Delhi District Court
State vs Kuldeep @ Abhishek on 2 July, 2024
IN THE COURT OF SH ATUL AHLAWAT
ADDL. SESSIONS JUDGE (FTC), NORTH EAST
KARKARDOOMA COURT: DELHI
IN RE:
SC No.401/2018
CNR No. DLNE01-005165-2018
FIR No. 240/2013
PS New Usmanpur
U/s 306 IPC, 1860.
STATE VERSUS KULDEEP @ ABHISHEK
Date of committal : 12.12.2018
Date of arguments : 24.05.2024
Date of judgment : 02.07.2024
Brief details of the case
A) Case FIR No. : 240/2013
B) Charges framed Under Section : 306 of IPC,1860.
C) Name of the complainant : Sneh Lata
W/o Jai Kishan
D) Name of the accused person : Kuldeep @
Abhishek
S/o Shiv Narayan
R/o K-135, 1st floor,
Gali no.3, Gautam
Vihar, 3 ½ Pusta,
Delhi.
State Vs. Kuldeep @ Abhishek FIR No. 240/2013 Page no.1/49
E) Plea of the accused persons : Pleaded not guilty
F) Final order : Acquittal
G) Date of Order : 02.07.2024
JUDGMENT
(Pronounced on the 2nd day of July 2024) FACTS:-
1. The genesis of the prosecution story can be traced back to a call received on 100 number on 22.07.2013, which was later registered as DD No. 40B dated 22.07.2013 at 11.29 AM at Police Station New Usmanpur, Delhi. As per the said call the caller had informed that somebody had made his wife to ingest an acid.
2. Upon receiving the said 100 number call and the registeration of DD no. 40B, HC Jagpal Singh and Ct. Depender reached the place of occurrence, i.e. gali no.1, Kartar Nagar, 4th Pusta, Delhi, however, complainant was not found there. Upon inquiry, the police officials came to know that the patient was already removed to JPC Hospital, Shashtri Park by the PCR van.
3. Thereafer, HC Jagpal Singh and Ct. Depender reached JPC Hospital, where the complainant was undergoing treatment. HC State Vs. Kuldeep @ Abhishek FIR No. 240/2013 Page no.2/49 Jagpal received MLC no. 1941/13 of the complainant, upon which the doctor who had condcuted the medical examination, had recorded the alleged history of "forceful ingestion of toilet acid". The nature/type of injury was kept under opinion.
Thereafter, HC Jagpal Singh recorded the statement of the complainant in the presence of her husband and other relatives. Thereafer, HC Jagpal Singh took the signatures of the said witnesses on the statement of the complainant.
4. As per the statement of the complainant, she had stated that she resides at H. No. J-305, Gali no. 3, Kartar Nagar, 4th Pusta, Delhi on rent alongwith her family. She further stated that she was doing household work and she used to immensely like Kuldeep and today, Kuldeep had told her that she should die and upon his saying, she consumed little bit of the acid. She further stated that, in all this there is no fault of anyone.
5. Thereafter, the complainant was referred to GTB Hospital for further treatment, where she had expired on 22.07.2013 at 11.10PM. As per her death certificate, the cause of death was mentioned as "corrosive acid ingestion and aspiration pneumonitis and septic shock and sepsis".
6. Upon recording of the statement of the complainant, the present case FIR was registered at Police Station New Usmanpur on 23.07.2013 under section 306 IPC, 1860. After the registration of the FIR, the investigation was conducted by the IO and after completion of the same the chargesheet was filed before the court State Vs. Kuldeep @ Abhishek FIR No. 240/2013 Page no.3/49 of Ld. MM. After compliance of section 207/208 Cr.PC, the case was committed by the Court of Ld. MM before this court on 12.12.2018. Thereafter, the charges were framed by my Ld. Predecessor on 11.01.2019 U/s 306 of Indian Penal Code, 1860 against the accused Kuldeep @ Abhisehk S/o Shiv Narayan. The accused person pleaded not guilty and he had claimed trial.
7. To prove its case, the prosecution has examined Thirteen (13) witnesses:
(7.1) PW1 is ASI Devender Kumar and he had deposed that on 23.07.2013, he was working as Duty Officer at PS New Usmanpur and at about 12.45AM, HC Jagpal produced a rukka, on basis of which he got registered the present case FIR no.
240/13 u/s 306 IPC, 1860. The FIR was exhibited as Ex. PW1/B and the endorsement upon the rukka was exhibited as Ex. PW1/A. He further deposed that, he had also made kayami DD no. 4A with respect to the present case FIR.
(7.2) PW2 is Santosh Tripathi, Senior Scientific Officer, FSL Rohini and he had deposed that on 11.09.2013 he received one sealed wooden box with seal of "JSB" through Ct. Sachin alongwith the forwarding letter and the specimen seal. The wooden box was containing the viscera of the deceased. The seals were found to be intact and were tallied with the specimen seal. On chemical TLC and ION Chromatography examination, the Ex. 1AA i.e. the stomach, pieces of small intestine with contents and it was found to contain " Hydrochloric Acid ." In the State Vs. Kuldeep @ Abhishek FIR No. 240/2013 Page no.4/49 other exhibits 1AB, 1AC and 1AD, i.e. the pieces of lever, spleen and kidney, blood sample etc., no mineral acids, metallic poisons, methyl alcohol, cyanide, phosphide, alkaloids, barbiturates, tranquilizers and pesticides could be detected. The FSL result dated 30.10.2013 was exhibited as Ex. PW2/A. (7.3) PW3 is Munna Babu Sharma and he had deposed that the deceased Sneh Lata was his sister-in-law (sali). On 22.07.2023, at about 11.00 to 11.30 AM, he was present in his house and his wife told him that Sneh Lata had consumed Acid ( tejab). Thereafter, he alongwith his wife reached JPC Hospital, where the police officials of PS New Usmanpur were already present. He further deposed that the police officer might have recorded the statement of the deceased in his presence. The witness was shown the statement of deceased Sneh Lata, dated 23.07.2013, which was apparently recorded by the IO, prior to her death and upon seeing the same, he identified his signatures on the endorsement and the statement was exhibited as Ex. PW3/A. He further deposed that, during the time of recording of her statement, Sneh Lata had told the police that she was in love with accused Kuldeep and on his saying, she had consumed the acid and no one was at fault behind this incident. The condition of Sneh Lata was deteriorating and she was transferred to GTB Hospital. During treatment at GTB Hospital, Sneh Lata had expired. On 23.07.2013, he had gone to the mortuary alongwith other relatives of the deceased and he had identified her dead body. The IO had recorded his statement regarding the identification and the same was exhibited as Ex. PW3/B. During his cross examination, PW3 admitted that he had not told the State Vs. Kuldeep @ Abhishek FIR No. 240/2013 Page no.5/49 police in his statement u/s 161 Cr.PC that he was present at his house and his wife had informed him about Sneh Lata consuming the acid. He further admitted that he did not have any conversation with Sneh Lata during the said period of half an hour before she was taken to GTB Hospital, as she was having an oxygen mask on her face. He further deposed that the voice of Sneh Lata was clearly audible and she was trying to converse by making signs with her hands. He categorically admitted that police did not record statement Ex. PW3/A in his presence. He further admitted that he had no conversation with Sneh Lata at GTB Hospital. Upon his re-examination, he had deposed that police officer who recorded the statement of Sneh Lata, told them that the statement was given by her and thereafter, he had put his signatures at point A on Ex. PW3/A. He categorically denied the suggestions put by the Ld. Addl. PP for the State, that the deceased had given her statement to HC Jagpal Singh in his presence and thereafter, he and his wife had signed Ex. PW3/A in JPC Hospital.
