Vicky Makan vs State
2011 Latest Caselaw 493 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI
%                     Crl. Appeal No.12 of 2010
+                               Date of Decision: 28th January, 2011

#      VICKY MAKAN                                              ...Appellant
!                               Through: Mr. Vijay Aggarwal and Mr. Gurpreet
                                         Singh, Advocates.

                                     Versus
$      STATE                                                 ...Respondent
^                                       Through:       Mr. Pawan Behl, APP

                                     WITH

%                     Crl. Appeal No. 36 of 2010
#      MADAN LAL                                               ...Appellant
!                               Through: Mr. Subhash C. Bhuttan, Advocate

                                     Versus
$      STATE                                                 ...Respondent
^                                       Through:       Mr. Pawan Behl, APP

       CORAM:
*      HON'BLE MR. JUSTICE P.K.BHASIN
1.   Whether Reporters of local papers may be allowed to see the
     judgment?(No)
2.   To be referred to the Reporter or not?(No)
3.   Whether the judgment should be reported in the digest?(No)
                                JUDGMENT

P.K.BHASIN, J:

The two appellants in these appeals have been convicted under

Section 304/34 IPC by the learned Additional Sessions Judge, Delhi

and have been sentenced to undergo rigorous imprisonment for 8

years and also to pay fine of Rs. 1 lakh each with default stipulation

of further six months simple imprisonment. Feeling aggrieved by the

judgment of conviction dated 30th November, 2009 and order on

sentence dated 15th December, 2009 passed by the trial Court the

two convicted accused had filed separate appeals but both of them

were heard together and, therefore, are now being disposed of by this

common judgment.

2. The relevant facts leading to the prosecution of the two

accused -appellants and their conviction are that on 12th April, 2007

an information was flashed to Moti Nagar Police Station police

control room (PCR) regarding some firing incident at House No. 1/28,

in which one person had been shot at Moti Nagar, New Delhi. That

information was recorded at the police station as DD No. 82- B

(Ex.PW-3/B) and Sub Inspector Ashutosh Kumar (PW-18) was

deputed to look into the matter. He accordingly went to the said

house in Moti Nagar along with one constable and there he came to

know one Jagdish Lal Sachdeva resident of the house had been shot

and had already been removed to Kalra Hospital. SI Ashutosh Kumar

then left the constable at the spot and himself went to Kalra Hospital

where he found Jagdish Lal Sachdeva admitted. Since the injured

was declared by the doctor to be in a position to give his statement SI

Ashutosh recorded his statement (Ex.PW-7/A). On the basis of that

statement SI Ashutosh Kumar the police registered a case under

Section 307/34 IPC. Jagdish Lal Sachdeva was, however died on

13th April, 2007 and, therefore, the case was converted into one

under Section 302/34 IPC. The statement Ex.PW-7/A of the

deceased Jagdish Lal Sachdeva, thereafter, was treated as his dying

declaration. What was narrated by the deceased to SI Ashutosh

Kumar in his statement Ex.PW-7/A has been noticed by the trial

Court and the same is re-produced below:-

".......Mai Apne Makan Ki Uppar Ki Sedio Se Chad Raha Tha To Char Sidi Chadne Ke Bad Mujhe Peechhe Se Dahine Kulhe Par Goli Mari, Ye Bat Samay Karib 11.15 Baje Rat Ki Hai, Jo Maini Bhagte Huye Pechhe Se Teen Admiyo Ko Dekha Jinko Mai Penchant Hun Jisme Ek Vicky Makan, Madan Lal Kabari Ewam Tisere Ko Samne Aane Par Pehchan Sakta Hun. Ho Sakta Hai Ki Wah Anil Kapoor Ho, Jo Raju Karnal Wa Anil Kapoor Ne Pahle Bhi Jan Se Marne Ki Dhamki Dee Thee............"

3. During the investigation the police had also recorded the

statements of the son and daughter-in-law and brother of the

deceased who were examined during the trial as PWs 7, 1 and 8

respectively. All of them had claimed that the deceased had

informed them on the way to hospital that when he had turned

around after being shot he had seen three persons running away and

the accused-appellants were two of them. The statement made to

them has also been treated as oral dying declaration of the deceased

by the prosecution and relied upon during the trial. Since the

appellants had been named by the deceased in his statement Ex.PW-

7/A as well to his son, daughter-in-law and brother the police

arrested them. No other person could be booked.

