Prem Kumar vs State
1989 Latest Caselaw 203 Del

JUDGMENT

1. This appeal has been brought against judgment dated March 26, 1987, of an Additional Sessions Judge, New Delhi, convicting the appellant of an offence punishable under S. 304, Part I, read with S. 34 of the Indian Penal Code (for short 'IPC') and a subsequent order of the same date sentencing the appellant to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 5,000/- and in default to undergo further rigorous imprisonment for three months.

2. Facts, in brief, are that on March 13, 1980, some unknown person had given a message to Police Control Room which was recorded in Daily Diary No. 91 at 3.14 p.m. to the effect that some persons in a taxi had thrown out a person on Road No. 53, Near Ayurvedic Hospital Punjabi Bagh and that person appeared to be dead. The Control Room conveyed this message to Police Station Punjabi Bagh where it was recorded at serial No. 17A in Daily Diary at 3.25 p.m. and SI Sukhbir Singh, who was present in the area in connection with holding some inquiry in Daily Diary No. 17A at East Avenue Road, was sent a copy of the Daily Diary report through Constable Suraj Bhan along with police vehicle No. DHD 312. SI Sukhbir Singh had reached the spot accompanied by Constable Bhopal Singh and Constable Suraj Bhan in the said vehicle being driven by Head Constable Amar Singh and he found that Police Control Room Van, which was under the charge of Head Constable Ram Parkash (PW 13) had already arrived and he made query from the injured person lying there, whose name was disclosed by him as Kishan Lal. At that time, PW 2 Subedar Sher Singh was also present and the injured Kishan Lal was stated to have made the statement which was recorded in Urdu and was reproduced in his own words in the Rukka Ex.PW 12/A which was signed by Head Constable Ram Parkash, witness Sher Singh and duly attested by SI Sukhbir Singh. The free translation of the said dying declaration is to the following effect :

"That about a month earlier, Sri Ram, real brother of Kishan Lal, had been stabbed and they (Sri Ram and his family) suspected Kishan Lal of being instrumental in that stabbing with a view to take revenge, at about noon time appellant Prem Kumar s/o Sri Ram, accompanied by one Puppy, one Bengali and another person, whose name he did not know, had assaulted him with knives and hockeys at a hillock in New Delhi while Prem with knife and others with hockeys had assaulted him and after putting him in a taxi had thrown him out at that spot and that he was about to die and he should be taken to the hospital immediately."

3. It was recorded in the endorsement made by SI Sukhbir Singh in this dying declaration that Kishan Lal was in lawful pain and was keeping his eyes closed and thus, he was not in a position to sign the said statement. He took steps to send the injured Kishan Lal in the PCR Van and Kishan Lal was admitted in the hospital as per MLC Ex.PW 28/A with the history of having been stabbed and beaten by somebody. He was admitted in the hospital at 4.10 p.m. and at that time he was conscious but was smelling of alcohol. However, he succumbed to his injuries at 4.25 p.m. as per death summary Ex.PW 31/A due to cardio-respiratory arrest. Earlier to that Rukka was sent through Constable Bhopal Singh for registration of the case. A case under S. 307 read with S. 34 IPC came to be registered at Police Station Punjabi Bagh as per copy of the FIR Ex.PW 42/C at 4.05 p.m. vide Daily Diary No. 20A. SI Sukhbir Singh also reached the hospital and learnt about the death of the injured Kishan Lal and converted the case from S. 307 IPC to S. 302 IPC and was met by PW 23 Kanhaiya Lal and PW 36 Suraj Parkash, who are residents of the same place as deceased and had come to the hospital on learning about deceased having been taken to the hospital and they accompanied the police in search of Prem Kumar and at about 7 p.m. on the same day Prem Kumar was arrested and his personal search resulted in seizure of one ration card belonging to the deceased and one electricity bill Ex.PE also in the name of the deceased, which were taken into possession vide memo Ex.PW 23/B. Blood-stained shirt Ex.P 1, which was worn by the appellant at that time, was also taken into possession and converted into sealed parcel. This memo was also signed by the said two witnesses. On the following day, in the presence of the same witnesses the appellant was interrogated and he is stated to have made a disclosure statement which was reduced into writing Ex.PW 36/C and in pursuance of the said disclosure statement, relevant portion of which was that he had concealed the dagger, which was used in the occurrence, in the garbage can Dev Nagar and he could point out the same and get it recovered and thereafter he got recovered the dagger from that place of which sketch Ex.PW 36/B was prepared. The upper small portion of the blade of the dagger stood broken. The same also was found to be blood-stained and was converted into sealed parcel and taken into possession vide recovery memo Ex.PW 36/A. The appellant had also disclosed about the place of occurrence where the deceased was subjected to stabbing and beating and had led the police party and pointed out the place in the said hillock near Railway Line close to Bhutan Embassy from which place certain broken pieces of bottles of rum and wine, some pieces of cigaratte, and some blood were found and which were taken into possession vide memo Ex.PW 15A. This memo is signed by SI Ram Chander and ASI Ram Saran. At this time, it appeared that public witnesses were not joined. From the place where the injured was found lying in Punjabi Bagh, blood-stained earth, one blood-stained paper and control earth were also taken into possession and converted into sealed parcel vide memo Ex.PF. SI Sukhbir Singh also held the inquest proceedings and had taken into possession the sealed parcel containing the Pajama of the deceased vide memo Ex.PW 14/A. The post-mortem was performed by Dr. Bharat Singh (PW 2) who noticed the following injuries :

