Delhi High Court
Dinesh Kumar @ Khali vs State on 12 October, 2022
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 17th August, 2022
Pronounced on: 12th October, 2022
CRL.A. 85/2019 & CRL.M.B. 436/2022
DINESH KUMAR @ KHALI ..... Appellant
Represented by: Mr. Siddharth Yadav, Advocate.
versus
STATE ..... Respondent
Represented by: Ms. Shubhi Gupta, APP for State with
Inspector Rajiv Kumar, P.S.
Mangolpuri.
CRL.A. 107/2019 & CRL.M.A. 11427/2021
DEEPAK KUMAR @ CHINTU ..... Appellant
Represented by: Mr. Nishank Tyagi, Advocate with
Mr.Gaurav Jain, Advocate.
versus
STATE ..... Respondent
Represented by: Ms. Shubhi Gupta, APP for State with
Inspector Rajiv Kumar, P.S.
Mangolpuri.
CRL.A. 307/2019
SURESH @ HANUMANT ..... Appellant
Represented by: Ms. Rebecca John, Sr. Advocate with
Ms. Aishwarya Rao (DHCLSC), Ms.
Praavita Kashyap, Mr. Pravir Singh &
Mr. Chinmay Kanojia, Advocates.
versus
STATE ..... Respondent
Signature Not Verified
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By:MANISH KUMAR CRL.A.85/2019, CRL.A.107/2019 & CRL.A.307/2019 Page 1 of 29
Signing Date:13.10.2022
10:56:55
Represented by: Ms. Shubhi Gupta, APP for
State with Inspector Rajiv Kumar, P.S.
Mangolpuri.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
HON'BLE MR. JUSTICE ANISH DAYAL
JUDGMENT
ANISH DAYAL, J.
1. This common judgment shall dispose of the above captioned
appeals, assailing the judgment of the learned Trial Court dated 29th
October, 2018 convicting all the three appellants for offence punishable
under Section 302/34 IPC and in addition convicting appellant Dinesh
Kumar @ Khali for offence punishable under Section 25(1B) (a) and
27(1) of the Arms Act, 1959 and order on sentence dated 20th November,
2018 awarding the following sentences:
a. Dinesh Kumar @ Khali - rigorous imprisonment for life and a
fine of Rs. 20,000/- (in default, SI for one year) for offence
punishable under Section 302/34 IPC; rigorous imprisonment
for two years and a fine of Rs. 2,000/- (in default, SI for two
months) for offence punishable under Section 25 (1B) (a) of the
Arms Act; rigorous imprisonment for three years and a fine of
Rs. 3,000/- (in default, SI for three months) for offence
punishable under Section 27 (1) of Arms Act. All sentences to
run concurrently.
b. Deepak Kumar @ Chintu - rigorous imprisonment for life and
fine of Rs. 15,000/- (in default, SI for nine months) for offence
punishable under Section 302/34 IPC.
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c. Suresh @ Hanumant - rigorous imprisonment for life and fine
of Rs. 15,000/- (in default SI for nine months) for offence
punishable under Section 302/34 IPC.
The Incident
2. As per the case of the prosecution, on 16th May, 2012 at about
01:25 a.m., Duty Constable Dalbir Singh at SGM Hospital gave a
message at PS Mangolpuri through telephone that one Angad Yadav has
got admitted Nagender Yadav in the hospital who had received bullet
injury at his house. The said information was lodged vide DD No.8A
and marked to SI Sachin Mann who along with Constable Vinod Kumar
visited the hospital where he collected the MLC of Nagendra Yadav. As
per the MLC, the said patient was opined „unfit for statement‟. No
eyewitness was found at the hospital. The police officials, including
Inspector Satya Prakash, went to the place of occurrence i.e. P-7/165,
Mangolpuri, Delhi and called the crime team who inspected the place of
occurrence. SI Sachin Mann prepared the rukka and got FIR no.
185/2012 registered under Section 307 IPC and 27 of the Arms Act.
From the spot one blood-stained bed-sheet and scissors were seized and
were duly sealed, rough site plan was prepared and statements of Ram
Singh Yadav and Angad Yadav were recorded. On 16 th May, 2012,
information was received from RML Hospital regarding the death of
Nagendra Yadav during treatment. Further investigation was marked to
Inspector Satya Prakash who got the body of the deceased shifted to the
mortuary and added offence under Section 302 IPC to the FIR.
3. The Investigating Officer (IO) Inspector Satya Prakash also
recorded statements of Smt. Bindu wife of deceased, who stated that the
deceased, after being shot in the middle of the night, had told that the
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appellants had shot him. On 17th May, 2012, the IO affected the arrest of
appellant Dinesh Kumar and Deepak and recorded their disclosure
statements. Later, the weapon of offence i.e. country made pistol (katta)
with empty cartridge was recovered at the instance of appellant Dinesh.
On 23rd August, 2012, IO effected the arrest of appellant Suresh and
recorded his disclosure statement.
4. The case was committed to the Court of Sessions and charges
were framed under Section 302/34 IPC against all three appellants and a
separate charge under Section 25/27 of the Arms Act against appellant
Dinesh, to which they pleaded not guilty and claimed trial. The
prosecution examined 24 witnesses; statements of appellants were
recorded under Section 313 Cr.P.C. Though the appellants chose to lead
evidence in their defence, however, despite opportunity they did not
examine any witness and accordingly, vide separate statement of their
learned counsels recorded on 27th August, 2018 to the effect that the
accused persons do not want to lead any evidence in defence, the same
was closed.
