State Of Nct Of Delhi vs Jai Kumar & Ors.
2015 Latest Caselaw 1296 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
+       CRL.L.P. 654/2014
                                     Reserved on : 14th January, 2015
                                     Date of decision: 12th February, 2015

        STATE OF NCT OF DELHI             ..... Appellant
            Through: Mr.Varun Goswami, APP for the State.

                            versus

        JAI KUMAR & ORS.                                ..... Respondents
             Through: None.

        CORAM:
        HON'BLE MR. JUSTICE SANJIV KHANNA
        HON'BLE MR. JUSTICE ASHUTOSH KUMAR

ASHUTOSH KUMAR, J.

Crl.M.A No.16723/2014 (for condonation of delay in filing the Petition) and CRL.L.P. 654/2014

1. There is a delay of three days in filing the petition. A prayer has

been made to condone the same. Instead of issuing notice to the

Respondents, we deem it desirable to look into the grounds of appeal

and the Trial Court records to ascertain whether leave to appeal could

be granted.

2. This leave petition is directed against the judgment dated 17th

June, 2014 passed by the learned Additional Sessions Judge-III, North

District, Rohini Courts, Delhi in Sessions Case No.113/2013 whereby

the respondents have been acquitted of the charges under Sections 302

and 120 B of the Indian Penal Code.

3. The Respondents, four in number, namely Jai Kumar

(Respondent No.1), Vikas (Respondent No. R-2), Parveen Kumar

(Respondent No. 3) and Kuldeep Singh Saharawat (Respondent No. 4)

have been charged with the offence of conspiring and killing the

deceased (Om Prakash @ Omi) in the intervening night between

8.11.2008 and 9.11.2008.

4. The genesis of the prosecution case is that on 9.11.2008, a DD

No.5A (Exh.PW.2/DA) was lodged stating that Om Prakash @ Omi

was lying unconscious near the Dariyapur fields. Receiving such

information, ASI Samundar Singh, PW.27 reached the place of

occurrence, only to find that the injured has been taken by his son

Rajesh Kumar, PW.2 to some hospital for treatment. A little while

later, DD No.10B (Exh.PW.17/B) was received with the information

that the deceased suffered injuries at the hands of unknown accused

persons leading to his death.

5. Pursuant to the DD No.10B, the police party arrived at Saroj

hospital where the statement of PW.2 was recorded and on the basis of

which, a rukka (Exh.PW.2/A) was prepared.

6. The materials on which heavy reliance has been placed by the

prosecution are the oral dying declaration of the deceased before

PW.2, Rajesh Kumar and PW.7 namely Dilip; evidence of PW.6,

Dinesh who overheard the conversation between Respondent Nos.1, 2

and 3 in the evening prior to the incident regarding planning to

eliminate the deceased; the extra judicial confession of Respondent

No.4 namely Kuldeep Saharawat before PW.2 that he participated in

the killing of the deceased by taking help of Respondent Nos.2 and 3

at the instance of Respondent No.1 as well as the recoveries of

weapons of offence from Respondent Nos.1, 2 and 3 and mobile

phone without sim card on the basis of the disclosure made by

Respondent No.4.

ORAL DYING DECLARATION

7. In order to appreciate the contention of the parties namely the

prosecution and the defence, we first need to examine the evidence of

oral dying declaration by the deceased which is stated to have been

made before PWs.1 and 2.

8. PW.2 deposed before the Trial Court about the family dispute

and stated that Respondent No.1 had earlier threatened the deceased of

dire consequences if the tube well installed by the deceased in his

fields was not shut down and closed. Because of such dispute and also

to guard the tube well, the deceased started sleeping in the fields. In

the night of 8.11.2008, the deceased had slept in the field. PW.2 and

Respondent No.1 were present at that time in the fields. PW.2 came

back home and in the next morning, went to the fields again with tea

for his father. The deceased was missing. On search, a pair of slippers,

a cap and a broken watch belonging to his father was located by him.

In the meantime, Respondent No.1 also arrived. The aforesaid

respondent assisted PW.2 in searching for his father. They found Om

Prakash, the deceased, lying injured in a distant field. With the help of

Respondent No.1, PWs.2 and 13 (Chanderpal) lifted him and put him

on a cot. Respondent No.1 had offered to bring a vehicle for carrying

the injured to the hospital but PW.2 entrusted that responsibility to

PW.7 (Dilip Kumar), who arranged for the vehicle. Respondent No.1

is said to have slipped away thereafter. PW.13 also left the place.

