Naresh Kumar vs State
2014 Latest Caselaw 1903 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                RESERVED ON : January 21, 2014
                                DECIDED ON : April 16, 2014

+                         CRL.A. 1047/2012

       NARESH KUMAR                                    ..... Appellant
                   Through :          Mr.Harish Khanna, Advocate.

                          versus

        STATE                                         ..... Respondent
                          Through :   Mr.Lovkesh Sawhney, APP.

        CORAM:
        MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Challenge in this appeal is to a judgment dated 18.08.12 in

Sessions Case No.159/11 arising out of FIR No.516/07 registered at

Police Station Prashant Vihar by which the appellant-Naresh Kumar was

held guilty under Section 304(1)/34 IPC. By an order dated 30.08.2012,

he was sentenced to undergo RI for ten years with fine `5,000/-.

2. The prosecution case, as projected in the charge-sheet, was

that on 24.07.2007, Daily Diary (DD) No.23B (Ex.PW-14/A) was

recorded at 9.37 a.m. at police station, Prashant Vihar on getting

information from mobile number 9958386072 about an individual being

mercilessly beaten near Metro Station, Sector-9, Rohini. The

investigation was assigned to HC Bharat Lal who with Ct.Mahabir Singh

went to the spot. They came to know that the victim had already been

taken to BSA hospital. Since the spot of occurrence was within the

jurisdiction of Police Post, Rohini, necessary intimation was given to the

concerned police officers there. ASI Prem Singh, on receipt of call vide

DD No.13 at 11.45 a.m. went to the spot along with Ct.Virender from that

police post. After reaching at BSA hospital, he collected the MLC of

injured Nand Lal Thakur and met HC Bharat Lal and Ct.Mahabir Singh.

The injured was 'unfit' to make statement. At 12.30 p.m. when Nand Lal

Thakur regained consciousness, ASI Prem Singh recorded his statement

(Ex.PW-22/A) and lodged First Information Report by making

endorsement over it under Sections 308/341/506/34 IPC. In the statement,

Nand Lal Thakur disclosed that at about 9.25 a.m. when he was going to

Rohini courts on foot after getting down from a bus and reached in

District Park, Sector 14, Rohini, he was stopped by four/five individuals;

two of them were armed with baseball bat and wooden danda; and they

inflicted injuries to him. They asked him to withdraw the case filed

against them or else they would kill him. He identified Naresh Kumar r/o

Budh Vihar, as one of the assailants and claimed to identify the others

also. Further investigation was taken over by SI K.P.Tomar. On the basis

of secret information, Naresh was apprehended near gate No.2, Japanese

Park, Rohini in the evening same day and at his instance Parveen his

associate in the crime, was arrested who recovered a baseball bat from the

bushes. On the night intervening 28/29.07.07, Nand Lal Thakur

succumbed to the injuries in the hospital and DD No.9A (Ex.PW-28/B)

was recorded. Post-mortem examination on the body was conducted and

Section 302 IPC was added. During investigation, statements of witnesses

conversant with the facts were recorded. After completion of

investigation, a charge-sheet was submitted against Naresh and Praveen.

Ram Niwas and Rakesh were kept in column No.2 in the charge-sheet.

Without taking cognizance against Ram Niwas and Rakesh, the learned

Metropolitan Magistrate committed the case to the Court of Sessions.

Naresh Kumar and Praveen were duly charged and brought to trial. The

prosecution examined 28 witnesses to establish their guilt. In 313

statements, they denied their complicity in the crime and claimed false

implication. They did not examine any witness in defence. On

appreciation of the evidence and after considering the rival contentions of

the parties, the trial court by the impugned judgment held the appellant-

Naresh Kumar guilty for committing the offence mentioned previously. It

is pertinent to note that the Praveen was acquitted of the charges. The

State did not prefer any appeal to challenge his acquittal and conviction of

the appellant-Naresh Kumar under Section 304 (1)/34 IPC instead of 302

IPC.

