Delhi High Court
Om Singh @ Ombir vs State on 26 September, 2008
Author: V.K.Shali
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL. A. 127/1999
Reserved on : 31st July, 2008
Date of Decision : 26th September, 2008
OM SINGH @ OMBIR ...... Appellant
Through Mr.Sanjay Jain, Sr.
Advocate/ Amicus Curiae with
Ms.Nitika Mangla, Adv.
Versus
STATE ...... Respondent
Through Mr.Sunil Sharma, APP
for the State.
AND
CRL. A.278/1998
RAJESH @ BHONDU ...... Appellant
Through: Mr.Mukesh Kalia,
Advocate.
Versus
STATE DELHI ADMN. ...... Respondent
Through: Mr.Sunil Sharma, APP for
the State.
CORAM :
HON'BLE MR. JUSTICE VIKRAMAJIT SEN, J
HON'BLE MR. JUSTICE V.K.SHALI, J
1. Whether reporters of local papers may be
allowed to see the judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported Yes
in the Digest?
JUDGMENT
V.K.SHALI, J:
1. These two appeals bearing Crl. A. No.127/1999 titled as
Om Singh Vs. State and Crl. A. No.278/1998 titled as Rajesh @
Bhondu Vs. State Delhi Admn. were heard together.
Accordingly, a common order is passed disposing of both these
appeals. Both the appellants were convicted by Sh.H.P.Sharma,
the then Additional Sessions Judge, Delhi for an offence under
Section 302/34 IPC vide judgment dated 29th April, 1998 and
sentenced to life imprisonment and a fine of Rs.5,000/- (Rupees
Five Thousand) each vide order dated 30th April, 1998.
2. The facts of the prosecution case are that on 29th October,
1993 at about 10.00 p.m., the appellant Om Singh @ Ombir
visited the shop No. A-1/8 in Block A-1 Market, Nand Nagri of the
deceased Shankar and started a murderous attack on him. It
was the case of the prosecution that Om Singh attacked Shankar
with a knife as a consequence of which the deceased Shankar,
received 32 injuries on different parts of his body. The deceased
came on the road while bleeding and ran up to about 40 paces
before falling. So far as the appellant Rajesh @ Bhondu is
concerned, the role attributed to him was that while Om Singh
was attacking the deceased Shankar, he had exhorted the latter
by uttering the words "Maar Sale Ko. Isko Pata Chale Ki Gawahi
Kaise Dee Jaati Hai". He was also carrying a screw driver in his
hand. Both Om Singh and Rajesh were alleged to have fled in a
three wheeler scooter from the spot while as on the basis of
information received at the police station a DD entry No.17A is
purported to have been recorded by the local police and handed
over to ASI Balkishan PW-13 who along with Constable Chander
Prakash PW-8 came to the spot i.e. shop bearing No.A1-6, Nand
Nagri where he saw a pool of blood not only in the shop of the
deceased but a trail leading up to the main road. PW-13, ASI
Balkishan learnt about the factum of injured having been taken to
the GTB Hospital by a PCR Van. He deputed Chander PW-8 to
remain on the spot and proceeded to the GTB Hospital where he
obtained MLC of the deceased who was injured at that point of
time. In the MLC, it was recorded by PW9 Dr. Lalita Sharma
who had prepared the same that the injured Shankar, (since
deceased) was fit to make statement. The injured had been
referred to the Operation Theatre for surgery. ASI Bal Kishan
PW-13 went to the Operation theatre where he is purported to
have recorded the statement of the injured Shankar Ex.PW13/A
in the presence of Dr.Umesh Madan. The injured Shankar in his
statement had categorically stated that Ombir had made a
murderous attack on him and inflicted several knife blows with
the intention to eliminate him. The reason for making such an
attack was that injured‟s son was a witness in a criminal case
against Ombir. Shankar also made a mention about the fact that
number of persons had seen Ombir fleeing from the spot. On
the basis of this statement, PW-13, ASI Balkishan came to the
spot and sent a Rukka Ex.PW13/A to the police station on the
basis of which an FIR bearing No.442/93 under Section 307 IPC
is registered, which was subsequently converted into Section
302/34 IPC on account of the death of the injured Shankar on the
same night at about 12.05 a.m. i.e. 30th October 1993.
3. After investigating into the matter and arrest of both Om
Singh and Rajesh on 19.5.94 & 1.12.94 respectively charge sheet
was filed against them. A charge under Section 302/34 IPC
was framed against both Om Singh @ Ombir and Rajesh @
Bhondu on 27th October, 1995.
4. The prosecution in support of its case has examined 18
witnesses namely:- PW-1 Prem Singh, PW-2 Vijay Kumar, PW-3
Dr.K.K.Tyagi, PW-4 Sh.Thomson Massey, PW-5 SI Mohan Singh,
PW-6 Sh.H.C.Srinivas, PW-7 ASI Harkesh, PW-8 Constable
Chander Prakash, PW-9 Dr.Lalita Sharma, PW-10 Constable Raj
Kumar, PW-11 SI Mahesh Kumar, PW-12 Constable Parmod
Singh, PW-13 ASI Balkishan, PW-14 Head Constable Shivji Singh,
PW-15 Dr.Rajesh Kumar, PW-16 Constable Pramod Kumar,
PW-17 Om Prakash and PW-18 SI Yogesh.
