Narender @ Sonu & Ors. vs State (Nct Of Delhli)
2009 Latest Caselaw 4176 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                        Judgment reserved on : October 12, 2009
                        Judgment delivered on : October 15, 2009


+      CRIMINAL APPEAL NO.518/2009

       NARENDER @ SONU & ORS.            ..... Appellants
                   Through: Mr.I.A.Alvi and Mr.Altaf Alvi,
                            Advocates


                             versus

       STATE (NCT OF DELHI)                    .....Respondent
                    Through:       Mr. Sunil Sharma, Advocate.

       CORAM:
       HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
       HON'BLE MR. JUSTICE AJIT BHARIHOKE


     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
        in Digest ?                                Yes


AJIT BHARIHOKE, J.

1. The appellants, having been convicted under Section 302 IPC

in Sessions Case No. 166/2002 arising out of FIR No.320/2002

under Sections 148, 149, 323/302 IPC, Police Station S.P. Badli for

having committed murder of the deceased Sandeep @ Lala vide

impugned judgment dated 26.05.2009 and sentenced in terms of

order on sentenced dated 28.05.2009 to undergo imprisonment for

life and to pay fine of Rs.5,000/- respectively and in default of

payment of fine, to undergo RI for the period of six months

respectively, have preferred the instant appeal.

2. Briefly stated, case of the prosecution as projected was that

on 25.05.2002 at about 6.48 PM, information about a firing incident

at the Harijan Basti, Khera Kalan, Delhi was received at Police

Station S.P. Badli and it was recorded in the daily diary register as

DD No.23A. Copy of the DD report was entrusted to SI Harkesh

Gaba (PW15) for verification, who proceeded to the spot along with

Constable Parkash.

3. That seven minutes later at 6.55 PM, another information

about stabbing of a boy in front of Oriental Bank of Commerce,

Khera Kalan was received at the Police Station, which was

recorded in the daily diary register as DD No.24A. Copy of the said

DD report was also forwarded to SI Harkesh Gaba (PW15) through

Constable Vijay Kumar for verification. The SHO and the Additional

SHO were also informed about the information on telephone and

Inspector Rajbir Singh (PW25) was also instructed to the place of

incident.

4. That SI Harkesh Gaba (PW15) along with Constable reached

at the spot of occurrence near the Oriental Bank of Commerce,

Khera Kalan. He was informed that two injured persons had

already been removed from the spot to Babu Jagjivan Ram

Hospital, Jahangir Puri. One injured Shashi (PW1), however, was

found present at the spot. He was removed to Babu Jagjivan Ram

Hospital by SI Harkesh Gaba. On reaching the Hospital, SI Harkesh

Gaba collected the MLC of injured Ram Niwas who had sustained

bullet injury and also that of deceased Sandeep @ Lala. On the

MLC, the deceased Sandeep @ Lala was declared "brought dead"

by the Doctor. SI Harkesh Gaba, (PW15) collected the MLC of

injured Shashi (PW1). In the meanwhile, Inspector Rajbir Singh

(PW25) also reached the Hospital and SI Harkesh Gaba (PW15)

handed over the MLC of Shashi Kumar Parcha (PW1) and the MLC

of the deceased Sandeep @ Lala to Inspector Rajbir Singh (PW25).

5. That Inspector Rajbir Singh (PW25) recorded the statement of

PW1 Shashi Kumar Parcha wherein he stated that about one and

half months prior to the occurrence, the deceased Sandeep @ Lala

had stabbed Sonu (appellant No.1) who was the nephew of Ram

Niwas (appellant No.4) in a quarrel and a case in respect of the

said incident was registered against the deceased. Due to the said

incident, there was ill-will between them. He further stated in his

statement that on 25.05.2002 at about 6.00 pm, he and Sandeep

@ Lala (deceased) were sitting at the „chopal‟ near Valmiki Mandir,

Khera Kalan. Sanjeev @ Harpal, a resident of Khera Kalan and

friend of the deceased came there and told them that he was

slapped by Ram Niwas(appellant No.4) while he was coming via his

gali, for the reason that his friend had stabbed Sonu. On this, he

(the complainant), Sandeep (deceased) and Sanjeev decided to

take revenge for the slapping. Sanjeev brought a „desi katta‟ from

his house and they all reached at Balmiki Mohalla, Khera Kalan,

near the house of Ram Niwas where Ram Niwas (appellant No.4),

Sonu (appellant No.1), Vedu (died during trial) and Mogli (appellant

No.3) were found standing. Sandeep @ Lala asked Ram Niwas as

to why he had slapped Sanjeev. On this, Ram Niwas abused him.

