Delhi High Court

Anil Kumar vs State on 28 November, 2013

Author: Kailash Gambhir

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                       Judgment delivered on: November 28, 2013

+       (1)     CRL.A. 456/1998

        ANIL KUMAR                                               ..... Appellant
                                Through       Mr.Vikrant Sarin, Advocate
                                versus
        STATE                                                   ..... Respondent
                                Through       Mr.Sunil Sharma, APP for the State
                                              with Insp. Ravindra Ahlawat, PS
                                              Karol Bagh, New Delhi
                                AND

+       (2)     CRL.A. 481/1998
        SARAVJEET SINGH                                       ..... Appellant
                      Through                 Mr.K.B.Andley, Sr.Advocate with
                                              Mr.M.L.Yadav, Advocate

                                versus
        STATE                                                   ..... Respondent
                                Through       Mr.Sunil Sharma, APP for the State
                                              with Insp. Ravindra Ahlawat, PS
                                              Karol Bagh, New Delhi
                                AND

+       (3)     CRL.A. 549/1998
        TILAK RAJ                                                 ..... Appellant
                                Through       Mr.K.B.Andley, Sr.Advocate with
                                              Mr.M.L.Yadav, Advocate
                                versus
        STATE                                                   ..... Respondent
                                Through       Mr.Sunil Sharma, APP for the State
                                              with Insp. Ravindra Ahlawat, PS
                                              Karol Bagh, New Delhi

CRL.A. Nos.456/1998, 481/1998 & 549/1998                       Page 1 of 34
 CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
HON'BLE MS. JUSTICE INDERMEET KAUR

                                           JUDGMENT

KAILASH GAMBHIR, J.

1. By this common order we propose to decide three appeals under

Section 374 of the Code of Criminal Procedure,1973 (hereinafter referred to

as "Cr.P.C") preferred by Anil Kumar, Saravjeet Singh and Tilak Raj,

respectively, challenging the judgment and order on sentence dated

07.10.1998 and 09.10.1998, whereby the learned Additional Sessions Judge,

Delhi has convicted them under Section 302 of Indian Penal Code, 1860

(hereinafter referred to as "IPC") and sentenced to undergo imprisonment

for life together with fine of Rs. 500/- each and in default thereof to further

undergo rigorous imprisonment for a period of one month.

2. The case of the prosecution as it is unfolded in the chargesheet is as

under:-

"On 06.09.1985 Duty Constable Sultan Singh informed the police that Shri Trilok Chand s/o Shri Santram had been admitted in the hospital in an injured condition by Mr. Ashoki, son of Shri Risal Singh. On this information DD. No. 30-A at P.P Prasad Nagar was recorded and copy of it was handed over to ASI Balbir Singh. Who went to hospital and obtained the MLC of the injured. Since doctor declared him fit for statement ASI Balbir Singh recorded his statement wherein he stated that he was residing at 1250, P.R Road, Delhi and was doing the work of tailoring. One Rajju was running a rationing shop and was his friend. About two weeks earlier Rajju had

taken 1330/- Rs. From him, promising him to return them in 10 days. On that day he had gone to Satyam cinema to watch a show, at about 11:40 p.m raju and his friend who runs motor mechanical shop, tilak resident of Dev Nagar, Anil resident of Bapa Nagar, and Survjeet resident of Government quarters met him at the cinema. He asked Raju to return his money but raju asked him to come to Dev Nagar and them he would return his money. On that day at 07:30 p.m he after leaving his house was present at Rajram Kharoodewala at P.L.Road, a three wheeler scooter in which a boy aged 19/20 years was sitting and he told him that his friends are calling. On this he sat in the scooter and he was brought to subzi wala chownk Dev Nagar. At around 07:40, Raju with all his friends asked him that now tell what do you wasn't, and in the meantime the auto left. All the accused persons started inflicting injuries on the deceased when he asked them to return money. When he cried and raised alarm, Mr. Ashoki brother in law of his elder brother came and removed him to Willington Hospital, in an auto rickshaw. All the accused person were known to deceased".

3. To bring home the charges, the prosecution in all examined 25

witnesses. In their statements recorded under Section 313 Cr.P.C., all the

accused denied their complicity in the crime and pleaded that they were

falsely implicated in the case. In defence, the accused persons had examined

3 witnesses.

4. On behalf of Tilak Raj- appellant in CRL.A. 549/1998 and Saravjeet

Singh- appellant in Crl.A.481/1998 arguments were addressed by

Mr.K.B.Andley, Sr. Advocate duly assisted by Mr.M.L.Yadav, Advocate

and on behalf of Anil Kumar-appellant in Crl. A. 456/1998, the arguments

were addressed by Mr.Vikrant Sarin, Advocate. The State was represented

by Mr. Sunil Sharma, APP for the State. Written submissions were also filed

by the counsel for the appellants.