4. The trial Court framed a charge under Section 302/34 IPC

against the accused persons but finally convicted them under Section

304/34 IPC since the bullet was hit upon the buttock of the deceased

and not on any vital organ and the autopsy surgeon had also not

found the injuries sustained by the deceased to be sufficient to cause

death in the ordinary course of nature. The appellants were convicted

by the trial Court solely relying upon the two dying declarations of

the deceased. The two convicted accused have felt aggrieved and so

have filed appeals before this Court while the State has accepted the

acquittal of the accused-appellants for the offence under Section 302

IPC.

5. Learned counsel for the appellants did not dispute before this

Court that the death of the deceased Jagdish Lal was homicidal. That

fact even otherwise is duly established from the evidence of the

autopsy surgeon PW-16 Dr. Anil Shandilya.

6. Learned counsel for the appellants had, however, strongly

criticized the trial Court's finding to the effect that prosecution had

been able to establish that the deceased had made three reliable

dying declarations. Counsel contended that the statements

attributed to the deceased as his dying declarations as spoken by his

son and daughter-in-law and then SI Ashotosh cannot be accepted to

have actually been made by the deceased since these witnesses

have made inconsistent and improved statements in Court. It was

also the submission of the counsel that even if it is accepted by this

Court, as has been accepted by the trial Court, that the deceased had

made such statements before these three witnesses all that would

stand proved is that the deceased had seen three persons including

the two appellants running away and that circumstance by itself

cannot be sufficient to hold them guilty for the offence of murder. In

support of these submissions learned counsel for the appellants

placed reliance upon one judgment of the Supreme Court in "Vindo

Samuel vs. Delhi Administration", AIR 1992 SC 465 wherein also the

evidence against the accused was that he had been seen running

away from the place of incidence and the Hon'ble Supreme Court had

held that that circumstance was not sufficient to establish that the

person who was seen running away from the scene of crime had

actually killed the deceased. One judgment of this Court in "Rakesh

Kumar @ Mukri vs. State of NCT of Delhi", 2007 (2) JCC 1636 was also cited.

Learned counsel further argued that since the deceased did not claim

to have seen any of the three persons firing at him or having any fire

arm with him it also cannot be said to have been established as to

who out of the three persons had actually fired at him and, therefore,

none of them could be convicted and that too by invoking Section 34

IPC. All these infirmities in the prosecution case, according to the

counsel for the appellants, were sufficient enough to extend the

benefit of doubt to both the appellants.

7. On the other hand, learned public prosecutor while supporting

the trial Court's judgment had submitted that all the three dying

declarations of the deceased were consistent as far as the

involvement of the appellants are concerned and had been rightly

accepted by the learned trial Court despite the fact that there was

some enmity between the deceased and the appellants. Learned

prosecutor had also stated that apart from the evidence of two dying

declarations of the deceased there was no other evidence adduced

by the prosecution to establish its case.

8. Since the only evidence adduced by the prosecution to secure

their conviction of the accused-appellants was that of the dying

declarations of the deceased statements made by his son and

daughter-in-law and the investigating officer have been minutely and

carefully examined by me. As far as the brother of the deceased, PW-

8 Kewal Kishan, is concerned he had not supported the prosecution

case to the effect that the deceased had said in his presence on the

way to the hospital that he had seen the accused-appellants running

away when he had turned around to see who had shot at him. The

trial Court has accepted the evidence of the son and daughter-in-law

of the deceased. In my view, the statement of the son of the

deceased(PW-7 Sachin Sachdeva) relied upon by the prosecution as

well as the learned trial Court for proving the first dying declaration of

the deceased is unreliable. He had deposed that on the way to Kalra

Hospital his father had said before him, his wife(PW-1) and his uncle

Kewal Kishan(PW-8) that the accused-appellants had shot at him.

