Crl.A. 456/1998. Case: Anil Kumar Vs State, [Alongwith Crl.A. 481, 549/1998]. High Court of Delhi (India)
| Case Number | Crl.A. 456/1998 |
| Counsel | For Appellant: Mr. Vikrant Sarin, Advocate, Mr. K.B. Andley, Sr. Advocate and Mr. M.L. Yadav, Advocate and For Respondents: Mr. Sunil Sharma, APP for the State and Insp. Ravindra Ahlawat, P.S. Karol Bagh, New Delhi |
| Judges | Kailash Gambhir and Indermeet Kaur, JJ. |
| Issue | Code of Criminal Procedure, 1973 (CrPC) - Sections 161, 174, 313, 374; Indian Evidence Act, 1872 - Sections 32, 32(1); Indian Penal Code (45 of 1860) (IPC) - Sections 299, 300, 302, 304, 307, 34 |
| Judgement Date | November 28, 2013 |
| Court | High Court of Delhi (India) |
Judgment:
Kailash Gambhir, J.
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By this common order we propose to decide three appeals under Section 374 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C.") preferred by Anil Kumar, Saravjeet Singh and Tilak Raj, respectively, challenging the judgment and order on sentence dated 07.10.1998 and 09.10.1998, whereby the learned Additional Sessions Judge, Delhi has convicted them under Section 302 of Indian Penal Code, 1860 (hereinafter referred to as "IPC") and sentenced to undergo imprisonment for life together with fine of Rs. 500/-each and in default thereof to further undergo rigorous imprisonment for a period of one month. The case of the prosecution as it is unfolded in the chargesheet is as under:-
On 06.09.1985 Duty Constable Sultan Singh informed the police that Shri Trilok Chand s/o Shri Santram had been admitted in the hospital in an injured condition by Mr. Ashoki, son of Shri Risal Singh. On this information DD. No. 30-A at P.P. Prasad Nagar was recorded and copy of it was handed over to ASI Balbir Singh. Who went to hospital and obtained the MLC of the injured. Since doctor declared him fit for statement ASI Balbir Singh recorded his statement wherein he stated that he was residing at 1250, P.R. Road, Delhi and was doing the work of tailoring. One Rajju was running a rationing shop and was his friend. About two weeks earlier Rajju had taken 1330/- Rs. From him, promising him to return them in 10 days. On that day he had gone to Satyam cinema to watch a show, at about 11:40 p.m. raju and his friend who runs motor mechanical shop, tilak resident of Dev Nagar, Anil resident of Bapa Nagar, and Survjeet resident of Government quarters met him at the cinema. He asked Raju to return his money but raju asked him to come to Dev Nagar and them he would return his money. On that day at 07:30 p.m. he after leaving his house was present at Rajram Kharoodewala at P.L. Road, a three wheeler scooter in which a boy aged 19/20 years was sitting and he told him that his friends are calling. On this he sat in the scooter and he was brought to subzi wala chowk Dev Nagar. At around 07:40, Raju with all his friends asked him that now tell what do you wasn't, and in the meantime the auto left. All the accused persons started inflicting injuries on the deceased when he asked them to return money. When he cried and raised alarm, Mr. Ashoki brother in law of his elder brother came and removed him to Willington Hospital, in an auto rickshaw. All the accused person were known to deceased.
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To bring home the charges, the prosecution in all examined 25 witnesses. In their statements recorded under Section 313 Cr.P.C., all the accused denied their complicity in the crime and pleaded that they were falsely implicated in the case. In defence, the accused persons had examined 3 witnesses.
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On behalf of Tilak Raj - appellant in CRL.A. 549/1998 and Saravjeet Singh-appellant in Crl.A. 481/1998 arguments were addressed by Mr. K.B. Andley, Sr. Advocate duly assisted by Mr. M.L. Yadav, Advocate and on behalf of Anil Kumar-appellant in Crl.A. 456/1998, the arguments were addressed by Mr. Vikrant Sarin, Advocate. The State was represented by Mr. Sunil Sharma, APP for the State. Written submissions were also filed by the counsel for the appellants.