5. After examination of these witnesses, statement of the
accused persons were recorded under Section 313 of the Cr.P.C.
Both the accused persons expressed their ignorance about the
incident and alleged their false implication in the present case.
Om Singh @ Ombir stated that he has been falsely implicated by
one Constable Rohtas Singh who was inimically disposed towards
him. None of the accused persons adduced any defence
witness.
6. The learned Additional Sessions Judge after hearing the
arguments of both the sides pronounced both the accused
persons guilty of having committed an offence under Section
302/34 IPC in furtherance of their common intention on 29th
April, 1998 and sentenced them to life imprisonment and fine of
Rs.5,000/- (Rupees Five Thousand) each after affording them a
hearing on question of sentence on 30th April, 1998.
7. The present appeal has been preferred by the appellants
who are in custody. The Court had appointed Mr.Sanjay Jain,
learned senior advocate as amicus curiae for Ombir vide order
dated 24th April, 2008 while as the appellant Rajesh @ Bhondu
was represented by Mr.Mukesh Kalia, learned Advocate and the
State was represented by Mr.Sunil Sharma, learned Prosecutor.
8. Sh. Jain, learned senior counsel appearing for the main
accused Om Singh challenged the conviction and the sentence of
the accused on the ground that the identity of accused Om Singh
had not been established, inasmuch as the statement of Shankar
since deceased makes a mention in his statement that he was
attacked by one Ombir brother in law of Chaman. It was
contended that the prosecution had failed miserably to adduce
any evidence on record to show that Om Singh was related to
Chaman and, therefore, the very identity of the appellant Om
Singh becomes doubtful. The learned counsel further urged
that even the statement of the deceased Shankar could not be
said to be a dying declaration inasmuch as it was not recorded by
a Magistrate as envisaged by Chapter 13(A) of Volume III of the
Delhi High Court Rules and Orders which specially enjoins that
as far as possible the dying declaration ought to be recorded by
the Judicial Magistrate so far as to confer some amount of
authenticity and credibility on the same and even if it is to be
recorded by police officer or a medical officer it has to be got
attested by one or more persons who happen to be present at that
time. As against this, in the instant case, the so-called statement
attributed to the deceased Shankar is not only a fabricated
document but also does not inspire confidence so far as to take it
as a dying declaration. The reasons given by the learned senior
counsel are that Dr. Umesh Madan whose signatures are
purported to be on the said statement has not been named as a
witness. Further he has not made an endorsement that the
deceased was in a fit state of mind at the time of making the
statement. On the contrary, it was contended by Sh. Jain that
the number and the nature of injuries especially the injury No.29
to 32, which were suffered by the injured at the time when he was
brought to the hospital, were of such a nature that any person in
such a condition would not have been in a fit state of mind to
make any statement. This contention was sought to be further
strengthened by referring to the testimony of PW-9 Dr. Lalita
who in her cross examination has stated that the injured did not
tell as to how the injuries were received by injured and further he
was in a state of shock. It was also urged by Sh. Jain, learned
senior counsel that the statement attributed to the deceased was
not recorded in a question answer form.
9. So far as Rajesh @ Bhondu is concerned, Sh. Mukesh Kalia,
learned counsel also made the submission of the same lines
attacking the dying declaration. In addition, to this, Mr.Kalia
contended that so far as Ramesh is concerned, he is not
specifically named by the deceased in the said statement Ex
PW13/A and merely on account of the fact that the deceased has
stated that the incident was seen by a number of persons would
not mean that presence of Rajesh @ Bhondu is established. On
the contrary the absence of the name of Rajesh leads to a very
serious doubt as to whether Rajesh was present at the spot or
not.
10. Per contra, Sh. Sunil Sharma, learned counsel for the State
vehemently contended that there is no infirmity in recording the
statement of the injured Shankar by PW-13 ASI Bal Kishan on the
night of 29th October, 1993. It is also urged by him that there is
no hard and fast rule that in each and every case the dying
declaration ought to be recorded by a Magistrate and this is
evident from Rule VII of Chapter 13A which is relied upon by the
appellant, Om Singh himself. The only rule of prudence
enunciated therein is that it must be attested by one witness. So
far as the question of non-production of Dr.Umesh Madan by the
prosecution is concerned, it has been stated by Dr.Rajesh PW-15
that Dr. Umesh Madan could not be produced as a witness on the
ground that Dr.Madan had left the services of the hospital.
Dr.Rajesh Kumar, PW-15, Sr. Resident GTB Hospital has also
identified the handwriting and signatures of Dr. Madan on the
dying declaration Ex.PW13/A. It was urged that there is
absolutely no reason as to why the statement Ex.PW13/A ought
not be treated as a dying declaration on account of the fact that it
gives the cause of death of the deceased.
