Full Judgment Text
$~R-37
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. 184/2012
Date of decision: 28.04.2015
PRADEEP PASWAN ..... Appellant
Through Mr. M.L.Yadav, Adv.
versus
STATE (GOVT. OF NCT) DELHI ..... Respondent
Through Ms. Aashaa Tiwari, APP for the
State,
Insp. Davendra Rathi, PS Sarai
Rohilla.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE ASHUTOSH KUMAR
SANJIV KHANNA, J. (ORAL)
1. Pradeep Paswan, in this appeal, challenges his conviction under
Section 302 of the Indian Penal Code, 1860, for having committed
nd rd
murder of his friend Ashok in the intervening night of 2 and 3
March, 2009 at Railway Line near Harijan Basti, Gali no.10, New
Rohtak Road, Delhi. The impugned judgment convicting the
appellant Pradeep Paswan is dated 23.08.2011 and the order on
sentence imposing punishment of imprisonment for life and a fine of
Rs.6,000/- is dated 02.09.2011. In default of payment of fine, the
appellant shall undergo simple imprisonment for three months.
CRL.A. 184/2012 Page 1 of 18
2. Learned counsel for the appellant has submitted that this is a
case of circumstantial evidence and not of direct evidence. The Trial
Court has erred in relying upon the oral dying declaration made by the
deceased Arun as the complainant, Jai Ram (PW-5), had turned hostile
and disowned his earlier statement to the police (Ex. PW-5/A). In
these circumstances and in view of such contradictions, the trial court
should not have relied upon the testimony of Vicky (PW-6).
Statement of Vicky (PW-6) under Section 161 Cr.P.C. was recorded
on 06.03.2009, three days after the incident, and thus, his presence at
the spot and his deposition regarding the oral dying declaration is
unreliable and should be disbelieved. Evidence of last seen is weak
and should be rejected. The statement of Suraj Singh (PW-7) under
th
Section 161, Cr.P.C. (Ex. PW-7/E) was recorded on 16 March, 2009
and even as per the deposition of Pintu Tiwari (PW-1) and Kalim
(PW-2), the deceased Ashok, the appellant Pradeep and one Chotu
were residing together in a room at house no. 364/2, Gali No.8, Nehru
Nagar, Anand Parvat, Delhi. The appellant as well as Chotu were
missing. Chotu was not cited as a witness and has not deposed in the
court. Thus, this would create a doubt for Chotu could well be the
perpetrator. Recovery of the alleged knife and blood-stained clothes
at the instance of the appellant is disputed. The recoveries, it is
highlighted, were affected nearly 13 days after the occurrence and are
for this and other reasons, unbelievable. The police during the period
rd th
between 3 March, 2009 to 16 March, 2009, had explored and
scanned the room in question, and the articles could have been easily
planted. Recovery of knife as alleged was from an open space.
CRL.A. 184/2012 Page 2 of 18
Further, as per the FSL report (Ex. PW-21/B, Ex. PW-21/C and Ex.
PW-21/E), human blood was found on the knife and on the clothes as
well, but the blood group could not be ascertained. PW-7 Suraj Singh,
the landlord, has not supported the recovery of clothes, etc. Motive
has not been established.
3. On the question whether the deceased Ashok had met a
nd
homicidal death due to stab injuries in the intervening night of 2 and
rd
3 March, 2009, we have unimpeachable evidence in the form of the
MLC of deceased Ashok (Ex. PW-8/A) and the post mortem report
(Ex. PW-4/A). The MLC (Ex. PW-8/A) records the time of arrival of
the deceased in Hindu Rao Hospital, Delhi (H.R. Hospital, for short)
rd
as 12:45 am on 3 March, 2009. Deceased Ashok was brought to the
hospital by SI Ram Karan (PW-3). The MLC mentions that on local
examination, the following external wounds were noticed:
I. One large deep laceration longitudinal right anterior
chest (8x3 inches). Ribs cut and Lung parenchyma
visible through the wound. Gush of air coming
through wound with each breath.
II. Transverse laceration over lower neck 2 cm. long.
III. Laceration over web between thumb and index finger
of right hand.
IV. Laceration lateral aspect of left hand.
V. Laceration 2 cm. long over right mandible area.
VI. Laceration 2 cm. long over right clavicle area.
VII. Laceration 1 cm. long below left nipple.”
The said MLC was proved by Dr.Madhup Garg (PW-8), who
was working as CMO, H.R. Hospital. He had deposed that the patient
was initially admitted as an unknown person brought by S.I. Ram
CRL.A. 184/2012 Page 3 of 18
Karan (PW-3). The MLC records that SI Ram Karan (PW-3) had
informed that the deceased was found lying on the roadside in an
injured condition. On admission, the unknown patient was
unconscious. PW-8 has testified that the patient, during his treatment,
had disclosed his name as Ashok Sahu, s/o Jageshwar Sahu. This fact
was duly recorded in the MLC (Ex. PW-8/A). This is factually correct
and is apparent when we examine the said MLC.
4. The death summary of deceased Ashok (Ex. PW-23/A) was
rd
prepared by Dr. Sandeep Aggarwal on 3 March, 2009 and the report
Ex. PW-23/A was proved by Dr. Omparkash, SMO, Department of
Surgery, HR Hospital who had deposed as PW-23. He proved that Ex.
PW-23/A was written and signed by Dr. Sandeep Aggarwal at point
X. PW-23 identified Dr. Sandeep Aggarwal‟s handwriting and
signatures as he had worked with him. Dr. Sandeep Aggarwal had
since left the hospital.
5. The post mortem report (Ex. PW-4/A) was proved by Dr. C.B.
Dabas, HOD, Forensic Medicine, H.R. Hospital who had appeared as
PW-4. He had conducted the post-mortem examination of the dead
body of deceased Ashok and had noticed 11 external injuries. These
injuries included incised wounds on different areas of the body
including face, neck, chest and the right arm. One incised wound had
entered the chest and abdominal cavity. On internal examination,
th th
PW-4 found that 4 to 10 rib on right side of the chest had fracture
and there were multiple incised cuts on both the lungs and short cuts
on the diaphragm. The cause of death was haemorrhage and shock,
CRL.A. 184/2012 Page 4 of 18
consequent to injuries caused by a sharp edged weapon and injuries
no. 1 to 10 (collectively) were sufficient to cause death in ordinary
cause of nature. Injuries were ante mortem and recent in nature. He
opined that injury no.11 was a surgical wound.
6. The core issue raised in the present appeal pertains to the
involvement of the appellant in murder of the deceased Ashok. The
prosecution has primarily relied upon the oral dying declaration made
by the deceased Ashok in respect of which Vicky Ratawal (PW-6) has
deposed. Prosecution also relies upon the testimony of SI Ram Nath
(PW-12). On the other hand, the appellant relies upon the testimony
of Jai Ram (PW-5) who had turned hostile and did not affirm his
statement to the police (Ex. PW-5/A), which became the substratum of
the FIR.
