Manoj Kumar vs State
2010 Latest Caselaw 1478 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                            Judgment reserved on: March 03, 2010
                            Judgment delivered on: March 17, 2010


+       CRIMINAL APPEAL NO.859/2009

        MANOJ KUMAR                                ....APPELLANT
                         Through:        Ms. Neelam Grover, Advocate


                         Versus

        STATE                                       .....RESPONDENT
                         Through:        Mr. Sunil Sharma, APP


         CORAM:
         HON'BLE MR. JUSTICE A.K. SIKRI
         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. This appeal is directed against the judgment of the Additional

Sessions Judge dated 12.08.2009 in Sessions case no. 31/05, FIR No.

970/04, Police Station Dabri convicting the appellant Manoj Kumar for

the murder of his brother Virender Pal under Section 302 IPC as also

the order on sentence dated 17.08.2009 in terms of which the

appellant was sentenced to undergo imprisonment for life and to pay a

fine of Rs. 1000/- and in default of payment of fine, to undergo

imprisonment for a further period of six months.

2. Briefly stated, case of the prosecution is that on 19 th December,

2004 at around 6:35 am, Constable Pramod of Police Control Room

informed police station Dabri that someone rang up from telephone No.

55782592 and informed that acid has been poured over one person at

House No. C-363, Gali No. 42, Mahavir Enclave. The information was

recorded at the police station as DD No. 6-A (Ex.PW3/A) and copy of

the DD report was given to SI R.K.Meena, PW25 who proceeded for the

spot of occurrence.

3. On reaching the spot of incident, SI R.K.Meena found that the

victim had been removed to the hospital by the Police Control Room

Van. He, therefore, reached DDU Hospital and found victim Virender

Pal admitted there. SI Meena moved an application Ex.PW23/A to seek

permission of the doctor for recording the statement of Virender Pal.

The doctor declared the patient „fit for statement‟ vide his

endorsement Ex.PW26/A on the application Ex.PW23/A. SI R.K.Meena

recorded the statement of Virender Pal Ex.PW23/B, which, after the

death of the deceased is treated as his dying declaration. The

deceased Virender Pal, in the aforesaid statement, narrated that they

were four brothers. He and the appellant Manoj were residing in the

house in question and the other two brothers Pawan and Satender

were living in their separate houses. There was a dispute between him

and appellant Manoj concerning the house in which they were residing.

The said dispute was settled and the house was partitioned with the

intervention of the family. As per the settlement, Manoj owed him Rs.

28,000/- and since appellant had not paid said amount, he was not

vacating the kitchen, which, as per the partition agreed upon, fell to

the share of the appellant Manoj. Virender Pal further stated that on

19th December, 2004 at around 6:00 o‟ clock, he went to ease himself

in the toilet and he did not bolt the door from inside. Suddenly, the

appellant came there saying "tujhe aaj zinda nahi chodunga" and

threw some „jwalansheel padarth‟ on him from a container after

opening the door of the toilet, as a result of which his body started

burning. He somehow came out of the toilet and on hearing his cries,

neighbours collected at the spot and someone informed the police. He

stated that his brother Manoj had tried to kill him by throwing said

liquid upon him and in that attempt of Manoj, his two brothers Pawan

and Satender and a neighbour Subhash were also parties as he had

seen them conspiring against him on several occasions and he wanted

legal action. SI R.K.Meena obtained the left foot impression of the

deceased on his statement, and after appending his endorsement on

the said statement sent it to the police station for registration of the

case under Section 307/34 IPC. On the basis of said rukka Ex.PW23/C,

formal FIR was recorded on 9:25 am on 19th December, 2004 vide DD

No. 9A. Crime Team arrived at the spot and prepared its report.

Photographs of the site of crime were taken, which were exhibits

Ex.PW5/P1 to P4.

4. On 20th December, 2004 at around 6:10 pm, Duty Constable

Mahesh informed from Safdarjung Hospital that victim Virender Pal had

expressed his desire before the doctor for giving his second statement.