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The contentions raised by both the counsel for the appellants were not much in variance except that in the case of appellant-Anil Kumar, one of the arguments raised by the counsel was that there was no recovery of any incriminating article from him during the disclosure statement. The main attack of both the counsel for the appellants, otherwise, was on the authenticity, genuineness and truthfulness of the dying declaration made by the deceased to ASI Balbir Singh-PW-18, who rushed to the Ram Monohar Lohia hospital (hereinafter referred to as "RML") after information was received at Police Station-Karol Bagh vide DD No. 38 dated 06.09.1985 regarding the admission of an injured person - Trilok Chand. Learned counsel for the appellants also contended that it was quite surprising that the victim in his dying declaration gave the number of injuries which were inflicted on his person, as if, before his dying declaration he could count them. Learned counsel for the appellants also argued that after having suffered so many injuries the victim could not have been in a fit state of mind to make his dying declaration. Impugning, the said dying declaration, learned counsel for the appellants submitted that ASI - Balbir Singh had recorded the statement of the injured himself without taking any step to call the area SDM for recording his statement. Learned counsel for the appellants also submitted that the said statement was recorded by IO in Urdu language and nowhere was it proved on record by the prosecution that deceased Trilok Chand knew Urdu language or that the said statement was read over to him in the language known to him. Learned counsel for the appellants further submitted that the fitness certificate given by Dr. Padmalaya Devi before the dying declaration does not bear any time and even Dr. Padmalaya Devi was not examined by the prosecution in the evidence. Learned counsel for the appellants further submitted that below the signature of Dr. Padmalaya Devi there were signatures of another doctor referred to as Dr. Khetrapal but neither he was produced by the prosecution as a witness nor his signatures were proved by the record clerk who appeared in the witness box as PW-23. Learned counsel for the appellants also argued that there was an apparent improbability in the recording of dying declaration by ASI - Balbir Singh, as the police had received information about the incident vide DD No. 38 at 8.45 p.m. on 06.09.1985 and the rukka reached the Police Station at about 10.25 p.m. and within such a short span of 1 hour 40 minutes the ASI reached at the hospital; got the fitness certificate of the doctor; recorded the dying declaration of the victim and thereafter returned back to the Police Station at 10.25 p.m. Learned counsel for the appellants also submitted that there is a distance of at least 6 km. between the hospital and the Police Station and therefore, it was impossible for ASI - Balbir Singh, to record the dying declaration, within such a short time, after the travel time to and fro is counted. Learned counsel for the appellants further argued that after the admission in the RML hospital on 06.09.1985, the victim had died on 15.11.1985 after a gap of two months and nine days and therefore, the statement made by the deceased cannot be termed as a dying declaration. Learned counsel for the appellants also argued that the prosecution has not been able to demonstrate as to how the police had zeroed in the appellant-Anil Kumar as in the rukka no parentage or address of accused Anil Kumar was mentioned and accused Anil Kumar was falsely implicated by the police only because of some previous disputes between the family of Anil Kumar and the family of the deceased and the deceased was even being tried under Section 307 IPC for stabbing the brother of accused Anil Kumar. The contention raised by the counsel for the appellants was that had the said Anil Kumar been the accused, the deceased could have named him after giving a clear reference of his family litigation with him. Learned counsel for the appellants also argued that the three witnesses, namely, PW3-Ashok Kumar, PW6-Ramesh Kumar and PW10-Suresh Kumar did not support the case of the prosecution and PW5-Pritam, also turned hostile. Learned counsel for the appellants also argued that no reliance can be placed on the testimony of PW4-Gyan Chand as his statement under Section 161 Cr.P.C. was recorded after the death of the deceased. Learned counsel for the appellants further submitted that the statement of PW4-Gyan Chand was recorded belatedly by the prosecution to fill up the lacunae in the prosecution case. Learned counsel for the appellants further argued that presence of PW4-Gyan Chand in the hospital was not disclosed by the deceased in his dying declaration. Learned counsel for the appellants also argued that the theory of motive as propounded by the prosecution also has no basis as nobody would kill a person for a paltry amount of Rs. 1300/-.
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Learned counsel for the appellants further contended that the death of the deceased was not on account of the injuries received by him but due to medical negligence of the attending doctors who were treating the deceased. Inviting attention of this Court to the deposition of PW1-Dr. Bharat Singh, learned counsel for the appellants submitted that PW-1 in his testimony stated that if the pus is drained regularly then there will be no deposit of pus in large quantity in abdominal cavity and there was 400 ml of pus in the abdominal cavity of the deceased which as per PW-1, Dr. Bharat Singh, was of definitely a large amount. Learned counsel for the appellants thus submitted that it was the infection of the peritoneum which ultimately resulted in the death of the deceased and not because of the injuries suffered by him in the incident. Learned counsel for the appellants placed reliance on a Division Bench decision of this Court in the case of Rajaram vs. State of NCT of Delhi reported in 2013 (1) JCC 41. Based on the above submissions, learned counsel for the appellants urged for acquittal of the appellants.
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Refuting the said submissions, Mr. Sunil Sharma, APP for the State, vehemently contended that the dying declaration recorded by the IO is free from any suspicion or doubt and the same was recorded by the ASI - Balbir Singh after Dr. Padmalaya Devi had declared the deceased fit for statement. Learned APP for the State submitted that there was no one present at the time of recording of the dying declaration except the doctor and the deceased had clearly named all the accused persons with the name of the localities where they were residing and also the...
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