Submissions by the Appellant
5. The appellants, through learned counsel appearing on their behalf,
contended that the impugned judgment convicting the appellants and
subsequent order on sentence suffered from great perversity and was
erroneous. The appellants contended that the testimonies of PW-1, PW-2
and PW-10 were inconsistent and unreliable and learned Trial Court had
wrongly placed reliance on them for convicting the appellants. Further
the ballistic report (Ex.PW-15/A) was not taken into account which
would show that the bullet extricated from the body of the deceased was
not fired from the recovered weapon. The alleged dying declaration of
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the deceased could not be relied upon since PW-1, PW-2 and PW-10
who had testified to that effect were closely related to the deceased and
therefore, the dying declaration was manipulated and doctored by these
interested witnesses. The MLC of the deceased (Ex. PW-6/A) was
ignored which shows that the deceased was conscious, oriented
condition and was reported walking and despite the same, the alleged
dying declaration was not made to the doctor who examined the
deceased at the first instance. The motive taken into account by the
learned Trial Court of previous enmity ignored the fact that a fight of the
deceased had taken place with one accused Bheema wherein Bheema
was arrested as he had shot the deceased one or two months prior to the
alleged date of incident of the present case. Further, PW-1, the wife of
the deceased, had not told the names of the accused persons to anyone
till the afternoon of 16th May, 2012 despite her having met relatives and
neighbours and her conduct is, therefore, suspicious in this regard. The
police did not bother to collect the clothes of PW-10 who allegedly had
taken the deceased from the spot to the hospital on a motor bike and
therefore would have corroborated the authenticity of the statement of
PW-10 that they were present at the spot. As per PW-1 statement, PW-2
and PW-10 were sleeping in another room of the house of PW-1 at the
alleged time of incident. However, PW-2 and PW-10 stated that they
were in their respective houses and only after hearing the cries of PW-1
came down and took the deceased to the hospital. PW-10, Angad who
took the deceased on his motorcycle to the hospital, stated in his cross-
examination that the deceased had not disclosed anything to him or in
his presence.
6. It was submitted on behalf of appellant Suresh that he was not
named in the FIR and that the FIR was recorded at 3:25 a.m. on 16th
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May, 2012 while the incident is stated to be between 12:30 a.m. - 01:00
a.m. The counsel for appellant Suresh further contended that there was
no eyewitness to the said incident since PW-1 was sleeping at that time,
PW-2 and PW-10 came to the spot later, PW-22 Sandeep, a neighbour
was allegedly washing clothes at that time and when he came out of the
house, he only saw three persons leaving the house though he did not see
their faces. The counsel for appellant Deepak Kumar contended that as
per the prosecution witnesses, there was existing enmity between the
deceased and appellant Dinesh only and therefore, to rope appellant
Deepak Kumar under common intention to murder deceased was
untenable. He contended that appellant Deepak Kumar was convicted
solely on the assumption that he was accompanying the main accused
Dinesh at the time of the commission of the offence. The counsels for
the appellants inter alia relied upon the following judgments to support
their contention that mere presence during commission of an offence is
not sufficient to invoke Section 34 IPC:
Rangaswami v. State of Tamil Nadu 1989 AIR 1999 SC 1137; Chhotu
& Ors v. State of Maharashtra 1997 AIR 1997 SC 3501; Harjit Singh
& Ors v. State of Punjab AIR 2002 SC 3040; Parasa Raja Manikyala
Rao & Anr v. State of Andhra Pradesh (2003) 12 SCC 306; Jasdeep
Singh alias Jassu v. State of Punjab (2022) SCC OnLine SC 20;
Paniben (Smt.) v. State of Gujarat (1992) 2 SCC 474
They have further relied upon inter alia the following decisions on the
issue of authenticity and reliability of dying declaration:
Khushal Rao v. State of Bombay AIR 1958 SC 22; Paparambaka
Rosamma & Ors v. State of Andhra Pradesh (1999) 7 SCC 695.
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Submissions by the Prosecution
7. In response to the contentions of the appellants, the learned
Additional Public Prosecutor (APP) submitted that as per PW-1 and PW-
2, appellant Dinesh had visited the house of the deceased previously on
the occasion of Diwali and abused and threatened the deceased, which
was corroborated by PW-10 as well. The motive of a previous enmity
was, therefore, clearly evident. The learned APP heavily relied upon the
dying declaration of the deceased which was made to PW-1 and PW-2.
As per the MLC, the attending doctor opined that the deceased was
conscious, oriented and came in walking when he was first brought to
SGM Hospital by PW-2 and PW-10 proving that the deceased was in a
conscious state of mind and all dying declarations made by him before
his admission in the hospital was while in proper senses. PW-22 had also
corroborated the fact that after hearing gunshot, he saw three persons
running away at about 12:30 a.m. on the date of the incident. It is
contended that as per PW-10, the deceased was first taken to SGM
Hospital and thereafter to RML Hospital where he was declared dead
during treatment. As per the timeline, the incident happened at about
12:30 midnight in the intervening night of 15th and 16th May, 2012 and
the deceased was then examined at SGM Hospital at about 01:05 a.m.