Information was recorded as DD No. 27A and SI R.K.Meena went to

Safdarjung Hospital where he recorded the second statement of

Virender Pal. In the said statement Ex.PW23/E,Virender Pal stated that

when his statement was recorded on 19th December, 2004, he was

under a lot of pain and his mental equilibrium was disturbed. He

claimed that he was better and wanted to say that his brother Pawan

and Satender as well as neighbour Subhash were not party to the

incident of causing burn injuries to him by the appellant Manoj and

actually Braham Singh, father-in-law of Manoj was alongwith him at the

relevant time who had thrown matchstick upon him. He explained that

in his earlier statement, he had named Pawan, Satender and his

neighbour because they used to talk with Manoj.

5. Victim/deceased Virender Pal died on 25th December, 2004. His

body was sent for post-mortem and the post-mortem report Ex.PW11/A

reported that there were 80 to 90% burns on the dead body. Cause of

death was opined as septicaemic shock caused by ante mortem,

chemical burn injuries. The burn injuries present over the body, as per

the opinion of the Autopsy Surgeon PW11 Dr. Sarvesh Tandon, were

fatal and sufficient to cause death in the ordinary course of nature.

6. We may note that in the MLC Ex.PW12/A, it is recorded by the

doctor concerned that victim Virender Pal was brought to the hospital

on 19th December, 2004 at 07:45 am. The MLC also records "alleged

H/O of burn injures (as per pt.), throwing of some liquid when he was in

toilet by his brother".

7. The clothes found on the person of the victim Virender Pal were

converted into a sealed pullanda at DDU Hospital and entrusted to the

Investigating Officer which were seized vide seizure memo Ex.PW10/A.

8. Subsequent investigation was taken over by Additional SHO, P.S.

Dabri. The appellant was arrested on 05th January, 2005. On

interrogation, he made a disclosure statement Ex.PW9/C and pursuant

to that disclosure, the appellant allegedly got recovered one plastic

bottle of one litre capacity, a plastic tumbler (blue colour) and a

matchbox from his house No. C-363, Mahavir Enclave, Part III from

beneath the staircase which was used as a store. The plastic bottle

contained some petrol.

9. The other accused Braham Singh was arrested on 08.04.2005.

On completion of investigation, a charge sheet under Section 302 read

with Section 34 IPC was filed. In the charge-sheet, accused Braham

Singh was kept in column No. 2 along with brothers of the deceased

namely Satender, Pawan Kumar and a neighbour Subhash Chand.

While taking cognizance of the offence, learned Magistrate, prima facie

found involvement of Braham Singh also, thus summoned him for

undergoing trial in view of the dying declaration given by the deceased

on 20th December, 2004.

10. The appellant as well as his father-in-law Braham Singh were

charged for the murder of the deceased Virender Pal under Section 302

IPC read with Section 34 IPC. Both of them pleaded innocence and

claimed to be tried.

11. In order to bring home the guilt of the appellant and his co-

accused, prosecution examined 26 witnesses. The appellant as well as

his co-accused Braham Singh were examined under Section 313 Cr.P.C.

in their respective statements. Both of them denied the prosecution

evidence and claimed that they have been falsely implicated in this

case.

12. Learned trial Judge on appreciation of evidence found the

appellant Manoj guilty of committing murder of his brother Virender Pal

by throwing some corrosive chemical on him and convicted him under

Section 302 IPC. He, however, acquitted the appellant Braham Singh

of the charge.

13. Manoj Kumar has preferred the instant appeal against his

conviction. The prosecution, however, has not filed any appeal against

the acquittal of the accused Braham Singh.

14. On perusal of record, it transpires that there is no eye-witness in

this case and the conviction of the appellant is based mainly on the

dying declarations of the deceased. There are as many as six dying

declarations in this case.