11. We have considered the respective submissions of the
parties. The first question which arises for consideration of this
Court is the identity of the appellant Ombir. The deceased
Shankar at the time when his statement was recorded had very
categorically mentioned that it was Ombir brother-in-law of
Chaman living in A-2 Block, Nand Nagri who had made
murderous attack on him. PW-2 Sh.Vijay Kumar was examined
as an eye witness who has identified Om Singh as the person who
had attacked the deceased Shankar. PW-13 ASI Balkishan in his
examination in chief has categorically stated that Ombir is the
alias name of the accused Om Singh. All the documents which
have been prepared and signed by the appellant Om Singh are
bearing name of the accused Om Singh @ Ombir. Even at
different places, the cross examination which has been
conducted by the appellant name of the accused has been shown
as Om Singh @ Ombir. No suggestion has been given by the
appellant Ombir to either, PW-2 Vijay Kumar or to ASI Bal
Kishan, PW-13 that Ombir and Om Singh are two different
persons or that the appellant was or was not the brother in law of
Chaman. Even in the statement of the appellant Om Singh,
which has been recorded under Section 313 of the Cr.P.C., he
does not say that Ombir and Om Singh are two different persons.
To test this proposition further, the deceased had categorically
stated in his statement dated 29th October, 1993 that Ombir is the
brother in law of one Chaman who resides at A-2 Block, Nand
Nagri. The factum as to whether Om Singh was actually the
brother in law of one Chaman who was alleged to be residing at
A-2 Block, Nand Nagri was a fact which was specially within the
knowledge of the appellant himself and, therefore, the onus
according to Section 106 of the Indian Evidence Act, 1872 was on
him to establish that Om Singh; appellant was not related to
Chaman. He could have either examined Chaman as a witness
or entered into the witness box himself or for that matter
examined any other witness to establish that he is not related to
Chaman. This has not been done. We are not drawing any
adverse inference on account of these facts or steps which
according to us ought to have been taken by the appellant Om
Singh in order to differentiate between Ombir and Om Singh but
this was only to show the fallacy of the submission made by the
learned counsel for the appellant. We are convinced that so far
as the appellant Om Singh is concerned, he is no person other
than Ombir and, therefore, the identity of the appellant is fully
established as the person who attacked deceased Shankar.
12. The law regarding dying declaration has been settled in an
off cited judgment of the Supreme Court in Khushal Vs. State of
Bombay AIR 1958 SC 22, where various tests have been
enunciated. In the said judgment, it has been categorically laid
down that after subjecting the dying declaration to a close
scrutiny if it is found to be genuine and truthful then even
conviction can be based on the sole dying declaration itself.
Various tests which have been propounded in the said judgment
are essentially to test the mental fitness of the person making the
statement, occasion and the opportunity of the deceased to see
the assailant and thereafter his capacity to reproduce the same
by way of a statement later including the time frame within which
such a statement is made so as to eliminate the possibility of
tutoring or false implication of any innocent person. We do not
agree with the submission of Sh.Jain, learned senior counsel that
as a matter of course or law unless and until a statement is
recorded by the Magistrate in a manner as envisaged under
Chapter 13A of the Delhi High Court Rules and Orders, it could
not be treated as a dying declaration. Rule VII of the said
Chapter 13A itself envisages at least one contingency where the
dying declaration could be recorded by the police officer or by a
medical officer. The only requirement is that there must be as far
as possible one attesting witness so as to lend credence to such a
statement. Another aspect of the matter is that under Section
32 (a) of the Indian Evidence Act, 1872 any statement written or
verbal, of relevant facts made by a person, when the statement
relates to the cause of his death, or as to any circumstance of the
transaction which resulted in his death, in a case in which the
cause of that person‟s death comes into question, such
statements are relevant whether the person who made such a
statement was or was not at the time when the statement was
made, under expectation of death. Thereby meaning that at the
time when such a statement with regard to the cause of his death
or any part of the transaction resulting in his death, the maker of
the statement need not be under imminent danger or threat of
death.
13. Coming back to the facts of the present case, the incident is
purported to have taken place at 10.00 p.m. The injured has
been rushed to the hospital and MLC Ex.PW9/A shows that
injured arrived at 10.50 p.m. on 29th October, 1993 in the
Hospital where he is examined and since he was declared fit to
make the statement by Dr.Lalita Sharma, PW-9 the injured was
sent to the Operation Theatre for surgery and in the meantime
when PW-13 ASI Balkishan who had been given the DD 17A for
investigation arrived at the spot, learnt about the fact that the
injured had been removed to the hospital. He went to the hospital
and obtained the MLC of the then injured Shankar, went to the
Operation Theatre and recorded the statement in the presence of
Dr. Umesh Madan. It was neither necessary nor required of the
ASI Balkishan to obtain the certification of Dr. Umesh Madan
that the injured was fit to make the statement because he was
already declared so by PW-9 Dr. Lalita. Further, at the time of
recording the statement of the injured, ASI Balkishan was not
recording the dying declaration of the injured. He was only
recording the statement for the purpose of registering a case and
setting into motion the criminal investigation machinery, which
he actually did by getting the FIR registered u/s 307 IPC on the
basis of this statement. It is a sheer chance and misfortune of
the injured that he succumbed to these injuries after an hour or
so i.e. at 12.05 a.m. on 30th October, 1993 that it attains the shape
of a statement of a dead person. Under these circumstances to
urge that it ought to have been recorded by a Magistrate is an
argument which is bereft of any sense and logic. So, therefore,
there was nothing wrong inherently in recording the statement of
the deceased by the police official. It is not as if the police
official has tried to fabricate or manufacture a document. He
was following the natural course of official discharge of his
duties. Yet we will examine the two other aspects regarding the
certification by the doctor and the capacity of the injured to make
the statement.