However, he had not claimed so when his statement was recorded by

the police during the investigation under Section 161 Cr.P.C. with

which he was duly confronted during his cross-examination on behalf

of the accused. He had claimed before the police that his father had

told him that he was shot while he was climbing stairs to reach his

house and when he had turned around he saw the accused-

appellants running away along with one other person whom he could

identify on being shown. The statement of PW-7 in Court that his

father had said that the accused-appellants had shot at him was,

therefore, clearly an improved statement and appears to have been

made after realizing that merely on the basis of the statement that

his father had only seen the accused-appellants running away their

conviction might not be possible. There is another reason also for not

believing the evidence of PW-7. In the MLC, Ex. PW-15/B, the alleged

history recorded by the doctor who had examined the deceased was

that some persons had shot at the deceased from back while he was

climbing stairs. This document also falsifies the statement of PW-7

that his father had said that the accused-appellants had shot at him

since if actually that was so he would have informed the doctor

accordingly. The evidence of PW-7 becomes unreliable also for the

reason that even the brother of the deceased when examined by the

prosecution as PW-8 had stated that the deceased had not said

anything on the way to hospital as to how he had been shot at and by

whom. No doubt, that witness was cross-examined by the prosecutor

but his not supporting the prosecution story does introduce an

element of doubt in the correctness of the statement of PW-7. In

fact, PW-8 had stated in his cross-examination by the prosecutor that

PW-7 Sachin had told him to give statement according to the

prosecution case but he had told Sachin that he would only speak the

truth in Court and, therefore, he had spoken the truth. Therefore, the

evidence of PW-7 is of no help to the prosecution.

9. In my view, even the statement of the daughter-in-law in Court

to the effect that her father-in-law had said on the way to the hospital

that he had seen the two accused-appellants running away cannot be

accepted since this information was not given by her to the doctor in

the hospital where she claimed to have taken the deceased and that

is evident from the MLC of the deceased referred to in the preceding

paragraph. In the MLC of the deceased the history recorded by the

doctor was that some persons had shot at the deceased from back

while he was climbing stairs. PW-1 Smt. Isha Sachdeva had in her

evidence admitted that her father-in-law had himself told the doctors

that he had been shot from back while climbing stairs by some

persons and that whatever her father-in-law had told to the doctors

had been certified by her as well as her husband(PW-7) and uncle

Kewal Krishan(PW8). It is, thus, clear that by the time the deceased

had reached Kalra Hospital he had not informed anyone that he had

seen the two accused appellants and one other person running away

after he had been shot at and, therefore, the statement of PW-1

made during the trial that her father-in-law had said on the way to the

hospital that he had seen the two accused - appellants running away

does not inspire confidence.

10. As far as the statement of the investigating officer SI Ashutosh

Kumar(PW-18) is concerned, the same also is not reliable. In his

examination-in-chief he had deposed that after reaching Kalra

Hospital he had recorded the statement of the injured Jagdish Lal

Sachdeva. In that statement Ex.PW-7/A the deceased had claimed

that when he had turned around after being shot he had seen the two

accused - appellants and one other person running away. In cross-

examination he stated that he had recorded the statement of Jagdish

Lal Sachdeva while he was being taken from emergency room to ICU

and that at that time there was doctor but he had not asked that

doctor to attest the statement of the deceased. In my view, it is

highly improbable that PW-18 could have recorded the statement of

the deceased while he was being moved to ICU. At that time the

condition of the deceased must have been critical and the doctor

would not have stopped taking the injured to ICU to enable the

investigating officer to record his statement. There is another reason

also for not considering the evidence of the investigating officer to be

reliable and that reason is the non-examination of the doctor in

whose presence he claims to have recorded the statement of the

deceased.

11. I am also of the view, and as was submitted by the learned

counsel for the appellants also, that even if the evidence of the

investigating officer were to be accepted the only thing which can be

said to have been established by him is that the deceased had seen

the two accused - appellants and one other person running away

after he had been shot at. That circumstance, in my view, by itself

cannot be considered to be sufficient to hold the accused -

appellants guilty for killing the deceased since he had not seen

anyone of them running away with any firearm and the police had

also not been able to recover the weapon of offence. In this regard,

the judgment of the Supreme Court in Vindo Samuel's case(supra),

cited by learned counsel for the appellants, does help the case of the

appellants since in that case the accused had been apprehended

immediately after the incident of snatching of gold chain of a lady but

since there was no recovery of the gold chain from his possession it

had been held by the Supreme Court that just because the accused

was apprehended while he was running away he could not be held

guilty of having snatched the gold chain of the victim.

12. I am, therefore, of the view that the prosecution case cannot be

said to have been established beyond reasonable doubt and based

upon the evidence of the son and daughter-in-law of the deceased

and the investigating officer the conviction of the two appellants

cannot be sustained.

13. Both these appeals are accordingly allowed. The judgment and

order of the learned Additional Sessions Judge under challenge in

these appeals are set aside and both the accused - appellants are

acquitted and are directed to be released from jail forthwith, if not

required to be detained there in connection with any other case.

January 28, 2011                                          P.K. BHASIN,J