Thereafter, on being asked by PW.2 as to who inflicted such injuries

on his person, the injured is said to have told him that Respondent

No.1 and his associates are responsible for such a happening. PW.2

has further stated that in the meantime Dilip, PW.7 also came with his

vehicle and they took the injured to M.B Hospital, Pooth khurd. Since

it was Sunday, the doctors were not available and, therefore, PW.2 and

7 proceeded for Saroj Hospital. On the way, it has been stated by

PW.2, the injured continuously asked for water. After reaching Saroj

Hospital, the injured was declared dead. In the same breath, PW.2 has

stated that the injured also told him, on way to the hospital, that the

associates of Respondent No.1 (Jai Kumar) namely Vikas and

Parveen Kumar also assaulted him; whereas Respondent No.1 was

having an iron rod. Vikas and Parveen Kumar were armed with

wooden sticks large and small respectively.

9. PW.2 has further stated before the Court that on 12.11.2008 at

noon time, Respondent No.4 came to him and confessed about his

involvement in the crime.

10. PW.7, Dilip Kumar who is the cousin of PW.2 stated before the

Court that he accompanied PW.2 to the hospital along with the

injured. On way the injured stated about Respondent No.1 as the

author of the injuries on his person. PW.7 resiled from his earlier

statement made to the police that the injured had taken the names of

Respondent Nos.2 and 3 also along with the name of Respondent

No.1.

11. It would be relevant in this context to refer to the statement of

PW.1 Dr.Ravi Gupta who prepared the MLC No.2262 pertaining to

the deceased. He stated before the Trial Court that he found stab

injuries on the limbs of the deceased and bruises over the anterior

aspect of the neck. The deceased was declared dead at 8.45 PM on

9.11.2008. The MLC has been exhibited as Exh.PW.1/A. It has been

stated by PW.1 that the history of the patient was narrated to him by

his son.

12. On a careful analysis of the testimonies of PWs.1, 2 and 7, three

facts came to fore:- (i) deceased was alive in the fields from where he

was taken to the hospital; (ii) Respondent No.1 Jai Kumar was present

along with PW.2 and the injured for some time and (iii) till the time of

recording of the first information report there was no reference of

Respondent No.1 or his associates namely Respondent Nos.2 and 3 or

for that matter Respondent No.4 of having committed the occurrence.

If the injured was alive in the fields, then it is difficult to accept that he

would not speak anything about Respondent No.1 having caused

injuries to him, when Respondent No.1 was admittedly present along

with PW.2 at the fields. In this view of the matter, the statement of

PW.2 that the injured told him in the field that the occurrence is the

handy work of Respondent No.1 and his associates and that he further

told PW.2, on way to hospital that Respondent Nos.1, 2 and 3 were

responsible for the injuries on his person, does not appear to be

believable. Rather it is apparently an afterthought. Similarly, PW.7,

Dilip has also made different statements at the trial and has resiled

from his earlier statement given to the police that the injured had

spoken about Respondent Nos.1, 2 and 3, having assaulted him.

13. It also appears to be rather surprising that the doctor, PW.1 was

not informed about the name of the assailants. True it is that in all

cases, it is not required to state the name of the assailants to the doctor

treating the injured. But the MLC Ex. PW1/A recorded post 8:35 AM

on 9/11/2008 records "patient found near tube well in his garden at

around 7 AM this morning. At that time he was alive and he told the

history of assault by four unknown persons around 11:00 PM on

8/11/2008". The MLC was recorded after the journey and subsequent

to alleged oral dying declaration. Contradicting the testimonies of

PW1, it records that the deceased had not named the respondents. The

assailants were four in number but unknown persons. Recording in the

MLC Ex PW1/A is reliable, credible and worthy of acceptance.

14. The statement of Respondent No.1 under Section 313 of the

Code of Criminal Procedure, 1973, lends support to the defence

version that Respondent No.1 was present at the fields while the

injured was still alive. In fact the injured had asked his son, PW.2 to

provide cover to him as he was feeling cold.

15. The name of Respondent No.1 does not find mention in DD

No.10B (exhibit PW.17/B). No explanation has been given by the

prosecution as to why PW.2 did not disclose the name of Respondent

No.1 or others when he was told by his father about their participation

in the occurrence. The PCR Form (exhibit PW.18/A) through which

information was given while the deceased was being taken to the

hospital also does not mention or name the assailants. The

respondents, it is apparent and accepted were named by PW.2

subsequently.

16. The Trial Court has, therefore, rightly rejected the testimonies

of PWs.2 and 7 regarding the deceased having made oral dying

declaration before them. The reasoning given by the Trial Court in

para 39 of the judgment is cogent and satisfactory. Para 39 of the said

judgment is reproduced as under:-

"39. All the aforesaid factors go to suggest that the name of the accused Jai Kumar was neither mentioned in the PCR form Ex. PW18/A nor in the DD no. 10B Ex.PW17/B and neither it finds mention in the history of assault at Saroj hospital. Accordingly, the possibility of manipulation by PW2/complainant Rajesh cannot be ruled out for furnishing the name of the accused Jai Kumar in his statement made before the police, Ex. PW2/A. this court could not find any reasons as to why when the PW2/complainant Rajesh was well aware of the name of the accused Jai Kumar being furnished by the injured before his death to him, he could not mention the same to the responsible authorities like the police and the doctors. Accordingly, the plea of the Ld. APP that said version of the injured made before his death to the PW2/complainant Rajesh that the accused Jai Kumar was one of the assailants is admissible u/s 32 of the Indian Evidence Act, 1872 or that u/s 6 of the Indian Evidence Act, 1872 is rejected in view of the aforesaid discussion as the said information as claimed being given by the injured prior to his son has become open to suspicion."