5. The contentions raised by both the counsel for the appellants were not

much in variance except that in the case of appellant- Anil Kumar, one of

the arguments raised by the counsel was that there was no recovery of any

incriminating article from him during the disclosure statement. The main

attack of both the counsel for the appellants, otherwise, was on the

authenticity, genuineness and truthfulness of the dying declaration made by

the deceased to ASI Balbir Singh- PW-18, who rushed to the Ram Monohar

Lohia hospital (hereinafter referred to as "RML") after information was

received at Police Station- Karol Bagh vide DD No.38 dated 06.09.1985

regarding the admission of an injured person- Trilok Chand. Learned

counsel for the appellants also contended that it was quite surprising that the

victim in his dying declaration gave the number of injuries which were

inflicted on his person, as if, before his dying declaration he could count

them. Learned counsel for the appellants also argued that after having

suffered so many injuries the victim could not have been in a fit state of

mind to make his dying declaration. Impugning, the said dying declaration,

learned counsel for the appellants submitted that ASI-Balbir Singh had

recorded the statement of the injured himself without taking any step to call

the area SDM for recording his statement. Learned counsel for the

appellants also submitted that the said statement was recorded by IO in Urdu

language and nowhere was it proved on record by the prosecution that

deceased Trilok Chand knew Urdu language or that the said statement was

read over to him in the language known to him. Learned counsel for the

appellants further submitted that the fitness certificate given by Dr.

Padmalaya Devi before the dying declaration does not bear any time and

even Dr. Padmalaya Devi was not examined by the prosecution in the

evidence. Learned counsel for the appellants further submitted that below

the signature of Dr. Padmalaya Devi there were signatures of another doctor

referred to as Dr. Khetrapal but neither he was produced by the prosecution

as a witness nor his signatures were proved by the record clerk who

appeared in the witness box as PW-23. Learned counsel for the appellants

also argued that there was an apparent improbability in the recording of

dying declaration by ASI-Balbir Singh, as the police had received

information about the incident vide DD No.38 at 8.45 p.m. on 06.09.1985

and the rukka reached the Police Station at about 10.25 p.m. and within such

a short span of 1 hour 40 minutes the ASI reached at the hospital; got the

fitness certificate of the doctor; recorded the dying declaration of the victim

and thereafter returned back to the Police Station at 10.25 p.m. Learned

counsel for the appellants also submitted that there is a distance of at least 6

km. between the hospital and the Police Station and therefore, it was

impossible for ASI-Balbir Singh, to record the dying declaration, within

such a short time, after the travel time to and fro is counted. Learned

counsel for the appellants further argued that after the admission in the RML

hospital on 06.09.1985, the victim had died on 15.11.1985 after a gap of two

months and nine days and therefore, the statement made by the deceased

cannot be termed as a dying declaration. Learned counsel for the appellants

also argued that the prosecution has not been able to demonstrate as to how

the police had zeroed in the appellant- Anil Kumar as in the rukka no

parentage or address of accused Anil Kumar was mentioned and accused

Anil Kumar was falsely implicated by the police only because of some

previous disputes between the family of Anil Kumar and the family of the

deceased and the deceased was even being tried under Section 307 IPC for

stabbing the brother of accused Anil Kumar. The contention raised by the

counsel for the appellants was that had the said Anil Kumar been the

accused, the deceased could have named him after giving a clear reference

of his family litigation with him. Learned counsel for the appellants also

argued that the three witnesses, namely, PW3-Ashok Kumar, PW6-Ramesh

Kumar and PW10-Suresh Kumar did not support the case of the prosecution

and PW5-Pritam, also turned hostile. Learned counsel for the appellants also

argued that no reliance can be placed on the testimony of PW4- Gyan Chand

as his statement under Section 161 Cr.P.C. was recorded after the death of

the deceased. Learned counsel for the appellants further submitted that the

statement of PW4- Gyan Chand was recorded belatedly by the prosecution

to fill up the lacunae in the prosecution case. Learned counsel for the

appellants further argued that presence of PW4- Gyan Chand in the hospital

was not disclosed by the deceased in his dying declaration. Learned counsel

for the appellants also argued that the theory of motive as propounded by the

prosecution also has no basis as nobody would kill a person for a paltry

amount of Rs.1300/-.

6. Learned counsel for the appellants further contended that the death of

the deceased was not on account of the injuries received by him but due to

medical negligence of the attending doctors who were treating the deceased.