Vedu and Mogli caught hold of Sandeep @ Lala and Ram Niwas

grappled with Sanjeev. The Complainant further stated in his

statement to the Police that he tried to pacify them. In the

meanwhile Sonu @ Narender (appellant No.1) inflicted knife blow

on the person of deceased Sandeep @ Lala and when Sandeep @

Lala raised alarm, Sanjeev fired a shot from the „desi katta‟ on the

accused Ram Niwas and when he (complainant) tried to run away

from the spot, he was hit by Ved Prakash @ Vedu with a lathi on

his hand and due to the blow, he fell down. Sonu @ Narender,

Vedu @ Ved Prakash, Mogli @ Rajesh ran away from the spot while

Ram Niwas fell down because of the bullet injury. After some time,

a PCR van came at the spot and removed Ram Niwas and Sandeep

to the hospital. Sandeep @ Lala died due to his injuries and Ram

Niwas was referred to the Trauma Centre. Inspector Rajbir Singh

(PW25) sent the aforesaid complaint statement of complainant

Shashi Kumar Parcha with his endorsement thereupon to the Police

Station, on basis of which the instant case was registered.

6. That Ram Niwas (appellant No.4) was declared unfit for

making a statement by the doctors. SI Harkesh Gaba (PW15)

appended his endorsement on DD No.23A and sent it to the Police

Station for registration of case under Section 307 IPC on the basis

of the DD No.23A and the MLC of Ram Niwas.

7. That during the investigation, supplementary statement of

Shashi Kumar Parcha (PW1) was recorded on 26.05.2002 wherein

he clarified that the stab wound to the deceased Sandeep @ Lala

was inflicted by appellant Bhupinder @ Gora and not by appellant

Narender @ Sonu as stated by him in the FIR earlier. He also

clarified in the supplementary statement that Deepu @ Deepak

and Mogli @ Rajesh and Sonu @ Narender had caught hold of the

deceased Sandeep @ Lala and Ram Niwas had beaten Sanjeev.

On the basis of the supplementary statement of the complainant,

Sections 147, 148, 149 IPC were added to the charge sheet.

8. It is also the case of the prosecution that PW4, Bimla Devi,

mother of the deceased also reached the spot after the stabbing

and she accompanied the deceased to the hospital in the PCR van

and on the way, the deceased told her that Gora S/o Man Singh

had stabbed him with a knife and in the quarrel Ram Niwas S/o

Mayee Ram, Mogli S/o Kanwar Singh, Deepu S/o Jile Singh , Vedu,

brother of Ram Niwas and Sonu, nephew of Ram Niwas were

involved. She also stated that after disclosing said facts, her son

became unconscious.

9. After completing necessary formalities of the investigation,

charges under Section 302/323/147/148/149 were filed against the

appellants as well as Ved Prakash @ Vedu (who died during the

trial) and against Deepak @ Deepu, who was acquitted by the Trial

Court vide the impugned judgment.

10. The Appellants were charged for the offences punishable

under 148 IPC, 302 IPC read with 149 IPC and 323 IPC read with

149 IPC, to which charges they pleaded not guilty and claimed to

be tried.

11. Statements of the appellants and their co-accused were

recorded under Section 313 Cr.P.C. They denied the prosecution

story and claimed to be innocent.

12. On conclusion of trial, the learned trial Judge found the

appellants guilty of having committed murder of Sandeep @ Lala

and convicted them under Section 302 IPC vide the impugned

judgment. He, however, did not find sufficient evidence against

the co-accused Deepak @ Deepu and acquitted him of all the

charges.

13. On perusal of the impugned judgment, it transpires that PW1,

Shashi Kumar Parcha, the complainant, and PW5 Sanajeev Kumar,

purported eye witnesses examined by the prosecution turned

hostile during their testimony and did not support the case of the

prosecution. Thus, the impugned judgment of conviction rests

solely on the dying declaration of the deceased purported to have

been made by him in presence of his mother, PW4 Bimla Devi

while the deceased was being transported to the hospital by Head

Constable Desh Raj (PW13) and Head Constable Ved Parkash

(PW26) in a PCR van.