14. One of the arguments which was raised by Shri Jain,
learned senior counsel was to the effect that Dr. Umesh Madan
had not certified that the injured Shankar was fit to make the
statement. What has been recorded by him is that statement
was recorded in his presence and therefore, it could not be
assumed that the injured was fit to make the statement. The
other point which was urged by the learned counsel was that a
person who has received 32 number of injuries which the injured
had in the instant case, he could not have been in a fit mental
state to make the statement. The learned counsel drew our
attention to the MLC of the injured where Dr. Lalita has stated
that the patient was in a shock which is further admitted by her in
her cross examination. Further the nature of injuries, especially
injuries No. 29 to 32, must have caused substantial loss of blood
which would not permit any person in such a state to remain fit.
15. It has specifically been recorded by PW-9, Dr. Lalita
Sharma in the MLC Ex. PW9/A that the patient was conscious and
fit to make the statement. Apart from this, it will be pertinent to
refer to an important passage with regard to the necessity of a
certification of the doctor before the dying declaration is
recorded. The Hon‟ble Supreme Court in Laxman vs. State of
Maharashtra AIR 2002 SC 2973 had apparently resolved the
conflict between two benches of the Hon‟ble Supreme Court in
case titled as Paparambaka Rosamma and Ors. vs. State of
Andhra Pradesh 1999(7) SCC 696 and Koli Chunilal Savji and
another vs. State of Gujarat 1999 (9) SCC 562. In the first
case, the Supreme Court had held that in the absence of
certification given by a doctor to the effect that the patient is in a
fit state of mind to make the statement/dying declaration could
not be accepted by the Court as such to make it sole basis of
conviction while as in the later case, the Court had held that if
there is material on record otherwise to indicate the deceased
was fully conscious and was capable of making a statement/dying
declaration, the same cannot be ignored merely on account of the
absence of the endorsement having been made by the doctor
regarding fitness of the state of mind of the deceased. The
Supreme Court after examining the rationale of dying declaration
observed that there is no particular method of making a dying
declaration. It could be oral or in writing and there is no
requirement of law that it has to be recorded by a Magistrate or
by a doctor or even by a police officer. It is also not required to
be recorded on oath nor the presence of a Magistrate is
absolutely necessary. Although the presence of the Magistrate
lends more authenticity and credibility to the same. The facts of
each and every case will have to be seen in order to test the
minute examination of the dying declaration in order to
determine the truthfulness or the same and attach the
evidentiary value in a given fact situation.
16. In the instant case also, it cannot be said that there was no
certification of doctor that the patient was not in a fit state of
mind to make the statement. The incident is purported to have
taken place at 10.00 p.m. and the injured was brought to the
hospital at about 10.50 p.m. when MLC was recorded by PW-9
Dr. Lalita in which the doctor made an endorsement after making
elaborate entries with regard to the nature of injury suffered by
the injured i.e. that the patient is fit to make the statement. It is
also not in dispute that ASI Balkishan PW-13 after arriving at the
spot had received DD No. 17A had rushed to the spot and
thereafter came to the hospital whereupon he collected the MLC
and learnt that the injured had been taken to the Operation
Theatre where he went and recorded the statement of the injured
in the narrative form. It was there that Dr. Umesh Madan,
Senior Surgeon had appended his signature that it has been
recorded in his presence which lends credence to the same.
There is no suggestion to PW-9 Dr. Lalita or PW-13 ASI Balkishan
that the patient was not fit to make the statement. Therefore,
the deceased Shankar being in a fit condition to make the
statement is so probable that any reasonable and prudent person
would believe in the same.
17. Another argument which was advanced by the learned
counsel for the appellant was that as Dr. Umesh Madan has not
been produced as a witness therefore this was fatal to the case of
the prosecution so far as the question of attaching any credence
to the dying declaration is concerned. No doubt, Dr. Umesh
Madan, Sr. Surgeon in whose presence the statement has been
recorded was cited as a witness but it has come in the testimony
of PW-15 Dr. Rajesh Kumar that Dr. Umesh Madan has now left
the services of the said hospital and his present whereabouts are
not known therefore he could not be produced as a witness.