7. In order to appreciate the controversy, we would first examine
the testimony of Jai Ram (PW-5). He was working as a carpenter and
nd rd
was sleeping in his shop in the intervening night of 2 and 3 March,
2009. PW-5 accepted that at about 12 mid night, he heard someone
shouting “save me, save me, save my life”. He woke up and opened
the shutter of his shop. PW-5 saw that one person was lying on the
road in an injured condition. One Vicky, their neighbour, was also
present who informed the police control room, whereupon police of
PS Sarai Rohilla came and had recorded the statement (Ex. PW-5/A),
which was signed by him at point A. However, PW-5 turned hostile
and deposed that he was not sure about the words uttered and stated by
the said injured person. He averred that the injured person was not
CRL.A. 184/2012 Page 5 of 18
stating anything when he saw him lying on the road. PW-5 was
confronted with Ex. PW-5/A and his signatures on the same, by the
Additional Public Prosecutor, who had cross-examined him, but PW-5
did not affirm and accept that the deceased had disclosed his identity
and named one Pradeep, his friend, as the perpetrator. These facts are
mentioned in Ex. PW-5/A.
8. Before we elucidate and scrutinize the court deposition of PW-
5, we would like to refer to the testimonies of S.I. Ram Nath (PW-12)
and Vicky Ratawal (PW-6) elaborately.
9. PW-5 has accepted that one Vicky, his neighbour, was present
at the place of incident and the said Vicky had informed the PCR on
telephone. Thus, presence of Vicky (PW-6) was accepted by PW-5.
Vicky (PW-6) is also named in statement Ex. PW-5/A. Vicky (PW-6)
nd rd
has stated that in the intervening night of 2 and 3 March, 2009, he
was sleeping in his house. He got up when he heard the shouts “save
–save” and saw that people had gathered near his house. One person
in an injured condition was lying on the road and was bleeding. PW-6
made a call at number 100. PCR van came and took the injured to the
hospital. Before police had come, PW-6 had inquired and was told by
the injured that he had been stabbed by one Pradeep. The injured had
given his name and address of Nehru Nagar but PW-6 was unable to
recollect the name of the injured. PW - 6 clarified that he did not
personally know any Pradeep or the injured. In his cross examination,
PW-6 accepted that Jai Ram (PW-5) was one of the persons who were
present at the spot. PW-6 denied the suggestion that the injured was
CRL.A. 184/2012 Page 6 of 18
not in a condition to speak and had not named Pradeep as the
perpetrator.
10. S.I. Ram Nath (PW-12) has stated that when he reached, a large
crowd had already gathered at the spot. The deceased had been
removed to HR Hospital in a PCR van. PW-12 met one eye witness,
Jai Ram, and had recorded his statement (Ex. PW-5/A), which was
signed by PW-12 at point B. Thereupon, PW-12 along with Ct.
Sanjeev, had gone to HR Hospital and collected the MLC of the
injured person named Ashok. The said Ashok was declared to be unfit
for making a statement. On the basis of the statement of Jai Ram
(Ex.PW-5/A), PW-12 had prepared a Tehrir (Ex. PW-12/B). Before
leaving the hospital, PW-12 had collected blood sample, earth control,
blood stains and seized them vide seizure memos Ex. PW - 5/B, C and
D. The memos were signed by him at point B. The crime team which
had inspected the crime scene also took photographs. After the death
of Ashok, police investigation was taken over by Insp. Sunder Lal
(PW- 25). S.I. Ram Nath (PW-12) along with Insp. Sunder Lal (PW-
25) had searched house no.364/2, gali no.8, Nehru Nagar, Anand
th
Parbat, Delhi on 6 March, 2009 and had recovered three photographs
Ex. PW-7/B1 to Ex. PW-7/B3. We will be referring to the testimony
of PW-12 subsequently, on the question of photographs and recovery.
We are of the opinion that PW-12‟s testimony on the statement of
PW-5 (Ex. PW-5/A) as recorded by PW-12 and signed by Jai Ram
(PW-5), is the truthful and trustworthy account. Thus, we do not
accept the testimony of Jai Ram (PW-5) and we believe and accept the
CRL.A. 184/2012 Page 7 of 18
testimony of Vicky (PW6).
11. The fact that the deceased was known as Ashok has been
established and proved beyond any doubt. On the said aspect, we
have the testimony of Dukhan Sahoo (PW-9), r/o Village Shimli, PS
Harlakhi, Distt. Madhubani, Bihar (brother-in-law of the deceased).
th
PW-9 deposed that on 6 March, 2009, he had identified the dead
body of Ashok (Ex. PW-9/A). He had also identified the photographs
of Ashok, his wife and child (Ex. PW-7/B1 – B3). PW-9 further
deposed that the deceased was residing in Delhi and used to ply
rickshaw.
12. Pintu Tiwari, who testified as PW-1, was also a resident of
Madhubani, Bihar. He identified the appellant Pradeep in Court and
has stated that they belong to the same village and had studied
together. Pradeep had migrated to Delhi in 1996 and was residing
somewhere in Nehru Nagar, Delhi. Pradeep used to ply rickshaw of
one Praveen and sometimes used to work at marriage functions. The
deceased Ashok was residing with Pradeep in his room since
Deepawali in 2008, after wife of deceased Ashok had left for her
parental home. The appellant Pradeep knew the deceased Ashok and
they were friends. There were financial transactions between the two
as well. Their mothers were residents of the same village. After
Deepawali in 2008, Ashok had sent Rs.2000/- to his wife in
Jharkhand. PW-1 had filled up the money order form at the request of
nd
the appellant and the deceased. On 2 March, 2009, at about 8.00
p.m., the appellant Pradeep, the deceased Ashok and one Chotu had
CRL.A. 184/2012 Page 8 of 18
gone to a Dhaba near Liberty Cinema and purchased chicken. They
went to a nearby vacant place and had consumed liquor. Ashok drank
a lot and was completely intoxicated. They went away towards the
th
Harijan Basti, Railway Line at about 9 p.m.. On 4 March, 2009,
early morning, police from PS Sarai Rohilla had come and enquired
about Pradeep Paswan from PW-1. PW-1 had informed the police
about the relevant facts within his knowledge. PW-1 was not cross -
examined inspite of opportunity and was re-called for cross -
examination which was conducted on 24.01.2011. He was confronted
with Ex. PW-1/DA, the statement of PW-1 under Section 161 Cr.P.C.,
wherein it is not recorded that the appellant Pradeep along with
deceased Ashok and Chotu had purchased chicken for Rs.20.
However, the factum that they had consumed liquor together was
mentioned in the statement Ex. PW-1/DA.