(7.4) PW4 is Sarvesh and she had stated that, the deceased Sneh Lata was her younger sister. On 22.07.2013, at about 11.30 AM, she had received a phone call from the husband of the deceased, namely Jai Kishan and she was informed by him that her sister had consumed acid (tejab) and is admitted in JPC Hospital. Thereafter, she along with her husband reached JPC Hospital, where one police officer had taken statement of Sneh Lata. As per the said statement, Sneh Lata had told the said police officer "mai Kuldeep se pyar karti hun, use bahut chahati hun, Kuldeep State Vs. Kuldeep @ Abhishek FIR No. 240/2013 Page no.6/49 ne kaha tu mar ja, to maine tejab pi liya aur kisi ka isme koi kasoor nahi hai." She further categorically deposed that the statement of Sneh Lata was read over to her and thereafter, her signatures were obtained on the said statement by the police officer at point B on Ex. PW3/A. She further deposed that from JPC Hospital, Sneh Lata was referred to GTB Hospital and during treatment, she had expired there. She further deposed that the IO had recorded her statement in this case. She was subjected to cross examination by Ld. Addl. PP for the State, wherein she had denied the suggestion that on 23.07.2013, SI Pankaj Tomar made inquiries from her and recorded her statement. During her cross examination conducted by the accused person, she had deposed that they were sitting in the emergency room when statement Ex. PW3/A was being recorded, however, her husband PW3 Munna Babu Sharma was standing outside. She further deposed that when she reached JPC Hospital and met Sneh Lata, no oxygen mask was there on her face and during the period she remained under treatment at JPC Hospital, no oxygen mask was put on her face. She volunteered that oxygen was given to her after reaching GTB Hospital. She further deposed that Sneh Lata was taken to GTB Hospital in an Ambulance and she, the husband of the deceased and one doctor had accompanied the patient. She further deposed that, froth was coming from the mouth of Sneh Lata, when she was taken to GTB Hospital and for this reason she could not talk on the way, or after reaching there.
(7.5) PW5 is HC Devender and he had deposed that on State Vs. Kuldeep @ Abhishek FIR No. 240/2013 Page no.7/49 22.07.2013, he was posted at PS New Usmanpur and was on emergency duty alongwith HC Jagpal and after DD no. 40B was marked to HC Jagpal for inquiry, he had accompanied HC Jagpal and reached the place of occurrence. Upon inquiry they came to know that, the injured had already been taken to JPC Hospital by the PCR officials. Thereafter, they went to JPC Hospital and HC Jagpal obtained the MLC of the injured and recorded her statement. On 23.07.2013, he along with HC Jagpal reached GTB Hospital, where they came to know that Sneh Lata had already expired. Thereafter, they returned back to the PS and HC Jagpal prepared the rukka and handed over the same to DO for registration of the FIR. In his cross examination he had deposed that when Sneh Lata was in the emergency room of JPC Hospital, 4-5 public persons were present near her bed including her sister Sarvesh, her Jija Munna Lal. He had denied the suggestion that Sneh Lata was not in a position to talk or the IO had obtained the signatures of her relatives on blank papers. He however, had admitted that, he had not signed any document at JPC Hospital. He further denied the suggestion that HC Jagpal had not taken the statement of Sneh Lata in his presence.
(7.6) PW6 is Sarla W/o Dinesh Pandey and she had deposed that, she knew the deceased Sneh Lata as she was her distant relative and she was her bhabhi (sister-in-law). On 22.07.2013, she came to know telephonically through her brother Jai Kishan, who is the husband of Sneh Lata that she had consumed acid ( tejab) and was admitted in JPC Hospital by the said Jai Kishan. She was requested to reach the said hospital and accordingly she called State Vs. Kuldeep @ Abhishek FIR No. 240/2013 Page no.8/49 her husband Dinesh Pandey and both of them had then visited JPC Hospital. Sneh Lata was receiving treatment at that time and one police official whose name she did not remember, was making some inquiry from Sneh Lata, however, she did not hear exactly as to what was stated by her to the said police official. She further deposed that, later on she came to know that Sneh Lata had died in GTB Hospital. During her cross examination, she had denied the suggestions that the police had made inquries from her or that her statement was recorded during the investigation. She had denied the suggestion that she had heard what Sneh Lata had stated in Ex. PW3/A. Her statement u/s 161 Cr.PC dated 23.07.2013 was put to her, however, she denied making such statement before the police.
(7.7) PW7 is Ct. Sachin and he had deposed that on 11.09.2013, he was posted at PS New Usmanpur as Constable and upon the instruction of the IO he collected the viscera box of the deceased, duly sealed with the seal of "JSV" from MHCM and deposited the same before FSL Rohini. Till the time, the case property remained in his possession, it was not tampered by him in any manner. After depositing the same at FSL, he handed over the receipt/acknowledgment to the MHCM.
(7.8) PW 8 is ASI Shish Pal and he had deposed that on 23.07.2013, he was posted at PS New Usmanpur as Constable and on that day, he had joined the investigation with SI Pankaj Tomar. They reached the mortuary of GTB Hospital, where husband of the deceased, namely Jai Kishan and one of her State Vs. Kuldeep @ Abhishek FIR No. 240/2013 Page no.9/49 relative namely Munna Babu Sharma were found present. IO recorded their statements, wherein the dead body of the deceased was identified by them vide statement of Jai Kishan, which was exhibited as Ex. PW8/A and the statement of Munna Babu Sharma was already exhibited as Ex. PW3/B. After the postmortem, the body was handed over to the husband of the deceased and the official of the mortuary handed over one viscera box to him, which was handed over by him to IO SI Pankaj Tomar. The IO had seized the viscera box vide seizure memo Ex. PW8/B. Thereafter, he alongwith the IO reached at H. No. D65, Gali no. 7, Vijay Colony, 3 rd Pusta, Usmanpur, Delhi and met the sister of the deceased, namely Sarvesh. The IO had recorded her statement and thereafter, they reached H. NO. C-44, Gali no. 17, Sudamapuri, Delhi, where they met Dinesh and Sarla and IO recorded their statements. Thereafter, they reached at the spot of occurrence and found that the said house was locked as the family members had gone to their native place for cremation of the deceased. Thereafter, they reached the house of the accused person and the accused was found there. The accused was interrogated and arrested in the present case. During his cross examination, he had first deposed that the statement of Jai Kishan and Munna Babu Sharma were recorded by the IO in the mortuary of GTB Hospital, however, he had again said, that the statements were recorded in the PS. He had further deposed that he did not remember the number of documents which he had signed as witness on the day in connection with the present case. He further deposed that, probably he had signed the said documents in the PS. He further deposed that he did not State Vs. Kuldeep @ Abhishek FIR No. 240/2013 Page no.10/49 remember the description of the documents and the place of the signatures of the same as witness, as he never accompanied the IO on that day.
