Sohan Lal @Suresh @ Soda vs State
2014 Latest Caselaw 550 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                     Date of Decision: 29th January, 2014

+                      CRL.A. 393/1998

        SOHAN LAL @SURESH @ SODA         ..... Appellant
                    Through: Mr.M.L.Yadav, Advocate

                            versus

        STATE                                           ..... Respondent
                            Through:       Mr.Sunil Sharma, APP
%

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
HON'BLE MS. JUSTICE SUNITA GUPTA

                            JUDGMENT

: SUNITA GUPTA, J.

1. This appeal has been preferred against the judgment and order

dated 14th August, 1998 and 17th August, 1998 in Sessions Case No.

82/1997 arising out of FIR No. 484/1997 u/s 302/34 IPC registered

with PS Seelampur whereby the appellant was convicted under

Section 302 IPC and was sentenced to undergo imprisonment for life

and pay a fine of Rs.25000/- and in default of payment of fine, to

further undergo rigorous imprisonment for a period of 36 months. In

case of deposit of fine, an amount of Rs.20,000/- is to be paid to the

father of the deceased while the remaining amount shall go the State

as cost of the proceedings.

2. The facts and circumstances giving rise to this appeal are that on

receipt of DD-18A (Ex. PW7/C), SI Devender Singh (PW16) along

with constable Yograj (PW11) went to GTB Hospital where he

collected the MLC of injured Rakesh Kumar who was declared „unfit

for statement‟ and was later on declared as „dead‟. PW3 Subhash Pal

met SI Devender Singh in the hospital who gave the statement

Ex.PW3/A alleging, inter alia, that on 23rd June, 1997 at about 8:00

pm, he along with his father and other family members were present

at the roof of the house. At about 8:00 pm his brother Rakesh Kumar

came to the house crying. He and his father went down stairs on

hearing his noise and saw him in a pool of blood and he informed that

he had been inflicted knife blows by Soda, Hakim and Shokeen in the

street near the temple. Immediately he along with his father removed

Rakesh Kumar in a TSR to GTB hospital where after about 1½ hours

he expired. The real name of Soda is Suresh, who is the son of

Roshan Lal and is resident of House No.K-355/56, New Seelampur.

Shokeen and Hakam are friends of Soda who were well known to him

from before. There was a quarrel between his brother Rakesh and

Suresh @ Soda and Shokeen and they were having inimical relation

and in order to take revenge, they have murdered his brother. He

prayed for an action against them. After making endorsement

Ex.PW-7/A, Rukka was sent to Police Station through Constable

Yograj (PW11) on the basis of which FIR Ex. PW7/B was registered.

The duty constable handed over the clothes of the deceased in a

sealed parcel which was taken into possession vide Ex. PW-11/A. SI

Devender thereafter reached the spot along with Constable Yograj

where they met PW Madan Pal. His statement was recorded. Scene

of crime was got photographed. Site plan was prepared. Blood

stained brick and earth control were taken into possession. T.shirt of

purple colour and pant of brown colour containing blood stains of the

deceased and belonging to PW3 Subash Pal were also taken into

possession.

3. It is further the case of prosecution that on 24 th June, 1997, the

accused persons were arrested. They were interrogated. They made

disclosure statements. They pointed out the place of occurrence and

also the places where the weapon of offence and the blood stained

clothes were thrown, however, nothing could be recovered. Post-

mortem on the dead body of Rakesh was conducted. During the

course of investigation, exhibits were sent to FSL. After completing

investigation, charge sheet was submitted against the accused.

4. Charge for offence under Section 302/34 IPC was framed

against the accused to which they pleaded not guilty and claimed trial.

5. In order to substantiate its case, prosecution examined 19

witnesses. The case of accused was one of denial simplicitor. They

alleged their false implication in this case.

6. After hearing learned counsel for the parties and examining the

material available on record, vide impugned judgment dated 14th

August, 1998, the learned Additional Sessions Judge acquitted

accused Hakim and Shokeen by granting them benefit of doubt while

accused Sohan Lal was convicted under Section 302 IPC and was

sentenced as mentioned above.

7. Feeling aggrieved by the aforesaid judgment, the present appeal

has been preferred by the accused Sohan Pal.