13. Kalim (PW-2) has deposed that he was running a rickshaw
garage and was in the business of providing paddle rickshaw on hire.
The appellant Pradeep was plying his rickshaw and used to reside in
the house no.364/2, Gali no.8, Nehru Nagar, Anand Parbat, Delhi
along with his friend, the deceased Ashok, and one Chotu. The
appellant also used to work with a caterer in marriage functions. PW-
2 had provided the rickshaw to the deceased Ashok on hire basis at the
request of the appellant. On 02.03.2009, at about 7-8 P.M., the
deceased Ashok had deposited the rickshaw in the garage and had left.
Thereafter, PW-2 did not see him. The police from PS Sarai Rohilla
had recorded his statement.
CRL.A. 184/2012 Page 9 of 18
14. Suraj Singh (PW-7), has stated that the appellant , his friend
Chotu and the deceased Ashok were living on the first floor of the
house, which had been taken on rent by the appellant Pradeep. Since
nd rd
2 March, 2009, PW-7 had not seen Pradeep. On 3 March, 2009, at
about 5 P.M., police from PS Sarai Rohilla had come to his residence
and made inquires about Pradeep. PW-7 had asked the police to check
th
Pradeep‟s room. Police had again met him on 6 March, 2009 and
had searched Pradeep‟s room. At that time, three photographs were
seized vide memo Ex. PW-7/A which was signed by PW-7 at point A.
PW-7 had seen the three photographs out of which two photographs
th
were of Pradeep and one was of deceased Ashok. On 16 March,
2009, police came along with the appellant and the room was searched
again. However, PW-7 denied that the police had seized any
incriminating material from that room though PW-7 admitted having
signed the seizure memos Ex.PW-7/C and Ex.PW-7/D. He denied
that the photographs (Ex. PW-7/B1 to Ex. PW-7/B3) were recovered
in his presence. He denied that the appellant got recovered a polythene
from his room containing a full sleeves blood-stained shirt of blue,
white and black colour and blood stained pant of black colour vide
th
seizure memo Ex. PW-7/C dated 16 March, 2009.
15. The appellant Pradeep, in his Section 313 Cr.P.C statement, has
accepted as correct that he was residing at 364/2, Gali no.8, Nehru
Nagar, Anand Parvat and used to ply paddle rickshaw and sometimes
worked at marriage functions. Appellant Pradeep accepted that the
deceased Ashok was his friend. However, he claimed that Ashok had
CRL.A. 184/2012 Page 10 of 18
stayed with him for a month in 2005 and, thereafter, shifted to reside
separately with his wife, leaving the Nehru Nagar address. He
admitted the photographs, Ex.PW-7/B, 7/B2 and 7/B3 to be correct
but claimed that the photographs were lying with one Pandey residing
adjoining to house no.364/2 and not in his room. He claimed that he
was falsely implicated on the basis of the photographs and he was
innocent. He accepted that on 16.03.2009, he was lifted from the
house of his sister Sheela.
16. Eight clauses of Section 32, Evidence Act, 1872 including sub-
clause (1) are exceptions to the general rule of hearsay. Clause (1) to
Section 32 of the Evidence Act recognises a dying declaration as a
relevant piece of evidence, if the statement made by the deceased
person relates to the cause of his death or to any of the circumstances
of the transaction which has resulted in his death, in cases where the
cause of death of that person is in question. It is not the mandate of
law that a person who has made a dying declaration must be under
expectation of death at the time when he made the statement. Section
32(1) specifically states that a dying declaration can be oral or in
writing. An oral dying declaration could mean a verbal statement i.e.
words spoken by the deceased before his death. Thus, the Legislature,
by using the word „oral‟ in Section 32 (1) has made its‟ intention clear
and left no scope for any doubt concerning the relevance, admissibility
and validity of oral dying declarations. Therefore, there is no bar to
using oral dying declarations as evidence to prove the guilt of the
accused.
CRL.A. 184/2012 Page 11 of 18
17. The reason for making a hearsay dying declaration relevant is
founded on the desideratum that the victim may be the only principal
eye-witness to the crime and exclusion of his statement might nullify
the ends of justice. The check emanating from the sense of impending
death, the law recognises, would generally create a sanction equal to
the obligation of an oath. It impedes and curbs false accusation and
indictment. Dying declarations are admitted as they are declarations
made in extremity and possibility of falsehood is minimized as one
expects the mind to be induced by powerful consideration to speak the
truth.
18. Prudence and wisdom requires calibrated scrutiny before a
dying declaration is accepted. On the question of reliability,
precedents caution that the courts should be on guard to see that the
purported dying declaration is not a result of tutoring or prompting or
a product of imagination or vindictiveness. Court inquiry should
determine that the deceased had the opportunity to observe and
identify the assailant and was in a position to verbally make the
statement attributed to him.
19. Oral dying declaration is considered as a weak piece of
evidence by the Courts on account of its‟ nature. Therefore, Courts
have evolved certain safeguards before they accept and rely on an oral
dying declaration. Two important considerations before the Courts
while weighing oral dying declarations are veracity of the statement
itself and credibility of the witness claiming to have heard the
statement considered to be a dying declaration.
CRL.A. 184/2012 Page 12 of 18
20. A written dying declaration is more credible and reliable since
the exact words uttered by the deceased are available which rules out
possibility of confusion on account of memory lapses or failure on the
part of a witness. Courts adopt a highly cautious approach while
appreciating oral dying declarations and subject them to a closer
scrutiny to ascertain the truth. Thus, when an oral dying declaration is
relied upon, additional precaution and care is required to ensure that
the witness, who had heard the dying person, has been able to repeat
the words spoken by the deceased person or depose as to what was
spoken. The deponent should pass the test and scrutiny of an honest
and truthful witness. When a witness makes a truthful rendition of the
gist of the spoken words of the deceased as to the cause of his death or
the circumstances of the transaction which result in his death, an oral
dying declaration has to be treated as a relevant fact under Section
32(1) of the Evidence Act (see Bhogilal Chunilal Pandya v. State of
Bombay, AIR 1959 SC 356, Nallapati Sivaiah v. SDO, (2007) 15
SCC 465). A dying declaration can be in brief, and at times, a brief
statement guarantees the truth. Dying declaration would not be
rejected because it does not contain the details of the occurrence (see
State of Maharashtra vs. Krishnamurti Laxmipati Naidu, 1980 Supp
SCC 455; Surajdeo Ojha vs. State of Bihar, 1980 Supp SCC 769).