He was thereafter removed to RML Hospital and admitted there at about
03:05 a.m. and was declared dead at about 03:40 a.m. Thereafter, PW-2
and PW-10 returned to the place of incident where the police officials
were already present and their statements were recorded by PW-18 along
with the statement of PW-1 at about 08:30 a.m., as mentioned in DD
No.17A. The sequence of events would show that there was no time for
PW-1, PW-2 and PW-10 to deliberate and fabricate a story regarding the
incident in order to falsely implicate the applicants. As regards common
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intention of all the appellants, the learned APP relied upon the decision
of Ashok Kumar v. State of Punjab AIR 1977 SC 109 to contend that
all the appellants had together gone to the house of the deceased and
shot him. At these late hours, they had no business to be present at the
spot and even though appellant Dinesh had fired upon the deceased, the
presence of the others at the spot shows pre-meditation and common
intention and the principle of agency under Section 34 was corroborated
by the testimony of PW-22. As per the IO PW-24, all three appellants
were found to be missing from their homes post the incident and were
arrested on the basis of secret information received on 17 th May, 2012
and 18th August, 2012. Their attempt to evade arrest and being on the
run was evidently conduct which would implicate them for the crime.
The Evidence
8. The evidence relevant for the assessment of this case, is inter alia
as under:
8.1 PW-1, Smt. Bindu, the wife of the deceased, testified that she knew
all the three appellants, as appellant Dinesh Kumar was residing in
gali No. 8 while they were residing in gali No. 7 in the same
locality and other two appellants used to roam around with the
appellant Dinesh Kumar. She stated that the appellant Dinesh
Kumar visited their house on the festival of Diwali in the year 2010
and started abusing her husband and called him outside the house
and was carrying a beer bottle at the time which he broke at the
door of the house and left abusing and threatening her husband. At
that time, he was accompanied by 4-5 persons. On the intervening
night of 15th and 16th May, 2012, while they were sleeping along
with other family members in their house, she heard the sound of a
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cracker at about 12:30 a.m. Upon waking up she saw that her
husband was calling her by her name and was coming from the gate
in a bending position crying with pain. When she switched on the
light, she saw that blood was oozing from his abdomen. Upon
asking her husband as to what happened, he told her that appellant
Dinesh had shot him, and he was accompanied two associates
Deepak and Suresh. PW- 1 raised an alarm and her tenants and
neighbors reached along with PW-2, her brother in-law Ram Singh
and PW-10, her nephew Angad. PW-2 and PW-10 took her
husband on the motorcycle of PW-10. She stated that PW-2 and
PW-10 were sleeping in the other room of the house when she
raised the alarm.
8.2 In her cross examination, PW-1 stated that she left her house on
foot for the hospital and when she reached SGM Hospital she came
to know that her husband had been referred to some other hospital
and then, while she was on the way, the police met her, and she told
the name of all the three appellants to the police. She further stated
that earlier in the month of April, 2012, her husband had received
bullet injuries in an incident and had told her that he had strong
suspicion regarding the role of appellant Dinesh behind the said
incident which happened in April, 2012 but out of fear had not
named him to any authority. She identified appellant Dinesh and
appellant Deepak in the court. In her cross-examination, she stated
that the police had arrested someone for the incident of April, 2012
but she did not know the name and her statement had not been
recorded in that matter. She denied that there was any quarrel
between her husband and PW-10 because of her. She could not
tell the names who were present in our house when the husband
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was being removed from the hospital, but she stated that many
people had arrived, and she had not disclosed the names of the
appellant at that moment considering the condition of her husband
and because she was inconsolable. She stated that SGM hospital
was at a distance of 15-20 minutes walk and her statement was
recorded by the police at her house in the afternoon of 16 th May,
2012.
8.3 PW-2 Ram Singh Yadav, the elder brother of the deceased testified
that on that night he was sleeping inside his house when he heard
cries coming from the side of the gali. He woke up and in the
meantime PW-10 also reached the gali from his house and they
went to the house of their brother and upon entering they found him
lying on the single bed with blood oozing out from the abdomen
and he was crying in pain and PW-1 was weeping. Thereafter, they
removed him to the hospital. He stated that he was sitting with the
injured deceased on the motorcycle which was being driven by
PW-10 and they got him admitted to the hospital. When the doctors
of the SGM hospital told them that the condition of the injured
deceased was very serious and told them to take him to RML
hospital, an official ambulance was arranged, and he was shifted to
RML. He stated that later when he, along with PW-10, reached his
house, he had mentioned the name of the three appellants to the
police stating that they were revealed to him by the deceased
brother while they were on the way to the Hospital. He also stated
that in 2010, one day prior to the festival of Diwali, appellant
Dinesh had come to the house of his brother under the influence of
liquor and was carrying beer bottle in his hand which he broke on
the gate of the house and quarreled with his deceased brother.
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Beside this the deceased had shared with PW-2 that he was
apprehending danger to his life from the three appellants on several
occasions prior to the incident. In his cross-examination he
confirmed that two months prior to the incident his brother was shot
by someone, but no one was arrested in the case and no case was
registered as per his knowledge. The deceased had also told the
doctor that the appellant Dinesh had shot him, and PW-10 was not
there at the time when the deceased had told the doctor. He denied
the suggestion by the defence counsel that there was a quarrel
between his deceased brother and PW-10 because of PW-1 on the
suspicion that PW-1 was having illicit relations with PW-10 or that
PW-10 had threaten the deceased at any point of time.
