5, Shri Prem Chand, that the drain was first searched for knife by the police and- then accused was asked to take it out. Furthermore, it is a single edged weapon while Dr. B. N. Reddy, Public Witness 19, has stated that injury No. 3, the fatal one is by doubled edged weapon. He, however, made a volte face when confronted with the seized weapon and turned back to state that it could also be caused with this weapon. The nature of injury also clearly goes to show that it has been caused by a double edged sharp weapon. This piece of evidence as such also does not improve the prosecution case. Public Witness 8 Sudesh Kumar who had tendered evidence that he had seen the appellant running away with an open knife in hand lias for very good reason been disbelieved by the learned trial judge. We agree with the learned trial judge that Public Witness 8 is not worth any credit.
(15) In view of the state of evidence we allow this appeal, set aside the conviction and sentence of the appellant and direct his acquittal. He shall be set at liberty forthwith unless wanted in any other case.