15. First dying declaration of the deceased is stated to have been

made in presence of PW4 Kailash Chand, PW6 Suresh Singh and PW8

Vipul Mishra at the spot of occurrence. Out of the said three witnesses,

PW6 Suresh Singh has not supported the case of prosecution regarding

the dying declaration made by the deceased in his presence. He was

cross-examined at length by learned APP but to no avail. PW4 Kailash

Chand testified in the court that on 19th December, 2004, he was

sleeping in the STD shop at C-362, Gali No. 42, Mahavir Enclave. At

around 6:00 am, he awoke because of the noise of cries and weeping.

He noticed a crowd of people at the house of the deceased and when

he went inside, he found the deceased lying on the floor in burnt

condition and crying that Manoj Kumar has burnt him and he was

saying "bhagwan aisa bhaiye kissi ko na dey". PW8 Vipul Mishra has

more or less corroborated his version by saying that when he reached

at the spot in the morning of 19.12.2004 on hearing the noise, he saw

the deceased in burnt condition and the deceased Virender Pal was

saying that Manoj had burnt him and he was also saying that "bhai ne

bhai ko mara, aur kese ne nahi mara, bhai ne mujhe jalaya".

16. The second dying declaration is claimed to have been made by

the deceased in presence of PW12 Dr. Babita Garbiyal who attended to

the deceased in the casualty of DDU Hospital on 19th December, 2004.

She prepared the MLC of the deceased. She has stated that the

deceased was brought to the hospital by his brother and ASI Rattan Lal

with the alleged history of burn injuries due to throwing of some liquid

by his brother when the patient was in toilet. She also stated that the

history was given by the patient himself. Ex.PW12/A is the MLC of the

deceased.

17. The third dying declaration, as per the prosecution case, was

made in presence of PW13 Ramesh Kumar, father-in-law of the

deceased who testified that on the receipt of the information about

Virender Pal having sustained burn injuries, he visited him in the burns

ward of Safdarjung Hospital on 19th December, 2004. Virender Pal,

deceased told him that in the morning at around 6:00 am, he was

sitting in the toilet without bolting the door from inside when the

appellant Manoj Kumar opened the door and threw petrol on him with a

plastic jug and then threw a burning matchstick upon him due to

which, he had suffered the burn injuries. Witness also stated that

Virender Pal told that Manoj Kumar uttered the words that he would not

leave the deceased alive. At the outset, we may note that this dying

declaration cannot be true because as per the MLC Ex.PW12/A and the

post-mortem report, the deceased had suffered chemical burns and not

the fire burns.

18. The fourth dying declaration of the deceased, as per the case of

the prosecution, is complaint statement Ex.PW23/B recorded by SI

R.K.Meena at DDU Hospital, which formed the basis for the registration

of the FIR. This statement assumed the character of dying declaration

after the death of the deceased. In the said statement, the deceased is

stated to have told the Investigating Officer that on 19th December,

2004 at around 6:00 am, when he had gone to toilet and was sitting in

the toilet without bolting the door from inside, his brother Manoj came

and opened the door saying „today, I would not leave you alive‟ and

threw some corrosive liquid on him from a container, as a result of

which, he suffered body burns. He also added that the appellant Manoj

had tried to kill him and in his aforesaid attempt, his brothers Pawan

and Satender and a neighbour Subhash are also the party as earlier he

had seen them conspiring against him.

19. The fifth dying declaration is purported to have been made by the

deceased in presence of PW7 Kavita Devi, who stated that on

20.12.2004 she had a talk with her husband Virender Pal who told her

that on 19.12.2004 at around 6:00 am when he had gone to toilet,

appellant Manoj Kumar closed the door from outside and said "Aaj Main

Tujhe Jinda Nahi Chodunga" and thereafter he poured petrol on him

and set him ablaze.