(7.9) PW 9 is IO SI Jagpal and he had deposed that on 22.07.2013, he was posted as HC in PS New Usmanpur and on that day upon the received of DD no. 40B, and the same was marked him for inquiry, he reached the place of occurrence alongwith Ct. Dipender. Upon inquiry they came to know that, the injured had already been taken to JPC Hospital by the PCR officials. Thereafter, they went to JPC Hospital and he obtained the MLC of the injured and recorded her statement Ex. PW9/A (which was earlier already exhibited as Ex. PW3/A), bearing signatures of Sneh Lata at point C and signature of her husband Jai Kishan and point D. He further deposed that one Sarvesh signed the statement at point B and one more person had signed at point A. Thereafter, he kept pending DD no. 40B and he came to know that condition of Sneh Lata had worsened and she had been referred to GTB Hosptial. Thereafter, he reached GTB Hospital, where he came to know that Sneh Lata had already expired. Thereafter, he prepared the tehrir which was exhibited as Ex. PW9/B and handed over the same to the Duty Officer for reregistration of the case. After registration of the FIR, the investigation was handed over to some other officer. In his cross examination, he had categorically deposed that when he reached the spot, the public had told him that a lady had consumed acid/tejab, but he did not remember the name of any particular person who told him the said fact. He further categorically State Vs. Kuldeep @ Abhishek FIR No. 240/2013 Page no.11/49 deposed that he had met the relatives of the deceased at JPC Hospital, including her husband Jai Kishan and other relatives whose signatures were taken on the statement of Sneh Lata. He had categorically deposed that he had not recorded the statement of Jai Kishan or any other relative at that time. He had deposed in his again said deposition that, for the first time, when he reached JPC Hospital with Ct. Dipender, he did not take signatures of any relative of Sneh Lata. He admitted that he had met the said relatives of the deceased at the said hospital and they were at around 5-7 persons, however, he did not remember the name of the said persons. He further went on to depose that for the first time when he reached JPC Hospital, he had seen Sneh Lata with his own eyes and she was in emergency ward at that time. At that time, she was fit for statement and talking. Glucose was being administered to her at that time. He categorically deposed that he had not asked the doctor in writing to give permission to take the statement of Sneh Lata. He further went on to depose that he had gone to JPC Hospital for the second time and when he reached there, Sneh Lata was still in emergency and he never took the permission of the doctor to record her statement. He further deposed that when he recorded her statement, her husband and two other relatives were present. Although lady relatives of the deceased were also present, he had obtained the signatures of her male relatives only. Thereafter, he categorically deposed that 3-4 persons have signed on the statement of Sneh Lata. He did not remember the number of exact persons who had singed the statement of Sneh Lata. He further did not remember, how many persons signed the statement of Sneh Lata and as to how many State Vs. Kuldeep @ Abhishek FIR No. 240/2013 Page no.12/49 doctors were present in the emergency ward and how many relatives of Sneh Lata were present there, as he never visited the JPC hospital for the second time.
(7.10) PW 10 is Jai Kishan and he had deposed that the deceased Sneh Lata was his wife and on 22.07.2015, his neighbour telephonically informed him that his wife is not feeling well and he was asked to reach home soon. When he reached home, his wife informed him that she had consumed/drank acid. He immediately took her to JPC Hospital, where she was admitted. He met police officials there and the IO recorded the statements of his late wife Sneh Lata, who stated that she was very much in love with accused Kuldeep and he had told her to die. On this, she consumed/drank acid and she also stated in her statement that no one is responsible for her consumption of the said acid. When her condition deteriorated, she was referred to GTB Hospital and later she died there during treatment. The police recorded his statement Ex. PW10/A and the site plan was prepared at his instance and same was exhibited as Ex. PW10/B. He had identified the dead body of his wife and received the dead body after postmortem vide memo Ex. PW10/C. He further correctly identified the accused in court. During his cross examination, he had categorically deposed that he came to know about the relation of friendship between deceased wife and accused, after her death only. He stated that he alongwith Sarvesh (sister of the deceased) were present when statement of Sneh Lata Ex. PW9/A was recorded. He further admitted that his wife had not made any person liable for her consuming acid.
State Vs. Kuldeep @ Abhishek FIR No. 240/2013 Page no.13/49 (7.11) PW11 is Dinesh Pandey and he had deposed that the deceased was the wife of his brother-in-law Jai Kishan. On 22.07.2023, at about 11.35 AM, he came to know that Sneh Lata had consumed acid. Thereafter, he reached JPC Hospital, where the police officials of PS New Usmanpur were already present. He further deposed that, during the time of recording of her statement, Sneh Lata had told the police that she was in love with accused Kuldeep and on his saying, she had consumed the Acid and no one was at fault behind this incident. HC Jagpal of PS New Usmanpur recorded her statement Ex PW9/A, which bears his signatures at point E. The condition of Sneh Lata was deteriorating and she was transferred to GTB Hospital. During treatment at GTB Hospital, Sneh Lata had expired. During his cross examination, he had mentioned that he could not tell the exact time when Ex. PW9/A were recorded. He did not recollect the room no. of the hospital, where the statement of Sneh Lata was recorded by the police. He did not even recollect whether it was at the hospital or at his house, that his signature on Ex. PW9/A was taken. He further did not recollect who all from the family of Sneh Lata was present when Ex. PW9/A was recorded. He further deposed that no doctor was present when Ex. PW9/A was recorded.
(7.12) PW-12 is Inspector Pankaj Tomar and he had deposed that on 23.07.2013, he was posted at PS New Usmanpur as SI. On that day, he received copy of FIR which was already Ex. PW1/B and original rukka for investigation. He along with the staff State Vs. Kuldeep @ Abhishek FIR No. 240/2013 Page no.14/49 reached at H.No. J-305, Gali No.3, 4th pusta, Kartar Nagar, Delhi, where he met HC Jagpal Singh and others staff of PS New Usmanpur. HC Jagpal Singh briefed him the fact of the case. He prepared the site plan which was already Ex. PW10/B. In the morning hours of 23.07.2013, he along with Sheesh Pal went to mortuary of GTB hospital where he met Jai Kishan (husband of deceased Snehlata) and Munna Babu Sharma (brother-in-law of deceased), who then identified the dead body of Snehlata vide their statements which was already Ex. PW8/A and Ex. PW3/B. he prepared inquest papers including form 25.35 Ex. PW12/A. He prepared an application, Ex. PW12/B for getting the postmortem done, which was conducted vide report Ex. PX-3 (colly). After postmortem the dead body was handed over to the relative of deceased vide dead body handing over memo which was already Ex. PW10/C. He recorded the statement of witnesses. He alongwith SI Inderveer and other staff of PS New Usman pur went to the house of the accused where the accused was found present. Accused Kuldeep @ Abhishek was interrogated and arrested vide arrest memo Ex PW12/C. Personal search of accused was conducted vide memo Ex. PW12/D. The accused made disclosure statement vide memo Ex. PW12/E. Accused Kuldeep @ Abhishek was correctly identified by PW12. Accused was got medically examined and sent to lockup. On next day, on 24.07.2013 accused Kuldeep @ Abhishek was taken out of lockup and produced in the Court and sent to JC. On 05.08.2013, Ct. Sheeshpal went to the mortuary of GTB hospital from where he collected the viscera box alongwith sample seal which was handed over to him and he seized the same vide State Vs. Kuldeep @ Abhishek FIR No. 240/2013 Page no.15/49 seizure memo which was already Ex. PW8/B. He deposited the exhibits with MHC(M). He recorded the statement of witnesses. On 11.09.2013 on the directions of SHO, he sent Ct. Sachin to FSL for depositing the exhibits. Ct. Sachin took the exhibits from MHC (M) and deposited the same in FSL. he recorded the statement of witnesses. He collected the FSL result of the chemical examiner and placed the same on record which was already Ex. PW2/A. After receipt of FSL result he prepared application Ex. PW12/F for obtaining the opinion of Autopsy Surgeon regarding cause of death. Thereafter, he was transferred and handed over the case to MHCR. In his cross examination the IO had admitted that except for preparing the site plan, he had done no other writing work at the place of alleged occurrence and no other police staff made any documents at the said place. He further deposed that he had not made any inquires from the nearby residences. He admitted that he had not recorded the statement of any witness specifying the place of incident. He further admitted that he did not know HC Jagpal had recorded the statement of how many witnesses.
(7.13) PW-13 is IO SI Sandeep and he had deposed that on 28.01.2017 he was posted at PS New Usmanpur as SI. On that day, he received the present file for further investigation. On 10.03.2017, he prepared application for obtaining the subsequent opinion after receiving the FSL result and the application was submitted with application to the autopsy surgeon. On 21.04.2017, he collected the subsequent opinion which was already Ex. PX-4 and placed the same on record. He prepared State Vs. Kuldeep @ Abhishek FIR No. 240/2013 Page no.16/49 chargesheet and filed in the court.
8. After completion of prosecution evidence, PE was closed. The statement of the accused persons was recorded under Section 313 Cr.P.C., in which they had pleaded innocence.
9. The accused person chose not to lead any Defense Evidence.
11. In the statement of the accused person recorded u/s 294 Cr.P.C on 15.01.2024, he had admitted and had not disputed DD no. 40B dated 22.07.2013, prepared at PS New Usmanpur and the same was exhibited as Ex. PX-1.