Inviting attention of this Court to the deposition of PW1-Dr. Bharat Singh,

learned counsel for the appellants submitted that PW-1 in his testimony

stated that if the pus is drained regularly then there will be no deposit of pus

in large quantity in abdominal cavity and there was 400 ml of pus in the

abdominal cavity of the deceased which as per PW-1, Dr. Bharat Singh, was

of definitely a large amount. Learned counsel for the appellants thus

submitted that it was the infection of the peritoneum which ultimately

resulted in the death of the deceased and not because of the injuries suffered

by him in the incident. Learned counsel for the appellants placed reliance on

a Division Bench decision of this Court in the case of Rajaram vs. State of

NCT of Delhi reported in 2013 (1) JCC 41. Based on the above

submissions, learned counsel for the appellants urged for acquittal of the

appellants.

7. Refuting the said submissions, Mr. Sunil Sharma, APP for the State,

vehemently contended that the dying declaration recorded by the IO is free

from any suspicion or doubt and the same was recorded by the ASI-Balbir

Singh after Dr. Padmalaya Devi had declared the deceased fit for statement.

Learned APP for the State submitted that there was no one present at the

time of recording of the dying declaration except the doctor and the

deceased had clearly named all the accused persons with the name of the

localities where they were residing and also the motive which led the

accused persons to inflict such serious injuries on the body of the deceased.

Learned APP for the State also argued that instead of appreciating the

promptness of the police in reaching the hospital and recording the dying

declaration of the deceased, learned counsel for the appellants made a vain

attempt to discredit the efficiency of the police in taking a prompt action

after DD No.38 was recorded at Police Station Karol Bagh at 8.45 p.m.

Learned APP for the State also argued that the testimony of PW18- ASI

Balbir Singh remained unrebutted and unchallenged as the defense in her

cross-examination never challenged the fitness of the victim. The defense

neither put any question to PW18 as to whether he had recorded the correct

statement of the victim in Urdu language or not and nor as to why he did not

requisition the service of area Magistrate in recording the dying declaration

of the deceased. The contention raised by the learned APP for the State was

that without there being any challenge to the deposition of PW18-ASI,

Balbir Singh, the appellants cannot build up a new defence at the stage of

appeal. Learned APP for the State further argued that before the dying

declaration was recorded by ASI Balbir Singh, the doctor of the hospital had

given a fitness certificate, an endorsement to this effect is duly recorded on

the dying declaration itself. Learned APP for the State further submitted that

the said endorsement of Dr. Padmalaya Devi was duly proved on record by

PW-23, record clerk of Deen Dayal Upadhyay hospital and this witness was

also not cross-examined by the defense and his testimony also remained

unrebutted and uncontroverted. Learned APP for the State also submitted

that Dr. Padmalaya Devi was no more in service during the relevant period,

and therefore, she could not be summoned to give her evidence. Learned

APP for the State also argued that there is no reason to doubt the

impartiality and independence of the police official who had recorded the

dying declaration especially in the absence of any material placed on record

by the defence to attribute any motive on his part. Learned APP for the State

also argued that there was a clear motive on the part of all the accused

persons to kill the deceased, as he was insisting for repayment of Rs.1300/-

which was lent by him to Accused - Raju, to be returned within a period of

10 days and this demand was raised by the deceased when he had gone to

see a movie at Satyam Cinema and was called by Accused - Raju and

ultimately was given serious stab wounds by all the accused persons instead

of returning back his money. Learned APP for the State also argued that the

testimonies of PW-4 and PW-5, fully corroborate the dying declaration

made by the deceased and even the testimony of PW-6 also fully support the

prosecution case on material facts although he turned hostile. Learned APP

for the State also argued that clothes of accused, namely, Saravjeet and

Tilak Raj were also recovered during their disclosure statement and as per

the FSL report, the blood group found on their clothes fully match the blood

group of the deceased. Based on these submissions, learned APP for the

State submitted that the defence has not been able to create any shadow of

doubt or dent on the prosecution case and the testimonies of the material

witnesses remained unscratched and unchallenged and there is no reason to

doubt the genuineness of the dying declaration made by the deceased after

he was declared fit by the attending doctor - Dr. Padmalaya Devi. Learned

APP for the State submits that the present appeal is devoid of any merit; the

same may be dismissed.

8. We have heard learned counsel for the parties at considerable length

and gave our thoughtful consideration to the arguments advanced by them.

We have also carefully gone through the records of the Trial Court.