20. The sixth dying declaration is claimed to have been recorded by

Investigating Officer on 20th December, 2004 on the request of the

deceased Virender Pal. In the said statement Ex.PW23/E, Virender Pal

retracted his earlier dying declaration PW23/B explaining that on 19th

December, 2004, when his earlier dying declaration was recorded, he

was not in control of his mental faculties because of acute pain and

claimed that he was in control of his mental faculties and he wanted to

say that Braham Singh, father-in-law of the appellant Manoj was also

an accomplice of Manoj, who had actually thrown the matchstick upon

him. In the said statement Ex.PW23/E, the deceased exonerated his

brothers Satender and Pawan as well as the neighbour by saying that

he included their names in his earlier statement to the police because

they used to talk with Manoj.

21. There is no eye witness to the occurrence and case of

prosecution rests on alleged six dying declarations. Therefore, before

adverting to the submissions of rival parties, we deem it appropriate to

have a look on the law relating to the dying declaration.

22. In the matter of Smt. Paniben Vs. State of Gujarat, AIR 1992

SC 1817, Hon‟ble Supreme Court after considering several

pronouncements on the law relating to dying declaration 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 (Munnu Raja v. State of M.P.) (1976) 3 SCC 104; 1976 SCC (Cri.)376; (1976) 2 SCR 764.

(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) (1985) 1 SCC 552: 1985 SCC (Cri) 127: AIR 1985 SC 416; Ramavati Devi v. State of Bihar (1983) 1 SCC 211: 1983 SCC (Cri) 169: 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. (K. Ramchandra Reddy v. Public Prosecutor) (1976) 3 SCC 618: 1976 SCC (Cri) 473:AIR 1976 SC 1994.

(iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence. (Rasheed Beg v. State of M.P.) (1974) 4 SCC 264 : 1974 SCC (Cri) 426.

(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (Kake Singh v. State of M.P.) 1981 Supp. SCC 25 : 1981 SCC (Cri.) 645 : 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) 2 SCC 654 : 1981 SCC (Cri) 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. Krishnamurti Laxmipati Naidu) 1980 Supp. SCC 455 : 1981 SCC (Cri) 364 : 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) 1980 Supp. SCC 769 : 1979 SCC (Cri) 519 : 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 eyewitness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail. (Nanahau Ram and Anr. v. State of M.P.) 1988 Supp. SCC 152 : 1988 SCC (Cri) 342 : 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) (1989) 3 SCC 390 : 1989 SCC (Cri) 585 : AIR 1989 SC 1519."

23. From the above enunciated principles of law, it is obvious that

though there is no bar under law to act upon a dying declaration

without corroboration, yet before acting on the dying declaration, the

Court should scrutinise it carefully and must be assured and satisfied

that the dying declaration is of sterling quality and it is not the result of

tutoring, prompting, imagination or vindictiveness, etc. In light of

above enunciated principles of law, we now proceed to consider the

submissions made by the rival parties.