3. I have heard the learned counsel for the parties and have

examined the record. Appellant's counsel urged that the trial court did not

appreciate the evidence in its true and proper perspective. PW-1 (Sunil

Kumar), the informant, did not support the prosecution regarding identity

of the appellant and was not declared 'hostile' by the prosecution. Dying

declaration recorded by the Investigating Officer is highly suspect and

doubtful. The victim was 'unfit' to make statement as he never regained

consciousness after the occurrence. No permission from the concerned

doctor before recording the dying declaration was obtained and it is

mystery who had declared the victim 'fit for statement' at 12.30 p.m. that

day in the absence of any certificate/endorsement of the examining doctor.

Since the condition of the patient was critical, his family members got him

discharged against medical advice and shifted him to Jaipur Golden

hospital. The family members of the victim accused the Investigating

Officer for not recording his statement correctly and lodged a complaint in

that regard. Inordinate delay in recording PW-8 (Durga Devi)'s statement

under Section 161 Cr.P.C. remained unexplained. The appellant, who is a

resident of Rithala Village never resided or carried out any business at

Budh Vihar and it was a case of mistaken identity. Co-accused (Praveen)

was acquitted on the same set of evidence though crime weapon was

alleged to have been recovered at his instance. The appellant had no

motive to inflict injuries to the victim. Learned Additional Public urged

that the judgment is based upon fair appraisal of the evidence. The

Investigating Officer had no ulterior motive to fabricate or manipulate the

statement (Ex.PW-22/A) of the deceased-Nand Lal Thakur.

4. Undisputedly, victim-Nand Lal Thakur suffered a homicidal

death. Medical evidence is clear on this point. PW-3 (Dr.Bhawna Jain)

medically examined the patient on 24.07.2007 by MLC (Ex.PW-3/A).

Various injuries on different body parts of the patient were described

therein. PW-4 (Dr.K.Goel) conducted post-mortem examination on

29.07.2007. Following external injuries were found on the body:-

(i) Diffuse coalesced bruises all over right arm, right elbow and upper two third of right forearm with ill define rail-road patterns over outer aspect of arm and at places over forearm, blueish- greenish in colour.

(ii) Diffuse bruises all over medial aspect of left arm in area 8' X 3' inches.

(iii) Diffuse coalesced rail-road patterns bruises in area 20 X 14 cm over right side back of chest.

(iv) Diffuse bruises with rail road patterns 10 X 8 cm area over right side chest between right nipple and axilla.

(v) Coalesced rail-road patterns bruises 12 X 7 cm area over right knee placed antero-lateral aspect.

(vi) Surgical stitch wound 11 cm long over back of right forearm.

On exploration there was fracture of right ulna bone which was fixed with nails and plate.

(vii) Partly stitched laceration 5 cm long with diffuse bruising in area 15 X 12 cm around with ill defined rail-road patterns over upper middle front of right leg.

(viii) Coalesced rail-road patterns bruises in area of 14 X 9 cm over front and lateral aspects left knee.

(ix) Coalesced bruises with rail-road patterns scattered all over back of left thigh, left knee and left leg.

(x) Surgical stitched wound about 13 cm long over middle front of left leg and 8 cm long over upper front of left leg. On exploration fracture of left tibia was found fixed with nails and plate.

In his opinion, all the injuries were ante-mortem in nature

caused by hard blunt forced impacts. Cause of death was asphyxia

(ARDS) as a result of net sequele of long bone fractures. Time of death

was ascertained as 08.10 p.m. on 28.07.07. On 27.09.07, he examined

the crime weapon i.e. baseball bat and was of the opinion that the injuries

with rail-road patterns mentioned in the post-mortem report were possible

with the said baseball bat or similar type of such bat. The victim was hale

and hearty before the incident. Various injuries of different dimension

inflicted to him on his body proved fatal and he expired after five days.

