Shashi Kumar Nair P.K. vs State
- Court
- Delhi High Court
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 24.08.2026
Pronounced on: 28.10.2026
Uploaded on: 28.10.2026
# CNR No. DLHC010099682004
+ CRL.A. 709/2004
SHASHI KUMAR NAIR P.K. .....Appellant
Through: Mr.Sudhir Kumar Roy, Adv.
along with appellant in person.
versus
STATE .....Respondent
Through: Mr.Aman Usman, APP with
Mr.Manvendra Yadav, Adv.
with Insp./SHO Rakesh Kumar,
and SI Mahendra, P.S. Vasant
Vihar.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
HON'BLE MR. JUSTICE RAVINDER DUDEJA
J U D G M E N T
NAVIN CHAWLA, J.
1. The present appeal has been preferred by the appellant, Shashi
Kumar Nair P. K. , challenging the order of conviction dated
30.07.2004 and the order on sentence dated 31.07.2004, passed by the
learned Additional Sessions Judge, New Delhi (hereinafter referred to
as ‘Trial Court’) in Sessions Case No. 22/2000, arising out of FIR No.
120/2000 registered at Police Station - Vasant Vihar, convicting the
appellant of the offences punishable under Sections 302 and 323 of the
Indian Penal Code, 1860 (hereinafter referred to as ‘IPC’), and
sentencing him to undergo Life Imprisonment and to pay a fine of
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Rs.1,000/-, in default of payment of which, to further undergo
Rigorous Imprisonment for one month for the offence under Section
302 of the IPC, and; to undergo Rigorous Imprisonment for one year
for offence under Section 323 of the IPC, both sentences to run
concurrently and the benefit of Section 428 of the Code of Criminal
Procedure, 1973 (hereinafter referred to as ‘Cr.P.C.’) to be also
extended to the appellant.
CASE OF THE PROSECUTION:
2. The case of the prosecution is that on 23.04.2000 at about 10:20
PM, a call was received from Safdarjung Hospital that one Suresh
Chand (hereinafter referred to as the ‘deceased’) had been admitted in
the hospital after receiving injuries in a quarrel at Hotel Vasant
Continental. This was recorded in DD No. 25-A (Ex. PW-4A). On
receipt of the said DD, SI Rajesh Maurya (PW-17), along with Ct.
Anand (PW-15), reached Safdarjung Hospital and found the deceased
admitted there. The deceased was declared unfit to make a statement
vide an endorsement (Ex. PW-17/A) made by the doctor on an
application made by the IO to record his statement (Ex. PW-17/B).
PW-1/ Bhagmal Singh , a co-worker of the deceased, was also present
at the hospital, and his statement was recorded.
3. As per the statement of PW-1 (Ex.PW-1/A), he was working as
a casual worker at Hotel Vasant Continental. On 23.04.2000, there
was a marriage function in the lawn of the hotel and a stall had been
affixed near the road to serve cold drinks etc. At about 8:45 PM, while
he was working at the stall along with other waiters, he saw his co-
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worker, the appellant herein, talking to a guest, and asked him to first
finish his work. On this, the appellant became furious and attacked
PW-1 with the ice-pick that was in his hand. PW-1 caught hold of the
appellant's hand to save himself, but the ice-pick still touched him.
The appellant thereafter tried to run away, and PW-1 called out to the
deceased for help. When the deceased tried to stop the appellant, the
appellant inflicted the ice-pick blow on the stomach of the deceased
and ran into the hotel. The deceased fell to the ground. PW-1 attended
to him and took him on one side and made him lie. He then went to
the hotel and informed the entire facts to Rajinder Bansal /PW-3, the
Food and Beverages Manager in the hotel. He alongwith other staff of
the hotel thereafter brought the deceased to Safdarjung Hospital.
4. It is further the case of the prosecution that SI Rajesh Maurya
(PW-17) made an endorsement on the statement of PW-1 and sent a
rukka through Ct. Anand to the police station for registration of the
FIR, which was originally registered under Sections 307/323 of the
IPC.
5. SI Rajesh Maurya (PW-17) further investigated the matter and
recorded the statement of PW-3/ Rajinder Prasad Bansal, the Food &
Beverage Manager. He went to the spot along with the complainant,
prepared a site plan (Ex. PW-17/C), and took photographs. The shirt
of the deceased, already preserved, was seized vide Seizure Memo
dated 24.04.2000 (Ex. PW-8/A). The appellant was handed over by
Onkar Singh /PW-6, Security Supervisor, along with the weapon of
offence, the ice-pick, which was seized (Ex. PW-1/D). The appellant
was arrested.
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6. The deceased unfortunately passed away on the intervening
night of 23/24.04.2000, and therefore, Section 307 of the IPC was
substituted with Section 302 of the IPC. Further investigation was
taken up by Inspector M.S. Shekhawat, Addl. SHO (PW-5).
7. On 24.04.2000, the post-mortem examination was conducted,
and statements of witnesses were recorded.
8. The investigation was then handed over to Insp. Suresh Daggar,
then SHO of Police Station Vasant Vihar, (PW-16), on 01.05.2000.
He obtained the post-mortem report (Ex. PW-2/A) and the subsequent
opinion on the weapon of offence (Ex. PW-2/C). A scaled site plan
was prepared (Ex. PW-12/A), and the exhibits were sent to the CFSL;
which were exhibited from Ex. PW-16/C to 16/E.
PROCEEDINGS BEFORE THE LEARNED TRIAL COURT:
9. Charge-sheet was filed and, vide order dated 23.10.2000 passed
by the learned Trial Court, Charges under Sections 302/323 of the IPC
were framed against the appellant, to which he pleaded not guilty and
claimed trial.
10. To prove its case, the prosecution examined 17 witnesses,
including the injured eyewitness PW1/ Bhagmal Singh.
11. The statement of the appellant was recorded under Section 313
of the Cr.P.C., wherein he denied the allegations levelled against him
and stated that he was on duty at the poolside of the hotel at the
relevant time as he was deputed for a double shift.
12. The appellant examined one witness in his defence, that is, Mr.
Devi Dayal Garg (DW-1), the brother of the girl whose marriage
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ceremony took place on the fateful day, that is, 23.04.2000, at the
hotel.
FINDINGS OF THE LEARNED TRIAL COURT:
13. The learned Trial Court, relying primarily on the testimony of
Bhagmal Singh /PW-1, Rajinder Bansal /PW-3, Onkar Singh /PW-6,
and Ramesh Bhati /PW-7, coupled with the medical evidence of Dr.
Arvind Thergaonkar /PW-2, held that the injury inflicted on the
deceased was on a vital part of the body (the chest) and was sufficient
in the ordinary course of nature to cause death, and that the case
accordingly fell within Clause ‘3’ of Section 300 of the IPC. It further
held that, once the ingredients of Clause ‘3’ stood proved, the onus
shifted to the appellant to bring his case within one of the Exceptions
to Section 300 IPC, which onus the appellant failed to discharge.