PW-15 Dr. Rajesh Kumar has also identified the hand writing and
signatures of Dr. Madan as he stated that he has seen him writing
and signing in the official discharge of his duties. There is
absolutely no reason as to why the testimony of this doctor could
not be relied upon with regard to the factum of Dr. Umesh Madan
having left the services of the hospital and the factum of the
certificate appended by Dr. Umesh Madan on the dying
declaration Ex. PW-13/A having been signed by Dr. Umesh
Madan as having been recorded in his presence. The
handwriting and the signature of a person may be proved either
by executant himself or by a person who is conversant with the
hand writing and the signature of the said person. In the instant
case latter course has been followed. So far as the nature of
injuries are concerned, most of the injuries which have been
suffered by the deceased (except injury No. 29 to 32) are either
minor in nature or injuries suffered by an impact. This is evident
from the facts of the case that though the attack on the injured
was vicious so was his defence to ward off the attack and in the
process he suffered these injuries. The contention of learned
counsel for the appellant is that no ordinary person could have
remained in a fit state to make the statement is belied by a
positive medical evidence of PW-9 Dr. Lalita who has recorded
the certificate. Further, a person could remain fit or not in a
given case would depend on his physique, will power and the
quantum of the time taken in removing the injured to the
hospital. In the instant case, the incident is purported to have
taken place at 10.00 p.m. and the MLC is recorded at 10.50 p.m.
on 29th October, 1993. This shows that he was removed to the
hospital quite fast and so was his statement recorded by the
PW-13 ASI Balkishan. All these facts clearly establishes that
dying declaration Ex.13/A is a genuine and truthful. It does not
suffer from any infirmity which will give rise to any doubt in our
mind that the deceased Shankar had any reason to falsely
implicate the appellant Ombir @ Om Singh as an assailant. On
the contrary, it inspires the confidence of the Court. It also does
not suffer from any infirmity or does not require any
corroboration so far as the commission of offence of stabbing the
deceased Shankar by the appellant Om Singh on the vital part of
his body is concerned. The injury No. 29 to 32 are such injuries
that in the ordinary course the appellant ought to have known
that such injuries would cause death of such person on account of
profuse loss of blood. It may be mentioned here that though
Dying Declaration mentions the name of Ombir, but the name of
Rajesh @ Bhondu is conspicuous by its absence. The deceased
has stated that number of persons had seen the incident but also
not any specific witness. The absence of the name Rajesh @
Bhondu has two significance. First, it belies the theory of
fabrication of the Dying Declaration by PW-13 ASI Bal Kishan
because if he had to fabricate the said document he would have
mentioned the name of both rather than omit the name of Rajesh
@ Bhondu. Secondly there can be various explanation for the
absence of the name of the name of Rajesh @ Bhondu in the dying
declaration of deceased Shankar.
18. The second submission which was made by the learned
counsel for the appellant was that the testimony of PW-2 Shri
Vijay Kumar could not be relied upon on account of the fact that
he was a planted witness. He was an interested witness which
would be evident from the fact that the version which has been
given by him to the effect that on the date of incident at about
10.00 pm, he was going to ease himself in public latrines in
Kashipura when he is purported to have seen the incident of the
deceased being stabbed by Om Singh. The learned counsel for
the appellants stated that not only the testimony of PW-2 Sh.Vijay
Kumar is highly improbable, full of contradictions but also very
unnatural. It also does not fit in with the story which has been
given by him with the documents especially with regard to the
site plan which has been prepared by the Investigation Officer.
Elaborating this argument further, it was urged that PW-2 has
specifically stated that at the time of incident, he was going for
easing himself and when he had reached near A-1 Block Market,
he found Om Singh attacking the deceased Shankar while as
another person Rajesh @ Bhondu whom he could identify by face
only at that point was exhorting by saying "Maar Sale Ko - Isko
Pata Chale Ki Gawahi Kaise Di Jati Hai". It was stated that PW-2
has made a categorical statement that at the time of incident, he
hid himself besides Panwari Khokha and till the time, the accused
persons fled away from the scene of crime. The distance which
has been given by the witness between him and the assailant was
about 10 paces and the distance between the appellant Rajesh
who was wielding screw driver and PW-2 Vijay Kumar was 10-15
paces. It was also admitted by the witness that it was at his
instance that the site plan was prepared by the Investigating
Officer ASI PW-13 Balkishan but in the cross examination his
evidence was sought to be demolished by urging that the witness
was not able to see the site plan and explain the position rather
he refused to see the site plan. The said plan which was prepared
by the IO was not showing the Panwari Khokha or the position of
PW2, Vijay Kumar and, therefore, it was stated that neither the
placement of the witness nor that of Khokha has been shown in
the site plan, therefore, the presence of PW-2 Sh.Vijay Kumar at
the scene of crime becomes doubtful.
19. It was also urged that the testimony of PW-2 Vijay Kumar
could also not been relied upon as he was a planted and an
interested witness inasmuch as his cross examination he has
admitted that Om Singh is facing another criminal trial in FIR No.
127 of 1990 in which his nephew had been killed and therefore
there was every reason and motive for him to testify falsely
against Om Singh so as to ensure his conviction. The learned
counsel also tried to demolish the testimony of PW2, Vijay Kumar
by urging that there was latrine at a place nearer to his residence
as compared to the latrines in Kashipura where he was
purportedly going to ease himself. It was urged that if a person
is suffering from dysentery he would go to a nearer latrine rather
than to a distant one. It was also urged by Sh. Kalra learned
counsel for Rajesh that the testimony of PW2, Vijay Kumar was
not reliable as his conduct was not natural. He did not render any
help to the injured or give information to police rather chose to
go back to his residence and come back later. In addition to
there are contradictions in his testimony in case it is seen in the
light of testimony of PW13, ASI Bal Kishan.