10. In the statement of the accused person recorded u/s 294 Cr.P.C on 15.01.2024, he had admitted and had not disputed DD no. 83B dated 22.07.2013, regarding arrival of HC Jagpal at PS New Usmanpur and the same was exhibited as Ex. PX-2.
11. In the statement of the accused person recorded u/s 294 Cr.P.C on 15.01.2024, he had admitted and had not disputed the postmortem report no. 984/13 of deceased Sneh Lata prepared by Dr. Vishwajeet Singh of GTB Hospital and the same was exhibited as Ex. PX-3 (colly, running into four pages).
12. In the statement of the accused person recorded u/s 294 Cr.P.C on 15.01.2024, he had admitted and had not disputed subsequent medical opinion dated 10.03.2017 prepared by Dr. Vishwajeet Singh of GTB Hospital and the same was exhibited as Ex. PX-4.
State Vs. Kuldeep @ Abhishek FIR No. 240/2013 Page no.17/49
13. In the statement of the accused person recorded u/s 294 Cr.P.C on 15.01.2024, he had admitted and had not disputed the MLC no. 1941 dated 22.07.2013 of deceased Sneh Lata, prepared by Dr. Rajvan of JPC Hospital and the same was exhibited as Ex. PX5.
14. In the statement of the accused person recorded u/s 294 Cr.P.C on 15.01.2024, he had admitted and had not disputed the death note and death summary report of the deceased Sneh Lata preparepd in GTB hospital and the same were exhibited as Ex. PX-6 and Ex. PX-7 respectively.
15. I have heard the arguments advanced by Sh. Kamal Akhter, Ld. Additional PP for the State and Sh. S. K. Shukla, Ld. Counsel for the accused and have minutely gone through the evidence brought on record and the other material aspects of the case.
16. It has been argued by the Ld. Addl. PP for the State that the prosecution has proved beyond reasonable doubt that on 22.07.2013, the complainant Sneh Lata W/o Jai Kishan had consumed acid (tejab) and that she had died while receiving treatment at GTB Hospital. Prior to her death, the IO HC Jagpal had recorded the dying declaration of the deceased vide statement Ex. PW9/A (also earlier exhibited as Ex. PW3/A). As per the circumstances surrounding her death, the deceased had informed the IO in presence of public witnesses that she used to immensely like the accused person and on 22.07.2013, the accused Kuldeep had told her that she should die and the State Vs. Kuldeep @ Abhishek FIR No. 240/2013 Page no.18/49 deceased had consumed some acid after the accused asked her to do so. The statement/dying declaration of the deceased is fully corroborating with the testimony of other public witnesses, in whose presence, the said statement was being made.
17. It has been argued by the Ld. Addl. PP for the State that accused Kuldeep @ Abhishek had abetted the commission of said suicide by instigating the deceased Sneh Lata by uttering categorical words that she should take her life and on the basis of the said words, she took her life by consuming acid. Furthermore, merely because the deceased had stated in her statement/dying declaration Ex. PW9/A that nobody was at fault, behind her action of consuming acid, does not exculpate the accused person from his act of abetting the said suicide.
18. It has been argued by the Ld. Addl. PP for the State that is is not disputed that the deceased Sneh Lata had died after she had consumed acid (tejab) and her MLC, subsequent medical opinion and postmortem report, including the death note and death summary prepared at GTB Hospital, were duly admitted by the accused person in his statement u/s 294 Cr.PC. Furthermore, from the FSL report Ex. PW2/A, the viscera sample of the deceased Sneh Lata was found to have hydrochloric acid. Therefore, the prosecution has been able to prove beyond reasonable doubt that the death of the deceased was caused because of ingestion of corrosive HCL acid.
19. It is further submitted by the Ld. Addl. PP for the state that State Vs. Kuldeep @ Abhishek FIR No. 240/2013 Page no.19/49 the identity of the accused persons were fully established in the present case as he was duly identified by all the prosecution witnesses before the Court.
20. It is submitted by the Ld. Counsel for the accused person that the entire case of the prosecution is revolving around one statement that is the dying declaration of the deceased, which was apparently made by her at JPC Hospital, prior to her being shifted to GTB Hospital. As per the prosecution story, the inquiry officer HC Jagpal had recorded the said statement in the presence of as many as five public witnesses. Since, the victim had already expired before her testimony could be recorded before this court, therefore, the case of the prosecution was based upon the corroboration rendered by the said five public witnesses on the aspect of the dying declaration being recorded in their presence. The said witnesses have not supported the case of the prosecution and there are material contradictions in their inter-se testimonies, thereby, making the prosecution story highly unbelievable.
21. It is submitted by the Ld. Counsel for the accused person that the prosecution story has projected back to the deceased being madly in love with the accused person. It is not disputed that both the deceased and the accused person were married to their respective spouses. However, the prosecution could not bring on record even a single witness to prove the alleged love story angle between the deceased and the accused person.
22. It is submitted by the Ld. Counsel for the accused person that State Vs. Kuldeep @ Abhishek FIR No. 240/2013 Page no.20/49 the prosecution has cleverly chosen the public witnesses who had witnessed the deceased giving her dying declaration, since two of the said witnesses were related to the deceased from her parental side and the remaining from her matrimonial side. However, not even a single witness had deposed that either the deceased was in a romantic adulterous relationship with the deceased or at the least she was infatuated or having one sided liking for the accused person.
23. It is submitted by the Ld. Counsel for the accused person that the accused is not related to the deceased or her husband. The accused was merely her neighbour and the prosecution version of the deceased being in love with the said neighbour and that upon his rebuking of the feelings of the deceased, she had gone to the extent to commit suicide by consuming acid cannot be termed to be abetment of such suicide with any stretch of imagination.
24. It is submitted by the Ld. Counsel for the accused person that the DD no. 40B dated 22.07.2013, Ex. PX1 is an admitted document and as per the said document, at 11.29 AM, it was recorded that the wife of the caller was made to have acid by someone. Therefore, the genesis of the prosecution story is based upon the call made to the police on 100 number and as per the said call, the injured victim had not consumed the acid on her own and in fact someone else had made her ingest it forcefully. However, this runs counter to the prosecution story put forth by the prosecution witnesses before court.
State Vs. Kuldeep @ Abhishek FIR No. 240/2013 Page no.21/49
25. It is submitted by the Ld. Counsel for the accused person that the testimony of PW9 IO SI Jagpal, who had first responded on the scene after registration of DD no. 40B and had apparently recorded the dying declaration of the deceased Ex. PW9/A is marred with inconsistencies and inherent contradictions, when seen in the light of the testimony of other public witnesses who had apparently signed the said statement as witnesses, including PW3 Munna Babu Sharma, PW4 Sarvesh, PW6 Sarla, PW10 Jai Kishan and PW11 Dinesh Pandey.
26. It is submitted by the Ld. Counsel for the accused person that the version of the prosecution that the deceased waited till she was shifted to JPC hospital, before making the alleged dying declaration seems to be extremely suspicious, since, she had the first opportunity to tell her husband PW10 Jai Kishan, who had reached the spot after the neighbours had informed him about the said incident. Furthermore, the deposition of PW10, wherein, his cross examination, he had admitted that he came to know about the relation of friendship between his deceased wife and the accused, only after her death has struck a fatal blow on the entire prosecution case, since that would imply that he was not present there at the time of the deceased making the impugned statement.
27. It is submitted by the Ld. Counsel for the accused person that the fact that the alleged dying declaration was recorded by the police officer in the hospital, while the patient was receiving treatment in the emergency ward of a government hospital and yet no efforts being made by the IO to take the opinion of the State Vs. Kuldeep @ Abhishek FIR No. 240/2013 Page no.22/49 doctor, qua the fitness of the injured so as to be in a position to make such a statement, has raised serious doubts on the prosecution story.