8.4 PW-10, Angad Yadav, the nephew of the deceased (the deceased
was mama / maternal uncle) stated that he was residing in front of
the house across the gali of the house of the deceased and heard
cries at about 12:30 a.m. When he came out, he and PW-2 rushed
towards the house of the deceased and saw the gate already opened
and when they went inside the deceased was lying in the pool of
blood and bleeding and his aunt (PW-1) was weeping and stated
that the deceased has received gunshot injury and should be
removed to the hospital. Thereafter, he took him to the hospital on
his motorcycle along with PW-2 and on the way when PW-2 asked
the deceased, he told him that he had been shot by appellant Dinesh
who had come with „Chintu and Suresh‟. When they were told by
the doctors at RML hospital that it is a police case and they will
hand over the dead body to the police, they returned to the house
and met the police. He confirmed that the deceased was having
differences with appellant Dinesh for the last several years. In the
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cross-examination, PW-10 stated that the deceased was in a
position to talk when he was removed to SGM hospital but he
himself had no conversation with him and it was only PW-2 who
had conversed with the deceased on the motorcycle while on his
way to the hospital.
8.5 PW-22, Sandeep (neighbor of the deceased) stated that around
12:30 at midnight he heard cracker type noise and on coming out
from his house he saw three persons running out, while two of them
went on one side and one to the other side. Thereafter, he came to
know someone had fired upon the deceased. He stated that he had
not seen the face of the assailants.
8.6 PW-12, Dr. M. Das, CMO at S.G.M Hospital, medically examined
the victim Nagender Yadav and prepared the MLC Ex. PW-6/A.
8.7 PW-10 Dr. Shailesh Gupta of RML hospital stated that when the
deceased was brought with a gunshot injury, treatment was started
but the condition was very poor and within 10 minutes of arrival
patient deteriorated, CPR was started but the patient could not be
revived, and he was declared dead at 3:40 a.m. A death summary
report (Ex. PW-10/A) was prepared by Dr. Darshan Nayak whose
handwriting and signature he identified, Dr. Nayak having left the
hospital and not available. Subsequently, he filled the death report
Ex. PW-10/B in respect of the deceased.
8.8 PW- 13, Dr. Munish Wadhawan who conducted the post mortem on
the deceased, testified that there was a firearm entry wound 2.2 cm
x 1.6 cm present over left side of abdomen 10 cm below the nipple.
The cause of death was hemorrhagic shock as a result of injury to
internal organs due to firearm injuries and injury No. 1 mentioned
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in the report was sufficient to cause death in ordinary course of
nature.
8.9 PW-15, Sh. V. R Anand, the Ballistic Expert at Forensic Science
Laboratory (FSL), Rohini testified that he had received the sealed
parcels containing one bullet, swabs, country made pistol 0.315
inch bore and one 8 mm/0.315-inch cartridge case. Upon examining
the said exhibits he stated that the country made pistol Ex. F-1 was
in working order and was test fired successfully and the fired empty
cartridge Ex. EC-1 corresponded to the bullet Ex. EB-1 taken from
the laboratory stock. The bullet was test fired and test fired
cartridges were marked as TC-1 and TC-2 and recovered bullets
were marked as TB-1 and TB-2. He opined that the individual
characteristic of firing pin and breach face marks present on EC-1
and on TC-1 and on TC-2 were found identical and hence EC-1 had
been fired through the country made pistol Ex. F-1. The striation
marks present on EB-1 and TB-1 and TB-2 were found insufficient
and no opinion could be given. On the swabs, he opined that no
opinion could be given due to insufficient data.
8.10 PW-20, Dr. C.K Durga of RML Hospital opined that the cause of
death was cardio-pulmonary arrest with gunshot injury in the chest
with left hemothorax with cardiac tamponade. He had opined this
on the basis of the hospital records since the death summary was
under the signature of the Dr. Nayak who was no longer with the
hospital.
8.11 PW-18, SI Sachin Mann stated that on receipt of DD No. 8A, he
went with constable Vinod to SGM Hospital where he found that
the deceased was found unfit for the statement by the doctor. Later,
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he went to the spot with PW-11 Constable Vinod and PW-24
Inspector Satya Prakash and seized and sealed blood-stained bed
sheet and one piece of scissors as Ex. PW-1/A and PW-1/B. The
crime team was also called. Subsequently, he was part of the
investigation alongwith PW-24 and apprehended appellants Dinesh
and Deepak. As per their disclosure statements, appellant Dinesh @
Khali led them to recovery of country made pistol from near bushes
at NDPL office, Industrial Area Phase-1, Mangol Puri and
thereafter led them to a road going towards railway line and from
the nearby bushes took out one country made pistol 0.315 bore.
Before the proceedings, 4-5 passersby were asked to join the
investigation, but no one joined the same. Further, in his cross-
examination he stated that when he reached at deceased‟s house
there was sufficient lighting in the street and around the other
houses nearby.
8.12 PW-24, Inspector Satya Prakash (IO) stated that pursuant to DD
No. 8A when he visited the Hospital and later to the place of
incidence, DD No. 17A was recorded regarding death of Nagender
Yadav. He conducted the raid on the absconding appellants.
Appellant Dinesh and Deepak were apprehended while coming
from the side of Peeragarhi Flyover, Outer Ring Road after a small
chase and pursuant to the disclosure by appellant Dinesh, country
made pistol was recovered from near the bushes of NDPL Office,
Mangolpuri which had one empty shell. Before the proceedings, 4-
5 passersby were asked to join the investigation, but no one joined
the same. Further, in his cross-examination he stated that when he
reached NDPL office at about 9:30 pm there was sufficient lighting.