"1. One incised wound over the right frontal area placed obliquely size 1" into skin deep covered by blood clot.

2. Multiple scattered abrasion on the front neck and upper part of the chest of various sizes and shapes red in colour.

3. Multiple contusion on the lateral size of right arm and forearm, all over wearing in size from 3" x 1" to 2" x 1". Blue red in colour.

4. Contusions on the back of right hand all over, bluish red in colour.

5. Contusion with abrasion on right side of chest in an area of 6" x 2", red in colour.

6. Two linear scratches over the right side of abdomen crossing, each other as shown in diagram size was 7" long.

7. Abrased contusion on the right thigh upper front part in an area of 12" x 9" bluish red in colour.

8. Contusion on the front mid part of thigh placed transversely, size 6" x 1" bluish red in colour.

9. One incised wound on the right gluteal area placed transversely size 1" x 1/4" x 1/4". Wound was spindile.

10. One incised wound in front of right thigh lower part size 1" x 1/10" x 1/10".

11. One incised wound on the front of right leg, near the knee joint, size half inch into skin deep.

12. Multiple abrasion with contusion on the front of right leg all over bluish red in colour.

13. Multiple contusion on left leg all over bluish red in colour.

14. One incised wound on the left buttock placed transversely, size 1" x 1/10" x 1/10".

15. Contusion all over left buttock and upper part back of thigh in an area of 18" x 6" bluish red in colour.

16. Multiple abrasion contusion on the back of chest and abdomen, placed in various directions bluish red in colour.

17. Multiple abrasion with contusions all over the outer side of the left arm and forearm, bluish red in colour."

The doctor opined that all injuries were anti-mortem and injuries Nos. 1, 6, 10, 11 & 14 were possible by sharp edged weapon and other injuries were possible by blunt object such like lathi or stick, and death was due to severe pain resulting from multiple injuries but injuries were not sufficient to cause death in ordinary course of nature and he proved his report Ex.PA in this connection. The sample blood of the deceased and the Kurta of the deceased were taken off by the doctor and converted into sealed parcel which were also taken into possession by the Investigating Officer.