14. The learned Trial Court held that there was no delay in
recording the FIR. The learned Trial Court further held that non-
examination of any independent witness was not fatal to the
prosecution. The learned Trial Court further held that the prosecution
has been able to prove that the ice-pick was with the appellant and was
recovered from him by PW3/ Rajinder Bansal, who in turn handed it
over to PW6/ Onkar Singh.
15. The learned Trial Court also found that statement of PW-
7/ Ramesh Bhati, Security Inspector in the hotel, of the appellant
having made an extra-judicial confession to him, to be reliable. It also
found that the deceased had made a dying declaration to PW-
3/ Rajinder Bansal .
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16. On the discrepancy that the report of the Forensic Science
Laboratory (FSL) did not record any entry mark corresponding to the
ice-pick on the left side of the shirt worn by the deceased, the learned
Trial Court accepted the explanation of the learned APP that the
buttons of the shirt may have been open, given it was summer season,
and held that this discrepancy did not cause material prejudice to the
appellant.
17. The learned Trial Court also placed reliance on PW-2/ Dr.
Arvind Theragaonkar, who conducted autopsy on the body of the
deceased and had also deposed that penetrating injury mentioned in
the postmortem could have been caused with the ice-pick.
18. The learned Trial Court also held that the prosecution had
proved that the appellant caused simple hurt to Bhagmal Singh /PW-1,
which was corroborated by his MLC (Ex.PW-14/A).
19. Based on the above findings, the learned Trial Court convicted
the appellant of offence under Sections 302/323 of the IPC and
sentenced him as mentioned above.
20. Aggrieved by the order of conviction and sentence, the
appellant has preferred the present appeal.
21. This Court, vide Order dated 20.07.2005, had suspended the
sentence of the appellant during the pendency of the present appeal.
SUBMISSIONS ON BEHALF OF THE APPELLANT:
22. The learned counsel for the appellant submits that the impugned
judgment is based on surmises and conjectures, and that there is no
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legally admissible evidence on record to sustain the conviction of the
appellant.
23. The learned counsel for the appellant submits that the
appellant's defence throughout has been that he was not present at the
place of occurrence, and that on the relevant evening he was on duty
at the poolside of the hotel. He submits that his duty at the poolside
had commenced at about 8:00 PM; that at about 8:52 PM, a co-worker
had asked him the time; and that shortly thereafter, at about 9:00 PM,
he was informed that there was a call for him in the security room, and
when he went there, Rajinder Bansal /PW-3 detained him there.
24. The learned counsel for the appellant submits as per the medical
evidence of PW-1, there was only an abrasion on his stomach. Thus,
the record suffers from material contradictions on the very site of the
injury said to have been caused to him, which was described by the
witness at different stages of his testimony, as being on the stomach,
the lower chest, and the right hand. He submits that PW-1, being the
sole witness to the actual assault, and his account of the manner of
assault being intrinsically inconsistent, does not inspire confidence
and should have been rejected by the learned Trial Court.
25. The learned counsel for the appellant further submits that
although PW-1 claimed that between 100 to 200 guests were present
at the function, and there were other casual worker also said to be
present at the function, none of them were examined by the
prosecution to corroborate his version. Thus, the prosecution's failure
to examine any independent public witness is a material infirmity.
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26. As regards PW-3/ Rajender Bansal and Onkar Singh /PW-6, he
submits that both are members of the management of the hotel and
are, to that extent, interested witnesses concerned with protecting the
institutional interest of the hotel. He submits that PW-3 admitted that
he had not noticed any blood stain on the ice-pick, and that there was
no complaint from any guest regarding a quarrel. He submits that PW-
6 stated that the ice-pick was not recovered directly from the
appellant, but was handed to him by a person accompanying PW-3,
and that PW-6 had not himself seen the deceased in an injured
condition, nor was he aware of any prior complaint against the
appellant's conduct.
27. The learned counsel submits that the statement of Ramesh
Bhati /PW-7 came to be recorded after a delay of approximately 45
days, rendering his version unreliable. He submits that PW-7’s
account of the manner in which the deceased was taken to hospital;
including who accompanied him to the taxi stand and thereafter to the
hospital, does not match the versions of PW-3 and PW-6 on the same
events, and that there are, in particular, contradictions as to whether
PW-6 had any role in bringing the deceased to the taxi stand, bearing
in mind that PW-6 has denied any such role. He submits that there is a
contradiction as to whether the deceased was first taken to Holy Angel
Hospital before being brought to the Safdarjung Hospital, and that this
aspect finds no reflection in the prosecution’s case or any supporting
documents.
28. The learned counsel further submits that PW-7’s claim that the
deceased was conscious while being shifted to the hospital and had
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identified the appellant as his assailant, is contrary to the medical
evidence on record. He submits that as per the medical evidence, the
injury having involved the heart/lungs, approximately 1.5 litres of
blood could have accumulated within 15-20 minutes, and the deceased
could not, in these circumstances, have remained fully conscious so as
to give a reliable account of the assault. He submits that the alleged
extra-judicial confession and the dying declaration being
uncorroborated by any other witnesses, therefore inspire no
confidence.
29. He submits that the FSL report did not find any blood stain on
the ice-pick, nor any corresponding cut or hole on the shirt worn by
the deceased, and that no evidence of blood was found at the place of
the alleged incident. He submits that the presence of an ice-pick with a
worker engaged to serve guests was not, by itself, unusual, as it was
commonly used while serving drinks, and that the FSL evidence does
not connect the ice-pick with the injury said to have caused death.
30. He submits that the ice-pick was never recovered from the
appellant by the investigating agency, but was handed to PW-6 by a
person accompanying PW-3, and that there are contradictions as to
who was in possession of the ice-pick, and where it was kept, before it
finally found its way to the police.
31. On the investigation, he submits that the scene of the incident
was inspected only at about 1:30–1:35 AM, without any proper crime-
team investigation; that despite the incident having occurred during a
function at a five-star hotel, no CCTV footage was collected or
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produced in evidence; and that photographs of the scene were not
exhibited.
32. He submits that the timing of the incident, as alleged by the
prosecution, is itself doubtful. In this regard, reliance was placed on
the testimony of DW-1, who stated that the wedding procession
( baraat ) reached the hotel/main entrance only at about 9:30 to 10:00
PM. He submits that if the baraat had not reached the relevant
location by 8:45 PM, the prosecution's case as to the timing and
location of the incident becomes doubtful. He submits that there are
contradictions as to who supplied the liquor at the function, and who
was authorized to handle it. He submits that the prosecution has
produced no convincing document establishing that the alleged
wedding function was in fact being held at that place and time.
33. He submits that there was no documentary record of the exact
duty timing of the appellant on the date of the incident, and that PW-1
himself admitted that casual workers did not have fixed duty hours
and could be assigned different shifts depending on the function.