21. Truthfulness of the statement and the weight to be attached to
an oral dying declaration are ascertained and determined on the facts
and circumstance of each case. The time and place of incident, time
and the place where the statement was made, proof that the deponent
CRL.A. 184/2012 Page 13 of 18
was present and had heard the deceased, the deponent‟s ability to
recollect, relation of deceased to the person to whom the statement
was made, other pre and post-occurrence facts, etc are all relevant
factors to be taken into account while deciding upon the credibility of
the witness testifying to the factum of the oral dying declaration. Oral
dying declarations are admissible but their reliability depends upon the
attending and encompassing facts. An oral dying declaration can be
relied upon when the court is satisfied that it was in fact made and
does not suffer from the vices of imagination, speculation and
distracting additions.
22. In the present case, we have applied the aforesaid principles to
appreciate the dying declaration purportedly made by the deceased
Ashok. We have appreciated and accepted the testimony of Vicky
(PW-6) referring to the dying declaration made by the deceased Ashok
as credible in the light of facts of the present case. The testimonies of
Pintu Tiwari (PW-1), SI Ram Nath (PW12) and even Jai Ram (PW-5)
and Ex. PW-5/A provide corroboration to and fortify the testimony of
Vicky (PW-6).
nd
23. Pintu Tiwari (PW-1) had testified that on 2 March, 2009, at
around 8.00 p.m., he saw the deceased Ashok along with the appellant
Pradeep and one Chintu having liquor. The deceased Ashok had
become completely intoxicated. At that time, the appellant Pradeep
and the deceased were present together. Thus, before the occurrence,
the appellant Pradeep and the deceased Ashok were last seen together.
This fact when juxtaposed together with the dying declaration has a
CRL.A. 184/2012 Page 14 of 18
compelling and telling effect.
24. Vicky (PW- 6), before the police arrived, had inquired from the
injured and was told that one Pradeep had stabbed him. Injured had
also given his name and particulars of his Nehru Nagar address but
Vivky (PW-6) could not remember the same. PW-6 was a stranger
and did not know any Pradeep or the injured. These facts could have
been stated and narrated by this witness only if these were in fact
disclosed by the deceased to him. In his testimony, Vicky (PW-6) has
stated that the injured had given the address of Nehru Nagar. This fact
also lends credibility to the testimony of PW-6 since he did not know
the deceased or his address prior to the occurrence. This fact has been
ascertained and found to be true. The statement of Vicky (PW-6)
th
under Section 161 Cr.P.C. may have been recorded on 6 March, 2009
i.e. 3 days after the occurrence, but his presence at the spot and his
interaction with the deceased Ashok is beyond any doubt. It is clear
from the deposition of Vicky (PW-6) and S.I. Ram Nath (PW-12) that
the deceased Ashok had named the culprit i.e. the appellant Pradeep
and no one else. Jai Ram (PW-5) in his testimony and statement to
the police has stated that Vicky (PW-6) was present at the spot and
had called the police. It is correct that Jai Ram (PW-5) did turn hostile
and has not supported the prosecution version in spite of his signatures
on Ex. PW-5/A, which he admitted. However, this would not affect
the prosecution case as Vicky (PW-6) has made an infallible and
assuring court deposition. The surrounding facts like the timing when
the declaration was made, Ex. PW-5/A which records the relevant
CRL.A. 184/2012 Page 15 of 18
details in writing, corroborate and lend support to the statement of
Vicky (PW- 6).
th
25. The testimony of Pintu Tiwari (PW-1), that on 4 March, 2009,
during early morning, police from Police Station, Sarai Rohilla had
come and enquired about the appellant and the testimony of Suraj
rd
Singh (PW-7), that on 3 March, 2009 police from Sarai Rohilla had
come and made enquiry about Pradeep, if accepted as correct, would
support the prosecution version and not help the defence. This is a
clear indication that the police was searching and looking for the
appellant Pradeep.
26. It is also clear from the testimony of Pintu Tiwari (PW-1),
Kalim (PW-2) and Suraj Singh (PW-7) that the appellant Pradeep was
a friend of the deceased Ashok. The testimony of Suraj Singh (PW-7)
corroborates and supports the prosecution version as he has deposed
that the deceased Ashok, appellant Pradeep and Chotu were living on
the first floor of the house which had been taken on rent to the
appellant Pradeep. Thus, the fact that the deceased Ashok had named
the appellant as the perpetrator after the occurrence, when Vicky
(PW6) had the occasion to hear the dying declaration, is established
beyond doubt and debate.
27. Learned counsel for the appellant has submitted that Chotu was
never interrogated. He was a suspect and could well be the culprit.
Chotu was not cited and examined as a witness. However, we do not
believe that the aforesaid contention would result in acquittal of the
CRL.A. 184/2012 Page 16 of 18
appellant Pradeep, for the reason that Vicky (PW-6) in categorical
terms has stated that the deceased in his dying declaration had only
named Pradeep and not anyone else. This fact is also proved from the
testimony of S.I. Ram Nath (PW-12) who had recorded Ex.PW-5/A,
which mentions that the deceased had given the name of the culprit as
„Pradeep‟. In these circumstances, we do not think that there was
involvement of Chotu in the crime in question.
28. The oral dying declaration in the present case gets sufficiently
corroborated by the fact that the appellant Pradeep was a friend of the
deceased Ashok. They were residing in Nehru Nagar. Moreover,
appellant Pradeep was found to be missing and not traceable with
rd
effect from 3 March, 2009 as per the deposition of Suraj Singh PW-
rd
7. The FIR in question was recorded at about 2:25 A.M. on 3 March,
2009, which is before the deceased Ashok died in the hospital at 3:30
A.M. Time of death as 3:30 A.M. is recorded in death summary
report (Ex. PW-23/A). Time of the death is also mentioned in the post
mortem report (Ex. PW-4/A). It is clear from the testimony of Vicky
(PW-6) that S.I. Ram Karan (PW-3) had reached the spot after
sometime i.e. after the deceased Ashok had made the oral dying
declaration. PW-6 had made the call at number 100. SI Ram Karan
(PW-3) had stated that at about 12 midnight, he had reached the place
of occurrence and saw that one person was lying injured having been
stabbed in gali no.10, harijan basti, Sarai Rohilla. He along with his
staff had reached the spot in a van and had removed the deceased to
HR Hospital. By that time, as deposed by S.I. Ram Karan (PW-3), the
CRL.A. 184/2012 Page 17 of 18
injured was unconscious and was unable to speak. Thus, there was a
time gap when S.I. Ram Karan (PW-3) had reached the spot and the
oral dying declaration was being made by the injured before Vicky
(PW-6). We have considered the contentions raised by the appellant
and record our inability to agree and accept the contention that the
appellant is entitled to acquittal.
29. In these circumstances, we are inclined to affirm the conviction
of the appellant Pradeep. We do not find any reason to reverse his
conviction and sentence.
30. The appeal is accordingly dismissed. Trial court record will be
sent back.