9. In the present case, the deceased, Tirlok Chand, was a tailor by

profession. He had advanced a sum of Rs.1,300/- to his friend Harbhajan

Singh @ Raju (deceased) who was running a ration shop possibly in the

same vicinity. Raju had promised to return the said money to the deceased

within a period of 10 days. Having not returned the said money, Raju met

the deceased at about 11.40 a.m. on 06.09.1985 along with his other friends

at Satyam Cinema where the deceased had gone to watch a movie. The

deceased demanded money from Raju and Raju asked him to come to Dev

Nagar and then he would return his money. The deceased reached to Subzi

Wala Chowk near Dev Nagar where instead of returning the money to him,

he was inflicted with 16/17 injuries on various parts of his body by all the

accused persons. The deceased was removed to Willington hospital by one

Mr. Ashoki- PW-3, the brother-in-law of his elder brother and the accused

persons ran away after committing the said crime. The deceased had

succumbed to his injuries on 15.11.1985 after having remained admitted in

the hospital for a period of two months nine days. The deceased could not

get back the sum of Rs. 1,300/- and also lost his life at the barbaric and

brutal hands of the accused persons. The case in hand shows, how cheap a

human life has become. For a paltry amount of Rs.1300/-, a man can kill

another man.

10. The duty constable Sultan Singh- PW-9, who was posted at the

hospital, informed about the said incident which was recorded by the police

post vide DD No.20-A, and handed over to ASI Balbir Singh and with the

said DD, ASI Balbir Singh rushed to the hospital. ASI Balbir Singh had

obtained MLC of the injured and he had also recorded the statement of the

injured after the injured was declared fit for statement by the doctor. All the

accused were named by the victim in his statement including the localities

where they were residing. The deceased in his statement also very clearly

stated that all the five accused persons brought out knives and started

inflicting injuries on his stomach, buttock, arm, thighs and his entire body.

He also stated that atleast he was attacked 16/17 times while he was crying

and shouting „save me‟ „save me‟ and at that very time Mr. Ashoki, the

brother-in-law of his elder brother, reached there and took him to the

Willington hospital after putting him in an Auto Rickshaw. He also stated

that he very well knew all the assailants who had conspired to kill him and

therefore had attacked him 16/17 times and thereafter all of them ran away.

FIR under Section 307/34 IPC was registered by the police based on the said

first statement made by the victim Tirlok Chand. Injured, Tirlok Chand

remained in the hospital from 06.09.1985 to 15.11.1985 when finally he

died in the same hospital. The inquest proceedings under Section 174

Cr.P.C. were conducted and dead body of the victim was sent for post

mortem to civil hospital Subzi Mandi. As per the post mortem report, the

death of Tirlok Chand took place due to shock and peritonitis following

injury in abdomen.

11. As already stated above, the principal challenge by both counsel for

the appellants concerns the dying declaration. The contentions raised inter-

alia being that the said dying declaration proved on record as Ex-PW-

12/DA, cannot be treated as a dying declaration because of time gap

between the recording of dying declaration and date of death of the victim;

the same not being recorded by the Magistrate; the same was recorded in

Urdu language which was not in vernacular language of the deceased;

signatures of the victim were obtained without explaining the contents of the

same; doctors who gave fitness certificate were not produced in the

evidence; the parentage and the exact address of the accused was not

disclosed by the victim and finally how the victim spelt out the number of

injuries inflicted on his body.

12. The learned Trial Court has very ably and comprehensively dealt with

the above contentions raised by both the counsel for the appellants in the

impugned judgment and we find no reason to record our disagreement with

the same. The learned Trial Court is right in observing that the said

statement of the victim Tirlok Chand proved on record as Ex. PW18/A was

in the nature of a complaint but even then ASI Balbir Singh-PW18 took a

precaution in first obtaining the opinion of the concerned doctor about the

fitness of the injured. The learned Trial Court also rightly observed that

there was no occasion for IO to record the dying declaration of the victim by

calling the Magistrate as there was no danger to the life of injured Tirlok

Chand and in the later period also no intimation was received by him that

injured was in any precarious or serious condition. The learned Trial Court

also rightly observed that it is only after the death of the Tirlok Chand that

his statement Ex. PW-18/A became the dying declaration. To support his

said reasoning, the learned Trial Court has relied on the decision of the

Apex Court in the case of Jai Prakash & Anr. v. State of Haryana, reported

in 1987 AIR 2225 where in similar facts, the Apex Court took a view that in

the cases where the police had initially recorded the statement in the nature

of complaint, the same was later on treated as a dying declaration in case

victim dies, if it discloses the cause of death of the victim. The learned Trial

Court also observed that based on the said statement, FIR under Section 307

IPC was recorded and an endorsement to this effect was made by ASI on the

said statement of Tirlok Chand which was proved on record as Ex. PW-

18/B. The learned Trial Court is also right in observing that the only

precaution which IO could have taken was to record the statement of the

injured after he was declared fit for statement. After having taken the said

precaution, neither any fault nor any lapse can be attributed to the said ASI

nor can any dispute be raised to the veracity of the statement made by the

victim, Trilok Chand.