34. He submits that the appellant did not receive adequate legal
representation at trial, in that the counsel who then represented him
had difficulty understanding the Hindi language, as a result of which
certain material questions were not put to the prosecution witnesses in
their cross-examination.
35. He submits that the prosecution has failed to prove any motive
or intention on the part of the appellant to cause the death of the
deceased, and that in the absence of any motive, and given that the
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alleged assault involved a single blow, the ingredients of Section 302
of the IPC are not made out.
36. In conclusion, the learned counsel for the appellant submits that
the prosecution’s case rests principally on the testimony of PW-1,
which is internally contradictory and is not corroborated by
independent evidence; that the recovery of the weapon, the medical
sequence and the timing of the incident, are each attended with doubt;
and that the appellant is entitled to the benefit of reasonable doubt and
to acquittal.
SUBMISSIONS ON BEHALF OF THE STATE:
37. Per contra, the learned APP for the State, Mr. Aman Usman,
opposed the appeal and submitted that the impugned judgment does
not warrant any interference.
38. He submits that the presence of Bhagmal Singh /PW-1 at the
spot, and indeed the presence of the appellant himself, has never been
challenged by the defence. He submits that in response to Question
No. 20 in the statement of the accused recorded under Section 313 of
the Cr.P.C., the appellant did not deny his presence at the spot; and
furthermore, this position was never put to PW-1 or to Rajinder
Bansal /PW-3 or to Onkar Singh /PW-6 or to Ramesh Bhati /PW-7,
while they were cross-examined, and no consistent defence of not
being present at the scene was put to any of the prosecution witnesses.
39. He further submits that PW-1 identified the ice-pick in court
and attributed it to the appellant as the weapon used by him, and that
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there is no challenge either to the recovery of the weapon from the
appellant or his presence at the scene.
40. The learned APP submits that as far as the submission of the
learned counsel for the appellant that the coat worn by the deceased
was not seized, is without merit as the same is irrelevant to the case of
the prosecution, which is based on the eye-witness account.
41. The learned APP took the Court through the testimony of PW-
1, submitting that it furnishes a clear and continuous account of the
incident: that PW-1 saw the appellant talking to a guest; that several
guests were complaining about the service; that PW-1 was himself
serving soft drinks, being unable to tolerate the smell of alcohol; that
he saw the appellant give a blow to the deceased on the left side of his
chest. Subsequently, the appellant ran away with the ice-pick in his
hand; and that no one came to the rescue of the deceased, given the
large number of persons present, all being engaged in the function. No
suggestion was put to PW-1 in cross-examination, nor was any
defence taken of any enmity between PW-1 and the appellant, and that
a witness would have no reason to concoct a false story so as to falsely
implicate the accused.
42. On the medical evidence, it was submitted that the injury, once
caused, would have been internal in nature, and that PW-2, in his
cross-examination, stated that there would not necessarily be any
external bleeding. It was further submitted that, it being summer
season, it is probable that two to three buttons of the shirt were
unbuttoned by the deceased and that the injury was inflicted in that
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very area, accounting for the absence of any corresponding mark of
entry of the ice-pick on the shirt.
43. Furthermore, he submits that the MLC of PW-1 (Ex.PW-14/A)
establishes his presence at the scene and him being injured by the
appellant.
44. To sum up, the learned APP submits that the presence of PW-1
and of the appellant at the spot being undisputed, the recovery of the
weapon being unchallenged, and the ocular account of PW-1 standing
corroborated by the medical evidence and unshaken in cross-
examination, the findings of the learned Trial Court are well-founded,
and the appeal is liable to be dismissed.
ANALYSIS & FINDINGS:
45. We have considered the submissions made by the learned
counsels for the parties and have perused the record.
46. From the above submissions, it would be evident that the case
of the prosecution stands on the testimony of PW-1/ Bhagmal Singh ,
who is said to be the eyewitness to the offence committed by the
appellant. In his testimony, he states that he was working as a casual
labour in the hotel and on the fateful day, was posted at the Hill View
Apartment, which is at a distance of about 100 meters from the hotel.
Stalls had been put up near the apartment as there was a marriage
function. PW-1/ Bhagmal Singh , the deceased, the appellant, and two
others were also working as casual labour in the function. At about
8:45 P.M., the appellant was talking with some guests, upon which,
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PW-1/ Bhagmal Singh told the appellant not to talk and instead do his
duty. Upon hearing this, the appellant attacked PW-1/ Bhagmal Singh
with an ice-pick, as a result of which he sustained an injury on the
lower part of his chest and on his right hand. The deceased came to
help PW-1/ Bhagmal Singh , but the appellant attacked him also with
the ice-pick on his chest, as a result of which the deceased fell down
and became unconscious. As PW-1/ Bhagmal Singh was looking after
the deceased, the appellant ran away to the hotel.
47. PW-1/ Bhagmal Singh states that he then left for the banquet
office of the hotel, where he found PW-3/Rajinder Bansal and one
Sharma ji present. He told them about the incident. The appellant was
handed over to the Security Officer, PW-6/ Onkar Singh by PW-
3/ Rajinder Bansal . The deceased was taken to Safdarjung Hospital by
PW-3/ Rajinder Bansal and Sharma ji ‘ by a jeep ’. He also
accompanied them to the hospital, where the police met him and he
gave his statement (Ex.PW-1/A). He also accompanied the police to
the spot and showed them the place of the incident. He states that the
clothes of the deceased, that is, his ‘coat’ and the pants, were given to
the police by the doctor. The appellant, who was present with the
Security Officer in the hotel, was arrested. The ice-pick was also
produced by the Security Officer to the police.
48. In his cross-examination, he states that apart from himself, the
deceased and the appellant, there were two or four boys from the Tent
House present at the spot. There were also 100-200 persons near the
stall at the time of the incident. He states that when he scolded the
appellant to carry out the service quickly rather than talking to the
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guests, the appellant attacked him on the stomach. To save himself, he
turned a bit, whereafter the appellant attacked him on his hand with
the same ice-pick. He states that none of the guests came to his rescue.
He saw the appellant inflicting the blow on the chest of the deceased
with the ice-pick. He states that the outer clothes of the deceased were
not stained with blood. He states that none of the guests gathered at
the spot as they were busy at the party. Even the workers and other
casual workers engaged for the evening did not come to the spot.
49. He further states that he rushed to the officers in the hotel and
came back with them to the spot where the deceased was lying. Even
at that time, no one had gathered around the deceased, and everyone
was busy at the party.
50. He states that he had rushed to the office of Mr. Suresh ( sic
Rajinder ) Bansal, Manager, Food and Beverages, which was near the
car park. The appellant was already present in the office of Shri
Surinder ( sic Rajinder ) Bansal and also had the ice-pick in his hand.