8. We have heard Mr. M.L. Yadav, learned counsel for the

appellant and Mr. Sunil Sharma, learned Additional Public Prosecutor

for the State.

9. It was submitted by the learned counsel for the appellant that

PW1 Madan Pal is alleged to be the solitary eye witness of the

incident. He is closely related to the deceased being his uncle. His

presence at the spot is highly improbable and doubtful in view of his

conduct at the time of occurrence and even thereafter. Had he been

present at the spot and seen the occurrence, he must have supported

the injured at the time of occurrence or even thereafter. According to

him, he saw the occurrence while standing 15 ft. away but neither he

attempted to intervene nor thereafter helped the injured. As per his

deposition, he followed the injured up to the place where he fell down

and PW2 and PW3 met him there, still he neither disclosed the names

of the assailants nor claimed that he had seen the place where it had

happened. In his deposition, at one place he deposed that he

accompanied PW2 and PW3 to GTB Hospital along with injured but

on the same breath he denied the same. The suggestion given by the

defence that the witness was not present at the spot at the time of

occurrence and he had not seen the occurrence is more reasonable and

acceptable version. Had he been present at the spot, he must have

helped PW2 and PW3 while they were putting the injured in TSR and

would have accompanied them to the hospital and in that process

clothes should have been stained with blood. Furthermore, in DD-

18A Ex. PW7/C the place from where the injured was taken to the

hospital has been mentioned as "Seelampur bus stand" and not from

Takhat lying outside the house of PWs 2&3. This document also cast

a doubt regarding presence of PW1 at the spot. PW4 also denied the

presence of PW1 at the time of occurrence at his shop, as such, his

presence at the spot is doubtful.

10. Furthermore, as per the deposition of PW1, there was no

electricity at the time of occurrence, so it was not possible for him to

see the faces of the accused persons and to identify them from such a

long distance. No test identification parade of the accused has been

conducted so the identification of the accused persons in the Court for

the first time has no value. PW1 is the solitary eye-witness and is

wholly unreliable as his testimony has been disbelieved by the Trial

Court regarding co-accused while acquitting them by granting them

benefit of doubt. On the same set of evidence, the appellant could not

have been convicted.

11. It was further submitted that the alleged oral dying declaration

made before PW2 and PW3 is most suspected piece of evidence as

both the witnesses have not deposed the actual words spoken by the

deceased. Even otherwise, injuries received by the deceased as

mentioned in the MLC and post-mortem report goes to show that after

receiving such severe injuries, a person cannot move what to talk of

running from the place of occurrence towards his house. No

independent piece of evidence has been placed on record regarding

his running up to his house except oral evidence of PW1, PW2 and

PW3 that injured fell upon the Takhat near his house. No blood was

found on Takhat nor trail of blood was found from the spot to the

place where injured fell upon the Takhat. Had the deceased made an

oral dying declaration, same would have been mentioned in DD-18A

which is silent about the same. These circumstances go to show that

no dying declaration was made by the deceased. PW2 and PW3 are

most interested witnesses being father and brother of the deceased

and concocted this oral dying declaration at the behest of the

Investigating Officer and named the accused persons as assailants due

to enmity.

12. Place of occurrence has not been conclusively fixed as in DD-

18A, the place from where the injured was removed to the hospital

has been mentioned as Seelampur bus stand while in oral dying

declaration, place has been mentioned as „the gali near the temple

near the house of deceased‟ while in statement of PW-1 the place of

occurrence has been mentioned as „gali opposite Saini Panchayat

Mandir, New Seelampur‟. The FIR is ante timed and attempt has

been made to show its prompt recording.

13. Further the enmity which has been proved on record between the

accused persons and the deceased always plays a role of double edged

weapon and in such circumstances, false implication of the appellant

cannot be ruled out. As such, it was submitted that the appellant is

entitled to be acquitted.

14. Reliance was placed on Dahyabhai Chhaganbhai Thakkar vs.

State of Gujarat, AIR 1964 SC 1563 and Suraj Mal vs. State (Delhi

Administration), 1980 SCC (Crl.) 159, Malempati Pattabi Narendra

vs. Ghattamaneni Maruthi Prasad & Ors., 2000 (2) JCC [SC] 702.