Apparently, it was a case of culpable homicide.

5. Crucial testimony is that of PW-22 (Prem Singh, the then

ASI) who recorded the dying declaration of the deceased on 24.07.2007 at

BSA hospital. He deposed that on 24.07.2007, on receipt of Daily Dairy

13 (Ex.PW-21/A) at around 11.45 a.m. he and Ct. Virender went to BSA

hospital and obtained the MLC of injured Nand Lal Thakur who was unfit

to make statement. He (SI Prem Singh) waited in the hospital and at about

12.30 p.m. when the victim was declared 'fit for statement' by the doctor,

he recorded his statement (Ex.PW-22/A). He lodged First Information

Report by making endorsement from point 'C' to 'C' on Ex.PW-22/A. A

broken danda (Ex.P-1) handed over to him in the hospital was seized vide

seizure memo (Ex.PW-12/A). In the cross-examination, he disclosed that

he reached the hospital at about 12/12.15 p.m. and did not meet any

family member of the injured there at that time. Apparently, the

testimony of the witness regarding recording of the dying declaration of

the victim remained unchallenged in the cross-examination. Nothing was

suggested if the victim was not in a fit state of mind to make statement.

Genuineness and authenticity of the statement (Ex.PW-22/A) recorded by

him was not questioned in the cross-examination. No ulterior motive was

assigned to him to fabricate or manufacture a false declaration. The

statement (Ex.PW22/A) was taken for the purpose of registering the case

in a routine manner. After death, the same was treated as dying

declaration. PW-17 (Ct.Virender Singh), who accompanied him to the

hospital, also corroborated his version in its entirety. He also deposed that

at about 12.30 or 12.40 p.m., the victim was declared 'fit for statement' by

the doctor and the Investigating Officer recorded his statement. Rukka

was handed over to him and he lodged First Information Report with the

Duty Officer. In the cross-examination, the statement made by the victim

as recorded by the Investigating Officer was not challenged. PW-15

(Ct.Charan Singh), Computer Operator, at PS Prashant Vihar, at about

2.05 p.m. recorded FIR (Ex.PW-15/A) after getting rukka. He was not

cross-examined. From the statements of these witnesses, no sound

reasons exist to infer that the victim did not make statement (Ex.PW-

22/A) to the Investigating Officer Prem Singh (PW-22). Initially, the FIR

lodged on the day of incident itself was for the commission of offence

under Section 308/341/506/34 IPC. When the victim succumbed to the

injuries on 29.07.2007, Section 302 IPC was added. The name of the

appellant emerged in the statement (Ex.PW-22/A) on 24.07.2007 itself

and he was arrested that day at around 08.30 p.m. At no stage the

appellant suspected the authenticity of the statement (Ex.PW-22/A)

recorded by the Investigating Officer. MLC (Ex.PW-3/A) records the

arrival time of the patient at BSA hospital as 10.30 a.m. At 10.40 a.m., the

victim was 'unfit for statement'. The MLC contains another endorsement

'fit for statement' at 12.30 p.m.. Dr.Bhawna Jain (PW-3) who medically

examined the victim with the alleged history of assault by 'some people'

proved MLC (Ex.PW-3/A). In the cross-examination, she revealed that

the patient was under proper treatment in the hospital and left against

medical advice. She was not questioned as to when the victim came to

senses and how and in what manner endorsement 'fit for statement'

appeared on MLC (Ex.PW-3/A) at 12.30 p.m. Nothing was suggested to

her if the patient remained unconscious or was unfit to make statement till

his discharge from the hospital by relatives, PW-3 (Dr.Bhawna Jain) had

no motive/reason to furnish a false certificate. PW-2 (Madhu Thakur),

victim's daughter, and PW-8 (Durga Devi), deceased's wife, have also

deposed that the Investigating Officer recorded the statement of victim in

the hospital. Their grievance was that it was not recorded correctly and

the Investigating Officer left the name of some of the assailants.