4. As the place of occurrence fell within the jurisdiction of Police Station Chanakyapuri, the case was got registered at Police Station Chanakyapuri vide copy of the FIR Ex.PH and the further investigation was taken over by SI Lala Ram (PW 41). It appears that the appellant had also pointed out the wine shop from where the bottles of liquor were purchased, and the said pointing out memo is Ex.PW 22/A. Prem Kumar, Gopal, Mohinder Singh @ Pappi and Pranab @ Bengali were tried by the Additional Sessions Judge for offence punishable under S. 302 read with S. 34 IPC. The Additional Sessions Judge after considering the evidence came to the conclusion that dying declaration given by the deceased Kishan Lal was by itself sufficient to bring home the offence as it was truthful and did not suffer from any infirmities but as identities of other three culprits mentioned in the dying declaration could not be linked with the other three accused, so he acquitted the other three accused while he convicted the appellant on the basis of the said dying declaration alone but also held that there was sufficient evidence proved on the record showing that the appellant had taken the deceased with him on that day at about 10 a.m. and that he had got recovered the weapon of offence i.e. the dagger in question and had also pointed out the place of occurrence and thus, he held him guilty of the offence punishable under S. 304, Part I, read with S. 34 IPC.

5. I may mention here that the case property was also sent to the CFSL and the reports Ex.PW 41/A and PW 41B were received which clearly depicted that the blood of the deceased was of 'B' group which was found on his pajama and Kurta and was also found on the dagger in question. Although Shri I. S. Arora, Advocate, yet when the appeal reached for hearing before me in spite of the fact that the case was adjourned a number of times, counsel for the appellant failed to appear, production warrants of the appellant were issued who appeared before me on December 19, 1988 and requested the court to fix a date for arguments and he would see that his counsel appeared on the next date to argue the matter but in spite of the fact that the case was fixed as per his request, yet his counsel never appeared and again the appellant was summoned and he was brought from Jail on February 22, 1989 and he then requested the court that he was not in a position to engage any counsel as his previous counsel had not appeared to conduct the case and so a counsel at the State expense may be provided to him. I appointed Miss Maldeep Sidhu, Advocate, as amices Curiae at the State expense to argue the matter. She had advanced elaborate arguments in support of the appeal. The Court expresses its gratitude to the counsel for rendering able assistance in the matter.

6. The first attack of the learned counsel for the appellant is with regard to the veracity and the truthfulness of the alleged dying declaration made by the deceased. She has contended that the alleged dying declaration had been recorded in question and answer form by the police and no efforts had been made to get the statement recorded by any Magistrate and the statement had not been also got signed or thumb impressed by the deceased. So, the said statement should not be taken into consideration. She also pointed out that Constable Bhopal Singh, who was present at the time of recording of the dying declaration had not in his statement in court made any reference to any such dying declaration and there appeared many discrepancies in the statement of PW 12 Subedar Sher Singh which also would throw lot of doubt on the veracity of the dying declaration.

7. While narrating the facts it has already been pinpointed that deceased was subjected too many stab injuries and blows given by blunt weapon and had multiple injuries and was almost on the verge of death. It is clearly recorded by SI Sukhbir Singh that deceased was groaning in awful pain and was keeping his eyes closed when he made the dying declaration and the anxiety of the police at that time was to rush him to hospital for giving him medical aid if the same could save the life of the deceased. So, there was very little time available with SI Sukhbir Singh in making any efforts to get any higher officer or Magistrate for getting recorded the dying declaration and he had given good explanation for not getting the signatures or thumb impression of the deceased on the dying declaration as the man was on the verge of death and was not even opening his eyes and was in lot of pain that the deceased could not be made to sign or thumb impress the said dying declaration. As far as Constable Bhopal Singh is concerned, it is true that he accompanied SI Sukhbir Singh to the spot and appeared as PW 7 and had not made any reference to any dying declaration made by the deceased but the fact should not be lost sight of that constable have to perform some job at the spot of keeping the spot of keeping the spot guarded and they might not pay any attention to the investigation being done by the Investigating Officer. No question was put to Constable Bhopal Singh eliciting from him whether he had heard the dying declaration at the spot from the mouth of the deceased. So, the mere fact the constable Bhopal Singh had not made any reference to the dying declaration in his testimony in court does not take away the authenticity from the said dying declaration. As far as Subedar Sher Singh (PW 12) is concerned, he was the first man who have seen the deceased being thrown out of the taxi and his making request to some inmate of Kothi No. 28, Punjabi Bagh, to inform the police and he did state that injured had told that his nephew, one Bangali one Pappi and one other whose name he did not recollect, had caused him injuries. It appears that he had forgotten the name of the said nephew, which was given by the deceased, in his dying declaration. The other discrepancy pointed out in his testimony is that he mentioned that Head Constable Ram Parkash had also reduced into writing the dying declaration but the case of the prosecution is that no such dying declaration was scribed by Head Constable Ram Parkash. It is to be remembered here that it is admitted even by Subedar Sher Sing as also deposed to by Head Constable Ram Parkash that local police had arrived at the spot almost when the Control Room Van had reached. So, it is evident that Head Constable Ram Parkash, who reached a few moments prior to arrival of the local police had perhaps put some questions to the injured and at that moment SI Sukhbir Singh also arrived and the dying declaration was taken down by SI Sukhbir Singh. Subedar Sher Singh categorically admits that he had signed the said dying declaration recorded by the local police. He identified his signatures on Ex.PW 12/A at point 'X'. PW 12 Subedar Sher Singh has been found to be truthful witness by the trial Court for very good reasons. He was frank enough to depose that he could not identify any of the culprits who had gone away in the taxi after throwing out the injured on the road.

