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IN THE HIGH COURT OF DELHI AT NEW DELHI
MUKTA GUPTA, POONAM A. BAMBA, JJ.
Rahul - Appellant
Versus
State (Govt. of NCT of Delhi) – Respondent
Crl. A. No.145 Of 2019, Crl. A. No.154 Of 2019
Decided On : 19-04-2023
Murder - Penal Code, 1860 - Sections 302/34 - Summary
Fact of the Case:
The deceased was stabbed by the appellants, resulting in his death. The dying declarations and eyewitness accounts formed the basis of the prosecution's case. The appellants challenged the reliability of the dying declarations and the conduct of the investigation.
Finding of the Court:
The court found the dying declaration made to ASI Shiv Murti to be reliable and admissible as a dying declaration. However, the statement made to the deceased's brother was not considered a dying declaration due to discrepancies in witness testimonies. The court also found the recovery of the weapon insufficient to invoke Section 34 IPC against one of the appellants.
Issues: Reliability of dying declarations, sufficiency of evidence for invoking Section 34 IPC, and conduct of the investigation.
Ratio Decidendi: The dying declaration made to ASI Shiv Murti was considered reliable and formed the basis for the conviction of one of the appellants. However, the recovery of the weapon was deemed insufficient to invoke Section 34 IPC against the other appellant.
Final Decision: The conviction of one appellant was modified to an offence under Section 304 Part-II IPC, resulting in a reduced sentence. The other appellant was acquitted.
JUDGMENT :
(Mukta Gupta, J.) :—
By these appeals, the appellants challenge the common judgment of the learned Trial Court dated 30th November, 2018 whereby both the appellants Rahul and Amit Kumar @ Sher Khan were held guilty for murder of Ajay son of Ved Prakash (“deceased”); and also the order on sentence dated 30th November, 2018 whereby the appellants were directed to undergo imprisonment for life alongwith fine of Rs. 5,000/- each in default whereof, rigorous imprisonment for six months for offence punishable under Sections 302/34 of the Penal Code, 1860 (“IPC”). The appellants were acquitted for charge under Section 201/34 IPC.
2. In nutshell, brief facts of the case are that on 10th October, 2013, at about 2 : 30 PM, the deceased alongwith his friend Ajay son of Bihari Lal (PW-12) reached in front of H. No. 17/230, Kalyanpuri when suddenly appellant Rahul stopped them and started abusing them. When the deceased tried to resist, appellant Rahul took out a knife from his pant and stabbed the deceased on his right thigh. Ajay (PW-12) made a call to the police at number 100 and on reaching the spot, the police lifted deceased Ajay and took him to LBS Hospital. Statement of deceased injured at that time, Ajay was recorded by ASI Shiv Murti Yadav (PW-7) and rukka (Ex. PW-7/A) was prepared which was handed over to Ct. Jitender for getting the FIR registered, and accordingly, FIR No. 592/2013 dated 10th October, 2013 under Section 307 IPC at P.S. Kalyanpuri (Ex. PW-1/A) was registered.
3. Dr. Kashi prepared the MLC No. 17505/13 (Ex. PW-8/A) and as per the MLC, Ajay was conscious and oriented (alcohol +ve) and an incised wound on right thigh 1.5 × 0.5 cm over anterior lateral region and an abrasion on right thigh of size 5 × 1 cm was found in examination and the deceased was referred to SR surgery.
4. On the same day at about 11 : 20 PM, the deceased died at the hospital. Dr. Md. Sarfraz who was working as SR Surgery at the LBS prepared the death summary (Ex. PW-13/A) dated 10th October, 2013 of Ajay son of Ved Prakash. It was noted in the death summary that “case of 29 years old male came to casualty at 3 PM with h/o stabbed injury on Rt. thigh. On presentation patient was vitally stable and fully conscious with h/o smell of alcohol at about 5:10 PM patient suddenly collapsed then CPCR given and patient shift to ICU when patient could not revive and expired at.”
5. The post mortem examination was conducted on 11th October, 2013 by Dr. Vinay Kumar Singh (PW-9), who tendered his report (Ex. PW-9/A) and opined:
i. Incised wound single edged sharp, sutured 2.5 × 0.6 × 7 cm present on front at rt. Thigh, 53cm above heel, 6.8cm above right knee, obliquely placed, lower end acute directed inwards, upwards, medial to lateral on dissection femoral vein incised anteriorilly .3 cm, haemorrhage in surrounding tissues.
ii. Abrasion 1.8 × 1.5cm on lt. side of chest 5cm below medial end of clavicle.
iii. Abrasion 3 × 1cm on rt. artery shoulder tip”
6. The final opinion was kept pending by Dr. Vinay for want of chemical analysis report and on receipt of which, he tendered his final opinion regarding cause of death (Ex. PW-9/B) as per which, the cause of death was opined to be “hemorrhagic shock consequent upon incised wound to thigh caused by single edged sharp cutting weapon/knife, all injuries are antemortem in nature, recent in duration. Injury No. 1 is sufficient to cause death in ordinary course of nature and deceased has consumed ethyl alcohol 367 mg/100 ml at blood prior to his death.”
7. Pursuant to death of the deceased, the offence under Section 307 IPC was converted to Section 302 IPC and the investigation of the case was handed over to CM Meena (PW-28). Dead body of the deceased was identified by Suresh Pal (Ex. PW-28/A) and Rohit (Ex. PW-28/B) and after the postmortem examination, the dead body was handed over to Rohit (Ex. PW-28/F). On 11th October, 2013, SI Sandeep Kumar (PW-23) alongwith his team went to Bulandshah
The reliability of dying declarations and sufficiency of evidence for invoking Section 34 IPC were central legal points established in the judgment.
The dying declaration, when found to be credible and supported by medical evidence and witness testimonies, can be the primary basis for conviction, even without the need for corroboration.
The court upheld the convictions based on the reliability of the dying declaration and corroborative evidence, affirming the principles governing the admissibility of such declarations.
Murder – Non-examination of Doctor who conducted autopsy on dead body of deceased and who prepared post-mortem report is not fatal to case of prosecution.
A dying declaration is only valid if the victim was in a fit mental state to give it, which wasn't established; thus, conviction based solely on it is unsafe.
A dying declaration must be trustworthy and corroborated; significant discrepancies in the statement led to acquittal due to reasonable doubt not established by prosecution.
The admissibility and reliability of dying declarations as a sole basis for conviction, as established by various Supreme Court cases.
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