20. As against this, learned counsel for the State Sh.Sunil
Sharma urged that it was the case of the appellant himself that
the Khokha was at a distance of 100 yds. from the place of
incident and, therefore, the same has not been shown in the site
plan. It was also urged by him that merely on account of the fact
that PW2 Sh.Vijay Kumar‟s nephew was allegedly killed by Ombir
for which he was facing trial does not mean ipso facto that the
testimony of Sh.Vijay Kumar has to be discarded completely even
if he is shown to be otherwise truthful. The learned counsel has
placed reliance on Seeman @ Veeranam Vs. State IG of Police,
AIR 2005 SC 2502 to urge that the testimony of such witness is
only to be subjected to close scrutiny and if found correct and
truthful, it can be relied upon and could be made basis of
conviction.
21. There can be no fundamental rule or principle to the effect
that merely on account of the fact that presence of the witness or
of an object as stated by the witness is not reflected in the site
plan would result in discarding the testimony of the said witness
if otherwise it satisfies the conscience of the Courts that the
witness is telling the truth with regard to the main incident or the
occurrence. No doubt PW-2 Vijay Kumar has stated that he hid
himself beside Panwari Khokha which was at a distance of 10
paces or the fact that the rough sketch was prepared by PW-13
ASI Balkishan which he later failed to see so as to explain the
same would not make the Court to discard his testimony. This is
on account of the reason that no doubt the investigating officer
ought to have shown place the presence of the witnesses or the
Khokha in the rough site plan prepared by him which is
Ex.PW13/D but this is only a defect in the investigation, which
does not seriously prejudice the appellant nor does it make the
presence of PW-2 Vijay Kumar at the time of incident as doubtful.
The learned counsel has cited Shyam Sunder and Rajkumar Vs.
State, 1995 II AD DEL 136. In the cases relied upon by the
learned counsel there is no absolute proposition of law laid down
by the court that if the place of incident or the presence that of
the witness or any other object is not shown in the plan the
testimony of the witness cannot be relied upon. Rather in this
case it was observed by the court that if it examines the
statement of eye witness closely there appears to be discrepancy
as to the place where occurrence took place. Therefore the eye
witness was not relied upon. In our case there is no discrepancy
in the version of PW2 Vijay Kumar and the site plan so far as the
question of incident is concerned. It may be pertinent here to
refer that there is another site plan which is prepared by PW-11
SI Mahesh Kumar, which is Ex.PW11/A in which khokha is
purportedly shown at place „B‟ in concern of shop No.A-1/6, Nand
Nagri which is the place of incident. What was prepared by
PW-13 ASI Bal Kishan was only a rough sketch and not the site
plan. Merely on account of this reason, it could not be said that
PW-2 Vijay Kumar was not present at the place of incident. So
far as the conduct of the witness PW-2 being unnatural is
concerned, it is stated that different persons act and react
differently in a given fact situation. Merely on account of the
fact that PW-2 Vijay Kumar did not inform the police or did not
come forward to the rescue of the deceased would not make us
believe that his presence at the place of incident was doubtful.
He has given a very cogent and plausible explanation of being
present at the spot. It is not disputed that Sh.Vijay Kumar PW-2
is living in A-1 Block, Nand Nagri itself. The address given by
appellant Ombir Singh while recording his statement is A-1/435.
Therefore, the presence of PW-2 in and around „A‟ block cannot
be found fault with. The place of incident is a market place
which is also in A-1 Block and even the appellant used to reside in
a nearby area. PW-2 has stated that he knew both the deceased
as well as the assailant and has given his name. The reason for
not coming forward to give help to injured or to inform police is
also given by him that he was himself terrified on account of the
fact that his nephew had already been killed by him. As in
present case, any reasonable person placed in his place would
have got panicked that if the assailant sees such a person, he
would be sure to meet his death. Therefore, he went to his
home, kept the dabba and thereafter came to the spot on learning
that police had also come to the spot.
22. So far as PW-2 being an interested witness or a chance
witness is concerned, no doubt PW-2‟s nephew has been killed by
the appellant Om Singh but that FIR is registered in the year
1990 while as the present incident has taken place in 1993. If
PW-2 Vijay Kumar would have tried to falsely implicate Om Singh
he would not waited for a period of almost three years. The
testimony of PW-2 Vijay Kumar seems to inspire confidence as
nothing except minor contradiction of his testimony with other
witnesses especially PW-13 have been brought on record. Minor
contradictions are bound to be there in a truthful statement more
so when a person is semi-literate and the statement is being
recorded after two and a half years or so. Human memory is
short and with passage of time it tries to fade, if not completely
obliterate. What can be remembered by a person are the broad
parameters of the incident. This is a fact which in itself would
not discredit his testimony. PW-2 is not interested in the sense
that he is not related to the deceased in the instant case but the
very fact that his nephew was also killed by the same appellant
would not lead to discredit his testimony as it otherwise inspires
confidence. It is common knowledge that public witnesses by and
large shun away from being witnesses in criminal trial more so
when such a heinous crime is purported to be committed. With
the present state of affairs public witnesses feel that in case they
become witnesses not only it causes harassment of going to
courts endlessly but also exposes them to the threats by criminals
facing prosecution. Therefore, it cannot be said that his
testimony has to be discarded lock stock and barrel on account of
being related to the deceased of another case in which the
appellant was facing the trial. In Seeman alias Veeranam Vs.