15. Per contra, it was submitted by Mr. Sunil Sharma, learned

Additional Public Prosecutor for the State that mere fact that PW-1 is

related to the deceased is no ground to disbelieve his testimony,

inasmuch as, being close relation of the deceased, he would be the

last person to falsely implicate the accused persons and to allow the

real culprits to go scot free. Furthermore, his testimony finds

substantial corroboration from the oral dying declaration made by the

deceased before PW-2 Prem Kumar and PW-3 Subhash Pal and their

testimony in regard to the dying declaration made by the deceased

goes un-rebutted and unchallenged. Their testimony also find

corroboration from the medical evidence. Moreover, the blood

stained clothes of PW-3 Subhash Pal were taken into possession and

the FSL result also proves the case of prosecution inasmuch as the

blood group on the clothes of this witness matched with the blood

group of the deceased. The mere fact that the weapon of offence

could not be recovered is not fatal to the case of prosecution,

inasmuch as, as per the disclosure statement made by the accused, it

was thrown by him in „ganda nala‟ and despite efforts, the same could

not be recovered. As regards the acquittal of the two co-accused,

same has no bearing, so far as the role of the present accused is

concerned, inasmuch as, the co-accused were acquitted because there

was variance regarding the role played by them in the statement of

PW-1 Madal Pal and, therefore, they were granted benefit of doubt.

However, so far as Sohan Lal is concerned, there is consistent stand

taken by Madan Pal that he has stabbed the deceased which injury

proved fatal. Under the circumstances, it was submitted that the

impugned order does not suffer from any infirmity which calls for

interference and appeal is liable to be dismissed.

16. We have given our considerable thoughts to the respective

submissions of the learned counsel for the parties and have perused

the record.

Eye witness:

17. The most material witness is PW1 Madan Pal who is the uncle of

the deceased Rakesh Kumar. This witness has testified that he was

sitting at the shop of Tyagi General Store in the gali opposite Saini

Panchayat Mandir and had gone there to purchase „bidi‟. All the

accused were present there. Accused Suresh was having knife in his

hand. Hakim was having a chain. The accused persons stabbed

Rakesh Kumar and had given beatings to him. He raised alarm.

Thereupon, the accused ran from the spot towards „ganda nala‟. The

injured was removed to the hospital by the father and brother of the

deceased where he died later on.

18. As regards the submission that the case of prosecution hinges on

the testimony of a sole eye witness, who is also related to the

deceased, the law is well settled that there is no impediment in relying

upon the sole testimony of a single witness. In Sunil Kumar vs. State

of Govt. of NCT of Delhi, (2003) 11 SCC 367, Hon'ble Supreme

Court repelled a similar submission observing that as a general rule,

the Court can and may act on the testimony of a single witness

provided he is wholly reliable. There is no legal impediment in

convicting a person on the sole testimony of a single witness. That is

the logic of Section 134 of the Evidence Act, 1872. But if there are

doubts about the testimony, the courts will insist on corroboration. In

fact, it is not the number, the quantity, but the quality that is material.

The time-honoured principle is that evidence has to be weighed and

not counted. The test is whether the evidence has a ring of truth, is

cogent, credible and trustworthy or otherwise.

19. In Namdeo v. State of Maharashtra, (2007) 14 SCC 150

Hon'ble Apex Court re-iterated the view observing that it is the

quality and not the quantity of evidence which is necessary for

proving or disproving a fact. The legal system has laid emphasis on

value, weight and quality of evidence rather than on quantity,

multiplicity or plurality of witnesses. It is, therefore, open to a

competent court to fully and completely rely on a solitary witness and

record conviction. Conversely, it may acquit the accused in spite of

testimony of several witnesses if it is not satisfied about the quality of

evidence.

20. In Kunju @ Balachandran vs. State of Tamil Nadu, AIR 2008

SC 1381 a similar view has been taken placing reliance on various

earlier judgments including Jagdish Prasad vs. State of M.P., AIR

1994 SC 1251; and Vadivelu Thevar vs. State of Madras, AIR 1957

SC 614.