13. As would be seen from the above, the statement which was made by

the victim Trilok Chand to ASI Balbir Singh- PW18 ultimately turned into

his dying declaration after he had succumbed to his injuries on the fateful

day of 15.11.1985. Had he remained alive, his statement would have been

considered under Section 161 Cr.P.C. which could be useful only to

corroborate or contradict him during his deposition in the court, however, in

a case where such victim dies, the same statement becomes substantive

piece of evidence under Section 32(1) of the Indian Evidence Act

(hereinafter referred to as IEA). The death, however, in such cases should be

proximate in time and as a result of the injuries caused to the victim and not

because of any negligence or external factor.

14. Victim Trilok Chand had received 17 injuries on his body as per

MLC proved on record as Ex. PW-12/DA, and as per post mortem report

proved on record as Ex.PW-1/A , the death of the victim was due to shock

and peritonitis following injury to abdomen. The said victim remained

admitted in the hospital continuously for a period of 2 months nine days,

and therefore, there cannot arise even a shadow of doubt that the death of

the deceased was a natural consequence of the injuries sustained by him in

the incident of 06.09.1985.

15. With regard to the contention raised by both the counsel for the

appellants to challenge the said dying declaration, we do not find that there

is any merit in any of the contentions raised by both the counsel for the

appellants. ASI- Balbir Singh was not required to bring the area Magistrate

when he was merely recording the complaint of the victim. So far the

objection raised by both the counsel for the appellants, that the deceased

only knew Hindi language and not Urdu in which ASI Balbir Singh had

recorded the statement is concerned, this fact alone will not vitiate the

statement made by the deceased. In State of Rajasthan v. Bhoop Singh,

reported in 1997 10 SCC 675, wherein similar situation, the Apex Court

took a view that the dying declaration would not be vitiated merely because

it was in a different language. The essential requirement being, that the

person who records the dying declaration must be satisfied that the deceased

was in a fit state of mind and the statement being made by the

victim/deceased was free from any kind of tutoring, prompting or influence.

The principles governing the dying declaration were eloquently summed up

by the decision of the Supreme Court in Paniben v. State of Gujarat

reported in 1992 SC 1817 and the same are reproduced as under:-

"(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration.

(ii) If the court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration.

(iii) The court has to scrutinize 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.

(iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence.

(v) Where the deceased was unconscious and could never make any dying declaration, the evidence with regard to it is to be rejected.

(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction.

(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected.

(viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth.

(ix) Normally the court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration has to look to the medical opinion. But where the eye- witness has said that the deceased was in a fit conscious state to make this dying declaration, the medical opinion cannot prevail.

(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon.

(xi) Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declaration could be held to be trustworthy and reliable, it has to be accepted."

16. It will also be useful here to refer to the judgment of the Supreme

Court in the case of State of Haryana v. Mange Ram & Ors, reported in

AIR 2003 SC 558, wherein the Apex Court took a view that under Indian

law, for dying declaration to be admissible in evidence, it is not necessary

that the maker of the statement at the time of making his statement should

be under the shadow of death. Relevant parts of the same is reproduced as

under:-

"That is not what Section 32 of the Indian Evidence Act says. That is not the law in India. Under Indian Law, for dying declaration to be admissible in evidence, it is not necessary that the maker of the statement at the time of making the statement should be under shadow of death and should entertain the believe that his death was imminent. The expectation of imminent death is not the requirement of law."

17. The concept of dying declaration was also extensively discussed by

the Constitution Bench of the Supreme Court in the case of Laxman v. State

of Maharashtra, reported in 2002 6 SCC 710 wherein it was held as under:-

"The justice theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on death bed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the court insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however has to always be on guard to see that the statement of the deceased was not as a result of either tutoring or promoting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental

condition to make the dying declaration look up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and in any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a magistrate is absolutely necessary, although to assure authenticity it is usual to call a magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a magistrate and when such statement is recorded by a magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise."

18. In the light of the aforesaid settled legal position, we do not find that

the counsels for the appellants could succeed in creating any suspicion to

doubt the credibility, truthfulness and trustworthiness of the statement made

by the deceased, who was declared medically fit by the attending Dr.