CONSPIRACY

17. PW.6 deposed before the Trial Court that on 8.11.2008 at about

10 PM while he was returning after meeting the deceased Om Prakash

at his fields, he noticed the headlight of a motorcycle of Respondent

No.1 and also found Respondent Nos.2 and 3 along with Respondent

No.1 standing near the room of one Baljeet. On seeing them, aforesaid

Dinesh (PW.6) is stated to have stopped his motorcycle and asked

Respondent No.1 as to why they were standing there. He has also

stated all the accused persons were talking amongst themselves that

they would not spare the deceased. However, on the query put forth by

PW.6, no reply came forthcoming. PW.6 is then stated to have

returned to his village and he learnt about the murder of the deceased

only on the next day.

18. We are of the opinion that PW.6 has not made a true statement.

It is curious that he overheard Respondent Nos.1, 2 and 3, conspiring

amongst themselves to kill the deceased. It is difficult to believe that

anybody, hearing such plans, would go away and not inform the

relatives of the person about whom planning was being made, at least

for the purpose of warning the family against whom such a conspiracy

was being hatched. That apart, such deliberations, that is the plan to

kill, would not be hatched in the presence of or at the hearing distance

of any outsider.

19. The story of PW.6 having overheard such a conversation,

therefore, is absolutely unacceptable.

EXTRA JUDICIAL CONFESSION

20. Respondent No.4 is sought to be prosecuted in this case on the

basis of a disclosure in the nature of extra judicial confession having

been made by him before PW.2.

21. The law regarding extra judicial confession is by now well

settled. An extra-judicial confession is a weak piece of evidence and it

could be relied upon only if it is made voluntarily; appears to be

truthful and inspires confidence; such confession being supported by

other circumstances and that it does not suffer from any material

discrepancies or inherent improbabilities.

22. The co-called extra judicial confession by Respondent No.4

does not inspire confidence for the following reasons:-

a) It was not made before any competent authority or some

responsible person of the authority rather it is said to have been made

before the son of the deceased;

b) No hue and cry was raised by PW.2 and no effort was made

by him to nab Respondent No.4 or to have him arrested when such

confession was made before him;

c) The confession allegedly made at the residence of PW.2 is

not being supported by anyone of the witnesses who could have been

present at the house post incident;

d) PW.2 did not disclose about such confession by Respondent

No. 4 to the police in the first instance.

23. We are of the view that such extra judicial confession of

Respondent No.4 before PW.2 cannot be accepted as a valuable piece

of evidence for charging the respondents for murder.

24. The learned Trial Court has rightly rejected the theory of extra

judicial confession having been made by Respondent No.4 before

PW.2.

25. The recovery of iron rods and dandas respectively on the

disclosures made by Respondent Nos.1, 2 and 3 do not prove any

aspect of the story. The dandas recovered at the instance of

Respondent Nos.2 and 3 did not have any blood marks. The iron rod

recovered at the instance of Respondent No.1 had blood marks but the

prosecution failed to establish that the blood marks on the iron rod

matched with the blood of the deceased.

26. The recovery of mobile phones of the accused persons from the

house of Respondent No.4 without the sim cards, pursuant to the

disclosure of Respondent No.4 also does not lend any assistance to the

prosecution. The aforesaid recovery is stated to have been made from

the house of Respondent No.4. On the contrary, PWs.10 (Sudesh, wife

of Respondent No.1) and PW.22 (Anita, mother of Respondent No.3)

have deposed before the Trial Court that the mobiles were seized from

them. In this view of the matter even the recovery of said mobile

phones on the pointing of Respondent No.4 is doubtful. There is no

evidence of any call from the telephone number of Respondent No.4

to the telephone numbers of Respondent Nos.2 and 3.

27. Thus, once the statements of PWs.2, 6 and 7 are disbelieved on

all material aspects, the entire edifice of the prosecution falls on the

ground.

28. We find no error/impropriety in the judgment and order of

acquittal which is impugned in this petition. The reasoning given by

the learned Trial Court for discarding the prosecution version is

justified.

29. The leave to appeal, therefore, on the above premised reasons,

is refused.

30. There is thus no requirement of passing any order on the

application for condonation of delay as the leave to appeal has been

refused.

31. Consequently, they are dismissed.

32. Trial Court record be sent back forthwith.

(ASHUTOSH KUMAR) Judge

(SANJIV KHANNA) Judge FEBRUARY 12, 2015 k