24. Learned counsel for the appellant has submitted that as per the

case of prosecution the deceased made as many as six dying

declarations, which are inconsistent. Therefore, it is not safe to rely

upon either of the dying declarations. Learned counsel further drew

our attention to the MLC of the deceased Ex.PW12/A wherein the

concerned doctor has recorded on the MLC "alleged H/O burn injury (as

per pt.) by throwing of some liquid when he was in toilet and "no H/O

vomiting, ...............(not legible) which circumstance create a doubt,

perhaps the words "by his brother" have been squeezed in at a

subsequent stage to implicate the appellant. Learned counsel further

pointed out that as per the case of prosecution, on 19.12.2004 the

deceased gave a dying declaration Ex.PW23/B, wherein apart from the

appellant Manoj, he implicated his brothers Pawan and Satender and a

neighbour Subhash as accomplices of appellant but on 20.12.2004, he

retracted from his earlier dying declaration on the ground that on

19.12.2004, he was not in fit mental condition and he introduced the

name of father-in-law of the appellant Brahampal as an accomplice of

the appellant Manoj and assigned the role of throwing a matchstick on

him. In the said statement Ex.PW23/E, he also explained that in his

earlier statement, he named his brothers Pawan and Satender as also

his neighbours because they were on talking terms with appellant

Manoj. This explanation of the deceased, it was submitted, indicate

that the deceased was a vindictive mind and if for such a trivial reason

he could falsely implicate his brothers and a neighbour as co-culprits in

the incident, what is the guarantee that he was truthful in his other

dying declaration. Thus, learned counsel for the appellant has strongly

urged us to conclude that the dying declarations relied upon by the

prosecution are of suspicious character and extend benefit of doubt to

the appellant.

25. Learned counsel for the State, on the other hand, has submitted

no doubt the dying declarations made by the appellant are

inconsistent to certain extent, but there is one common feature in all

the dying declarations that it was the appellant Manoj, who threw the

corrosive chemical on the deceased. Therefore, there is no reason to

discard the dying declarations of the deceased so far as the role of the

appellant Manoj is concerned. Thus, he has submitted that the learned

Trial Court has rightly convicted the appellant on the basis of the dying

declarations.

26. We have carefully considered the rival contentions and perused

the material on record. We find substance in the submissions made by

the learned counsel for the appellant. As per the case of prosecution,

the first dying declaration was made by the deceased immediately

after the incident at the spot of occurrence. To prove this fact,

prosecution examined PW4 Kailash Chand, PW6 Suresh Singh and PW8

Vipul Mishra. PW6 Suresh Singh has not supported the case of

prosecution. As regards Vipul Mishra, PW8, case of the prosecution is

that he rang up telephone No.100 from telephone No.55782592 and

informed the police control room about the incident. It is the said

information which formed basis for recording of DD No.6A dated

19.12.2004 (Ex.PW3/A), which put the investigating machinery into

motion. On perusal of DD No.6A, it transpires that though this

information conveys that acid was poured on some person, but there is

no mention of the name of the culprit in the DD report. If the version of

PW8 Vipul Mishra about the dying declaration made by the deceased is

to be believed, then he was expected to inform the police control room

that Manoj had thrown acid on the deceased, which fact does not find

mention in the DD report.

27. The next dying declaration on the record is in the form of alleged

history of cause of burns given by the patient to PW12 Dr. Babita

Garbiyal, who attended to the deceased at the casualty of the hospital.

Perusal of the MLC Ex.PW12/A reveals that on the right hand column of

the MLC meant for particulars of injuries or symptoms, it is recorded in

following form:

"Alleged H/O Burn injury by(as per pt.) throwing of some liquid v when he was in toilet by his brother No H/O vomiting , convulsion, vomiting"

28. From the above, it appears that the words "by his brother" were

not written on the first occasion and it is highly probable that these

three words have been squeezed in between the lines subsequently.

This makes the dying declaration suspect; otherwise also, this dying

declaration is inconsistent with the first dying declaration in which the

name of Manoj as the culprit has come in unequivocal terms. This

circumstance cast a doubt about the correctness of the testimony of

PW4 and PW6 regarding the first dying declaration. Had that dying

declaration been true, then the patient definitely would have told the

attending Doctor that the corrosive liquid was thrown on him by Manoj.

29. Fourth dying declaration sought to be proved by the prosecution

is purported to have been made by the deceased in presence of his

father-in-law PW13, which is unreliable, being inconsistent with the

medical evidence. From the post mortem report Ex.PW11/A as also the

testimony of PW11, the cause of death of the deceased was chemical

burn injuries, whereas according to PW13 Ramesh Kumar, the

deceased told him that Manoj Kumar threw petrol on him from a plastic

jug and threw a burning matchstick. If that version was true, then the

deceased ought to have suffered the fire burns and not chemical burns

as opined in the post mortem report Ex.PW11/A.