State by Inspector of Police AIR 2005 SC 2503, it has laid down:-
"4. It is now well settled that the evidence
of witness cannot be discarded merely on
the ground that he is a related witness or
the sole witness, or both, if otherwise the
same is found credible. The witness could
be a relative but that does not mean to
reject his statement in totality. In such a
case, it is the paramount duty of the court
to be more careful in the matter of scrutiny
of evidence of the interested witness, and
if, on such scrutiny it is found that the
evidence on record of such interested sole
witness is worth credence, the same would
not be discarded merely on the ground that
the witness is an interested witness.
Caution is to be applied by the court while
scrutinizing the evidence of the interested
sole witness."
In case Sachehey Lal Tiwari Vs. Sate of U.P. AIR 2004 SC 5039,
which reads as under:-
"7. Coming to the plea of the accused that
PW-2 was 'chance witness' who has not
explained' how he happened to be at the
alleged place of occurrence it has to be noted
that the said witness was independent witness.
There was not even a suggestion to the witness
that he had any animosity towards any of the
accused. In a murder trial by describing an
independent witness as 'chance witness' it
cannot be implied thereby that his evidence is
suspicious and his presence at the scene
doubtful. Murders are not committed with
previous notice to witnesses; soliciting their
presence. If murder is committed in a dwelling
house, the inmates of the house are natural
witnesses. If murder is committed in a street,
only passersby will be witnesses. Their
evidence cannot be brushed, aside or viewed
with suspicion on the ground that they are
mere 'chance witnesses'. The expression
'chance witness' is borrowed from countries
where every man's home is considered his
castle and everyone must have an explanation
for his presence elsewhere or in another man's
castle. It is quite unsuitable an expression in a
country where people are less formal and more
casual, at any rate in the matter explaining
their presence."
23. Keeping in view of the aforesaid proposition of law in mind,
we are of the opinion that it could not be said that the presence of
PW-2 at the time of incident which was a sheer chance, is highly
improbable or that merely on account of the fact that his nephew
was earlier killed by the same assailant therefore, he becomes an
interested witness in the incident and as a consequence of this
his entire testimony ought to be disbelieved although he has been
able to withstand the test of cross examination. Accordingly, we
feel that the testimony of PW-2 Sh.Vijay Kumar is truthful,
believable and credible on the core issue of his being present in
and around the time of incident when he saw both Om Singh
attacking the deceased and Rajesh @ Bhondu giving a cover to
him by not only exhorting but also by holding a screw driver.
But as we are using the testimony of PW-2 only for the purpose of
corroboration of the dying declaration of deceased Shankar for
the purpose of relying on the proof of guilt of the accused persons
in this regard the presence of Rajesh @ Bhondu becomes slightly
doubtful because deceased Shankar has not specifically named
Rajesh @ Bhondu. To that extent the second appellant‟s
presence at the spot becomes doubtful in the sense that his
participation is not proved beyond reasonable doubt.
24. The next argument which has been urged by the learned
counsel for the appellant Om Singh, is to the effect that dying
declaration Ex.PW-13A is to the effect that Ombir @ Om Singh
had attacked the deceased Shankar has not been put to him
under section 313 Cr.P.C. and, therefore, it causes a serious
prejudice to him and if any fact which has come in evidence is not
put to the accused then this is a serious infirmity in the case of
prosecution and accordingly the entire trial is vitiated. For this
purpose, the learned counsel for the appellant Om Singh has
relied on Ajmer Singh vs. State of Punjab AIR 1953 SC 76,
Kuldeep Singh & others vs. State of Delhi 2004 12 SCC
528,Bhagat Singh vs. State of Madhya Pradesh 1953 SC 468
and Devi Rani vs. State 1970 Cr.L.J. 536.
25. There is no denying of the fact that there is a consistent
string authorities that the entire incriminating evidence must be
put to the accused in his statement under section 313 Cr.P.C.
(Sec.342 under old Act) with a view to gather what is the
response of the accused qua the said evidence and if this is not
done it may be fatal to the prosecution. But there is no universal
rule of law that if the evidence is not put it will result in vitiating
the entire case, the accused also have to show that on account of
this there has been a miscarriage of justice or a serious prejudice
caused to the accused. The learned counsel to the appellant Om
Singh has cited number of judgments. Judgments are to be cited
for what ratio it lays down and the facts of that case are not
referred to. The contention of Sh. Jain is that Dying Declaration
of the deceased Shankar has not been put to him specifically nor
it has been put to him that he is in relation of Chaman. We don‟t
agree with this submission of the appellant. As a matter of fact
the second question which has been put to the witnesses with
regard to the statement Ex.PW-13/A made by deceased to which
his response is that he does not know. We feel that there is
sufficient compliance with the provision of Section 313 Cr.P.C.
On the contrary the answers of the appellant are that he is not
aware of any such incident having taken place.