28. In the background of the above, I shall now discuss the evidence brought on record in the present case. It is trite law that the accused persons can be convicted on the basis of credible evidence brought on record and the appreciation of the said evidence must be done in correct and true perspective manner and in the natural course of events, what would have been occurred. Appreciation of evidence beyond reasonable doubt does not mean that it should be assessed beyond any iota of doubt. Beyond Reasonable Doubt means that the prosecution is required to place evidence at a higher degree of preponderance of probabilities compared to what is degree of preponderance of probability in civil cases. The theory of Beyond Reasonable Doubt means expecting higher degree of preponderance of probabilities and the natural conduct of human beings, as held by the Hon'ble High Court of Karnataka in "State of Karnataka Vs Venkatesh @ Venkappa & Anr", Criminal Appeal No. 100492 of 2021, decided on 18.12.2023.
29. Section 3 of the Indian Evidence Act defines "evidence". The evidence can be broadly divided into oral and documentary.
"Evidence" under the Act can be said to include the means, factor or material, lending a degree of probability through a logical inference to the existence of a fact. It is an adjective law highlighting and aiding the substantive law. Thus, it is neither State Vs. Kuldeep @ Abhishek FIR No. 240/2013 Page no.23/49 wholly procedural nor substantive, though trappings of both could be felt.
30. The definition of the word "proved" though gives an impression of a mere interpretation, in effect, is the heart and soul of the entire Act. This clause, consciously speaks of proving a fact by considering the "matters before it". The importance is attached to the degree of probability in proving a fact through the consideration of the matters before the court. What is required for a court to decipher is the existence of a fact and its proof by a degree of probability, through a logical inference.
31. Matters are necessary, concomitant material factors to prove a fact. All "evidence" would be "matters" but not vice versa. In other words, matters could be termed as a genus of which evidence would be a species. Matters also adds strength to the evidence giving adequate ammunition in the Court's sojourn in deciphering the truth. Thus, the definition of "matters" is exhaustive, and therefore, much wider than that of "evidence". However, there is a caveat, as the court is not supposed to consider a matter which acquires the form of an evidence when it is barred in law. Matters are required for a court to believe in the existence of a fact.
32. Matters, do give more discretion and flexibility to the court in deciding the existence of a fact. They also include all the classification of evidence such as circumstantial evidence, corroborative evidence, derivative evidence, direct evidence, State Vs. Kuldeep @ Abhishek FIR No. 240/2013 Page no.24/49 documentary evidence, hearsay evidence, indirect evidence, oral evidence, original evidence, presumptive evidence, primary evidence, real evidence, secondary evidence, substantive evidence, testimonial evidence, etc.
33. In addition, they supplement the evidence in proving the existence of a fact by enhancing the degree of probability. As an exhaustive interpretation has to be given to the word "matter", and for that purpose, the definition of the expression of the words "means and includes", meant to be applied for evidence, has to be imported to that of a "matter" as well. Thus, a matter might include such of those which do not fall within the definition of Section 3, in the absence of any express bar.
34. What is important for the court is the conclusion on the basis of existence of a fact by analyzing the matters before it on the degree of probability. The entire enactment is meant to facilitate the court to come to an appropriate conclusion in proving a fact. There are two methods by which the court is expected to come to such a decision. The court can come to a conclusion on the existence of a fact by merely considering the matters before it, in forming an opinion that it does exist. This belief of the court is based upon the assessment of the matters before it. Alternatively, the court can consider the said existence as probable from the perspective of a prudent man who might act on the supposition that it exists. The question as to the choice of the options is best left to the court to decide. The said decision might impinge upon the quality of the matters before it.
State Vs. Kuldeep @ Abhishek FIR No. 240/2013 Page no.25/49
35. The word "prudent" has not been defined under the Act. When the court wants to consider the second part of the definition clause instead of believing the existence of a fact by itself, it is expected to take the role of a prudent man. Such a prudent man has to be understood from the point of view of a common man. Therefore, a judge has to transform into a prudent man and assess the existence of a fact after considering the matters through that lens instead of a judge. It is only after undertaking the said exercise can he resume his role as a judge to proceed further in the case.
36. The aforesaid provision also indicates that the court is concerned with the existence of a fact both in issue and relevant, as against a whole testimony. Thus, the concentration is on the proof of a fact for which a witness is required. Therefore, a court can appreciate and accept the testimony of a witness on a particular issue while rejecting it on others since it focuses on an issue of fact to be proved. However, the evidence of a witness as whole is a matter for the court to decide on the probability of proving a fact which is inclusive of the credibility of the witness. Whether an issue is concluded or not is also a court's domain.
37. While appreciating the evidence as aforesaid along with the matters attached to it, evidence can be divided into three categories broadly namely, (i) wholly reliable, (ii) wholly unreliable and (iii) neither wholly reliable nor wholly unreliable. If evidence, along with matters surrounding it, makes the court State Vs. Kuldeep @ Abhishek FIR No. 240/2013 Page no.26/49 believe it is wholly reliable qua an issue, it can decide its existence on a degree of probability. Similar is the case where evidence is not believable. When evidence produced is neither wholly reliable nor wholly unreliable, it might require corroboration, and in such a case, court can also take note of the contradictions available in other matters. The aforesaid principle of law has been enunciated in the authority of Hon'ble Supreme Court of India in "Vadivelu Thevar v. State of Madras", 1957 SCR 981 wherein it is held as under:
"In view of these considerations, we have no hesitation in holding that the contention that in a murder case, the court should insist upon plurality of witnesses, is much too broadly stated. Section 134 of the Indian Evidence Act has categorically laid it down that "no particular number of witnesses shall in any case, be required for the proof of any fact". The legislature determined, as long ago as 1872, presumably after due consideration of the pros and cons, that it shall not be necessary for proof or disproof of a fact to call any particular number of witnesses. In England, both before and after the passing of the Indian Evidence Act, 1872, there have been a number of statutes as set out in Sarkar's Law of Evidence -- 9th Edn., at pp. 1100 and 1101, forbidding convictions on the testimony of a single witness. The Indian Legislature has not insisted on laying down any such exceptions to the general rule recognized in s.134 quoted above. The section enshrines the well- recognized maxim that "Evidence has to be weighed and not State Vs. Kuldeep @ Abhishek FIR No. 240/2013 Page no.27/49 counted". Our Legislature has given statutory recognition to the fact that administration of justice may be hampered if a particular number of witnesses were to be insisted upon. It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence, where determination of guilt depends entirely on circumstantial evidence. If the Legislature were to insist upon plurality of witnesses, cases where the testimony of a single witness only could be available in proof of the crime, would go unpunished. It is here that the discretion of the presiding judge comes into play. The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by the court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution. Hence, in our opinion, it is a sound and well- established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely:
State Vs. Kuldeep @ Abhishek FIR No. 240/2013 Page no.28/49 (1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.
In the first category of proof, the court should have no difficulty in coming to its conclusion either way -- it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court, equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. The court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony. The law reports contain many precedents where the court had to depend and act upon the testimony of a single witness in support of the prosecution. There are exceptions to this rule, for example, in cases of State Vs. Kuldeep @ Abhishek FIR No. 240/2013 Page no.29/49 sexual offences or of the testimony of an approver; both these are cases in which the oral testimony is, by its very nature, suspect, being that of a participator in crime. But, where there are no such exceptional reasons operating, it becomes the duty of the court to convict, if it is satisfied that the testimony of a single witness is entirely reliable. We have, therefore, no reasons to refuse to act upon the testimony of the first witness, which is the only reliable evidence in support of the prosecution."
38. The entire prosecution case is based upon the statement Ex.PW9/A, which was recorded by the first IO PW9 SI Jagpal and after the recording of the said statement, the injured had succumbed to the internal injuries suffered by her due to ingestion of HCL acid, thereby, making the said statement to be her dying declaration.