Statement (Ex.PW-22/A) contains signature of the victim. The appellant

did not challenge that it were not victim's signature.

6. On scanning the statement (Ex.PW-22/A), it reveals that

Nand Lal Thakur gave detailed account of the incident and stated that on

24.07.2007 at around 09.25 a.m. when he was going on foot to Rohini

Court (where he was a Reader in the court of Sh.Vijay Shankar, MM)

after alighting from the bus through District Park, Sector 14, he was

surrounded and obstructed by four/five boys. Two of them caught hold of

him and the other two who were armed with baseball and wooden danda

gave beatings to him. They threatened him to kill in case he did not

withdraw the case. He identified Naresh r/o Budh Vihar doing cable

business/job as one of the assailants with whom he was acquainted prior

to the occurrence. He claimed to identify his associates. Obviously,

Naresh r/o Budh Vihar, was named as one of the assailants who inflicted

injuries to the victim. The victim gave sufficient description to fix

Naresh's identity and informed that he was involved in the cable business.

His identity was never questioned or challenged during trial in the cross-

examination of the Investigating Officer or family members of the victim.

It has come on record that Ram Niwas who was one of the suspects,

shown in column No.2, was facing trial in a rape case. The appellant-

Naresh is his nephew and was associated with him in his cable business.

PW-2 (Madhu Thakur), victim's daughter, admitted that Naresh used to

reside at village Rithala. Specific suggestion was put to her that Naresh

was falsely implicated because she had personal enmity with Ram Niwas

with whom Naresh was working. PW-8 (Durga Devi), deceased's wife,

disclosed that Ram Niwas cable operator in the locality where she was

residing, was known to her and he was an accused in a rape case in which

her daughter was a prosecutrix. She admitted that Naresh was Ram

Niwas's nephew. She disclosed that she knew Naresh as he was also

working with Ram Niwas in operating cable network. It is relevant to

note that Budh Vihar and Rithala are located nearby. The appellant's plea

that it was a case of mistaken identity has no force at all and deserves

outright rejection.

7. In the dying declaration, the victim disclosed that the crime

weapon was a baseball bat. This finds corroboration in the testimonies of

informant PW-1 (Sunil Kumar) and PW-11 (Virender Singh Mann). On

24.07.2007, PW-1 (Sunil Kumar) present at the District Park noticed that

two or three persons were giving beatings to an individual with a baseball

bat. He made call at 100 from his mobile No.9958386072. He deposed

that after some time, PCR van came and he pointed out the place where

the victim was given beatings. He also showed them the broken danda of

the base ball. In the cross-examination, he informed that the PCR van

came to the spot within 10/15 minutes. PCR official summoned the

ambulance. The victim was unable to speak at that time. The two pieces

of base ball bat were taken by PCR officials.

PW-11 (Virender Singh Mann) posted at CATS Ambulance

station, Mangol Puri deposed that at about 09.50 a.m., on receipt of PCR

call, he along with Ajay Kumar Sharma went to the spot. The victim was

in a delirious condition; was not in a position to disclose anything and had

injuries on his hands, legs. He was admitted vide MLC No.3832 CR

No.61504 in BSA hospital. His personal belongings were handed over to

the duty constable. Form (Ex.PW-11/A) was filled. Local police met him

in the hospital and he pointed out the place where the injured was found

lying. In the cross-examination, he disclosed that he had handed over the

base ball bat to the duty constable. PW-12 (ASI Vijay Kumar) duty

constable in BSA hospital, also corroborated his version and stated that

Incharge of CATS Ambulance, Mr.V.K.Maan had admitted Nand Lal

Thakur in the hospital. Base ball/danda on which a label of RBK (Dhoni)

smash was affixed, was produced by him stating that it was found lying

near the injured at the spot. This bat (Ex.P-1) was handed over

subsequently to ASI Prem Singh.