He did not see if there was blood on the ice-pick or not. He states that
before he had gone to the office of Mr. Bansal, he had gone to the pool
side, where another party was being held and officers from the hotel
were present at that site. The appellant was also there. From the pool
side, the officers, the appellant, and he himself came to the site office.
He states that he had narrated the incident at the pool side and then
again in the office. He states that there were no other workers standing
near the hotel officials and the appellant at the pool side. From the site
office, they took the appellant to the Security Officer and handed him
over to the Security Officer. The appellant never tried to abscond.
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51. From the above testimony of PW-1/ Bhagmal Singh , there are
two or three glaring questions which remain unanswered. The first
being that though PW-1/ Bhagmal Singh maintains that apart from
himself, the deceased, and the appellant, there were other workers and
even 100-200 guests, not even one of them is claimed to have seen the
incident; came to help the deceased; or even noticed the incident. This
version of PW-1/ Bhagmal Singh does not inspire confidence at all.
52. In Vadivelu Thevar v. State of Madras , 1957 SCC OnLine SC
13, the Supreme Court held that though conviction can be based even
on the testimony of a single eyewitness, there being no necessity in
law to have multiple witnesses to bring home the charge against the
accused, at the same time, the testimony of such witness should be
tested with caution and if the same is found by a court to be entirely
reliable, there is no legal impediment to convict the accused on such
testimony; where such testimony is found to be wholly unreliable, the
Court equally has no difficulty in disregarding such testimony; it is
only where the testimony is neither wholly reliable nor wholly
unreliable, that the Court has to be circumspect and has to look for
corroboration in material particulars by reliable testimony, direct or
circumstantial. We quote from the judgment as under:
“17. In view of these considerations, we have
no hesitation in holding that the contention
that in a murder case, the court should insist
upon plurality of witnesses, is much too
broadly stated. Section 134 of the Indian
Evidence Act, has categorically laid it down
that “no particular number of witnesses shall,
in any case, be required for the proof of any
fact”. The legislature determined, as long ago
as 1872, presumably after due consideration
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of the pros and cons, that it shall not be
necessary for proof or disproof of a fact, to
call any particular number of witnesses. In
England, both before and after the passing of
the Indian Evidence Act, 1872, there have
been a number of statutes as set out in
th
Sarkar's Law of Evidence — 9 Edn., at pp.
1100 and 1101, forbidding convictions on the
testimony of a single witness. The Indian
Legislature has not insisted on laying down
any such exceptions to the general rule
recognized in Section 134 quoted above. The
section enshrines the well recognized maxim
that “Evidence has to be weighed and not
counted”. Our Legislature has given statutory
recognition to the fact that administration of
justice may be hampered if a particular
number of witnesses were to be insisted upon.
It is not seldom that a crime has been
committed in the presence of only one witness,
leaving aside those cases which are not of
uncommon occurrence, where determination
of guilt depends entirely on circumstantial
evidence. If the legislature were to insist upon
plurality of witnesses, cases where the
testimony of a single witness only could be
available in proof of the crime, would go
unpunished. It is here that the discretion of the
presiding judge comes into play. The matter
thus must depend upon the circumstances of
each case and the quality of the evidence of
the single witness whose testimony has to be
either accepted or rejected. If such a testimony
is found by the court to be entirely reliable,
there is no legal impediment to the conviction
of the accused person on such proof. Even as
the guilt of an accused person may be proved
by the testimony of a single witness, the
innocence of an accused person may be
established on the testimony of a single
witness, even though a considerable number of
witnesses may be forthcoming to testify to the
truth of the case for the prosecution. Hence, in
our opinion, it is a sound and well-established
rule of law that the court is concerned with the
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quality and not with the quantity of the
evidence necessary for proving or disproving a
fact.
18. Generally speaking, oral testimony in
this context may be classified into three
categories, namely:
(1) Wholly reliable.
(2) Wholly unreliable.
(3)Neither wholly reliable nor wholly
unreliable.
In the first category of proof, the court should
have no difficulty in coming to its conclusion
either way — it may convict or may acquit on
the testimony of a single witness, if it is found
to be above reproach or suspicion of
interestedness, incompetence or subornation.
In the second category, the court equally has
no difficulty in coming to its conclusion. It is in
the third category of cases, that the court has
to be circumspect and has to look for
corroboration in material particulars by
reliable testimony, direct or circumstantial.
19. There is another danger in insisting on
plurality of witnesses. Irrespective of the
quality of the oral evidence of a single witness,
if courts were to insist on plurality of witnesses
in proof of any fact, they will be indirectly
encouraging subornation of witnesses.
Situations may arise and do arise where only a
single person is available to give evidence in
support of a disputed fact. The court naturally
has to weigh carefully such a testimony and if
it is satisfied that the evidence is reliable and
free from all taints which tend to render oral
testimony open to suspicion, it becomes its
duty to act upon such testimony. The law
reports contain many precedents where the
court had to depend and act upon the
testimony of a single witness in support of the
prosecution. There are exceptions to this rule,
for example, in cases of sexual offences or of
the testimony of an approver; both these are
cases in which the oral testimony is, by its very
nature, suspect, being that of a participator in
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crime. But, where there are no such
exceptional reasons operating, it becomes the
duty of the court to convict, if it is satisfied
that the testimony of a single witness is
entirely reliable. We have therefore, no
reasons to refuse to act upon the testimony of
the first witness, which is the only reliable
evidence in support of the prosecution.”
53. In Joseph v. State of Kerala , (2003) 1 SCC 465, the Court
reiterated the above principles, and held that where there is a sole
witness to the incident, the testimony of such witness has to be
accepted with an amount of caution and after testing it on the
touchstone of evidence tendered by other witnesses or evidence as
recorded. It was held that while it is permissible for a Court to record
and sustain a conviction on the evidence of a solitary eyewitness,
however, at the same time, such a course can be adopted only if the
evidence tendered by such witness is cogent, reliable, in tune with
probabilities, and inspires implicit confidence; where the prosecution
case rests mainly on the sole testimony of an eyewitness, it should be
wholly reliable. Even where the witness is an injured witness, and his
presence may not be seriously doubted, when his evidence is in
conflict with other evidence, it would be unsafe to convict the accused
on his sole testimony. We quote from the judgment as under:
“13. To our mind, it appears that the High
Court did not follow the aforesaid standard
but went on to analyse evidence as if the
material before them was given for the first
time and not in appeal. Section 134 of the
Indian Evidence Act provides that no
particular number of witnesses shall in any
case be required for the proof of any fact and,
therefore, it is permissible for a court to
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record and sustain a conviction on the
evidence of a solitary eyewitness. But, at the
same time, such a course can be adopted only
if the evidence tendered by such witness is
cogent, reliable and in tune with probabilities
and inspires implicit confidence. By this
standard, when the prosecution case rests
mainly on the sole testimony of an eyewitness,
it should be wholly reliable. Even though such
witness is an injured witness and his presence
may not be seriously doubted, when his
evidence is in conflict with other evidence, the
view taken by the trial court that it would be
unsafe to convict the accused on his sole
testimony cannot be stated to be
unreasonable.”