30. The dying declaration Ex.PW23/B recorded by the Investigating

Officer, is also unreliable because as per the subsequent dying

declaration Ex.PW23/E recorded on 20.12.2004, the deceased himself

claimed that when he made the earlier dying declaration Ex.PW23/B,

he was not in control of his mental faculties.

31. The fifth dying declaration as per case of prosecution is purported

to have been made in presence of PW7 Kavita Devi, wife of the

deceased. She had stated that in the morning of 20.12.2004, her

husband Virender Pal told her that on the fateful morning when he had

gone to toilet, the appellant had closed the door from outside saying

"Aaj Main Tujhey Nahi Chodunga" and poured petrol on him and burnt

him. The above version cannot be true as it is inconsistent with the

medical evidence inasmuch as the deceased died due to chemical

burns. Therefore, no reliance can be placed on the version of PW7

Kavita Devi.

32. The last dying declaration sought to be proved by the prosecution

is Ex.PW23/E purported to have been recorded by the Investigating

Officer at Safdarjung Hospital on 20.12.2004. In this dying declaration,

the deceased retracted from his earlier statement Ex.PW23/B inasmuch

as that he introduced the name of Braham Singh, father-in-law of the

appellant as an accomplice of the appellant and assigned a role of

throwing a matchstick to the accused Braham Singh and he exonerated

his brothers Pawan and Satender as well as neighbour Subhash, who

were named as accomplices in the earlier dying declaration Ex.PW23/B

and explained that he had named them in his earlier dying declarations

as he had seen them talking with appellant Manoj. This conduct of the

deceased is indicative of the vindictive character of the deceased. If

the deceased could have falsely implicated his brothers and a

neighbour because of such a trivial reason, there is no guarantee that

he has come out with the truth about the role of the appellant Manoj,

particularly when, admittedly, he had a dispute about the partition of

the house and payment of money with the appellant. Thus, a

possibility cannot be ruled out that the deceased had named the

appellant Manoj Kumar as a culprit in his above referred dying

declarations as an act of vindictiveness. Thus, we do not find it safe to

rely upon the so-called dying declarations of the deceased. Otherwise

also, it is settled position in law that effort must be done to requisition

the services of the SDM to record the dying declaration, which was all

the more necessary in this case when the deceased wished to change

his statement by withholding his allegation against three persons and

adding the name of Braham Singh in lieu of that. Despite that, the

Investigating Officer did not care to call the SDM, which circumstance

points towards unfair investigation and entitles the appellant to benefit

of doubt.

33. There is one more aspect to this case. PW8 Vipul Mishra in his

examination-in-chief has stated that at the spot of occurrence

appellant Manoj made an extra judicial confession by saying that since

the deceased was not vacating his kitchen, he had set the deceased on

fire. In our considered view, the aforesaid version of PW8 Vipul Mishra

is not reliable, firstly because as per the medical record, the deceased

died because of chemical burns and not because of fire burns.

Secondly, according to the prosecution, PW4 Kailash Chand and PW6

Suresh Singh were also present at the spot, but none of them have

spoken about the extra judicial confession made by the appellant. PW6

Suresh Singh had even gone to the extent of stating that appellant

Manoj Kumar was not present at the spot. Thus, we do not find it safe

to rely on uncorroborated testimony of PW8 regarding the extra judicial

confession.

34. In view of the above, we are of the view that the dying

declarations relied upon by the learned Trial Court are not only

inconsistent but suspect. Thus, it is not safe to base conviction on the

strength of said dying declarations or the testimony of PW8 regarding

extra judicial confession made by the appellant. We feel that this is a

fit case for extending benefit of doubt to the appellant. We accordingly

accept the appeal and set aside the impugned judgment of conviction

as also the order on sentence. We hereby acquit the appellant of

charge under Section 302 IPC, giving him benefit of doubt.

35. Appellant is in jail. He be released forthwith, if not required in

any other case.

36. Appeal is disposed of accordingly.

AJIT BHARIHOKE, J.

MARCH 17, 2010                                A.K. SIKRI, J.
akb/pst