Padmalaya Devi. We also cannot lose our sight from the fact that the

testimony of PW-23, who had proved the endorsement of Dr. Padmalaya

Devi on the dying declaration of Trilok Chand, remained unchallenged and

unrebutted as he was not cross-examined by the defence witness. No

question was put to PW-18 ASI Balbir Singh about the fitness of the

deceased and about his not contacting the area SDM and on the other

material aspects, and therefore, also the defence cannot raise all these pleas

which were not put by the defence to the prosecution witnesses. We also do

not find any force in the argument of the counsel for the appellants that the

deceased did not disclose the parentage or address of the accused persons as

a person having suffered 17 wounds on his body is not expected to give

exact parentage or address of the accused persons. In any case, even under

such a frenetic state, the deceased gave particulars of the localities where

the accused persons were residing. The statement of the victim was recorded

by ASI Balbir Singh after his MLC was prepared, and therefore, it is not

unusual for the deceased to have complete knowledge of the injuries

inflicted on his body. We also do not find any merit in the contention raised

by both the counsel for the appellants that the time gap was to too short

between the time of admission of the victim and the registration of the FIR,

and therefore, no time was left in between to record the said statement of the

victim. A time gap of 1.40 minutes was enough to complete the said

process and the statement of the deceased was not running into several

pages which could have consumed more time. The victim was admitted in

the hospital at about 8.15 p.m. and he was declared fit to give statement by

Dr. Padmalaya and the said endorsement was also counter signed by Dr.

Khetrapal under whose signatures time indicated is 9.35 p.m. and the rukka

prepared at RML hospital and further there was sufficient and reasonable

time to record the statement of the victim. One of the contentions raised by

both the counsel for the appellants was that Dr. Khetrapal was not examined

by the prosecution. This contention of the counsel for the appellants also

lacks merit as Dr. Khetrapal had also left the service of the hospital at the

relevant time and her whereabouts were not known to the hospital authority

as per the deposition of PW14- Puran Mal. The death summary of the

deceased was prepared by Dr. Khetrapal and his death summary report was

proved on record by PW-14 Puran Mal-record clerk of RML hospital and

the signatures of Dr. Khetrapal on the death summary report and on the

MLC totally match with each other, as can be seen by our naked eyes and

there is no room to doubt the signatures of Dr. Khetrapal on the MLC and

the time indicated under his signatures.

19. Based on the above discussion, we are fully satisfied that the

deceased was in a fit state of mind to make the statement and there is no

reason to disbelieve the fitness certificate given by Dr. Padmalaya Devi. It is

also a settled legal position that once the court finds that dying declaration

was truthful and voluntarily made then the same can be the sole basis of

conviction of the accused even in the absence of any corroboration. Great

solemnity and sanctity is attached to the words of a dying man because a

person on the verge of death is not expected to tell a lie or to concoct a case

so as to implicate an innocent person. This principle is based on the maxim

"nemo moriturus proesumitur mentiri" which means a dying person would

not normally tell a lie.

20. Deceased Trilok Chand who had received 17 injuries on his body

must have seen his death very near and therefore, he was not expected to

make any false statement to ASI Balbir Singh or to have falsely implicated

accused persons who were in fact well known to him and who wanted to

teach him a lesson for having dared to ask for return of his money. The said

dying declaration made by the deceased also finds its corroboration from the

evidence of PW4- Gyan Chand & PW5- Pritam. PW4-Gyan Chand, is the

real brother of the deceased Trilok Chand and he had gone to visit RML

hospital to meet his brother on the evening of 06.09.1985 and he had

enquired from his brother as to who had stabbed him and in answer to the

same, the deceased had named these accused persons who had injured him

with the help of knives. To the same effect is the deposition of PW5- Pritam,

who also happens to be the brother of the deceased and had visited the

hospital after the said incident. The learned Trial Court is right in observing

that the statement made by the deceased to his said two brothers also

amounts to dying declaration and the same were totally in consonance with

his own statement as made by him to the ASI Balbir Singh. The

corroborative evidence of PW-4 and PW-5 further lend support in accepting

the dying declaration made by the deceased being most truthful, reliable and

free from any kind of suspicion or doubts.

21. Dealing with the next plank of arguments raised by the counsel for

the appellants that the death of the deceased was not on account of injuries

received by him but due to the negligence of the attending doctors treating

the deceased. At this juncture we would also like to examine whether the

case of the accused persons falls under section 300 IPC or under Section 299

IPC i.e. are they liable for offence of culpable homicide amounting to

murder or culpable homicide not amounting to murder.

22. We may, therefore, produce Sections 299 and 300 as follows:

Section 299: Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. And;

Section 300: Except in the cases hereinafter excepted, culpable homicide is murder ....

3rdly.-if it (if the act by which the death is caused) is done, with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death.

23. It was held by Hon‟ble Apex Court in matter of Kishore Singh &

Anr. vs. The State of Madhya Pradesh reported in AIR 1977 SC 2267

held that the distinction between culpable homicide (Section 299 IPC) and

murder (Section 300 IPC) has always to be carefully borne in mind while

dealing with a charge under Section 302 IPC. Unlawful homicides fall

under both the categories i.e culpable homicide amounting to murder and

culpable Homicide not amounting to murder. Culpable homicide is not

murder when the case is brought within the five exceptions to

Section 300 IPC. But even though none of the said five exceptions are

pleaded or prima facie established on the evidence on record, the

prosecution must still be required under the law to bring the case under

any of the four clauses of Section 300 IPC to sustain the charge of murder.