54. As we are finding the version of the incident given by PW-
1/ Bhagmal Singh a little unnatural, we would test his testimony
against the one given by the other witnesses to find if the same stands
corroborated or not.
55. PW-3/ Mr.Rajinder Bansal , Assistant Food and Beverages
Manager at Vasant Continental Hotel, in his examination-in-chief, had
stated that on 23.04.2000 at about 8:45 or 9 P.M., he along with S. S.
Sharma was present at the pool side where a party was going on. The
appellant was seen coming from the main entrance of the pool side
and came where they were standing. At that time, he was somewhat
nervous. There was an ice-pick in the hand of the appellant which he
was trying to conceal by placing his hand behind. They were told by
the appellant that a quarrel had taken place near the Hill View
Apartment on the road where there was an assembly point of a Baarat.
In the meantime, PW-1/ Bhagmal Singh came running from the same
gate and told them that the appellant had caused the injuries to the
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deceased with the ice-pick and that the deceased had become
unconscious. They handed over the appellant to the Security Officer-
Onkar Singh /PW-6 in his office. Furthermore, they hired an
Ambassador taxi and reached the spot where the deceased was lying
and the deceased was taken to the hospital. He states that in the taxi he
alongwith Mr.Sharma, PW-1/ Bhagmal Singh and other casual labour
were present, and took the deceased to Safdarjung Hospital.
56. In his cross-examination, he stated that the appellant had been
working from a long time in the hotel as a casual worker and there had
been no complaint regarding the appellant before. He also did not
recall having seen any blood stains on the ice-pick which was in the
hand of the appellant when he came to the pool side. Importantly, he
states that when PW-1/ Bhagmal Singh had come and stated that the
appellant had stabbed the deceased, the appellant denied it, but since
the appellant had the ice-pick in his hand, they assumed in the
negative and handed him over to the security. He admitted that there
was no report made by any person, other than PW1/ Bhagmal Singh,
regarding the incident. He states that at the place of the incident, he
saw the deceased lying and uttering the words ‘ mar diya’ . He states
that he did not find anyone else near the deceased. He states that even
after the death of the deceased, he did not make inquiry about the
incident nor any complaint regarding any quarrel was received from
the guests.
57. Therefore, PW-3/ Mr.Rajinder Bansal has based his entire
testimony of the involvement of the appellant in the crime on the say-
so of PW-1, whose testimony we have discussed above. He has also
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admitted that apart from PW-1, no other person reported the incident
to him.
58. The next important witness to prove the chain of circumstances
is PW-6/ Onkar Singh , Security Supervisor at Vasant Continental
Hotel. In his examination-in-chief, he states that on 23.04.2000, he
was on duty as Security Supervisor from 9 P.M. to 7:30 A.M. At
about 9:15 P.M., PW-3/ Rajinder Bansal brought the appellant in the
Security Control Room and produced an ice-pick. He states that it was
PW-3/ Rajinder Bansal who told him that the appellant had caused
injuries to the deceased with this ice-pick and that he should keep the
appellant in the control room with him in his custody. He states that
later, the police came to the Security Control Room, and he produced
the appellant as well as the ice-pick to the police.
59. In his cross-examination, he stated that there was nothing in the
hand of the appellant and that the ice-pick was in the hand of the
person who was with PW-3/ Rajinder Bansal, who was another casual
worker and whose name he did not remember. It was that person who
had given the ice-pick to him. He states that on the day of the incident
he had not seen the deceased in his injured condition. He states that, to
his knowledge, there had been no complaints about the conduct of the
appellant.
60. From the above testimony, it is apparent that again, apart from
the version of PW-1/ Bhagmal Singh, there is no other witness to the
offence. This is inspite of the fact that the offence has been alleged to
have been committed in a function where there were many persons,
including the other workers working for the hotel, present. It is also
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evident that the appellant is supposed to have not run away after
inflicting injury on PW-1/ Bhagmal Singh and the deceased, but come
to the pool side and thereafter voluntarily accompanied PW-
1/ Bhagmal Singh and PW-3/ Rajinder Bansal to the office of PW-6,
and thereafter remained there till the arrival of the police, making no
attempt to run away after committing the offence. This conduct of the
appellant also raises a doubt on the version of the above witnesses.
61. Another important witness in this regard is PW-17/ SI Rajesh
Maurya , the original IO of the case. PW-17/ SI Rajesh Maurya was
posted at P.S. Vasant Vihar on 23.04.2000. He states that on that day
at 10:20 P.M., an information was received from Safdarjung Hospital
that the deceased, a temporary staff of Vasant Continental Hotel, had
been admitted in the said hospital in an injured condition. He had
moved an application before the Chief Medical Officer (Ex.PW-17/B)
seeking permission to record the statement of the deceased, but he was
declared as unfit for giving statement by the doctor vide his
endorsement (Ex.PW-17/A). PW-1/ Bhagmal Singh , the employee of
Vasant Continental Hotel, who was conversant with the incident, met
him and his statement was recorded (Ex.PW-1/A). He further recorded
the statement of PW-3/ Rajinder Bansal . From the hospital, PW-15/ Ct.
Anand Singh , PW-1/Bhagmal Singh, and he went to the scene of the
crime on the night between 23-24.04.2000. Thereafter, they went to
the security office of the said hotel where PW-6/ Onkar Singh , the
Security Supervisor met them and produced the appellant with an ice-
pick. He further recorded the statement of PW-6/ Onkar Singh . He
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states that the appellant led them to the place of occurrence and a
Pointing-Out memo was prepared (Ex.PW-17/E).
62. In his cross-examination, he stated that at the hospital, PW-
1/ Bhagmal Singh and PW-3/ Rajinder Bansal were present on the
night of the incident. From the hospital, he had reached the scene of
the crime with PW-15/ Ct. Anand Singh and PW-1/ Bhagmal Singh at
about 1:30 A.M. He states that no one was present at that time at the
scene of the crime. When they went to the Security Officer- PW-
6/ Onkar Singh , he handed over an ice-pick which he stated that he had
received from PW-3/ Rajinder Bansal . On the day of the incident,
apart from PW-6/ Onkar Singh , PW-3/ Rajinder Bansal and PW-
1/ Bhagmal Singh , no one else was available for the questioning. He
further stated that there were no blood stains at the scene of the crime.