21. Similarly, relationship by itself is not a factor to discard the

testimony of an eye-witness. On the question of appreciating the

evidence of witnesses, who are related, Hon'ble Supreme Court in

Dalip Singh vs. The State of Punjab, AIR 1953 SC 364, spoke very

eloquently through Justice Vivian Bose. In that case the Hon'ble

Judge clearly laid down the law relating to appreciation of evidence

by relations with such lucidity that it deserves to be quoted:

"26. ...Ordinarily, a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that here is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."

22. The principle laid down in the aforesaid passage has been

subsequently reiterated in Guli Chand vs. State of Rajasthan, (1974)

3 SCC 698 and in Masalti vs. State of Uttar Pradesh, AIR 1965 SC

202, the Constitution Bench speaking through Gajendragadkar, Chief

Justice approved the decision in Dalip Singh (supra) and held as

under:

14. ...But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. Often enough, where

factions prevail in villages and murders are committed as a result of enmity between such factions, criminal Courts have to deal with evidence of a partisan type. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct."

23. Thomas, J in State of Rajasthan vs. Teja Ram, (1999) 3 SCC 507 held that over insistence on witnesses having no relation with the victim will result in the criminal justice system going awry.

24. The Hon‟ble Judge further clarified;

"20. ... The prosecution can be expected to examine only those who have witnessed the events and not those who have not seen it though the neighborhood may be replete with other residents also."

25. Substantially similar view was taken in Hari vs. State of

Maharashtra, (2009) 3 SCC (Cri.) 1254; Mano Dutt and Anr. vs.

State of UP, (2012) 4 SCC 79; Mookkiah and Anr. vs. State, (2013)

2 SCC 89; Arumugam vs. State (2012) 12 SCC 434.

26. In view of this legal proposition enunciated above, the mere

fact that PW-1 Madan Pal is the solitary eye witness of the incident or

is related to the deceased being his uncle is not in itself sufficient to

discard his testimony. However, as a rule of prudence and not as a

rule of law, his statement is required to be scrutinized with a little

care. The witness was subjected to lengthy cross-examination by

learned counsel for the accused. However, nothing material could be

elicited to discredit his testimony. His testimony is consistent,

reliable and has a ring of truth. In his statement recorded under

Section 161 Cr. P.C. he had named all the three accused and had

stated that knife blows were given on the person of the deceased.

Even in his deposition before the Court, he has named the three

accused, except that there was variance regarding the role assigned to

accused Shokeen and Hakim, for which they were given benefit of

doubt. However, so far as the present accused is concerned, his stand

is consistent.

27. Much attack was made on the conduct of the witness for

submitting that his presence at the spot becomes doubtful, inasmuch

as, had he been present at the spot, he would have intervened and

would have supported the injured at the time of occurrence or even

thereafter would have informed the family members of the injured but

that was not done. Nothing turns out on this submission, inasmuch as,

it has come in his statement that on seeing the incident, he raised

alarm, thereupon the accused ran away from the spot. In order to

remove the injured to the hospital he even brought a TSR in which the

injured was ultimately removed by his father and brother to the

hospital. He has also deposed that he had informed PW2 and PW3

about the incident but the mere fact that he did not accompany the

injured and PW2 and PW3 to the hospital does not cast any doubt

regarding his presence at the spot or his witnessing the incident, more

particularly, when his presence at the spot has not been challenged in

the cross-examination.

28. Much emphasis has also been laid on DD-18A(Ex.PW7/C) for

submitting that as per this DD, the injured was taken to the hospital

having sustained injuries at Seelampur Bus Stand. The DD was

recorded by Rishi Pal (PW14) posted as Duty Constable at GTB

Hospital regarding the admission of a boy having been stabbed with

knife at Seelampur bus stand by his father. According to PW1 Madan

Pal, the incident had taken place in the street opposite Saini

Panchayat Mandir, New Seelampur and even Rukka Ex. PW7/A

mentions the place of incident as „Gali CPJ IInd Block, near Saini

Panchayat Mandir, New Seelampur, Delhi‟. Nothing has been

elicited in the cross-examination of this witness as to how he has

recorded „Seelampur bus stand‟ in this DD. Site plan (Ex.PW16/A)

also shows the same place of incident. The blood stained earth, earth

control, blood stained brick were also lifted from the same place.

Under the circumstances, place of incident is not in dispute. The mere

fact that in the DD, „bus stand Seelampur‟ has been mentioned does

not cast any doubt either regarding the presence of the witness at the

spot or the place of incident.