(SANJIV KHANNA)
Judge
(ASHUTOSH KUMAR)
Judge
APRIL 28, 2015
ab
CRL.A. 184/2012 Page 18 of 18
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. 184/2012
Date of decision: 28.04.2015
PRADEEP PASWAN ..... Appellant
Through Mr. M.L.Yadav, Adv.
versus
STATE (GOVT. OF NCT) DELHI ..... Respondent
Through Ms. Aashaa Tiwari, APP for the
State,
Insp. Davendra Rathi, PS Sarai
Rohilla.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE ASHUTOSH KUMAR
SANJIV KHANNA, J. (ORAL)
1. Pradeep Paswan, in this appeal, challenges his conviction under
Section 302 of the Indian Penal Code, 1860, for having committed
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murder of his friend Ashok in the intervening night of 2 and 3
March, 2009 at Railway Line near Harijan Basti, Gali no.10, New
Rohtak Road, Delhi. The impugned judgment convicting the
appellant Pradeep Paswan is dated 23.08.2011 and the order on
sentence imposing punishment of imprisonment for life and a fine of
Rs.6,000/- is dated 02.09.2011. In default of payment of fine, the
appellant shall undergo simple imprisonment for three months.
CRL.A. 184/2012 Page 1 of 18
2. Learned counsel for the appellant has submitted that this is a
case of circumstantial evidence and not of direct evidence. The Trial
Court has erred in relying upon the oral dying declaration made by the
deceased Arun as the complainant, Jai Ram (PW-5), had turned hostile
and disowned his earlier statement to the police (Ex. PW-5/A). In
these circumstances and in view of such contradictions, the trial court
should not have relied upon the testimony of Vicky (PW-6).
Statement of Vicky (PW-6) under Section 161 Cr.P.C. was recorded
on 06.03.2009, three days after the incident, and thus, his presence at
the spot and his deposition regarding the oral dying declaration is
unreliable and should be disbelieved. Evidence of last seen is weak
and should be rejected. The statement of Suraj Singh (PW-7) under
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Section 161, Cr.P.C. (Ex. PW-7/E) was recorded on 16 March, 2009
and even as per the deposition of Pintu Tiwari (PW-1) and Kalim
(PW-2), the deceased Ashok, the appellant Pradeep and one Chotu
were residing together in a room at house no. 364/2, Gali No.8, Nehru
Nagar, Anand Parvat, Delhi. The appellant as well as Chotu were
missing. Chotu was not cited as a witness and has not deposed in the
court. Thus, this would create a doubt for Chotu could well be the
perpetrator. Recovery of the alleged knife and blood-stained clothes
at the instance of the appellant is disputed. The recoveries, it is
highlighted, were affected nearly 13 days after the occurrence and are
for this and other reasons, unbelievable. The police during the period
rd th
between 3 March, 2009 to 16 March, 2009, had explored and
scanned the room in question, and the articles could have been easily
planted. Recovery of knife as alleged was from an open space.
CRL.A. 184/2012 Page 2 of 18
Further, as per the FSL report (Ex. PW-21/B, Ex. PW-21/C and Ex.
PW-21/E), human blood was found on the knife and on the clothes as
well, but the blood group could not be ascertained. PW-7 Suraj Singh,
the landlord, has not supported the recovery of clothes, etc. Motive
has not been established.
3. On the question whether the deceased Ashok had met a
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homicidal death due to stab injuries in the intervening night of 2 and
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3 March, 2009, we have unimpeachable evidence in the form of the
MLC of deceased Ashok (Ex. PW-8/A) and the post mortem report
(Ex. PW-4/A). The MLC (Ex. PW-8/A) records the time of arrival of
the deceased in Hindu Rao Hospital, Delhi (H.R. Hospital, for short)
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as 12:45 am on 3 March, 2009. Deceased Ashok was brought to the
hospital by SI Ram Karan (PW-3). The MLC mentions that on local
examination, the following external wounds were noticed:
I. One large deep laceration longitudinal right anterior
chest (8x3 inches). Ribs cut and Lung parenchyma
visible through the wound. Gush of air coming
through wound with each breath.
II. Transverse laceration over lower neck 2 cm. long.
III. Laceration over web between thumb and index finger
of right hand.
IV. Laceration lateral aspect of left hand.
V. Laceration 2 cm. long over right mandible area.
VI. Laceration 2 cm. long over right clavicle area.
VII. Laceration 1 cm. long below left nipple.”
The said MLC was proved by Dr.Madhup Garg (PW-8), who
was working as CMO, H.R. Hospital. He had deposed that the patient
was initially admitted as an unknown person brought by S.I. Ram
CRL.A. 184/2012 Page 3 of 18
Karan (PW-3). The MLC records that SI Ram Karan (PW-3) had
informed that the deceased was found lying on the roadside in an
injured condition. On admission, the unknown patient was
unconscious. PW-8 has testified that the patient, during his treatment,
had disclosed his name as Ashok Sahu, s/o Jageshwar Sahu. This fact
was duly recorded in the MLC (Ex. PW-8/A). This is factually correct
and is apparent when we examine the said MLC.
4. The death summary of deceased Ashok (Ex. PW-23/A) was
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prepared by Dr. Sandeep Aggarwal on 3 March, 2009 and the report
Ex. PW-23/A was proved by Dr. Omparkash, SMO, Department of
Surgery, HR Hospital who had deposed as PW-23. He proved that Ex.
PW-23/A was written and signed by Dr. Sandeep Aggarwal at point
X. PW-23 identified Dr. Sandeep Aggarwal‟s handwriting and
signatures as he had worked with him. Dr. Sandeep Aggarwal had
since left the hospital.
5. The post mortem report (Ex. PW-4/A) was proved by Dr. C.B.
Dabas, HOD, Forensic Medicine, H.R. Hospital who had appeared as
PW-4. He had conducted the post-mortem examination of the dead
body of deceased Ashok and had noticed 11 external injuries. These
injuries included incised wounds on different areas of the body
including face, neck, chest and the right arm. One incised wound had
entered the chest and abdominal cavity. On internal examination,
th th
PW-4 found that 4 to 10 rib on right side of the chest had fracture
and there were multiple incised cuts on both the lungs and short cuts
on the diaphragm. The cause of death was haemorrhage and shock,
CRL.A. 184/2012 Page 4 of 18
consequent to injuries caused by a sharp edged weapon and injuries
no. 1 to 10 (collectively) were sufficient to cause death in ordinary
cause of nature. Injuries were ante mortem and recent in nature. He
opined that injury no.11 was a surgical wound.
6. The core issue raised in the present appeal pertains to the
involvement of the appellant in murder of the deceased Ashok. The
prosecution has primarily relied upon the oral dying declaration made
by the deceased Ashok in respect of which Vicky Ratawal (PW-6) has
deposed. Prosecution also relies upon the testimony of SI Ram Nath
(PW-12). On the other hand, the appellant relies upon the testimony
of Jai Ram (PW-5) who had turned hostile and did not affirm his
statement to the police (Ex. PW-5/A), which became the substratum of
the FIR.