14. Before adverting to the submissions made on behalf of the

appellants, it would be useful to reproduce the relevant testimony

of PW4 Smt. Bimla Devi regarding the purported dying declaration

made by the deceased in her presence. In that regard, she has,

inter alia, testified thus:

"......I was present at my house when in the evening time, one child had come to me that my son Sandeep and Ram Niwas were quarreling near Balmiki chopal. At that time, I was alone at my house. I immediately left my house and when I was going towards Balmiki Chopal and when I reached near the Bank, I saw that my son Sandeep @ Lala was lying in a pool of blood. In the meantime, PCR van reached there and he was taken to hospital in Jahangir Puri. I had also accompanied with him in the van. He had sustained injuries on his thigh and when I was

accompanying in the PCR van, I had enquired from him as to how he had sustained the injuries. He told me that he was beaten by Gora, Ram Niwas, Vedu, Sonu and Mogli and he expired in the van in my lap........"

15. In the cross-examination, she stated that she had reached

near the spot where her son was in conscious state. He was put

immediately in the PCR van for transporting him to the hospital

and on the way her son was bleeding but was conscious, and he

expired in the van after they travelled a distance of about 1 km. In

further cross-examination, she also stated that she had stated to

the Police that deceased told her that he was stabbed with a knife.

In her cross-examination by the learned counsel for the appellants

Ram Niwas, Narender and Ved Prakash, she stated that she had

talked with her son in the van for about 10-15 minutes.

16. PW13, Head Constable Desh Raj, who was on duty on the

PCR van in which the deceased was removed to Babu Jagjivan Ram

Hospital, stated that the mother of the deceased accompanied

them in the van and the deceased Sandeep had disclosed the

names of the assailants to his mother on the way to the hospital.

He, however, did not mention the names so disclosed. PW26,

Head Constable Ved Prakash was also on the same PCR van.

According to him, the mother of the deceased Sandeep

accompanied them in the PCR van to the hospital and she was

talking to him. He also stated that Sandeep was telling something

to his mother, but he could not hear the conversation.

17. Learned counsel for the appellants has challenged the

impugned judgment on the following grounds:

(a) Testimony of PW4 Bimla Devi pertaining to the dying

declaration is not reliable.

(b) Even if the dying declaration is taken to be proved for the

sake of argument, then also it is not clear and concise

enough to implicate either of the appellants because the

dying declaration does not disclose the name of the

person who actually stabbed the deceased.

(c) From the prosecution case, as projected in the FIR,

actually the complainant party, which also included the

deceased, was the aggressor and they had gone to the

place of occurrence to take revenge from the appellant

Ram Niwas. Since as per the FIR, the appellants were

attacked by the complainant party, by no stretch of

imagination could it be said that the appellants had

formed an unlawful assembly or that they nurtured a

common intention to cause knife injury to the deceased.

It is submitted, therefore, that in absence of any evidence

about common intention or common object on the part of

the appellants, neither of them could be convicted under

Section 302 IPC for want of direct evidence implicating

either one or more of the appellants for stabbing the

deceased.

18. Learned counsel for the State, on the other hand, has

supported the impugned judgment. According to him, the learned

Trial Judge has rightly accepted the testimony of PW4 Smt. Bimla,

mother of the deceased in respect of the dying declaration made

in her presence as she is a natural witness and her presence in the

PCR van is established by the testimony of PW13 Head Constable

Desh Raj and PW26, Head Constable Ved Prakash. He has further

submitted that the dying declaration is clear and concise and holds

all the four appellants responsible for the murder of the deceased.

He has submitted that though the learned trial Judge has not given

any finding on the charge under Section 148/149 IPC, yet from the

charge sheet and offence on record, it is apparent that more than

five persons were involved in the occurrence, as such it can be

safely inferred that when the appellants and their associates

indulged in quarrel with the complainant party, they formed an

unlawful assembly with the illegal object to commit an offence of

stabbing the deceased. Thus, according to learned counsel for the

State, learned trial Judge has rightly convicted the appellants.

19. Dying declaration is a statement 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. Such statement would be

relevant in every case or proceeding in which the cause of death of

that person comes into question. It is immaterial whether or not

that person at the time of making dying declaration was under

expectation of death.