63. Curiously, the appellant produced Mr. Devi Dayal Garg (DW-
1), the brother of the girl who was getting married at the Hotel on the
said eventful evening. He states that he had reached the Hotel at about
7 P.M. and left at 5 A.M. the next day. He further states that the
baraat had reached the spot at about 7 to 7:30 P.M. and to the main
gate of the Hotel at approximately 9:30 to 10 P.M. He states that while
he was there, he did not get to know about any incident having taken
place. With all the commotion as has been described by PW-
1/ Bhagmal Singh , PW-3/ Rajinder Bansal , PW-6/ Onkar Singh and
PW-7/ Ramesh Bhati, it is not conceivable that no independent person
has witnessed or even heard about any incident taking place at the
function.
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64. We shall now move on to the testimony of PW-7/ Mr.Ramesh
Bhati , Security Inspector at Vasant Continental Hotel. In his
examination-in-chief, he stated that the appellant, PW-1/ Bhagmal
Singh and the deceased were on duty in a function with respect to the
assembly point of a marriage, which was going on outside the hotel
building. At about 9 or 9:15 P.M., PW-6/ Onkar Singh called him in
the Security Control Room where the appellant was made to sit. When
he asked the appellant as to what had happened, the appellant told him
that he had done a wrong and had caused injury to the deceased. He
states that the deceased was taken to Safdarjung Hospital in a taxi by
himself, PW-1/ Bhagmal Singh , PW-3/ Rajinder Bansal , and
Mr.Subodh Bhat. He states that when he asked the deceased, who was
conscious at that time, as to how he had sustained the injuries, the
deceased told him that there was an altercation between PW-
1/ Bhagmal Singh and the appellant and that he tried to intervene and
at that time, the appellant hit him with an ice-pick on the left side of
his chest.
65. PW-7 is therefore, being set up by the prosecution, not only as a
witness to whom the appellant made an extra-judicial confession, but
also as a witness to whom the deceased made a dying declaration.
66. As far as the extra-judicial confession is concerned, the
appellant is supposed to have made the same to PW-7/ Mr.Ramesh
Bhati in the room of Onkar Singh (PW-6). Interestingly, PW-6/ Onkar
Singh , does not mention in his testimony about PW-7/ Ramesh Bhati
coming to his room or the appellant making any such extra-judicial
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confession to him. The version of the extra-judicial confession being
made to PW-7/ Mr.Ramesh Bhati is, therefore, doubtful.
67. In Ramanand @ Nandlal Bharti v. State of Uttar Pradesh ,
(2023) 16 SCC 510, it was held that an extra-judicial confession, by
its very nature, is rather a weak type of evidence and requires
appreciation with a great deal of care and caution. Where the extra-
judicial confession is surrounded by suspicious circumstances, its
credibility becomes doubtful and it loses its importance. The court
generally looks for an independent reliable corroboration before
placing any reliance upon an extra-judicial confession. We quote from
the Judgment as under:
“90. Considering the admissibility and
evidentiary value of extra judicial confession,
after referring to various judgments, in
Sahadevan and Another v. State of Tamil
Nadu, (2012) 6 SCC 403, this Court held as
under:-
“15.1. In Balwinder Singh v. State of
Punjab [1995 Supp (4) SCC 259: 1996 SCC
(Cri) 59] this Court stated the principle that:
(SC p. 265, para 10)
“10. An extra-judicial confession by
its very nature is rather a weak type of
evidence and requires appreciation with a
great deal of care and caution.
Where an extra-judicial confession is
surrounded by suspicious circumstances, its
credibility becomes doubtful and it loses its
importance.”
xxxx
15.4. While explaining the dimensions of the
principles governing the admissibility and
evidentiary value of an extra-judicial
confession, this Court in State of Rajasthan v.
Raja Ram [(2003) 8 SCC 180: 2003 SCC (Cri)
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1965] stated the principle that: (SCC p. 192,
para 19)
“19. An extra-judicial confession, if
voluntary and true and made in a fit state of
mind, can be relied upon by the court. The
confession will have to be proved like any
other fact. The value of the evidence as to
confession, like any other evidence, depends
upon the veracity of the witness to whom it has
been made.”
The Court further expressed the view
that: (SCC p. 192, para 19)
“19. ... Such a confession can be relied
upon and conviction can be founded thereon if
the evidence about the confession comes from
the mouth of witnesses who appear to be
unbiased, not even remotely inimical to the
accused, and in respect of whom nothing is
brought out which may tend to indicate that he
may have a motive of attributing an untruthful
statement to the accused....”
xxxx
15.6. Accepting the admissibility of the extra-
judicial confession, the Court in Sansar Chand
v. State of Rajasthan [(2010) 10 SCC 604:
(2011) 1 SCC (Cri) 79] held that: (SCCp. 611,
paras 29-30)
“29. There is no absolute rule that an
extra-judicial confession can never be the
basis of a conviction, although ordinarily an
extra-judicial confession should be
corroborated by some other material. [Vide
Thimma and Thimma Raju v. State of Mysore
[(1970) 2 SCC 105: 1970 SCC (Cri) 320],
Mulk Raj v. State of U.P. [AIR 1959 SC 902:
1959 Cri LJ 1219], Sivakumar v. State [(2006)
1 SCC 714: (2006)1 SCC (Cri) 470] (SCC
paras 40 and 41 : AIR paras 41 and 42), Shiva
Karam Payaswami Tewari v. State of
Maharashtra |(2009) 11 SCC 262 : (2009) 3
SCC (Cri)1320] and Mohd. Azad v. State of
W.B. [(2008) 15 SCC 449: (2009) 3 SCC (Cri)
1082].””
[Emphasis supplied]
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91. It is well settled that conviction can be
based on a voluntarily confession but the rule
of prudence requires that wherever possible it
should be corroborated by independent
evidence. Extra judicial confession of accused
need not in all cases be corroborated. In
Madan Gopal Kakkad v. Naval Dubey and
Another, (1992) 3 SCC 204, this Court after
referring to Piara Singh and Others v. State of
Punjab, (1977) 4 SCC 452, held that the law
does not require that the evidence of an extra
judicial confession should in all cases be
corroborated. The rule of prudence does not
require that each and every circumstance
mentioned in the confession must be separately
and independently corroborated.
92. The sum and substance of the aforesaid is
that an extra judicial confession by its very
nature is rather a weak type of evidence and
requires appreciation with great deal of care
and caution. Where an extra judicial
confession is surrounded by suspicious
circumstances, its credibility becomes doubtful
and it loses its importance like the case in
hand. The Courts generally look for an
independent reliable corroboration before
placing any reliance upon an extra judicial
confession.”
68. As noted hereinabove, PW-7/ Ramesh Bhati has also been set up
as a person to whom the deceased made a dying declaration while he
was being taken to a hospital in a taxi. Hereagain, curiously no other
witness has spoken about the presence of PW-7/ Ramesh Bhati , while
the deceased was being taken in a taxi to the Safdarjung Hospital. In
his cross-examination, PW-7/ Ramesh Bhati states that he was
instructed by PW-6/ Onkar Singh to go to Safdarjung Hospital along
with the deceased and others. We have already observed that PW-
6/ Onkar Singh has not even spoken of the presence of PW-7/ Ramesh
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Bhati, leave alone directing him to go to the taxi stand. Curiously,
again, neither PW-1/ Bhagmal Singh nor PW-3/ Rajinder Bansal has
stated that PW-7/ Ramesh Bhati had accompanied them along with the
deceased while taking the deceased to the hospital or that the deceased
had made any such dying declaration.