8. Counsel for the appellant has also pointed out that the dying declaration had not been taken by SI Sukhbir Singh in any separate paper and he had at first narrated the facts as to how and in what manner he arrived at the spot and who were the persons whom he found present at the spot and thereafter, he had written the said dying declaration in inverted commas. It is argued that if there was some urgency required in taking down the dying declaration the Investigating Officer would have not proceeded to record the dying declaration in the manner he had recorded. Mere fact that the Investigation after narrating a few facts as to the manner he came to the spot would not, in my opinion, throw any doubt regarding the authenticity or veracity of the dying declaration. It is also pertinent to mention that in the dying declaration except for the name of the appellant and his parentage and his close relationship with the deceased the particulars of other three culprits were not detailed out. If the dying declaration had not been made in a natural manner by the deceased and had been fabricated later on, as is the argument advanced, in consultation with the relations of the deceased, then the vague particulars of other culprits would not have been mentioned in the dying declaration and some specific facts would have been mentioned to identify the other culprits as well. So, I agree with the reasons given by the Additional Sessions Judge in giving the findings that dying declaration had been made by the deceased in the manner alleged by the prosecution and the same is the truthful one. It is not disputed before me that the appellant's father had received stab injuries earlier and a case was registered and that had gone untraced. So, the motive given in the dying declaration for the appellant nursing some suspicion about the hand of deceased in that occurrence and taking revenge on that score can be considered to be plausible one. It is settled law that if the dying declaration is proved to be truthful one then the same alone can be the basis for bringing home the offence to the accused. In Khushal Rao v. State of Bombay, , it was held that :

"In order to pass the test reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination. But once, the court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration. If, on the other hand, the court, after examining the dying declaration in all its aspects, and testing its veracity, has come to the conclusion that it is not reliable by itself, and that it suffers from an infirmity, then, without corroboration it cannot form the basis of a conviction. Thus, the necessity for corroboration arises not from any inherent weakness of a dying, declaration as a piece of evidence, but from the fact that the Court, in a given case, has come to the conclusion that particular dying declaration was not free from the infirmities".

9. Same principles were laid down by a Division Bench of this Court in Om Parkash v. The State, . The mere fact that the dying declaration is not in question and answer form also in my opinion, is not sufficient to throw any doubt on the dying declaration in question regarding its authenticity and truthfulness. In Urgency Sharpe v. State of Sikkim, 1985 Cri LJ 1988, a Division Bench of Sikkim High Court had an occasion to examine this question and it was held that the dying declaration should not be seen as suspect merely because it has been recorded in a narrative and not in question and answer form. Normally the dying declaration as far as possible should be recorded in question and answer form but mere omission to do so without any further defects in recording the dying declaration would not be sufficient to brush aside the dying declaration. In the present case the dying declaration has been recorded in narrative form but it appears to be in the words uttered by the deceased and the same had been put into inverted commas by SI Sukhbir Singh. So, I hold that in the present case it is proved beyond any shadow of reasonable doubt that dying declaration had been recorded and the same is truthful.