20. In the matter of Kaushal Rao Vs State of Bombay, AIR

1958 SC 22, the Supreme Court laid down following proposition of

law relating to the test of reliability of the dying declaration:

"1. That is cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated;

2. That each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made;

3. That it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other piece of evidence;

4. That a dying declaration stands on the same footing as another piece of evidence and a has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence;

5. That a dying declaration which has been recorded by a competent Magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character; and

6. That in order to test the reliability of a dying declaration, the Court has to keep in view, the circumstances like the opportunity of the dying man for observation; for example whether there was sufficient light if the crime was committed at night; Whether the capacity of the man to remember the facts stated, had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been mad at the earliest opportunity and was not the result of tutoring by interested parties."

21. In Paniben Vs State of Gujarat, AIR 1992 SC 1817, the

Supreme Court considered various judgments pronounced on the

law relating to the dying declaration and summed up the principles

governing the dying declaration as under:-

"i. There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. ( Mannu Raja V State of U.P., AIR 1976 SC 2199).

ii. If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration ( State of U.P. V Ram Sagar Yadav, AIR 1985 SC 416; Ramavati Devi V State of Bihar, AIR 1983 SC 164).

iii. This court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration. (Rama Chandra Reddy V Public Prosector, AIR 1976 SC 1994). iv. Where dying declaration is suspicious it should not be acted upon without corroborative evidence. ( Rasheed Beg V State of Madhya Pradesh, AIR 1974 SC 332).

v. Where the deceased was unconscious and could never make any dying declaration the evidence with regard to its is to be rejected. ( Kake Singh V State of M.P., AIR 1982 SC 1021). vi. A dying declaration which suffers from infirmity cannot form the basis of conviction. (Ram Manorath V State of U.P., 1981 SCC (Crl) 581).

vii. Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (State of Maharashtra V Krishnamurthi Laxmipati Naidu, AIR 1981 SC 617). viii. Equally, merely because it is a brief statement it is not be discarded.

On the contrary, the shortness of the statement itself guarantees truth. ( Surajdeo Oza V State of Bihar, AIR 1979 SC 1505). ix. Normally the Court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye-witness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail. ( Nanahau Ram V State, AIR 1988 SC 912).

x. Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (State of U.P. V Madan Mohan, AIR 1989 SC 1519)."