69. Another reason for not relying upon the alleged dying
declaration is the medical opinion of PW-2 /Dr.Arvind Thergaonkar ,
the Chief Medical Officer at Safdarjung Hospital, who had conducted
the post-mortem on the body of the deceased on 24.04.2000 on the
request of Additional SHO, Mr.M. S. Shekhawat /PW-5. In his cross-
examination, he stated that since the injury was to the lung and to the
left ventrical of the heart, it would take a maximum of 15 to 20
minutes to accumulate about 1.5 litres of blood in the chest cavity. In
such a situation for the deceased to have made a dying declaration to
PW-7/ Ramesh Bhati appears to be very doubtful.
70. While it is settled law that dying declaration can be made the
sole basis of conviction, the court has to scrutinize the dying
declaration carefully and in case it is found to be suspicious, it should
not be acted upon without corroborative evidence. The law applicable
to a dying declaration has been explained by the Supreme Court in
Irfan @ Naka v. State of Uttar Pradesh , 2023 SCC OnLine SC 1060,
wherein it has been held that though the juristic theory regarding the
acceptability of a dying declaration is that such declaration is made in
extremity, when the party is at the point of death and when every
motive to falsehood is silenced and the man is induced by the most
powerful consideration to speak only the truth, notwithstanding the
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same, great caution must be exercised in considering the weight to be
given to such evidence, on account of the existence of many
circumstances which may affect its truth. Since the accused has no
power of cross-examination, the Courts insist that a dying declaration
should be of such a nature as to inspire full confidence of the Court in
its truthfulness and correctness. The Court should be on guard to see
that the statement of the deceased was not a result of tutoring,
prompting, or a product of imagination. The Court further held that
though there is no hard and fast rule for determining when a dying
declaration should be accepted, the duty of the Court is to decide this
question in the facts and surrounding circumstances of the case and be
fully convinced of the truthfulness of the statement. The Court also
laid down certain factors that can be considered by the Court while
weighing a dying declaration. We quote from the judgment as under:
“43. The juristic theory regarding the
acceptability of a dying declaration is that
such declaration is made in extremity, when
the party is at the point of death and when
every hope of this world is gone, when every
motive to falsehood is silenced, and the man is
induced by the most powerful consideration to
speak only the truth. Notwithstanding the
same, great caution must be exercised in
considering the weight to be given to this
species of evidence on account of the existence
of many circumstances which may affect their
truth. The situation in which a man is on the
deathbed is so solemn and serene, is the
reason in law to accept the veracity of his
statement. It is for this reason, the
requirements of oath and cross-examination
are dispensed with. Since the accused has no
power of cross-examination, the courts insist
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that the dying declaration should be of such a
nature as to inspire full confidence of the court
in its truthfulness and correctness. The court,
however, should always be on guard to see
that the statement of the deceased was not as a
result of either tutoring or prompting or a
product of imagination. [See : Laxman v. State
of Maharashtra, (2002) 6 SCC 710]
xxx
60. Since time immemorial, despite a general
consensus of presuming that the dying
declaration is true, they have not been stricto-
sensu accepted, rather the general course of
action has been that judge decides whether the
essentials of a dying declaration are met and if
it can be admissible, once done, it is upon the
duty of the court to see the extent to which the
dying declaration is entitled to credit.
61. In India too, a similar pattern is followed,
where the Courts are first required to satisfy
themselves that the dying declaration in
question is reliable and truthful before placing
any reliance upon it. Thus, dying declaration
while carrying a presumption of being true
must be wholly reliable and inspire
confidence. Where there is any suspicion over
the veracity of the same or the evidence on
record shows that the dying declaration is not
true it will only be considered as a piece of
evidence but cannot be the basis for conviction
alone.
62. There is no hard and fast rule for
determining when a dying declaration should
be accepted; the duty of the Court is to decide
this question in the facts and surrounding
circumstances of the case and be fully
convinced of the truthfulness of the same.
Certain factors below reproduced can be
considered to determine the same, however,
they will only affect the weight of the dying
declaration and not its admissibility:—
(i) Whether the person making the
statement was in expectation of death?
(ii) Whether the dying declaration was
made at the earliest opportunity? “Rule of
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First Opportunity”
(iii) Whether there is any reasonable
suspicion to believe the dying declaration
was put in the mouth of the dying person?
(iv) Whether the dying declaration was a
product of prompting, tutoring or leading at
the instance of police or any interested
party?
(v) Whether the statement was not recorded
properly?
(vi) Whether, the dying declarant had
opportunity to clearly observe the incident?
(vii) Whether, the dying declaration has
been consistent throughout?
(viii) Whether, the dying declaration in
itself is a manifestation/fiction of the dying
person's imagination of what he thinks
transpired?
(ix) Whether, the dying declaration was
itself voluntary?
(x) In case of multiple dying declarations,
whether, the first one inspires truth and
consistent with the other dying declaration?
(xi) Whether, as per the injuries, it would
have been impossible for the deceased to
make a dying declaration?
63. It is the duty of the prosecution to establish
the charge against the accused beyond the
reasonable doubt. The benefit of doubt must
always go in favour of the accused. It is true
that dying declaration is a substantive piece of
evidence to be relied on provided it is proved
that the same was voluntary and truthful and
the victim was in a fit state of mind. It is just
not enough for the court to say that the dying
declaration is reliable as the accused is named
in the dying declaration as the assailant.
64. It is unsafe to record the conviction on the
basis of a dying declaration alone in the cases
where suspicion, like the case on hand is
raised, as regards the correctness of the dying
declaration. In such cases, the Court may have
to look for some corroborative evidence by
treating the dying declaration only as a piece
of evidence. The evidence and material
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available on record must be properly weighed
in each case to arrive at an appropriate
conclusion. The reason why we say so is that
in the case on hand, although the appellant-
convict has been named in the two dying
declarations as a person who set the room on
fire yet the surrounding circumstances render
such statement of the declarants very
doubtful.”
71. In Sanjay Kumar Sharma v. State of Bihar & Ors. , 2026 INSC
223, the Supreme Court reiterated that while a dying declaration is a
very important specie of evidence, capable of proving the crime and
identifying the accused, for reliance, it should inspire confidence of
the Court as to its credibility. The Court should be satisfied that the
statement is made by the deceased without any prompting, tutoring or
coercion. If there is even an iota of suspicion, the Court has to look for
corroboration. It was held that a dying declaration recorded by a
Judicial Magistrate adds credence since they are trained to record such
declarations. We quote from the judgment as under:
“13. From a conspectus of the above
decisions, it is clear: That, a dying declaration
is a very important species of evidence
capable of proving the crime proper and
identifying the accused, an exception to
hearsay having been provided by Section 32 of
the Indian Evidence Act. That, a dying
declaration, for reliance should inspire
confidence in the Court as to its credibility.