39. The relevant portion of satement Ex. PW9/A is reproduced below:
"Bayan kiya ki pata uprokt par saparivar bataur kiraye par rehti hu or gharelu kaam karti hu aur main Kuldeep ko bahut jyada chahti hun jo aaj mere ko Kuldeep ne kaha ki mar jao maine uski baat ke kehne par thoda sa tejab pi liya isme kisi ki koi galti nahi hai aapne mera bayan sun liya thik hai ."
40. Before appreciating the said statement Ex. PW9/A, it is imperative to discuss section 32 (1) of the Indian Evidence Act State Vs. Kuldeep @ Abhishek FIR No. 240/2013 Page no.30/49 which is reproduced below:
"Section 32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant.-
Statements, written or verbal of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procure without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:-
(I)- when it relates to cause of death.- When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question.
Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceedings in which the cause of his death comes into question."
41. From the bare perusal of section 32 (1) of the Indian State Vs. Kuldeep @ Abhishek FIR No. 240/2013 Page no.31/49 Evidence Act, which has been carrying forward in Bhartiya Sakshya Adhiniyam, 2023 as section 26(a), clearly reflects that such statement of a person who cannot be called as a witness, becomes relevant, when the question of his/her death is raised before the court, which is squarely applicable to the facts of the present case.
42. Dying declaration comes from the latin words " Laterm Mortem" which translates into "words spoken before death".The law of dying declaration has been there for centuries in both common law and civil law countries. The said law is based upon the latin maxim "Nemo Moriturus Praesumitur Mentire " which translates into "man will not meet its maker with a lie in his mouth."
43. The law surrounding dying declaration has been fairly settled by the long line of judgments passed by the Hon'ble Supreme Court of India, which had given extensive judgment on the relevancy and admissibility of the said dying declaration. From the time of the privy council and the decision of the Allahabad High Court full bench in "Queen Empress Vs. Abdullah" ILR (1885) 7 ALL (FB) and being reiterated by the Hon'ble Supreme Court of India in "Kushal Rao Vs. State of Bombay" AIR 1958 SC 22, dying declaration has been held to be a substantive piece of evidence and it can be the sole basis of conviction if the same is free from any infirmity and satisfies various other tests, such as it must not be tainted with malice; it must not be made in unfit mental state; and it must not be a result of tutoring, prompting or imagination.
State Vs. Kuldeep @ Abhishek FIR No. 240/2013 Page no.32/49
44. It is well established under our law, through the authoritative judgments passed by the Hon'ble Apex Court in " Nanhar Vs. State of Haryana" (2010) 11 SCC 423 that for a dying declaration it should immensely strike to be genuine, stating the true story of its maker and must be free from doubts and not a product of any tutoring. Reliance is also placed on the decision of the Hon'ble Supreme Court in "Sukhar Vs. State of U.P." (1999) 9 SCC 509, "Bhajju Vs. State of M.P." (2012) 4 SCC 327 and "Sarad Birdichand Sharda Vs. State of Maharastra" (1984) 4 SCC 116.
45. It has been held by the Hon'ble Supreme Court in " State of Karnataka Vs. Shariff" (2003) 2 SCC 473 and "Laxman Vs. State of Maharastra" (2019) 11 SCC 512, that even a statement to a police officer can be treated as dying declaration. It is not per-se inadmissible merely on this ground. The dying declaration need not be only before the Ld. MM or that doctor's opinion that the patient was in fit mental and physical state to give such statement is not always a mandatory requirement. What is important is only the subjective satisfaction of the person recording it, that the person making the statement was in a fit state to make it.
46. It was held by the Hon'ble Supreme Court of India in "Kamla Vs. State of Punjab" (1993) 1 SCC 1, while a dying declaration may have been recorded by liable and independent witness, its contents have to be subjected to close scrutiny in light of many other circumstances, since conviction is sought only on the basis of said dying declaration. It was also held by State Vs. Kuldeep @ Abhishek FIR No. 240/2013 Page no.33/49 the Hon'ble Supreme Court of India in "Munna Raja Vs. State of M.P." AIR 1976 SC 2199 and "Dharampal Vs State of U.P." (2008) 17 SCC 337 that FIR can also be treated as dying declaration if victim dies before his/her examination before the Court.
47. As far as the dying declaration is concerned, the same has to pass three hurdles, before conviction can be based upon it:-
(1)- Is is admissible?, (2)- Once admitted, the court has to consider how far is it reliable and lastly, (3)- Once found reliable, Court has to consider its utility in the background of a particular case.
Reliance is placed upon the decision of the Hon'ble Supreme Court of India in "Patel Hiralal Joitram Vs. State of Gujarat "
(2002) 1 SCC 22.
48. Before appreciating the evidence brought on record by the prosecution, it is essential to reproduce section 306 IPC, 1860:
"306. Abetment of suicide.- if any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment for either description for a term which may extent to 10 years, and shall also be liable to fine."
49. The abetment is defined under chapter V of the Indian Penal State Vs. Kuldeep @ Abhishek FIR No. 240/2013 Page no.34/49 Code, 1860. Section 107 defines abetment of a thing:
"Section 107. Abetment of a thing.- A person abets the doing of a thing, who-
First.- Instigates any person to do that thing; or Secondly.- Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly.- Intentionally aids, by an act or illegal omission, the doing of that thing.
50. In the facts of the present case, it is not the case of the prosecution that the accused person had engaged in a conspiracy or had intentionally aided in commission of an act. As per the prosecution version, the accused had instigated the deceased to commit suicide and after the said instigation, the deceased had consumed acid (tejab) and later she lost her life in the hospital.
51. It is pertinent to note hear that in the facts of the present case the presumption enshrined u/s 113A of the Indian Evidence Act,1872 does not apply, since the accused is neither the husband nor the relative of the husband of the deceased. Therefore, this court shall appreciate the evidence brought on record, sans any presumption against the accused person of having committed the offence of abetment of suicide.
State Vs. Kuldeep @ Abhishek FIR No. 240/2013 Page no.35/49
52. As per the case of the prosecution, the inquiry of HC Jagpal had visited the spot alongwith Ct. Dipender after the DD no. 40B Ex. PX-1 was registered and in the JPC hospital, the IO had recorded the dying declaration Ex. PW9/A (earlier exhibited as Ex. PW3/A) in presence of Ct. Dipender and five other relatives of the deceased.
53. It is pertinent to point out here, that although PW9 IO ASI Jagpal had deposed that he had recorded the dying declaration Ex. PW9/A in presence of Ct. Dipender, however, his signatures are conspicuously missing from the said document. Furthermore, what is more appalling is that the prosecution had made one Ct. Deepender no. 1066/NE as one of the prosecution witnesses, however, no such person was ever examined before this court and the prosecution had instead examined HC Devender, who had deposed that he had accompanied HC Jagpal to the spot and later to the hospital where the dying declaration Ex. PW9/A of the deceased was recorded, however, there was no such statement of said HC Devender in the entire chargesheet.
54. Careful perusal of dying declaration Ex. PW9/A, reflects that it bears the signatures of five witnesses, besides the signature of the deceased /maker at point C. The husband of the deceased had signed at point D, the brother in law of the husband of the deceased, namely Dinesh Pandey had signed it on point E. The sister of the deceased, namely Sarvesh had signed it on point B and her Jija, namely Munna Babu Sharma had signed it at point State Vs. Kuldeep @ Abhishek FIR No. 240/2013 Page no.36/49 A. The last signature apparently belongs to one Sarla, who is the sister of the husband of the deceased, however, since she had gone hostile at the time of her examination, therefore, her signatures were not identified on the said document.
55. As per the prosecution story, the inquiry officer HC Jagpal Singh had recorded the dying declaration Ex. PW9/A of the deceased, prior to her death, after he had reached the JPC Hospital where she was undergoing treatment. He had obtained the MLC of the deceased Ex. PX5 and as per the said MLC, the doctor had recorded the alleged history of forceful ingestion of toilet acid. The patient was found to be conscious and oriented. The injury was prima facie self inflicted and the type of injury was kept under opinion. In Ex. PX5, the SR Medial had given the subsequent medical opinion Ex. PX4 and as per the same, the patient was found to be conscious and stable upon her examination.