29. Even PW4 Subodh Tyagi, whose shop was near Saini

Panchayat Mandir, although has not fully supported the case of

prosecution, has deposed that on hearing the alarm, he came outside

his shop and saw injured Rakesh in bleeding condition running from

there towards his house. He followed the injured towards his house

and then returned to his shop. As such, place of incident as deposed

by PW1 is not doubtful.

30. Moreover, his testimony finds substantial corroboration from

PW-2 Sh. Prem Kumar and PW-3 Sh. Subash Pal. This witness had

deposed that he had brought the TSR in which the father and the

brother of the deceased removed him to the hospital. Father and

brother of the deceased have corroborated him by deposing that they

had removed the injured to the hospital in TSR. The fact that the

injured was brought to the hospital by his father is fortified by MLC

of Rakesh (Ex.PW5/A) where in the column of "brought by" "father"

has been mentioned. Further the police machinery was set in motion

when intimation was given by duty constable Rishipal posted at GTB

Hospital vide DD 18A (Ex.PW17/C) regarding admission of Rakesh

Kumar in injured condition by "his father Prem Kumar".

31. As regards the submission that DD 18A does not speak about

the presence of PW1 at the spot, same is devoid of substance because

the purpose of recording DD by the duty constable was only to give

information to the concerned police station regarding admission of

injured in the hospital. It is not an encyclopaedia of the narration of

events which took place at the spot.

32. All the accused were well known to PW1, PW2 & PW3 from

before. Under the circumstances, there was no need of conducting

their test identification parade as alleged by learned counsel for appellant.

33. As regards, the last limb of argument that this witness has not

been believed by the learned Trial Court as on the basis of his

testimony, two of the co-accused have been acquitted, the same again

is bereft of merit, inasmuch as, as regards the presence of three

accused, namely, Shokeen, Hakim and the appellant Sohan Lal,

testimony of the witness is consistent. In his statement recorded under

Section 161 Cr.P.C.(Ex.PW1/DA), he has stated that Rakesh was

assaulted by these three accused and this fact was reiterated by him

when he appeared in the witness box. However, there was variance

regarding the role played by Shokeen and Hakim as in his statement

recorded under Section 161 Cr.P.C., he had stated that Hakim had

caught hold of the deceased whereas Sohan Pal @ Suresh @Soda and

Shokeen had stabbed the deceased. However, during the course of

trial, he completely exonerated accused Hakim from any role in the

crime and as regards Shokeen, he deposed that he caught hold of the

deceased. As such, keeping in view the variance in the role assigned

to these two accused, learned Trial Court granted them benefit of

doubt and, as such, acquitted them but so far as accused Sohan Lal is

concerned, he was consistent in his statement made before the police

as well as deposition before the Court that he had stabbed the

deceased with knife which proved fatal. Therefore, Dahyabhai

Chhaganbhai Thakkar (supra) and Suraj Mal (supra), relied upon

by the counsel for the appellant does not help him.

34. It is settled law that where the prosecution is able to establish

the guilt of the accused by cogent, reliable and trustworthy evidence,

mere acquittal of one accused would not automatically lead to

acquittal of another accused. It is only where the entire case of the

prosecution suffers from infirmities, discrepancies and where the

prosecution is not able to establish its case, the acquittal of co-

accused would be of some relevancy for deciding the case of the

other.

35. Reference in this regard may be made to Yanab Sheikh @

Gagu vs. State of West Bengal, 2013 I AD (SC) 189, where also one

of the co-accused was acquitted and similar plea was taken. Hon‟ble

Supreme Court referred to its earlier decision in Dalbir Singh vs.