If the prosecution fails to discharge this onus in establishing any one of

the four clauses of Section 300 IPC, namely, firstly to 4thly, the charge of

murder would not be made out and the case may be one of culpable

homicide not amounting to murder as described under Section 299 IPC.

24. On the facts and circumstances of the present case in order to

sustain the charge under Section 302 IPC the prosecution has to establish

the ingredients of the clause "3rdly' under Section 300 IPC.

25. In the landmark judgment of Virsa Singh v. State of Punjab reported

in (1958) 1 SCR 1495, the Hon‟ble Supreme Court held that the following

are the four steps of inquiry involved in the offence of Murder under section

300 IPC, clause thirdly::

                "i.     First, whether bodily injury is present;

                ii.     Second, what is the nature of the injury;

                iii.    Third, it must be proved that there was an

intention to inflict that particular injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended; and

iv. fourthly, it must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature."

26. In the present case as per the MLC proved on record. The exact

nature of injuries as recorded in the MLC are reproduced as under:-

"1. Multiple incise wound over (i) 1" x ½" right iliac

fossa ½" above the mid inginial point.

Omentmuam is coming out of the wound.

2. 1" x ½" right epigastic region 1" lateral to mid line and 1" below the right costal margin.

3. 1" x ½" over medial aspect of left lower arm 2"

above elbow crease.

4. 1 ½" x ½" over medial aspect of right upper fore-arm 1" below the elbow crease.

5. 2" x 1" over medial aspect of right mid fore-

arm.

6. 1" x ½" over lateral side of extensor surface of left fore-arm 2" below the left elbow right.

7. ½" x 1/4 " over lateral surface of left upper arm.

8. 2 ½" x ½" over postero lateral aspect of left lower thigh 2" above the knee joint.

9. 1" x ½" over pesto lateral aspect of left upper thigh.

10. 1/2" x ¼" over lateral aspect of left upper thigh 2" and medial to the wound No.9.

11. 1/4" x 1/4" over lateral aspect of left upper thigh 1 ½" infero lateral to wound No.9.

12. 1" x 1/4" over postero medial aspect of the lower thigh 4" above the knee joint.

13. 1" x 1/4" over lateral aspect of right upper leg 3" below the tip of right fibular.

14. 1" x 1/2" over right gluteal region 1/2" below the mid right ileac crest.

15. 1 1/2" x 1/2" over mid left guleral region.

16. 1" x ½" over left para vertebral region 1/2"

lateral to the mid vertebral line.

17. 2" x 1/2" over left infra scapular region 1/2"

below the apex of left scapular 2" lateral to mid vertebral line.

The nature of injuries was sharp."

27. The aforesaid MLC was proved on record as Ex. PW-8/A in the

evidence of PW-8 Dr. K.K. Pandey. Immediately after the incident, the

victim was admitted in RML hospital where he remained under treatment

for a period of two months and nine days and finally he succumbed to his

injuries. PW-1 Dr. Bharat Singh had conducted the post mortem on the dead

body of Trilok Chand, and in his post mortem he found the following

external injuries on the body of the deceased:

"1. Tracheostomy wound on the neck with mild infection over the wound;

2. Cut open wound on the right upper arm outer upper part;

3. Healed wound scar on right upper arm, front upper part 1/2" long, white in colour;

4. Healed wound scar on the right fore-arm front upper third 1/2" long, white in colour;

5. Healed would scar on the left fore-arm upper outer side ½" long, white base;

6. Healed wound scar on the left upper arm front part in the upper third obliquely placed size 1" long, white in colour;

7. Healed wound scar on the right fore-arm mid front part place horizontally, size 3/4" long with white base'

8. Healed wound scar on the right side epigastic area, size 1/4" long obliquely placed, linear in shape, white base;

9. Infected gaping wound on the right paramedian line placed vertically size 5" x 1.1/4" x abdominal cavity deep with pus deposit on the surface;

10. Healed wound scar on left paramedian line placed vertically, size 7" long with suture markings on either side;

11. Drainage tube wound on right iliac fossa (still healing);

12. Healed wound scar on the right thigh front mid area size 1 1/4" long placed horizontally linear in shape;

13. Healed wound scar on the right leg mid outer part placed horizontally size 11/4" long;

14. Healing cut open wound on the right ankle'

15. Healed wound scar on the left thigh lower outer part size 11/4" x 1/4" white in colour;

16. 11/4" x 1/4" white in colour on the left thigh upper outer part size 1" x 1/4" white in colour;

17. Bed sore on the sacral area size 4" x 3" x muscle deep;

18. Healed would scar liner in shape on the left lumber area size 1" x 1/10" white in colour;

19. Healed wound scare on the left scapula inferior angle size 1/2" x 1/10' liner in shape;

20. Healed wound scare on the left buttock upper outer part size 1" x 2/10" white in colour."

28. On the internal examination of the body of the deceased, the post

mortem doctor gave following report:

"INTERNAL EXAMINATION:

Scalp was pale. Skull bones were normal. Brain was pale. Left tissues are inflamed. Both lungs were pale and partially collapsed. Heard was normal. Abdominal cavity contained about 400 ml of greenish pus which was foul smelling. Omentum was adherent. There was sutured wound on small bowels in a circular manner (operational). Loops of the bowel were adherent to each other. Stomach contained two ounce of bile. Mucous membrane was pale. Liver spleen, kidneys, adrenals and pancreas were normal. Rectum was empty. Bladder contained clear urine. All injuries were old. Original stab injuries as mentioned in MLC had healed. Infected injury No.9 was operational wound which is infected."

29. As to the cause of the death the post mortem doctor opined that the

death was due to shock and peritonitis, following injuries to abdomen. In his

cross-examination PW1-Dr. Bharat Singh deposed that injury Nos.1, 2, 9, 10

& 14 were operational wounds and there was an infection over injury Nos. 1

and 9. He further deposed that all other wounds were healed, while injury

No. 11 was in the process of healing and the same was also operational

wound.

30. As would be seen from the above MLC report, the deceased had

received multiple incise wounds 17 in number on various portions of his

body. Out of 17 injuries, 5 injuries were inflicted on the right and left arm of

the deceased, 5 injuries were inflicted on his left lower and upper thighs,

injury No.1 was inflicted on the right iliac fossa 1/2" above the mid inginial

point and Omentum was coming out of the wound, while injury No.2 was

inflicted on the right epigastic region 1" lateral to mid line and 1" below the

right costal margin. In all five accused persons were involved holding

separate knives in their hands and inflicted those injuries. As per the MLC,

the wounds were incised wounds and not stabbed wounds even the depth of

the injuries was nowhere mentioned against any injury. From these injuries,

it clearly emerges that there was no forcible blow on the part of any of the

accused persons which could have caused serious deep injuries to the

deceased. Further majority of the injuries were also inflicted on non-vital

parts of the body of the deceased.

31. The Hon‟ble Apex Court in the matter of Chenda @ Chanda Ram vs.

State of Chhatisgarh reported in 2013(10)SCALE637 held that for proving

the case under clause thirdly of Section 300 the Prosecution must

categorically prove that the injury inflicted was sufficient in the ordinary

course of nature to cause death.

32. Taking into account the above legal position and said injuries

suffered by the deceased as per MLC and the post mortem report, and also

the fact that no where the doctor had opined that any of the injuries were

sufficient in the ordinary course of nature cause the death of a victim, we

think that clause "thirdly" of Section 300 IPC has not been sufficiently

established by the prosecution.

33. However the evidence fulfils one of the ingredients of Section 299

namely, that the appellants cause the death by doing an act with the

intention of causing bodily injury as is likely to cause death.

34. Now dealing with the contention raised by the appellant that the death

of the deceased was not on account of injuries received by him but due to

the negligence of the attending doctors treating the deceased. Here it will be

important to quote the Explanation 2 to section 299, which is as follows:

"Explanation 2.--Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment the death might have been prevented."

35. As per the above factual matrix, it is amply clear that the death of the

deceased was caused due to these wounds only, although it was not

immediately caused. The wounds inflicted upon the deceased by the accused

persons were causa sine quo non for the death of the deceased and the

medical negligence was causa causans. It is a settled legal position that in

cases where death is caused due to injuries inflicted by the accused persons,

the argument that the deceased could have been saved by proper medical

care, is wholly irrelevant. It was held by the Hon‟ble Supreme Court in the

landmark judgment case of Morcha vs. State of Rajasthan reported in AIR

1979 SC 80that:

"The mere fact that if immediate expert treatment had been available and the emergency operation had been performed, there were chances of survival of the deceased can be of no avail to the appellant. Explanation 2 to Section 299 of the Indian Penal Code clearly lays down that where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment the death might have been prevented"

36. Further is pertinent to mention that the defence never raised this

ground of medical negligence during the trial and even during the cross

examination of the concerned doctor PW-1, the defence neither contradicted

him nor did it put any suggestion to this effect. In the light of the above facts

and circumstances we do not find any merit in the contention of Ld. Counsel

for the appellant that the death of the deceased was not on account of

injuries received by him but due to the negligence of the attending doctors

treating the deceased.

37. In the view of the above, we are of the considered view that the

offence of the appellants would not fall under Section 302 IPC and the same

can be altered to Section 304 Part-I IPC. Consequently, we hold the

appellants guilty of the offence under Section 304 Part-I IPC.