56. It is not the case of the prosecution that the said dying declaration Ex. PW9/A was recorded by the Magistrate or by the doctor who had attended to the patient. As per the prosecution story, the said dying declaration Ex. PW9/A was recorded by the inquiry officer in the presence of the family members of the deceased. It had categorically come in the deposition of PW ASI Jagpal that he had gone to JPC hospital on two different occasions. The first time when he reached the hospital, the patient did not give any statement to him. However, later on when he came back alongwith Ct. Dipender, he then recorded the State Vs. Kuldeep @ Abhishek FIR No. 240/2013 Page no.37/49 statement of the deceased prior to her death. In his deposition, he had categorically stated that in Ex. PW9/A, he had taken the signatures of deceased (Sneh Lata) at point C, signatures of her husband Jai Kishan at point D, signature of one Sarvesh at point B and signatures of one more person whose name he did not remember at point A. Therefore, the person who recorded the said statement, deposed only about four witnesses and not five witnesses.
57. As discussed in the case law above, the dying declaration is not per-se inadmissible only on the ground that the same was recorded by an officer of the police force and even taking the opinion of the doctor as to the fitness of the person whose statement is to be recorded is not sine qua non. However, in the present case, the statement of the deceased was recorded in the hospital when she was receiving emergency care and the non examination of the doctors as to the fitness of the injured giving the said statement assumes important role, in background of the testimony of the alleged eye witnesses, who had not only heard the deceased making the said statement, however, they also were the witnesses of the said statement being recorded by the IO.
58. The IO PW9 SI Jagpal had deposed during his cross examination conducted on 06.04.2021, that when he reached the JPC Hospital and 12.05 PM with Ct. Dipender, he met the relatives of Sneh Lata, out of the said relatives, one was her husband Jai Kishan. He had recorded the dying declaration Ex. PW9/A in presence of her husband and her relative. He further State Vs. Kuldeep @ Abhishek FIR No. 240/2013 Page no.38/49 deposed that he did not record the statement of Jai Kishan or any other relatives of the deceased at that time. He again said, that for the first time, he reached the JPC hospital, he did not take the signature of any relative of Sneh Lata. He further deposed that there were 5-7 persons, he did not remember their names.
59. The IO PW9 SI Jagpal had deposed during his cross examination conducted on 06.04.2021, that when he went to JPC Hospital for the first time, Sneh Lata was in the emergency ward and she was fit for statement and was also talking. Glucose was being administered to her, however, he did not ask the doctors in writing to give permission to take the said statement. Although, the witness had deposed that the deceased was fit for statement, he had not recorded the said subjective satisfaction of his in the statement Ex. PW9/A and had also not depose about it earlier. He further went on to depose in his cross examination that, when he went to JPC Hospital for the 2nd time, Sneh Lata was in emergency and no permission of the doctor was taken by him to record her statement. He went on to further deposed that the said statement was recorded in presence of her husband and two other relatives. He categorically deposed that the lady relatives of the deceased were also present, however, he had obtained the signatures of only male relatives of the deceased. Furthermore, he deposed that he did not remember the number of exact persons who had signed the statement Ex. PW9/A. He further deposed that he did not remember the number of persons who signed the statement and also as to how many doctors were present in the emergency ward and how many relatives of Sneh Lata were present there as he never visited JPC Hospital for the 2 nd time. He State Vs. Kuldeep @ Abhishek FIR No. 240/2013 Page no.39/49 further went on to deny the suggestion being given to him that he had recorded the statement of Sneh Lata when he visited JPC hospital for the 2nd time. Therefore, the IO who had allegedly recorded the said statement could not withstand the rigors of the cross examination and he himself had contradicted the deposition given by him at the time of his examination in chief, thereby, casting serious doubts on the case of the prosecution.
60. After discussing the testimony of the inquiry officer who had recorded the statement of the deceased Ex. PW9/A, it is imperative to carefully appreciate the deposition of the five witnesses who had allegedly witnessed and heard the deceased making the said statement, prior to her death.
61. The first witness is the husband of the deceased, PW10 Jai Kishan. Although he had supported the case of the prosecution in the examination in chief. However, at the time of his cross examination he had categorically deposed that he came to know about the relation of friendship between his deceased wife and the accused only after her death. Therefore, making him the witness to the alleged dying declaration made by the deceased highly unlikely. As per PW10 Jai Kishan, at the time of recording of Ex. PW9/A, only he was present there with Sarvesh (sister of the deceased). Therefore, he has not supported the case of the prosecution that there were five witnesses who were there at the time of recording of the alleged dying declaration.
62. PW3 Munna Babu Sharma is the brother-in-law (jija) of the State Vs. Kuldeep @ Abhishek FIR No. 240/2013 Page no.40/49 deceased and he had categorically deposed that police might have recorded the statement of Sneh Lata. Therefore, he had not deposed positively whether the said statement was recorded or not. He went on depose that he did not have any conversation with Sneh Lata during the period of half an hour she was in JPC Hospital, since she was having an oxygen masks on her face. Furthermore, Sneh Lata was trying to converse by making signs with her hands. He had then given the fatal blow to the prosecution story when he deposed that " Police officer who recorded the statement of Sneh Lata told us that Sneh Lata has given statement and thereafter, I had put my signature at point A on Ex. PW3/A. It is wrong to suggest that Sneh Lata gave statement to HC Jagpal Singh in my presence and thereafter, I and my wife signed Ex. PW3/A in JPC Hospital."
63. The next witness is PW4 Sarvesh (sister of the deceased). Although she has supported the case of the prosecution, however, in her cross examination she had deposed that " We were sitting in emergency room when the said statement was recorded. My husband was standing outside at that time. " Therefore, she had supported the testimony of PW3 that he was not present when the dying declaration was being recorded. Furthermore, she went on to further deposed that there was no oxygen mask on the face of her sister Sneh Lata while she was in JPC Hospital. Therefore, she had contradicted the testimony of her husband PW3 Munna Babu Sharma on this aspect.
64. The next witness is PW6 Sarla and she is the sister of the State Vs. Kuldeep @ Abhishek FIR No. 240/2013 Page no.41/49 husband of the deceased. She had gone completely hostile and did not support the case of the prosecution. She merely deposed that one police officer was making some inquiry from Sneh Lata, however, she did not hear exactly as to what was stated by her to the said police officer. She was cross examined in detail by the State, however, nothing material came out of her testimony as she had denied all the suggestion being put to her. Therefore, even her signatures on the dying declaration Ex. PW9/A were not identified.
65. The last witness who had allegedly witnessed the recording of the dying declaration Ex. PW9/A is PW11 Dinesh Pandey, who is the husband of PW6 Sarla and is the behnoi of the husband of the deceased. Although he had supported the case of the prosecution, however, in his cross examination, he had deposed that he could not tell the exact time of recording of the said statement and he did not recollect the room number of the hospital where the said statement was recorded. What is material is his categorical deposition that he did not recollect at what place were his signatures were taken on the said dying declaration, whether it was in the hospital or in his house. He further deposed that no doctors were present at that time, when the said statement was being recorded. Furthermore, he did not recollect as to who all were present there from Sneh Lata's family.
66. There are inherent contradictions in the testimonies of the IO ASI Jagpal Singh and the testimony of the five attesting State Vs. Kuldeep @ Abhishek FIR No. 240/2013 Page no.42/49 witnesses, namely PW3 Munna Babu Sharma, PW4 Sarvesh, PW6 Sarla, PW10 Jai Kishan and PW11 Dinesh Pandey. Two of the said witnesses namely PW3 and PW6 have gone completely hostile and the inherent contradictions in the testimony of the remaining witnesses has also eroded the faith in the prosecution story.