State of Haryana, (2008) 11 SCC 425, where it was held as under:-

"13. Coming to the applicability of the principle of falsus in uno, falsus in omnibus, even if major portion of evidence is found to be deficient, residue is sufficient to prove guilt of an accused, notwithstanding acquittal of large number of other co-accused persons, his conviction can be maintained. However, where large number of other persons are accused, the court has to carefully screen the evidence:

51. It is the duty of court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim falsus in uno, falsus in omnibus has no application in India and the witnesses cannot be branded as liars. The maxim falsus in uno, falsus in omnibus (false in one thing, false in everything) has not received general acceptance in different jurisdiction in India, nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a court may apply in a given set of circumstances, but it is not what may be called 'a mandatory rule of evidence'. (See Nisar Ali v. State of U.P.) Merely because some of the accused persons have been acquitted, though evidence against all of them, so far as direct testimony went, was the same does not lead as a necessary corollary that those who have been convicted must also be acquitted. It is always open to a court to differentiate the accused who had been acquitted from those who were convicted. (See Gurcharan Singh v. State of Punjab.) The doctrine is a dangerous one, specially in India, for if a whole body of the testimony were to be rejected, because witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead stop. Witnesses just cannot help in giving embroidery to a story, however, true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be

sifted with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment. (See Sohrab v. State of M.P. and Ugar Ahir v. State of Bihar.) An attempt has to be made to in terms of felicitous metaphor, separate grain from the chaff, truth from falsehood. Where it is not feasible to separate truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is discard the evidence in toto. (See Zwinglee Ariel v. State of M.P. and Balaka Singh v. State of Punjab.) As observed by this Court in State of Rajasthan v. Kalki normal discrepancies in evidence are those which are due to normal errors of observations, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and these are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorised. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so."

36. After referring to this decision, it was observed that the

acquittal of a co-accused per se is not sufficient to result in acquittal

of the other accused. The Court has to screen the entire evidence and

does not extend the threat of falsity to universal acquittal. The Court

must examine the entire prosecution evidence in its correct

perspective before it can conclude the effect of acquittal of one

accused on the other in the facts and circumstances of a given case.

37. Adverting to the case in hand, simply because two of the co-

accused have been acquitted, that by itself is no ground to discard the

testimony of the witness qua the appellant. PW1 had no axe to grind

to falsely implicate the accused in such a heinous crime while

allowing the real culprit to go scot free.

38. Furthermore, testimony of this witness finds substantial

corroboration from the other material available on record.

Dying Declaration :

39. PW-2 Prem Kumar and PW-3 Subhash Pal have deposed that

while they were sitting on the roof of their house at about 8:15 pm,

the deceased came running near the house in injured condition crying.

He was bleeding from the injuries. He told them that he has been

stabbed with knife by the accused persons. This is a statement made

by the deceased to his family members relating to the cause of his

death and, as such, is a dying declaration made by him and is

admissible in evidence u/S 32 of the Indian Evidence Act, 1872.

40. Before we proceed to scrutinize the legal acceptability of the

oral dying declaration, it will be useful to refer certain decisions in

regard to the admissibility and evidentiary value of a dying

declaration.

41. In Khushal Rao vs. State of Bombay, AIR 1958 SC 22; Kusa

vs. State of Orissa, AIR 1980 SC 559; and in Meesala Ramakrishan

vs. State of A.P., (1994) 4 SCC 182, it has been held that the law is

well settled that the conviction can be founded solely on the basis of

dying declaration if the same inspires full confidence.

42. The Constitution Bench, in Laxman vs. State of Maharashtra,

(2002) 6 SCC 710, has laid down thus:

"3. The juristic 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 the deathbed 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 courts 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 always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting 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 looks 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 any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite."

43. Reference may also be made to a two Judge Bench decision in

Prakash and Anr. vs. State of Madhya Pradesh, (1992) 4 SCC 225

wherein it has been held as follows:-

"In the ordinary course, the members of the family including the father were expected to ask the victim the names of the assailants at the first opportunity and if the victim was in a position to communicate, it is reasonably expected that he would give the names of the assailants if he had recognised the assailants. In the instant case there is no occasion to hold that the deceased was not in a position to identify the assailants because it is nobody's case that the deceased did not know the accused persons. It is therefore quite likely that on being asked the

deceased would name the assailants. In the facts and circumstances of the case the High Court has accepted the dying declaration and we do not think that such a finding is perverse and requires to be interfered with."

44. Parbin Ali and Anr. vs. State of Assam, 2013 I AD (SC) 483

was again a case where the oral dying declaration made by the

deceased to the family members was relied upon.