Thereafter both Dinesh and Deepak pointed out the place of
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incident and at that time PW-1 was also present whose statement
was recorded.
8.13 PW-5 Retd. SI Mahender Singh, deposed that public persons were
asked to join the investigation at the time of arrest & at the time of
recovery, but none agreed to join the same.
8.14 Since absconding appellant Suresh was not traceable, NBWs were
issued and on the basis of information received at the police station
vide DD No.20A (Ex. PW-24/B), appellant Suresh was arrested by
the police of PS DBG Road. On 21st August, 2012, PW-24 got
issued production warrants of appellant Suresh and on 23rd August,
2012 reached the concerned Court where appellant Suresh was
formally arrested.
8.15 CW-1 HC Bablu Lal, the court witness, testified that on 27th
August, 2015 he was posted at P.S. Mangolpuri and process under
Section 82 Cr.P.C. qua appellant Dinesh was assigned to him for
execution. When he reached the house P-8/164, Mangolpuri, Delhi
it was found locked. Thereafter, proclamation was made in the
locality and statement of neighbor Gaurav were recorded and
process was pasted on the outside of the house.
Analysis
9. After appreciating in detail the evidence on record and contentions
of the counsels for the parties, this Court is of the considered view
that the prosecution has been able to prove the guilt of the
appellants beyond reasonable doubt, for inter alia the following
reasons:
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9.1 The death of the deceased was clearly homicidal having received a
gunshot injury which led to the cardio-pulmonary arrest as per the
deposition of PW-20 and PW-10.
9.2 The anchor of the prosecution‟s case is the dying declaration made
by the deceased to PW-1, his wife, at his home, just after having
been shot and still bleeding from the injury received; and later to
PW-2, his elder brother who took him on the motorcycle to SGM
Hospital in the injured condition. The dying declaration has to be
therefore, examined in this crucible of facts and the applicable law.
9.3 As regards the testimonies of PW-1 and PW-2, there is consistency
on the fact that they had been told by the dying deceased that he
had been shot by appellant Dinesh who was accompanied by the
other two appellants. Both PW-1 and PW-2 knew all the three
appellants since they were residing in the same area. Moreover,
PW-1 and PW-2 had both stated that the deceased had existing
quarrel with appellant Dinesh who had come to his house in the
year 2010 prior to the incident in intoxicated condition and abused
and threatened the deceased.
9.4 PW-10 Angad Yadav‟s testimony, that he was not privy to
disclosure made by the deceased to PW-2, has to be seen in the
context that he was the one driving the motorcycle on which they
took the critically injured deceased to the hospital and may not have
been in a position to hear the details of the conversation between
PW-2 and the deceased. Therefore, if his testimony is disregarded
as being „hearsay‟, his deposition to the extent that PW-2 had a
conversation with the deceased on the bike and at the hospital,
would have to be considered.
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9.5 Also relevant for the purposes of examining the dying declaration is
the condition of the deceased at the time of giving the dying
declaration. Both PW-2 and PW-10 stated that the deceased was in
a position to talk when they took him to the hospital. As per the
MLC Ex. PW-6/A, the deceased was brought and examined at 1:05
a.m. on 16th May, 2012 and was conscious and oriented and
reported in the hospital "walking", the pulse of the deceased was
recorded as 100 bpm and blood pressure was recorded 100/60
mmHg and there was an entry wound in the chest but no exit
wound. The MLC otherwise records (as part of the proforma) that
he was unfit for statement and should be reviewed with SR
Surgery.
9.6 It is worthwhile adverting to the principles of law settled by various
judgments of the Hon‟ble Supreme Court. Relevant extracts of inter
alia the following decisions would be instructive for our
examination:
i) Atbir v. Govt. (NCT of Delhi), (2010) 9 SCC 1
"22. The analysis of the above decisions clearly shows that:
(i) Dying declaration can be the sole basis of conviction if it
inspires the full confidence of the court.
(ii) The court should be satisfied that the deceased was in a fit
state of mind at the time of making the statement and that it
was not the result of tutoring, prompting or imagination.
(iii) Where the court is satisfied that the declaration is true
and voluntary, it can base its conviction without any further
corroboration.
(iv) It cannot be laid down as an absolute rule of law that the
dying declaration cannot form the sole basis of conviction
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unless it is corroborated. The rule requiring corroboration is
merely a rule of prudence.
(v) Where the dying declaration is suspicious, it should not be
acted upon without corroborative evidence.
(vi) A dying declaration which suffers from infirmity such as
the deceased was unconscious and could never make any
statement cannot form the basis of conviction.
(vii) Merely because a dying declaration does not contain all
the details as to the occurrence, it is not to be rejected.
(viii) Even if it is a brief statement, it is not to be discarded.
(ix) When the eyewitness affirms that the deceased was not in
a fit and conscious state to make the dying declaration,
medical opinion cannot prevail.
(x) If after careful scrutiny, the court is satisfied that it is true
and free from any effort to induce the deceased to make a false
statement and if it is coherent and consistent, there shall be no
legal impediment to make it the basis of conviction, even if
there is no corroboration"
(ii) Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4
SCC 116:
"21. Thus, from a review of the authorities mentioned above and
the clear language of Section 32(1) of the Evidence Act, the
following propositions emerge:
(1) Section 32 is an exception to the rule of hearsay and
makes admissible the statement of a person who dies,
whether the death is a homicide or a suicide, provided the
statement relates to the cause of death, or exhibits
circumstances leading to the death. In this respect, as
indicated above, the Indian Evidence Act, in view of the
peculiar conditions of our society and the diverse nature
and character of our people, has thought it necessary to
widen the sphere of Section 32 to avoid injustice.