22. From the law enunciated above, it is obvious that before a

Court could base conviction on the strength of a dying declaration,

it must be convinced that the dying declaration is properly proved

and it is true and voluntary. Thus, the first question which arises

for determination in this appeal is whether or not the prosecution

has been able to prove the purported dying declaration of the

deceased. The sole witness of the dying declaration is PW4 Bimla

Devi, mother of the deceased. According to her, she reached at

the spot when she was informed at her residence by a child that

her son and Ram Niwas were quarreling near Balmiki Chopal. She

has stated that on reaching at the spot, she noticed her son

Sandeep in the injured condition. PCR van had already reached

there. The deceased was immediately put into the PCR van and

taken to the hospital. She stated that she also accompanied the

deceased in the PCR van and on the way when she asked the

deceased as to how he had sustained injuries, he told her that he

was beaten by Gora, Ram Niwas, Vedu, Sonu and Mogli. She

further stated that the deceased expired in the van. Admittedly,

PW13, Head Constable Desh Raj and PW26, Head Constable Ved

Prakash had also travelled in the same PCR van along with the

deceased and PW4, Bimla Devi. PW13, Head Constable Desh Raj,

though he stated that Sandeep, injured, had disclosed the names

of the assailants to his mother, did not name any one of the

assailants in his testimony. If the version of PW13, Head Constable

Desh Raj is taken to be true and he actually over-heard the

conversation between the appellant and the deceased, then under

natural course of circumstances, he should have known the names

of the assailants which were disclosed by Sandeep. PW26, Head

Constable Ved Prakash, on the other hand, even stops short of that

and stated that mother of Sandeep was talking to him in the van

and Sandeep was telling her something, but he could not hear the

conversation. The identity of the assailants remains

uncorroborated. Further, perusal of the testimony of Head

Constable Ved Prakash, who was on duty at PCR van Commander

97 shows that in the cross-examination he has stated that they

reached at the spot at 6.15 PM and at that time Sandeep @ Lala

(deceased) was lying in a pool of blood and was in a state of

unconsciousness. PW4 Smt. Bimla Devi stated in her examination-

in-chief that on being informed by a child she reached at the spot

and saw Sandeep @ Lala lying in the blood and in the meantime

PCR van reached there and took him to the hospital in the PCR

van. This implies that there was no time gap between the arrival

of the PCR van and Bimla Devi at the place of occurrence. If Head

Constable Ved Prakash had seen the deceased lying unconscious

in a pool of blood at the spot of occurrence, it becomes highly

doubtful that he would have been conscious in the PCR van to

make a dying declaration in presence of his mother. The doubt is

further strengthened from the fact that PW4 Bimla Devi in her

examination-in-chief has stated that after making dying

declaration, Sandeep expired in the van in her lap. In the cross-

examination on behalf of the appellant Rajesh @ Mogli, she also

stated that her son had expired in the van after a distance of about

1 km, which implies that son of the witness, PW4 died within few

minutes of his being put into the van for transportation to the

hospital. Therefore, also, we find it difficult to accept the version

of PW4 Bimla Devi that her son Sandeep was conscious when he

was put into the PCR van or that he actually made the dying

declaration in presence of PW4 Bimla Devi.

23. Even if, for the sake of argument, the version of PW4 Bimla

Devi is accepted as true, then also the dying declaration of the

deceased does not name any one or more of the appellants as the

person/persons who inflicted knife injuries to him. There is no

evidence on record to fix the identity of the person who inflicted

knife injuries to the deceased. Therefore, under law, neither of the

appellants can be held liable for murder of the deceased even if

they had beaten him, unless the case of the appellants falls within

the purview of Sections 147/149 IPC or Section 34 IPC.

24. On perusal of the judgment, it transpires that though specific

charges under Section 148 IPC and Section 302 IPC read with

Section 149 IPC were framed against the appellants, the learned

trial Judge, for reasons best known to him, has failed to give any

finding as to whether there was an unlawful assembly and if so,

the appellants or any one of them was a member of such unlawful

assembly. Unless it is established that there was an unlawful

assembly and the appellants were members thereof, they cannot

be convicted for an offence under Section 302 IPC because there is

no evidence on the record to fix the identity of the person who

actually inflicted the knife injuries to the deceased.

25. The complaint which formed basis of registration of the FIR is

Ex.PW1/A. Perusal of the complaint shows that actually on

25.05.2002 at about 6.00 PM, the complainant party comprising of

PW1 Shashi Kumar Parcha, PW5 Sanjeev and deceased Sandeep @

Lala had hatched a plan to take revenge from Ram Niwas and in

pursuance to that plan, they proceeded to the gali of Ram Niwas

after arming themselves with a „Katta‟ (country made pistol) and

challenged Ram Niwas. Which resulted in an altercation and

scuffle in which the deceased Sandeep @ Lala sustained knife

injuries and appellant Ram Niwas suffered a bullet injury. If the

aforesaid story is to be taken as true, then it was the complainant

party who were the aggressors and they had gone and accosted

the appellants in their gali. That being so, obviously the appellants

were taken by surprise and the deceased suffered injuries in

sudden quarrel which erupted due to the act of the complainant

party. Therefore, by no stretch of imagination, it can be said that

the appellants and others had formed an unlawful assembly with

the object to commit an offence i.e. to assault and cause injuries to

the deceased and others, as such the charge under Section 148

fails and the learned Trial Court could not have convicted the

appellants for Section 302 IPC even with the aid of Section 149 IPC.

26. Learned counsel for the State has submitted that it can be

inferred from the dying declaration, which clearly named the

appellants as assailants who had inflicted injuries to the deceased,

that all the appellants had acted in furtherance of their common

intention. Therefore, they have been rightly convicted under

Section 302 IPC with the aid of Section 34 IPC.

27. Submission of the learned counsel for the State is mis-

conceived. It is apparent from the record that neither is there any

evidence to establish common intention on the part of the

appellants to commit murder of the deceased or to cause injury to

him with a sharp object nor the learned trial Judge has given any

finding to the effect that the deceased was inflicted knife injuries

by one or more of the appellants in furtherance of the common

intention of all the appellants. Thus, under law, no aid from

Section 34 IPC can be taken to sustain the conviction of the

appellants under Section 302 IPC for the murder of Sandeep @

Lala. Admittedly, there is no evidence on record to pin point the

person who has actually inflicted the knife blows to the deceased

Sandeep @ Lala. Therefore, under the circumstances all the

appellants are entitled to the benefit of doubt and their conviction

under Section 302 IPC cannot be sustained under law.

28. In view of our discussion above, the appeal is allowed.

Impugned judgment of conviction and consequent order on

sentences are set aside. All the appellants are hereby acquitted,

extending them benefit of doubt.

AJIT BHARIHOKE, J.

October 15, 2009                        SANJAY KISHAN KAUL, J.
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