7. In order to appreciate the controversy, we would first examine
the testimony of Jai Ram (PW-5). He was working as a carpenter and
nd rd
was sleeping in his shop in the intervening night of 2 and 3 March,
2009. PW-5 accepted that at about 12 mid night, he heard someone
shouting “save me, save me, save my life”. He woke up and opened
the shutter of his shop. PW-5 saw that one person was lying on the
road in an injured condition. One Vicky, their neighbour, was also
present who informed the police control room, whereupon police of
PS Sarai Rohilla came and had recorded the statement (Ex. PW-5/A),
which was signed by him at point A. However, PW-5 turned hostile
and deposed that he was not sure about the words uttered and stated by
the said injured person. He averred that the injured person was not
CRL.A. 184/2012 Page 5 of 18
stating anything when he saw him lying on the road. PW-5 was
confronted with Ex. PW-5/A and his signatures on the same, by the
Additional Public Prosecutor, who had cross-examined him, but PW-5
did not affirm and accept that the deceased had disclosed his identity
and named one Pradeep, his friend, as the perpetrator. These facts are
mentioned in Ex. PW-5/A.
8. Before we elucidate and scrutinize the court deposition of PW-
5, we would like to refer to the testimonies of S.I. Ram Nath (PW-12)
and Vicky Ratawal (PW-6) elaborately.
9. PW-5 has accepted that one Vicky, his neighbour, was present
at the place of incident and the said Vicky had informed the PCR on
telephone. Thus, presence of Vicky (PW-6) was accepted by PW-5.
Vicky (PW-6) is also named in statement Ex. PW-5/A. Vicky (PW-6)
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has stated that in the intervening night of 2 and 3 March, 2009, he
was sleeping in his house. He got up when he heard the shouts “save
–save” and saw that people had gathered near his house. One person
in an injured condition was lying on the road and was bleeding. PW-6
made a call at number 100. PCR van came and took the injured to the
hospital. Before police had come, PW-6 had inquired and was told by
the injured that he had been stabbed by one Pradeep. The injured had
given his name and address of Nehru Nagar but PW-6 was unable to
recollect the name of the injured. PW - 6 clarified that he did not
personally know any Pradeep or the injured. In his cross examination,
PW-6 accepted that Jai Ram (PW-5) was one of the persons who were
present at the spot. PW-6 denied the suggestion that the injured was
CRL.A. 184/2012 Page 6 of 18
not in a condition to speak and had not named Pradeep as the
perpetrator.
10. S.I. Ram Nath (PW-12) has stated that when he reached, a large
crowd had already gathered at the spot. The deceased had been
removed to HR Hospital in a PCR van. PW-12 met one eye witness,
Jai Ram, and had recorded his statement (Ex. PW-5/A), which was
signed by PW-12 at point B. Thereupon, PW-12 along with Ct.
Sanjeev, had gone to HR Hospital and collected the MLC of the
injured person named Ashok. The said Ashok was declared to be unfit
for making a statement. On the basis of the statement of Jai Ram
(Ex.PW-5/A), PW-12 had prepared a Tehrir (Ex. PW-12/B). Before
leaving the hospital, PW-12 had collected blood sample, earth control,
blood stains and seized them vide seizure memos Ex. PW - 5/B, C and
D. The memos were signed by him at point B. The crime team which
had inspected the crime scene also took photographs. After the death
of Ashok, police investigation was taken over by Insp. Sunder Lal
(PW- 25). S.I. Ram Nath (PW-12) along with Insp. Sunder Lal (PW-
25) had searched house no.364/2, gali no.8, Nehru Nagar, Anand
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Parbat, Delhi on 6 March, 2009 and had recovered three photographs
Ex. PW-7/B1 to Ex. PW-7/B3. We will be referring to the testimony
of PW-12 subsequently, on the question of photographs and recovery.
We are of the opinion that PW-12‟s testimony on the statement of
PW-5 (Ex. PW-5/A) as recorded by PW-12 and signed by Jai Ram
(PW-5), is the truthful and trustworthy account. Thus, we do not
accept the testimony of Jai Ram (PW-5) and we believe and accept the
CRL.A. 184/2012 Page 7 of 18
testimony of Vicky (PW6).
11. The fact that the deceased was known as Ashok has been
established and proved beyond any doubt. On the said aspect, we
have the testimony of Dukhan Sahoo (PW-9), r/o Village Shimli, PS
Harlakhi, Distt. Madhubani, Bihar (brother-in-law of the deceased).
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PW-9 deposed that on 6 March, 2009, he had identified the dead
body of Ashok (Ex. PW-9/A). He had also identified the photographs
of Ashok, his wife and child (Ex. PW-7/B1 – B3). PW-9 further
deposed that the deceased was residing in Delhi and used to ply
rickshaw.
12. Pintu Tiwari, who testified as PW-1, was also a resident of
Madhubani, Bihar. He identified the appellant Pradeep in Court and
has stated that they belong to the same village and had studied
together. Pradeep had migrated to Delhi in 1996 and was residing
somewhere in Nehru Nagar, Delhi. Pradeep used to ply rickshaw of
one Praveen and sometimes used to work at marriage functions. The
deceased Ashok was residing with Pradeep in his room since
Deepawali in 2008, after wife of deceased Ashok had left for her
parental home. The appellant Pradeep knew the deceased Ashok and
they were friends. There were financial transactions between the two
as well. Their mothers were residents of the same village. After
Deepawali in 2008, Ashok had sent Rs.2000/- to his wife in
Jharkhand. PW-1 had filled up the money order form at the request of
nd
the appellant and the deceased. On 2 March, 2009, at about 8.00
p.m., the appellant Pradeep, the deceased Ashok and one Chotu had
CRL.A. 184/2012 Page 8 of 18
gone to a Dhaba near Liberty Cinema and purchased chicken. They
went to a nearby vacant place and had consumed liquor. Ashok drank
a lot and was completely intoxicated. They went away towards the
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Harijan Basti, Railway Line at about 9 p.m.. On 4 March, 2009,
early morning, police from PS Sarai Rohilla had come and enquired
about Pradeep Paswan from PW-1. PW-1 had informed the police
about the relevant facts within his knowledge. PW-1 was not cross -
examined inspite of opportunity and was re-called for cross -
examination which was conducted on 24.01.2011. He was confronted
with Ex. PW-1/DA, the statement of PW-1 under Section 161 Cr.P.C.,
wherein it is not recorded that the appellant Pradeep along with
deceased Ashok and Chotu had purchased chicken for Rs.20.
However, the factum that they had consumed liquor together was
mentioned in the statement Ex. PW-1/DA.