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(2) The test of proximity cannot be too literally construed
and practically reduced to a cut-and-dried formula of
universal application so as to be confined in a straitjacket.
Distance of time would depend or vary with the
circumstances of each case. For instance, where death is a
logical culmination of a continuous drama long in process
and is, as it were, a finale of the story, the statement
regarding each step directly connected with the end of the
drama would be admissible because the entire statement
would have to be read as an organic whole and not torn
from the context. Sometimes statements relevant to or
furnishing an immediate motive may also be admissible as
being a part of the transaction of death. It is manifest that
all these statements come to light only after the death of the
deceased who speaks from death. For instance, where the
death takes place within a very short time of the marriage,
or the distance of time is not spread over more than 3-4
months the statement may be admissible under Section 32.
(3) The second part of clause (1) of Section 32 is yet
another exception to the rule that in criminal law the
evidence of a person who was not being subjected to or
given an opportunity of being cross-examined by the
accused, would be valueless because the place of cross-
examination is taken by the solemnity and sanctity of oath
for the simple reason that a person on the verge of death is
not likely to make a false statement unless there is strong
evidence to show that the statement was secured either by
prompting or tutoring.
(4) It may be important to note that Section 32 does not
speak of homicide alone but includes suicide also, hence all
the circumstances which may be relevant to prove a case of
homicide would be equally relevant to prove a case of
suicide.
(5) Where the main evidence consists of statements and
letters written by the deceased which are directly connected
with or related to her death and which reveal a tell-tale
story, the said statement would clearly fall within the four
corners of Section 32 and, therefore, admissible. The
distance of time alone in such cases would not make the
statement irrelevant."
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9.7 On the issue of proximity of dying declaration, the Hon‟ble
Supreme Court in Sharad Birdhichand Sarda (supra) propounded
on the basis of principles encapsulated in Section 32 (1) of the
Indian Evidence Act, extracted as under for the ease of reference.
Sec 32 (1) When it relates to cause of death. -- When the
statement is made by a person as to the cause of his death, or as
to any of the circumstances of the transaction which resulted in
his death, in cases in which the cause of that person‟s death
comes into question.
Such statements are relevant whether the person who made them
was or was not, at the time when they were made, under
expectation of death, and whatever may be the nature of the
proceeding in which the cause of his death comes into question.
9.8 Enumerating the principles, therefore, applicable for reliance on a
dying declaration, as culled out from the above decisions:
(a) It cannot be laid down as an absolute rule of law that dying
declaration cannot form the sole basis of conviction unless it is
corroborated.
(b) The rule requiring corroboration is merely a rule of
prudence. Merely because a dying declaration does not contain all
the details as to the occurrence, it is not liable to be rejected.
(c) The court must be satisfied that the deceased was in fit state
of mind to make the statement. The deceased must have had a clear
opportunity to observe and identify his assailants.
(d) The deceased should be making the dying declaration
without any influence or rancour.
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(e) It has to been whether it was the first statement in the point
of time made by the injured and whether his statement was
consistent if he had subsequent opportunities to make a dying
declaration.
(f) Whether the dying declaration was made at the earliest
opportunity and was not the result of tutoring by interested parties.
9.9 From an analysis of the evidence stated above and applying the
principle of law as culled out, this Court notes as under:
firstly, dying declaration in itself can be the sole basis of
conviction, even though, in this case, the dying declaration has been
testified to and corroborated by PW-1 and PW-2;
secondly, the dying declaration of the deceased did specifically
name the three assailants and the act of shooting by appellant
Dinesh but was not expected to contain all further details and
cannot be disbelieved on that count;
thirdly, the deceased was not totally impaired till much later when
he was shifted from SGM Hospital to RML since he was taken on a
motorbike by PW-2 and PW-10 and the MLC Ex. PW-6/A dated
16.05.2012 prepared by PW-12 where the time of examination is
01:05 a.m. the doctor opined that the deceased was conscious
oriented and was reported in walking. Subsequently since the
deceased probably started deteriorating in the hospital the proforma
filled (fit/unfit for statement) of the MLC was ticked for unfit for
statement. Also as is evident from testimony of PW-12 Dr. Das,
post arrival first at SGM hospital he was given initial treatment and
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reviewed with surgery and then referred to higher centre and shifted
by ambulance to RML Hospital. As per testimony of PW-20 Dr.
C.K. Durga (and the MLC and OPD Registration Card Ex. PW-
20/A) he was received at 3:05 a.m. as unconscious and gasping. On
examination, general condition of the deceased was very poor.