45. Turning to the factual matrix of the case, testimony of PW-2

and PW-3 have not been assailed at all regarding the dying

declaration made by the deceased to his father and brother. They

have deposed in a categorical manner that the deceased came running

in injured condition and was crying. He was bleeding from the

injuries and he informed them that the accused persons have stabbed

him with knife. Even PW4 Subodh Tyagi has deposed that on hearing

someone crying, he went outside his shop and saw deceased running

towards his house in bleeding condition and that he had followed the

deceased to his house. It has further come in cross-examination of

PW3 that the injured was conscious uptil his reaching the hospital.

MLC of the injured was prepared by Dr.R.A.Gautam and nothing has

been suggested to this witness that the deceased was not in a

conscious state and in a position to speak. Moreover, as per the

MLC, the injured was brought to the hospital in injured condition at

about 9:00 pm and as per DD No. 21A (Ex.PW8/A) intimation

regarding his death was sent at 10:15 pm., meaning thereby, he died

after about 1¼ hours of his admission in the hospital. In this back

drop, it can safely be concluded that the deceased was in conscious

state and in a position to speak. Thus, it is difficult to accept that the

father and the brother would implicate the accused by attributing the

oral dying declaration of the deceased. That apart, in the absence of

any real discrepancy or material contradiction or omission and

additionally, non cross-examination of the doctor in this regard

unchallenged testimony of PW2 and PW3 regarding the dying

declaration made by deceased to them makes the dying declaration

absolutely credible and substantially corroborate the testimony of

PW-1 Madan Pal.

Medical Evidence:

46. The ocular testimony of PW-1 Madan Pal and the oral dying

declaration made by the deceased to PW-2 Prem Kumar and PW-3

Subhash Pal find corroboration from the medical evidence. Post-

mortem on the dead body of Rakesh was conducted by Dr. Anil Kohli

and as per the post-mortem report (Ex.PW 16/H) following injuries

were found on the person of the deceased:-

1. Incised stab wound 3.8 cm x 0.4 cm with clean cut margins and one angle more acute than other present over inner apact on dissection the track of the wound is going upwards, backwards and outwards and terminated making an exit would of 2.5 cm x 0.4 cm over the back of the right arm, placed 10 cm from the top of shoulder with clean cut averted edges. The depth of wound is 9 cm and haemorrhages are present along the track of wound. No major blood vessel cut.

2. Incised stab wound 2.6 cm x 0.3 cm present in the right axillary region placed obliquely 4.5 cm below the axillary folds in the mid axillary line, and 19 cm to the right of mid line of body. It has clean cut margins with one angle more acute then the other. On dissection the wound is going backward, medially and upwards in the soft tissues of the posterior chest wall where it terminates after a distance of 9.5 c.m. Haemorrhages present along track of wound. No major blood vessels cut.

3. Incised stab wound placed obliquely over right side front of chest placed 1 cm to the right of midline and 18.5 cm below the calavicle. It is wedge shaped with clean cut margins and measures 2.6 cm x 0.3 cm. On dissection the

wound is going upwards, backwards and outwards, cutting the fifth rib arterially, entering the right pleural cavity and cutting the middle lobe of right lung through and through where it finally terminated. Depth of track is 7 c.m. Haemorrhages present along track of wound.

4. Incised wound 2.00 cm x 0.3 cm x 0.2 cm present over front of right side of chest placed 9.5 cm to the right of midline 1.3 cm above right nipple.

5. Incised stab wound 2.7 cm x 0.3 cm present over left side of chest placed 14 cm to the left of midline and 13 cm below left anterior auxiliary fold. It is obliquely placed wedged shaped with clean out margins. On dissection the wound is going upwards, medially and arterially cutting the fifth intercostals muscle entering the left pleural cavity and terminated after cutting lower lob of left lung. Depth of wound is 7 cm. Haemorrhages present along track of wound.

47. It was opined that cause of death was haemorrhagic shock due

to ante-mortem stab injuries to the lungs produced by a sharp edged

weapon. Injury 1 & 5 were sufficient to cause death in the ordinary

course of nature both independently and collectively with the other

injuries. The time of post-mortem was recorded as 11:45 am on 24th

June, 1997. The time of death was recorded to be 16:00 hrs. prior to

conducting the post-mortem, which corroborates the prosecution case

of time of incident to be around 8:00 pm.