26. We do not agree with the submission of the learned
counsel for the appellant that the evidence which has come on
record by way of dying declaration has not been put to him
specifically on the contrary question No.2 which reads as under:-
"Q 2: It is also inevidence against you that
police party came to know that injured had
already been removed to GTB hospital and on
this SI Bal Kishan went to GTB hospital after
leaving Chander Prakash at the spot and
obtained the MLC of the injured Shankar @
Jaggar @ Meatwala and the Doctor had
declared him fit for statement and SI BAL
Kishan had recorded the statement of injured
Shankar Ex.PW13/A in the presence of Dr.
Umesh Madan and his statement has been
attested by Dr. Umesh Madan at point C which
bears the signts. of IO at point B what have
you to say?
Ans. I do not know."
27. A perusal of the aforesaid question will clearly show that
the evidence which had come on record by way of dying
declaration had been put to him specially and it was for him to
give an explanation as to why the deceased had named him
specially which the former person has failed to do so. In
addition to this, we are of the view that Section 313 gives the
manner of recording the statement of the accused and it is
further laid down under Section 465 that any irregularities or
impropriety or for that matter illegality during the course of trial
will not vitiate the proceedings, trial against an accused offender
unless and until failure of justice has been occasioned. The
appellant must not only show the prejudice which has been
caused to him he must also show that there has been a serious
miscarriage of justice. The appellant has failed to discharge this
onus, accordingly, it is felt that there is no infirmity in recording
the statement of the appellant as has been done in the instant
case.
28. Keeping in view the aforesaid facts in mind, we are of the
considered opinion that the appellant Om Singh @ Ombir was the
person who had inflicted various injuries including the injury
Nos.29 to 32 on the deceased in a short span of few minutes and
thereby causing probabilities, it would cause the death of the
deceased which in fact actually he did on early morning of 30th at
about 12.05 pm. Accordingly, we hold that the prosecution has
been successful in proving the guilt of the appellant beyond
reasonable doubt and accordingly the appeal of the appellant is
liable to be dismissed.
29. So far as the appeal of the co-accused Rajesh @ Bhondu is
concerned, the learned counsel Mr.Kalia appearing for him had
almost advanced the same arguments which were advanced by
Sh.Sanjay Jain, learned senior counsel. We have considered
the submissions made by Mr.Kalia also. No doubt the name of
Rajesh has been taken by PW-2 Sh.Vijay Kumar and he has also
been identified in the Court as the person who was exhorting the
appellant by urging him "Maar Sale Ko - Isko Pata Chale Ki
Gawahi Kaisa Di Jati Hai" but there is a lurking doubt that he may
or may not be present at the time of incident. This is on account
of the reason that although the deceased Shankar in his
statement had specially taken the name of the appellant Ombir @
Om Singh, he has further stated that this episode has been seen
number of witnesses. As the deceased has not specifically
named Rajesh as the person who was present at the spot at the
time of incident, it creates doubt about his presence at the spot at
the time of incident. Needless to say that we are of the
considered opinion that the dying declaration of the deceased
Shankar is voluntary and truthful and it does not suffer from any
infirmity on account of the fact that Dr. Madan‟s non-certification
because the patient was declared as fit by PW-9 Dr. Lalita
therefore that is the sole basis on which the conviction of Om
Singh @ Ombir could be based. But we went further and relied
upon the testimony of PW-2 Vijay Kumar as a corroborative piece
of evidence to reassure ourselves about the guilt of the appellant
but while doing so the corroborative piece of evidence and could
not be the basis of conviction of Rajesh @ Bhondu whose name is
missing from the Dying Declaration and for this he is given the
benefit of doubt. Before we part we must express our
displeasure that the investigation of the case have been
conducted in a most perfunctory and unprofessional manner.
30. In the light of the aforesaid facts and circumstances of the
case, we are of the considered opinion that the prosecution has
been successful in establishing the guilt of the accused Om Singh
@ Ombir beyond reasonable doubt for which he has been rightly
convicted under Section 302 IPC and sentenced to life
imprisonment apart from fine by the learned Additional Sessions
Judge, Delhi vide orders dated 29.4.1998 and 30.4.1998 which
accordingly we affirm.
31. So far as the appeal of the appellant Rajesh @ Bhondu is
concerned, the same is allowed and the conviction and sentence
of life imprisonment awarded vide orders dated 29th April, 1998
and 30th April, 1998 under Section 302/34 IPC is set aside
because it is doubtful as to whether he was present at the spot or
not, on account of his name not appearing in the dying
declaration. Though there is suspicion in this regard but
suspicion cannot take the place of proof and obviously the benefit
must go to them.
32. Accordingly, the Crl. Appeal. No.278/1998 titled as Rajesh
@ Bhondu is allowed and the appellant-Rajesh @ Bhondu be set
at liberty forthwith in case he is not required in any other case.
The Crl. Appeal No.127/1999 titled as Om Singh Vs. State, is
dismissed and the conviction and sentence awarded to him vide
judgment/order dated 29th and 30th April, 1998 respectively of the
trial Court is reaffirmed. A copy of the order be sent to the Ld
Trial Court as well as to the Superintendent, Central Jail, Tihar so
as to make it available to the appellant Ombir @ Om Singh as
early as possible.
(V.K.SHALI)
JUDGE
(VIKRAMAJIT SEN)
JUDGE
September 26, 2008
RN/RS