Within 10 minutes of arrival, deceased deteriorated, emergency
resuscitation was done, CPR was started but despite all the efforts,
deceased could not be revived. Thereafter, he was declared dead at
3:40 a.m. However, it is quite evident that he was in a conscious
state at the time when he came to the hospital and therefore, both
his dying declarations made prior to arrival in hospital to PW-1 and
PW-2 were in a conscious and oriented state;
fourthly, there was an opportunity for the deceased to observe and
identify his assailants. He was outside of the gate when he was
shot and as per the testimony of PW-18 there was sufficient lighting
in the street when he had reached the house of the deceased that
night. PW-1‟s testimony in this regard in her cross examination is
also relevant where she volunteered that there was a street light
outside their house at some distance;
fifthly, deceased did not seem to be under any influence of either
PW-1 or PW-2 while making the dying declaration since he was in
a condition when he was badly injured and bleeding. It would be
untenable to assume that having been shot by some other assailants,
he would have conjured up the names of appellants herein in
particular to state that they were the ones who were responsible for
his condition;
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sixthly, not only the deceased made the dying declaration at the first
point of time i.e. when his wife discovered him and he came
struggling with the bullet injury from the gate to his house but also
subsequently when he was being taken to the hospital on motorbike
by PW-2 and PW-10;
seventhly, in the sequence of events when the dying declarations
were made, it would not be justifiable to presume that the deceased
would have been tutored in such a chaotic and critical state of
affairs when he was severely injured. PW-1 and PW-2 would not
have any reason to tutor the deceased in the situation when PW-1
was inconsolable, and PW-2 was worried about rushing the
deceased to hospital for his immediate treatment in order to save his
life.
9.10 Reliance on the dying declaration is further corroborated by the
clear motive that the appellants had for killing the deceased. There
is clear consistency in testimonies of PW-1 and PW-2 and in fact
PW-10 that appellant Dinesh had some enmity / rancour with the
deceased and as per PW-1 and PW-2 had threatened and abused the
deceased at the house of the latter on previous occasion in 2010.
9.11 On the issue whether PW-2 and PW-10 can be relied upon being
interested witnesses, it may be noted that the Hon‟ble Supreme
Court in Waman and Others Vs. State of Maharashtra (2011) 7
SCC 295 held that just because certain persons are interested
witnesses or relatives of the deceased, does not render their
testimonies unreliable and unacceptable.
"15. In Sarwan Singh v. State of Punjab [(1976) 4 SCC 369 :
1976 SCC (Cri) 646] , a three-Judge Bench of this Court, while
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considering the evidence of an interested witness held that: (SCC
p. 376, para 10)
„10. ... it is not the law that the evidence of an interested
witness should be equated with that of a tainted [witness]
or that of an approver so as to require corroboration as a
matter of necessity. The evidence of an interested witness
does not suffer from any infirmity as such, but the courts
require as a rule of prudence, not as a rule of law, that the
evidence of such witnesses should be scrutinised with a
little care. Once that approach is made and the court is
satisfied that the evidence of the interested [witness has] a
ring of truth such evidence could be relied upon even
without corroboration.‟
16. The fact of being a relative cannot by itself discredit the
evidence. In the said case, the witness relied on by the prosecution
was the brother of the wife of the deceased and was living with the
deceased for quite a few years. This Court held that: (Sarwan
Singh case [(1976) 4 SCC 369 : 1976 SCC (Cri) 646] , SCC p.
379, para 16)
„16. ... But that by itself is not a ground to discredit the
testimony of this witness, if it is otherwise found to be
consistent and true.‟
9.12 Now coming to the submission made by the learned counsels for
the appellants that statement of PW-1 was recorded much later and
therefore, she could have manipulated and doctored the point of
dying declaration. On a careful examination of the testimonies, it is
evident that the events leading to death of the deceased had
happened from about 12:30 a.m. till 3:40 a.m. when death of the
deceased was reported. In the intervening time while rushing back
and forth from the hospital, PW-1 stated that she indicated the
names of the appellants to the police, however her formal statement
was recorded later.
9.13 There is no reason for this Court to disbelieve that in the
intervening time PW-1 and PW-2 ought to have disregarded saving
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the life of the deceased and would have focused on giving
statement to the police at that time. Statement of PW-2 was
recorded after PW-2 and PW-10 came back from the hospital and
PW-1 was recorded the next day, a few hours after the deceased
was reported dead by the hospital. There was also no reason to
suspect that even by the morning of 16th May, 2012 when the initial
investigation was being monitored and recorded by the police, they
would have conjured up the names of these three appellants as an
attributed a dying declaration to them.
9.14 In State of Rajasthan v. Wakteng (2007) 14 SCC 550, the Hon‟ble
Supreme Court notes that a dying declaration can be the basis for
conviction since great solemnity and sanctity is attached to the
words of a dying man because of a person on the verge of death is
not likely to tell lies or to concoct a case so as to implicate an
innocent person. But the court did caution that one has to be careful
to examine the circumstances surrounding that statement and that it
should lead to a conclusion that the dying declaration was true and
voluntarily before it becomes sufficient for the purposes of
conviction.
9.15 As regards the submission that the other appellants besides
appellant Dinesh could not be held guilty under the principle of
agency under Section 34 and common intention, this Court is of the
view that once the dying declaration which is duly corroborated by
two witnesses is to be believed, the issue of being exculpated for
there being no common intention on the part of appellants Deepak
and Suresh, Dinesh having shot the deceased, is not sufficient to
presume their innocence.
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9.16 The observations of the Hon‟ble Supreme Court in Krishnamurthy
alias Gunodu and Others Vs. State of Karnataka (2022) SCC
OnLine SC 230 are instructive in this regard:
"12. In Suresh v. State of Uttar Pradesh, R.P. Sethi, J. in his
concurring judgment (for himself and B.N. Agarwal, J.) on the
question of common intention has observed:
„38. Section 34 of the Penal Code, 1860 recognises the
principle of vicarious liability in criminal jurisprudence. It
makes a person liable for action of an offence not
committed by him but by another person with whom he
shared the common intention. It is a rule of evidence and
does not create a substantive offence. The section gives
statutory recognition to the commonsense principle that if
more than two persons intentionally do a thing jointly, it is
just the same as if each of them had done it individually.