13. Kalim (PW-2) has deposed that he was running a rickshaw
garage and was in the business of providing paddle rickshaw on hire.
The appellant Pradeep was plying his rickshaw and used to reside in
the house no.364/2, Gali no.8, Nehru Nagar, Anand Parbat, Delhi
along with his friend, the deceased Ashok, and one Chotu. The
appellant also used to work with a caterer in marriage functions. PW-
2 had provided the rickshaw to the deceased Ashok on hire basis at the
request of the appellant. On 02.03.2009, at about 7-8 P.M., the
deceased Ashok had deposited the rickshaw in the garage and had left.
Thereafter, PW-2 did not see him. The police from PS Sarai Rohilla
had recorded his statement.
CRL.A. 184/2012 Page 9 of 18
14. Suraj Singh (PW-7), has stated that the appellant , his friend
Chotu and the deceased Ashok were living on the first floor of the
house, which had been taken on rent by the appellant Pradeep. Since
nd rd
2 March, 2009, PW-7 had not seen Pradeep. On 3 March, 2009, at
about 5 P.M., police from PS Sarai Rohilla had come to his residence
and made inquires about Pradeep. PW-7 had asked the police to check
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Pradeep‟s room. Police had again met him on 6 March, 2009 and
had searched Pradeep‟s room. At that time, three photographs were
seized vide memo Ex. PW-7/A which was signed by PW-7 at point A.
PW-7 had seen the three photographs out of which two photographs
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were of Pradeep and one was of deceased Ashok. On 16 March,
2009, police came along with the appellant and the room was searched
again. However, PW-7 denied that the police had seized any
incriminating material from that room though PW-7 admitted having
signed the seizure memos Ex.PW-7/C and Ex.PW-7/D. He denied
that the photographs (Ex. PW-7/B1 to Ex. PW-7/B3) were recovered
in his presence. He denied that the appellant got recovered a polythene
from his room containing a full sleeves blood-stained shirt of blue,
white and black colour and blood stained pant of black colour vide
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seizure memo Ex. PW-7/C dated 16 March, 2009.
15. The appellant Pradeep, in his Section 313 Cr.P.C statement, has
accepted as correct that he was residing at 364/2, Gali no.8, Nehru
Nagar, Anand Parvat and used to ply paddle rickshaw and sometimes
worked at marriage functions. Appellant Pradeep accepted that the
deceased Ashok was his friend. However, he claimed that Ashok had
CRL.A. 184/2012 Page 10 of 18
stayed with him for a month in 2005 and, thereafter, shifted to reside
separately with his wife, leaving the Nehru Nagar address. He
admitted the photographs, Ex.PW-7/B, 7/B2 and 7/B3 to be correct
but claimed that the photographs were lying with one Pandey residing
adjoining to house no.364/2 and not in his room. He claimed that he
was falsely implicated on the basis of the photographs and he was
innocent. He accepted that on 16.03.2009, he was lifted from the
house of his sister Sheela.
16. Eight clauses of Section 32, Evidence Act, 1872 including sub-
clause (1) are exceptions to the general rule of hearsay. Clause (1) to
Section 32 of the Evidence Act recognises a dying declaration as a
relevant piece of evidence, if the statement made by the deceased
person relates to the cause of his death or to any of the circumstances
of the transaction which has resulted in his death, in cases where the
cause of death of that person is in question. It is not the mandate of
law that a person who has made a dying declaration must be under
expectation of death at the time when he made the statement. Section
32(1) specifically states that a dying declaration can be oral or in
writing. An oral dying declaration could mean a verbal statement i.e.
words spoken by the deceased before his death. Thus, the Legislature,
by using the word „oral‟ in Section 32 (1) has made its‟ intention clear
and left no scope for any doubt concerning the relevance, admissibility
and validity of oral dying declarations. Therefore, there is no bar to
using oral dying declarations as evidence to prove the guilt of the
accused.
CRL.A. 184/2012 Page 11 of 18
17. The reason for making a hearsay dying declaration relevant is
founded on the desideratum that the victim may be the only principal
eye-witness to the crime and exclusion of his statement might nullify
the ends of justice. The check emanating from the sense of impending
death, the law recognises, would generally create a sanction equal to
the obligation of an oath. It impedes and curbs false accusation and
indictment. Dying declarations are admitted as they are declarations
made in extremity and possibility of falsehood is minimized as one
expects the mind to be induced by powerful consideration to speak the
truth.
18. Prudence and wisdom requires calibrated scrutiny before a
dying declaration is accepted. On the question of reliability,
precedents caution that the courts should be on guard to see that the
purported dying declaration is not a result of tutoring or prompting or
a product of imagination or vindictiveness. Court inquiry should
determine that the deceased had the opportunity to observe and
identify the assailant and was in a position to verbally make the
statement attributed to him.
19. Oral dying declaration is considered as a weak piece of
evidence by the Courts on account of its‟ nature. Therefore, Courts
have evolved certain safeguards before they accept and rely on an oral
dying declaration. Two important considerations before the Courts
while weighing oral dying declarations are veracity of the statement
itself and credibility of the witness claiming to have heard the
statement considered to be a dying declaration.
CRL.A. 184/2012 Page 12 of 18
20. A written dying declaration is more credible and reliable since
the exact words uttered by the deceased are available which rules out
possibility of confusion on account of memory lapses or failure on the
part of a witness. Courts adopt a highly cautious approach while
appreciating oral dying declarations and subject them to a closer
scrutiny to ascertain the truth. Thus, when an oral dying declaration is
relied upon, additional precaution and care is required to ensure that
the witness, who had heard the dying person, has been able to repeat
the words spoken by the deceased person or depose as to what was
spoken. The deponent should pass the test and scrutiny of an honest
and truthful witness. When a witness makes a truthful rendition of the
gist of the spoken words of the deceased as to the cause of his death or
the circumstances of the transaction which result in his death, an oral
dying declaration has to be treated as a relevant fact under Section
32(1) of the Evidence Act (see Bhogilal Chunilal Pandya v. State of
Bombay, AIR 1959 SC 356, Nallapati Sivaiah v. SDO, (2007) 15
SCC 465). A dying declaration can be in brief, and at times, a brief
statement guarantees the truth. Dying declaration would not be
rejected because it does not contain the details of the occurrence (see
State of Maharashtra vs. Krishnamurti Laxmipati Naidu, 1980 Supp
SCC 455; Surajdeo Ojha vs. State of Bihar, 1980 Supp SCC 769).