8. Appellant's conviction is primarily based upon the dying

declaration recorded by the Investigating Officer. It is a settled

proposition of law that dying declaration can be made a basis of

conviction. There can be no dispute that for basing the conviction on the

dying declaration, it must pass all the tests of voluntariness, the fit

condition of mind of the maker of the dying declaration and the witness

not being influenced by any other factors and truthfulness of the

declaration (Laxman vs.State of Maharashtra 2002 (6) SCC 710). In the

instant case, there is nothing on record to show that the statement (Ex.PW-

22/A) was the result of any tutoring or prompting or a product of

imagination. There was no material on record to suspect that the

Investigating Officer had any animus against the appellant or was in any

way interested in fabricating the dying declaration. The deceased fully

possessed the power to understand the implication of his statement and the

same was made without any exterior influence or ulterior motive. The

victim was fair enough not to name the other assailants though he had

specific grudge against Ram Niwas and the trial court despite his name

shown in column No.2 in the charge-sheet, did not initiate any

proceedings against him. Even Praveen who faced trial with the

appellant, was not named by the victim and was acquitted of the charge.

The deceased was hale and hearty prior to the incident and was on his way

to attend his duty. He had direct confrontation with the assailants during

day time for sufficient duration and had reasonable and clear opportunity

to observe and identify them. Since the appellant was acquainted with

him prior to the incident, the victim was able to name him in his dying

declaration. The other assailants who were not known to him and perhaps

were hired goons could not be identified and named by him in his

statement.

9. The prosecution has adduced evidence that Ram Niwas,

appellant's uncle, was facing criminal proceedings in a rape case where

deceased's daughter, was a prosecutrix. PW-24 (ASI Sajjan Singh)

disclosed that case vide FIR No.895/2005 under Sections 365/376/506/34

IPC registered at Police Station Sultan Puri was pending before the court

where the next date of hearing was 21.09.2011. PW-8 (Smt.Durga Devi)

clearly deposed that her husband was murdered because of the enmity

due to rape case of her daughter in which Ram Niwas etc. were the

accused. She and her husband were also implicated in case FIR

No.502/2006 (Ex.PW-9/A) registered at PS Rohini lodged by Rekha

(Krishan Pal @ Babloo's wife) against them. The appellant being Ram

Niwas's close relative had motive to inflict injuries and criminally

intimidate the victim to withdraw the said criminal case lodged against his

uncle.

10. PW-1 (Sunil Kumar) was the informant to the police. In his

statement under Section 161 Cr.P.C., he did not claim to recognize the

assailants. He did not give broad features/description of the assailants

while making call from his mobile at 100. DD No.23B recorded on the

basis of information conveyed by him even does not record the number of

assailants. When PW-11 (Virender Singh Maan) went to the spot, he did

not find him there. Only PCR officials were found at the spot. PW-1

claimed that he left the spot between 09.30-9.45 a.m. He did not stay to

record his statement and to inform the police about the number of

assailants and their broad features. Only in the cross-examination, he

disclosed that he could identify the assailants and the accused facing trial

before the court were not the assailants. Since this witness was not relied

on as an eye-witness, his statement in the cross-examination that the

accused persons were not the assailants has little value. Acquittal of co-

accused Praveen is inconsequential. Praveen was acquitted for lack of

evidence and his name did not find mention in the dying declaration. The

prosecution was able to establish appellant's guilt by leading cogent and

clinching evidence. The impugned judgment is based upon fair

appreciation of the evidence and needs no interference. Since an old man

was mercilessly beaten and multiple injuries were inflicted on his body

without any fault of his, the sentence awarded to the appellant cannot be

termed unreasonable or excessive.

11. In the light of the above discussion, the appeal is dismissed

as unmerited. The conviction and sentence awarded by the trial court are

sustained. Trial court record be sent back forthwith along with the copy

of this order.

(S.P.GARG) JUDGE April 16, 2014/sa