Scientific evidence:

48. SI Devender Singh, Investigating Officer of the case on

reaching the spot, seized the blood stained earth, blood stained brick

and earth control. After the post-mortem, the clothes of the deceased

were taken into possession. When PW-3 Subash Pal removed the

deceased to the hospital, his clothes were also smeared with blood,

which were also taken into possession. During the course of

investigation, all the exhibits were sent to Forensic Science

Laboratory. As per the report Ex.PW16/J prepared by Sh.D.S.

Chakotra, Sr. Scientific Officer, blood was detected on the T.shirt and

baniyan of the deceased, earth control, brick and shirt and pant of

PW-3 Subhash. All indicated the presence of human blood of AB

Group, which was the blood group of the deceased. This is another

clinching piece of evidence.

Motive:

The motive of crime which led to the death of the deceased was

previous enmity between the accused and the deceased. PW10 HC

Ranbir Singh produced the copies of the FIR Nos. 701/1996 and

702/1996, PS Seelampur (Ex.PW10/A & B). As per Ex. PW10/B,

deceased Rakesh had lodged an FIR on 11th November, 1996 against

Sohan Lal and Shokeen for stabbing him. A cross case was registered

on the same date against deceased by Shokeen for causing injuries to

him. PW2 and PW 3 have also deposed that earlier there was quarrel

between the accused persons and the deceased. Accused were

inimical to the injured and on this account they had killed the

deceased. Factum of strained relations between the parties and

enmity is not even disputed by accused as a suggestion was given to

PW 3 that he has deposed falsely due to previous enmity. Although

he denied false implication of accused, but fact remains that even

according to the accused, there was previous enmity and that

furnished the motive to eliminate the deceased.

49. Non recovery of weapon of offence in view of the disclosure

statement that it was thrown in ganda nala is not fatal to the case of

prosecution in view of Ram Singh vs. State of Rajasthan, (2012) 12

SCC 339; Amit vs. State of Uttar Pradesh, (2012) 4 SCC 107; Umar

Mohammad and Ors. vs. State of Rajasthan, (2007) 14 SCC 711 and

Joginder Singh @ Mor vs. State of Delhi, Crl. A.250/2003 and

63/2005 decided on 25.11.2013.

50. Result of the aforesaid discussion is that neither we are able to

see nor the counsel appearing for the appellant has been able to point

out the contradictions or discrepancies of any material nature in the

statements of the witnesses. PW1 Madan Pal, uncle of the deceased

has supported the case of prosecution. His statement is duly

corroborated by PW2 Prem Lal and PW3 Subash Pal, to whom oral

dying declaration was made by the deceased. PW1 had also informed

PW2 and PW3 regarding the manner in which the deceased sustained

injuries. He brought the TSR in which the injured was removed to

GTB Hospital by PW2 and PW3. The factum of injured being

brought to the hospital by his father finds corroboration from the

MLC and DD recorded by Duty Constable posted at GTB Hospital,

who flashed the message to the concerned police station where after

the whole police machinery was set in motion.

51. Another very important aspect of the case is that on behalf of

the accused, no question or suggestion were put to any of the

witnesses to challenge their testimony. In fact, the presence of PW-1

at the spot, making of oral dying declaration to PW2 and PW3 have

not been assailed in cross-examination. The fact that the relation

between the deceased and the accused were inimical stands not only

proved by PW2 and PW3 but also in fact admitted by the accused as

per suggestion given to PW3. Except for taking a plea of false

implication, no substantial plea has been taken by the accused as to

why the uncle or the father or the brother of the deceased would

implicate him in such a serious offence allowing real culprit to go

scot free.

52. In view of the above, we have no difficulty in reaching the

conclusion that the conviction of the appellant/accused Sohan Lal @

Suresh @ Soda u/s 302 IPC and the sentence imposed thereon is fully

justified.

53. We, therefore, dismiss the appeal and affirm the conviction and

sentence imposed on the appellant/accused. The appellant Sohan Lal

shall surrender to suffer the remaining sentence as awarded by the

learned Trial Court within two days, failing which, learned Trial

Court to get the appellant arrested for serving the remaining sentence.

Copy of the judgment along with the Trial Court record be sent

back.

(SUNITA GUPTA) JUDGE

(KAILASH GAMBHIR) JUDGE JANUARY 29, 2014 rs