21. Truthfulness of the statement and the weight to be attached to
an oral dying declaration are ascertained and determined on the facts
and circumstance of each case. The time and place of incident, time
and the place where the statement was made, proof that the deponent
CRL.A. 184/2012 Page 13 of 18
was present and had heard the deceased, the deponent‟s ability to
recollect, relation of deceased to the person to whom the statement
was made, other pre and post-occurrence facts, etc are all relevant
factors to be taken into account while deciding upon the credibility of
the witness testifying to the factum of the oral dying declaration. Oral
dying declarations are admissible but their reliability depends upon the
attending and encompassing facts. An oral dying declaration can be
relied upon when the court is satisfied that it was in fact made and
does not suffer from the vices of imagination, speculation and
distracting additions.
22. In the present case, we have applied the aforesaid principles to
appreciate the dying declaration purportedly made by the deceased
Ashok. We have appreciated and accepted the testimony of Vicky
(PW-6) referring to the dying declaration made by the deceased Ashok
as credible in the light of facts of the present case. The testimonies of
Pintu Tiwari (PW-1), SI Ram Nath (PW12) and even Jai Ram (PW-5)
and Ex. PW-5/A provide corroboration to and fortify the testimony of
Vicky (PW-6).
nd
23. Pintu Tiwari (PW-1) had testified that on 2 March, 2009, at
around 8.00 p.m., he saw the deceased Ashok along with the appellant
Pradeep and one Chintu having liquor. The deceased Ashok had
become completely intoxicated. At that time, the appellant Pradeep
and the deceased were present together. Thus, before the occurrence,
the appellant Pradeep and the deceased Ashok were last seen together.
This fact when juxtaposed together with the dying declaration has a
CRL.A. 184/2012 Page 14 of 18
compelling and telling effect.
24. Vicky (PW- 6), before the police arrived, had inquired from the
injured and was told that one Pradeep had stabbed him. Injured had
also given his name and particulars of his Nehru Nagar address but
Vivky (PW-6) could not remember the same. PW-6 was a stranger
and did not know any Pradeep or the injured. These facts could have
been stated and narrated by this witness only if these were in fact
disclosed by the deceased to him. In his testimony, Vicky (PW-6) has
stated that the injured had given the address of Nehru Nagar. This fact
also lends credibility to the testimony of PW-6 since he did not know
the deceased or his address prior to the occurrence. This fact has been
ascertained and found to be true. The statement of Vicky (PW-6)
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under Section 161 Cr.P.C. may have been recorded on 6 March, 2009
i.e. 3 days after the occurrence, but his presence at the spot and his
interaction with the deceased Ashok is beyond any doubt. It is clear
from the deposition of Vicky (PW-6) and S.I. Ram Nath (PW-12) that
the deceased Ashok had named the culprit i.e. the appellant Pradeep
and no one else. Jai Ram (PW-5) in his testimony and statement to
the police has stated that Vicky (PW-6) was present at the spot and
had called the police. It is correct that Jai Ram (PW-5) did turn hostile
and has not supported the prosecution version in spite of his signatures
on Ex. PW-5/A, which he admitted. However, this would not affect
the prosecution case as Vicky (PW-6) has made an infallible and
assuring court deposition. The surrounding facts like the timing when
the declaration was made, Ex. PW-5/A which records the relevant
CRL.A. 184/2012 Page 15 of 18
details in writing, corroborate and lend support to the statement of
Vicky (PW- 6).
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25. The testimony of Pintu Tiwari (PW-1), that on 4 March, 2009,
during early morning, police from Police Station, Sarai Rohilla had
come and enquired about the appellant and the testimony of Suraj
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Singh (PW-7), that on 3 March, 2009 police from Sarai Rohilla had
come and made enquiry about Pradeep, if accepted as correct, would
support the prosecution version and not help the defence. This is a
clear indication that the police was searching and looking for the
appellant Pradeep.
26. It is also clear from the testimony of Pintu Tiwari (PW-1),
Kalim (PW-2) and Suraj Singh (PW-7) that the appellant Pradeep was
a friend of the deceased Ashok. The testimony of Suraj Singh (PW-7)
corroborates and supports the prosecution version as he has deposed
that the deceased Ashok, appellant Pradeep and Chotu were living on
the first floor of the house which had been taken on rent to the
appellant Pradeep. Thus, the fact that the deceased Ashok had named
the appellant as the perpetrator after the occurrence, when Vicky
(PW6) had the occasion to hear the dying declaration, is established
beyond doubt and debate.
27. Learned counsel for the appellant has submitted that Chotu was
never interrogated. He was a suspect and could well be the culprit.
Chotu was not cited and examined as a witness. However, we do not
believe that the aforesaid contention would result in acquittal of the
CRL.A. 184/2012 Page 16 of 18
appellant Pradeep, for the reason that Vicky (PW-6) in categorical
terms has stated that the deceased in his dying declaration had only
named Pradeep and not anyone else. This fact is also proved from the
testimony of S.I. Ram Nath (PW-12) who had recorded Ex.PW-5/A,
which mentions that the deceased had given the name of the culprit as
„Pradeep‟. In these circumstances, we do not think that there was
involvement of Chotu in the crime in question.
28. The oral dying declaration in the present case gets sufficiently
corroborated by the fact that the appellant Pradeep was a friend of the
deceased Ashok. They were residing in Nehru Nagar. Moreover,
appellant Pradeep was found to be missing and not traceable with
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effect from 3 March, 2009 as per the deposition of Suraj Singh PW-
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7. The FIR in question was recorded at about 2:25 A.M. on 3 March,
2009, which is before the deceased Ashok died in the hospital at 3:30
A.M. Time of death as 3:30 A.M. is recorded in death summary
report (Ex. PW-23/A). Time of the death is also mentioned in the post
mortem report (Ex. PW-4/A). It is clear from the testimony of Vicky
(PW-6) that S.I. Ram Karan (PW-3) had reached the spot after
sometime i.e. after the deceased Ashok had made the oral dying
declaration. PW-6 had made the call at number 100. SI Ram Karan
(PW-3) had stated that at about 12 midnight, he had reached the place
of occurrence and saw that one person was lying injured having been
stabbed in gali no.10, harijan basti, Sarai Rohilla. He along with his
staff had reached the spot in a van and had removed the deceased to
HR Hospital. By that time, as deposed by S.I. Ram Karan (PW-3), the
CRL.A. 184/2012 Page 17 of 18
injured was unconscious and was unable to speak. Thus, there was a
time gap when S.I. Ram Karan (PW-3) had reached the spot and the
oral dying declaration was being made by the injured before Vicky
(PW-6). We have considered the contentions raised by the appellant
and record our inability to agree and accept the contention that the
appellant is entitled to acquittal.
29. In these circumstances, we are inclined to affirm the conviction
of the appellant Pradeep. We do not find any reason to reverse his
conviction and sentence.
30. The appeal is accordingly dismissed. Trial court record will be
sent back.
(SANJIV KHANNA)
Judge
(ASHUTOSH KUMAR)
Judge
APRIL 28, 2015
ab
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