67. As per the case of the prosecution, deceased Sneh Lata was in a romantic relationship with accused for the last five years, prior to her death. It is not disputed that both the deceased and the accused person were married to their respective spouses. As per the disclosure statement Ex. PW12/E, the accused had disclosed before the IO that the accused and the deceased came to know each other around five years back and they began liking each other and slowly their relationship turned into a consensual romantic relationship. However, there is not even a single evidence brought on record by the prosecution to support the statement of the accused, which in itself is inadmissible in nature. There is no efforts made by the IO to procure the CDR and other record of the alleged phone calls exchanged between the accused and the deceased. Not even a single prosecution witness has deposed before this court qua the relationship between the accused and the deceased.
68. The alleged dying declaration Ex. PW9/A (which was earlier also exhibited as Ex. PW3/A), even if taken on its face value after ignoring the inconsistencies and contradictions in the testimony of the person who recorded the same and the persons State Vs. Kuldeep @ Abhishek FIR No. 240/2013 Page no.43/49 who had allegedly witnessed the said statement being recorded by the IO, does not satisfy the ingredients of the offence punishable u/s 306 IPC.
69. To bring home the charge of the offence punishable u/s 306 IPC, 1860, the intention of the accused to "aid" or to "instigate" or "abet" the deceased to commit suicide is necessary. To put is differently, it is the most essential ingredient of the said offence. Reliance is placed upon the decision of the Hon'ble Andhra Pradesh High Court in "Pallem Deniel Victoralions Victor Manter Vs. State of AP" (1997) 1 Crimes 499 (A.P.).
70. For abetment of suicide, there has to be a clear mens rea to commit the offence. It postulates an "Active Act" or a "Direct Act", which lead the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he/she committed suicide. Reliance is place upon the judgment of the Hon'ble Supreme Court of India in "M. Mohan Vs. State" AIR 2011 SC 1238.
71. If the contents of the statement Ex. PW9/A are believed to be gospel of truth, then also the question that has to be answered is whether the alleged instigation was of such a nature, so as to push the deceased into a position to take her life has to be appreciated extremely carefully. For "instigation" a person who instigates another has to provoke, inside, urge or encourage the doing of an act by the other by "goading" or "urging forward". The dictionary meaning of the word "goad" is "a thing that State Vs. Kuldeep @ Abhishek FIR No. 240/2013 Page no.44/49 stimulates someone into action; provoke to action or reaction; to keep irritating or annoying somebody until he reacts." Reliance is placed upon the judgment of the Hon'ble Supreme Court in "Parveen Pradhan Vs. State of Uttaranchal " (2012) 9 SCC 734.
72. It has to be noted that "words" uttered in a fit of anger or omission without any intention cannot be termed as instigation. Reliance is placed upon the judgment of the Hon'ble Supreme Court in "State of Punjab Vs. Iqbal Singh" (1991) 3 SCC 1, in "Surender Vs. State of Haryana" (2006) 12 SCC 375, "Kishori Lal Vs. State of M.P." (2007) 10 SCC 797.
73. There has to be positive action on part of the person accused of committing the offence punishable u/s 306 IPC, 1860, that creates a situation for the victim to put an end to his/her life, which is not the case in the present matter. Reliance is placed upon the judgment of the Hon'ble Supreme Court in "Pawan Kumar Vs. State of H.P." (2017) 7 SCC 780 and in "Chitresh Kumar Chopra Vs. State (Govt. of NCT of Delhi)" (2009) 16 SCC 605.
74. Therefore, the inherent contradictions and inconsistencies in the deposition of the star witnesses who were present at the time of recording of the dying declaration of the deceased, has cast serious doubts upon the veracity of the testimony of the said witnesses. The contradiction, inconsistency and the exaggerations in the testimony of PW9, PW3, PW4, PW6, PW10 and PW11 is eroding the veracity of the witnesses themselves, State Vs. Kuldeep @ Abhishek FIR No. 240/2013 Page no.45/49 since the discrepancies are going into the root of the matter and in light of the decisions of the Hon'ble Supreme Court of India in "State of Rajasthan Vs. Abdul Manan " (2011) 8 SCC 65, such discrepancies cannot be overruled.
75. In a case based on circumstantial evidence, the settled law is that the circumstantial from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence, as held by the Hon'ble Supreme Court of India in "Hanuman Govind Nargundkar Vs. State of MP " AIR 1952 SC 343, "Bodh Raj Vs. State of J&K" AIR 2002 SC 3164 and "Sharad Birdhichand Sarda Vs. State of Maharashtra " AIR 1984 SC 1622 and "C. Chenga Reddy and Ors. Vs. State of A.P. "
(1996) 10 SCC 193.
76. It is also settled law that accused has to only proboblized the defense and he is presumed to be innocent till he is proved to be guilty. Suspicion, however, strong can never take place of proof. There is indeed a long distance between accused "May have committed the offence" and "Must have committed the offence", which must be traversed by the prosecution by adducing reliable evidence. Emphasis is supplied on the decision of the Hon'ble Supreme Court of India in "Kailash Gaur Vs. State of Assam"
(2012) 2 SCC 34 and "Padala Veera Reddy Vs. State of Andhra State Vs. Kuldeep @ Abhishek FIR No. 240/2013 Page no.46/49 Pradesh " AIR 1990 SC 79.
77. There is another golden thread which runs through the web of administration of justice in criminal cases, is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and other to his innocence, the view which is favourable to the accused should be adopted, as held by the Hon'ble Supreme Court of India in " Kali Ram Vs. State of Himanchal Pradesh " AIR 1973 SC 2773.
78. The improvements and the inherent contradictions in the testimony of the prosecution witnesses had certainly raised doubts in the mind of the Court and the effort of the Criminal Court is not to be prowl for imaginative doubts, unless is doubt is of a reasonable dimension and is what judicially conscientious mind entertains with some objectivity, otherwise no benefit can be claimed by the accused. In the present case the doubts raised from the testimony of the prosecution witnesses cannot be set to be merely imaginative and the same has been borne from the record of the present case. The said doubts are not merely imaginary or trivial in nature and it has dented the entire case of the prosecution. The burden of proof cast upon the accused person is governed by the principle of " preponderance of probabilities" and in light of the discussion above, the accused person in the present case has been able to raise reasonable doubts against the prosecution version of events and the hypothesis as propounded by the accused person that due to prior enmity, he has been falsely implicated in the present case by the State Vs. Kuldeep @ Abhishek FIR No. 240/2013 Page no.47/49 complainant. With the evidence brought on record, it cannot be said that the chain of prosecution witnesses and the evidence brought on record was so complete, so as to not leave any reasonable ground consistent with the innocence of the accused person.
79. When the entire evidence of the present case is cumulatively read and appreciated in the background of the settled principle of law and in the light of the evidence adduced by the prosecution is not worthy of acceptance and there is a serious shadow of doubt cast upon it and not worthy of inspiring any confidence. Hence, they strike at the very root of the prosecution story rendering it to be improbable and unbelievable. Therefore, in the opinion of this Court, there is no doubt that the prosecution has miserably failed to prove its case beyond reasonable doubt and hence, accused Kuldeep @ Abhishek is acquitted of the charges for committing the offences punishable u/s 306 IPC, 1860 and he shall be set at liberty, subject to the orders of the Hon'ble Appellate Court(s).
80. The accused person has already filed his bail bonds u/s 437A Cr.PC and the same shall remain in force for a period of six months from today. All the other bail bonds/surety bonds stands canceled and the earlier surety except for surety given u/s 437A Cr.PC stands discharged.
81. The case property, if any, be released to the rightful owner as per the law and the applicable rules, subject to the orders of the Hon'ble Appellate Court(s).
State Vs. Kuldeep @ Abhishek FIR No. 240/2013 Page no.48/49
82. File be consigned to the record room after due compliance.
Announced in the open court on 02.07.2024.
This judgment consists of 49 pages and All of them have been signed by me.
(ATUL AHLAWAT) ASJ (FTC)/North-
East/KKD Courts/ Delhi/02.07.2024 State Vs. Kuldeep @ Abhishek FIR No. 240/2013 Page no.49/49