There is no gainsaying that a common intention
presupposes prior concert, which requires a prearranged
plan of the accused participating in an offence. Such
preconcert or preplanning may develop on the spot or
during the course of commission of the offence but the
crucial test is that such plan must precede the act
constituting an offence. Common intention can be formed
previously or in the course of occurrence and on the spur of
the moment. The existence of a common intention is a
question of fact in each case to be proved mainly as a
matter of inference from the circumstances of the case.
39. The dominant feature for attracting Section 34 of the
Penal Code, 1860 (hereinafter referred to as "the Code")
is the element of participation in absence resulting in the
ultimate "criminal act". The "act" referred to in the later
part of Section 34 means the ultimate criminal act with
which the accused is charged of sharing the common
intention. The accused is, therefore, made responsible for
the ultimate criminal act done by several persons in
furtherance of the common intention of all. The section does
not envisage the separate act by all the accused persons for
becoming responsible for the ultimate criminal act. If such
an interpretation is accepted, the purpose of Section 34
shall be rendered infructuous.
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40. Participation in the crime in furtherance of the
common intention cannot conceive of some independent
criminal act by all accused persons, besides the ultimate
criminal act because for that individual act law takes care
of making such accused responsible under the other
provisions of the Code. The word "act" used in Section 34
denotes a series of acts as a single act. What is required
under law is that the accused persons sharing the common
intention must be physically present at the scene of
occurrence and be shown not to have dissuaded themselves
from the intended criminal act for which they shared the
common intention. Culpability under Section 34 cannot be
excluded by mere distance from the scene of occurrence.
The presumption of constructive intention, however, has to
be arrived at only when the court can, with judicial
servitude, hold that the accused must have preconceived the
result that ensued in furtherance of the common intention. A
Division Bench of the Patna High Court in SatrughanPatar
v. Emperor held that it is only when a court with some
certainty holds that a particular accused must have
preconceived or premeditated the result which ensued or
acted in concert with others in order to bring about that
result, that Section 34 may be applied."
14. This "criminal act" under Section 34 IPC, it was held, applies
where a criminal act is done by several persons in furtherance of
common intention of all. The criminal offence is the final result or
outcome but it may be through achievement of individual or several
criminal acts. Each individual act may not constitute or result in
the final offence. When a person is assaulted by a number of
accused, the "ultimate criminal act" normally will constitute the
offence which finally results or which may result in death, simple
hurt, grievous hurt, etc. This is the final result, outcome or
consequence of the criminal act, that is, action or act of several
persons. Each person will be responsible for his own act as
stipulated in Section 38 IPC. However, Sections 34 and 35 expand
the scope and stipulate that if the criminal act is a result of common
intention, every person, who has committed a part of the criminal
act with the common intention, will be responsible for the offence.
It was accordingly held in Afrahim Sheikh (supra) as under:
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„8. ...Provided there is common intention, the whole of the
result perpetrated by several offenders, is attributable to
each offender, notwithstanding that individually they may
have done separate acts, diverse or similar. Applying this
test to the present case, if all the appellants shared the
common intention of severely beating Abdul Sheikh and some
held him down and others beat him with their weapons,
provided the common intention is accepted, they would all of
them be responsible for the whole of the criminal act, that is
to say, the criminal offence of culpable homicide not
amounting to murder which was committed, irrespective of
the part played by them. The common intention which is
required by the section is not the intention which s. 299
mentions in its first part. That intention is individual to the
offender unless it is shared with others by a prior concert in
which case Sections 34 or 35 again come into play. Here, the
common intention was to beat Abdul Sheikh, and that
common intention was, as we have held above, shared by all
of them. That they did diverse acts would ordinarily make
their responsibility individual for their own acts, but because
of the common intention, they would be responsible for the
total effect that they produced if any of the three conditions
in s. 299, I.P.C. applied to their case. If it were a case of the
first two conditions, the matter is simple. They speak of
intention and s. 34 also speaks of intention.‟
(emphasis supplied)
9.17 It is worth noting that these three appellants had together with pre-
meditation, gone in the wee hours of the night to the house of the
deceased and confronted him pursuant to which appellant Dinesh
shot the deceased and then all three ran away from the scene.
Moreover, their subsequent conduct of absconding from that area is
also relevant to bring home the case of the prosecution. It is quite
clear from the decisions cited above of the Hon‟ble Supreme Court
that Section 34 IPC can be invoked against persons accompanying
the main assailant if they were part and parcel of the overall act
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which resulted in the offence even though they may not have
individually committed that act which resulted in the offence. Each
of those who participated would be responsible under Section 34
IPC for the "total effect produced".
Conclusion
10. In light of the above discussion and analysis, this Court is of the
view that the guilt of the appellants is proved beyond reasonable doubt
and therefore, the judgment of the learned Trial Court is upheld both on
conviction of the appellants and the order on the sentence.
11. Appeals are accordingly dismissed.
CRL.M.B. 436/2022 in CRL.A. 85/2019 and CRL.M.A. 11427/2021
in CRL.A. 107/2019
12. In view of dismissal of the appeals, the aforementioned
applications are disposed of as infructuous.
(ANISH DAYAL)
JUDGE
(MUKTA GUPTA)
JUDGE
OCTOBER 12, 2022/sm
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