10. As far as other evidence in support of the charge is concerned, PW 1 Jail Singh, who had allegedly seen the occurrence at the spot, had turned hostile and did not support the prosecution version. PW 10 Shakuntala, widow of the deceased, did support the prosecution case on the point of Prem Kumar appellant coming to the house and asking Kishan Lal to accompany him and the appellant had told Kishan Lal that he had some work with him and Kishan Lal had gone. She had mentioned that she herself was ailing at that time and one neighbour Prem (PW 32) had come to render some assistance in the household work at that time. She had in her police statement mentioned about appellant suspecting her husband of being instrumental in appellant's father being stabbed but she expressed ignorance about these facts and denied having told the police that the appellant had earlier given any threats to her husband for taking any revenge. She had also allegedly told the police that the appellant wanted her husband to give surety for someone and for that purpose the appellant had come to ask her husband to accompany him. She was confronted with the statement recorded under S. 161 of the Criminal P.C. after taking permission of the court but she denied these facts whereas the admitted a particular fact that her husband had gone in the morning at about 10 a.m. with the appellant. To the same effect is the statement of Prem (PW 32) who is an independent witness. She also mentioned that Kishan Lal had taken the ration card with him. PW 11 Gulab Singh, son of the deceased, however, for reasons known to him best did not care to support the prosecution case of his having known that the appellant had taken his father on that day in the morning so that his father could stand surety but he was declared hostile and in cross-examination by the Public Prosecutor he stated that his mother had told him that the appellant had come to the house for taking his father on that morning. It is to be remembered that he is cousin brother of the appellant and he might have been persuaded by some close relations not to give any statement incriminating the appellant for the offence. Be that as it may, there is no reason to doubt the testimony of PW 32 Prem and PW 10 Shakuntala.

11. Apart from this fact that it is appellant who had taken the deceased in the morning, the recovery of electricity bill in the name of the deceased and the ration card of the deceased from the personal search of the appellant at the time of arrest also renders the statements of Shakuntala and Prem corroboration that it was appellant who had taken the deceased with him so that deceased could furnish some surety. Kanhaiya Lal witness had turned hostile but he admitted his signatures on all material documents and did not give any explanation as to why he signed the documents at the instance of police if nothing had happened in his presence. The other public witness Suraj Parkash (PW 36) had wholly corroborated the prosecution case on all points. Nothing has come out from his cross-examination to show that he had any reason to depose against the appellant. He is not shown to be any relation of the deceased or connected with the deceased's family. He is as much neighbour of the deceased as of the appellant. So, there is no reason for not placing implicit trust in the testimony of such an independent witness.

12. The learned counsel for the appellant has, however, argued that Suraj Parkash has not in his examination-in-chief narrated the facts given out by the appellant in his disclosure statement. I do not think it makes any difference to the prosecution case. After all the witness did state that the disclosure statement was made by the appellant and he had signed the same and he had got recovered the dagger in question from that particular place. It is also significant to mention that the blood, which was found on the blade of the dagger, was of same human group as the blood of the deceased. This renders further assurance to the prosecution case that the dagger in question was used in committing the offence by the appellant. It is also to be remembered that it is the appellant who in fact pin-pointed the place of occurrence and the broken pieces of liquor bottle and some selfish eatables were recovered from that place and so also the blood stained stone. Hence, from all these facts which stood proved on record beyond any shadow of doubt the Additional Sessions Judge was right in coming to the conclusion that it is the appellant along with three other culprits (who remained unknown) that the offence in question was committed. So, the appellant has been rightly convicted for the offence punishable under S. 304, Part I read with S. 34 IPC. The appellant does not deserve any leniency in sentence inasmuch as he has done away with the life of his own real uncle by inflicting knife injuries while his companions gave hockey blows to the deceased. So, I maintain the conviction and the sentences of the appellant and dismiss this appeal.

13. Appeal dismissed.