That, the Court should be satisfied it is made
by the deceased without any prompting or
tutoring or coercion or is a mere figment of
imagination. That, then conviction can be
based solely on the dying declaration and
there is no requirement of any corroboration.
That, it can be reduced to writing or can be
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oral, as testified by reliable witnesses. That, it
can be one or numerous and if more than one;
exculpatory and inculpatory, it is for the Court
to find out which is believable. That, it can be
a lengthy one or a short one, so far as the
crime is spoken of and identification of the
perpetrator comes through. That, it can be a
single narrative or in a question and answer
form. That, it can either have a history of the
rancour between the perpetrator and the
victim or can be merely the brief statement of
the incident. That, the capacity of the injured
to make the statement, both physical and
mental, need not be necessarily certified by a
doctor and would rest again on the
satisfaction of the Court on an analysis of the
testimony of the various witnesses and the
other evidence coming forth in trial. That, if
the Court is satisfied of the fit state of mind of
the injured from the evidence on record, a
contrary medical opinion or an absence of it
will be inconsequential. That, it can be made
before a Magistrate; Executive or Judicial, a
Doctor, a Police Officer, a relative or a third
party whose presence is not doubtful. That, the
desire of the declarant to live, through the
truth despite fear of imminent death cannot be
easily brushed aside. The decisions also
caution us that if the statement is doubtful then
one or more of the above aspects could result
in the dying declaration being eschewed
completely; based on the facts of each case.
14. As a corollary, it also has to observed:
That, if there is an iota of suspicion the Court
has to look for corroboration. That, the
medical certification as to the physical and
mental state always aids in arriving at a
satisfaction. That, in the wake of multiple
grievous injuries or a higher percentage of
burns, the declaration could be in question
and answer form, lending more credence as
actually spoken of by the injured as opposed to
a long drawn out narrative, which could be
mistook as supplied by interested related
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parties. That, a dying declaration recorded by
the Judicial Magistrate, adds credence since
they are trained to record such declarations.
That, as far as possible, the recording is to be
done in the presence of the Doctor and
definitely not in the presence of numerous
bystanders; which could lead to a defence
being raised of prompting and tutoring. That,
the veracity of the declaration has to come
forth from the attendant circumstances as
brought out in evidence.”
72. In Sabbita Satyavathi v. Bandala Srinivasarao & Ors. , (2004)
10 SCC 620, the Supreme Court observed that as the deceased had
sustained incised injuries to the left lung and the heart, he would have
become unconscious almost immediately, casting serious doubt on
whether the deceased could have made any dying declaration
thereafter. We quote from the judgment as under:
“21. There is yet another reason which casts
a serious suspicion on the second dying
declaration. According to the Medical Officer,
PW-13, the injured was brought to the hospital
at about 8.45 p.m. and was alive for about 1-
20 minutes thereafter. She started the
treatment of the injured in right earnest and 5
or 6 minutes thereafter she recorded the
statement of the deceased which took about 10
to 15 minutes. According to her, at 9.15 p.m.
the patient started gasping for breath and
became unconscious. The picture that we get is
that as soon as the Medical Officer completed
recording his statement the injured became
unconscious. He is said to have ultimately died
at about 10.10 p.m. The respondents have
contended that the presence of large number
of political personalities at the hospital,
having regard to the fact that the deceased
was also a person well-known in the locality
makes it doubtful whether the statement was
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correctly recorded or recorded at all. In fact,
it is contended that having regard to the
injuries sustained by the deceased, he would
not have been in a position to make any
statement even if he was alive. He must have
become unconscious soon after suffering the
injuries and there was no question of his either
making a statement before PW-1 or before the
Medical Officer. There is substance in the
argument advanced on behalf of A-1 and A-2.
PW-13 admitted that death of the deceased
was due to injuries to vital organs such as
heart and left lung. We find from the post-
mortem report that the left lung had suffered
incised injuries at two places. Apart from the
injuries to the left lung, it was also found that
one of the injuries caused on the left side of the
chest had pierced the body to such an extent
that the ventricle of the heart also suffered an
incised injury over the anterior aspect. It
appears from the post-mortem report that the
same stab injury caused damage to the left
lung as also to the heart. This only indicates
that the stab injuries were caused to the
deceased with such great force that they not
only fractured one of his ribs but also entered
the thoracic cavity and injured the left lung
and the ventricle of the heart. With such
injuries, we entertain serious doubts as to
whether the injured could have given two
dying declarations as alleged by the
prosecution, one at about 7.00 p.m. and the
other at about 8.45-9.00 p.m. This is also
supported by the medical evidence on record
in as much as PW-13 has herself stated that if
such an injury is caused to the heart, the
injured would become unconscious
immediately. It, therefore, appears to us that
after suffering the injuries the deceased must
have become unconscious immediately. There
was, therefore, no question of his making a
dying declaration to anyone thereafter. We
also notice the fact that according to PW-1
after making a dying declaration, the accused
walked a few steps with him with his help till
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such time they got a rickshaw which carried
them to the hospital. According to the Medical
Officer, PW-13, a person with such injuries
could not walk at all even with the help of
someone else. Having regard to the sever
nature of injuries and the vital organs involved
which suffered incised injuries such as heart
and the lungs, we entertain a serious doubt
about the recording of the second dying
declaration by the Medical Officer almost two
hours after the occurrence.”
73. Now coming to the other important aspect of this case, in the
FSL Report (Ex.PW-16/E), it is reported that there was no entry mark
on the shirt of the deceased. The learned Trial Court has brushed aside
this important piece of evidence by presuming that the deceased must
have kept 2 or 3 buttons of his shirt open due to it being summer
season. We are afraid that there was no scope of any such presumption
to be drawn. In fact, on the contrary, the deceased was performing his
duty at an official function, and it is inconceivable that a hotel staff
will be improperly dressed while serving the guests of the Hotel. The
absence of the entry wound, therefore, in our opinion, places a doubt
on the weapon of offence and the manner in which it is described by
PW-1/ Bhagmal Singh .
74. On the weapon of the offence, that is, the ice-pick, the FSL
Report stated that there were no blood marks found on the same. This
also dents the case of the prosecution as the time-gap between the
incident and the alleged recovery of the weapon does not explain that
the appellant would have wiped off the blood so immaculately that
even the FSL could not find trace of it on the same. In any case, no
witness had deposed in this regard.
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75. In addition to the above, the weapon of the offence was handed
over to the police by PW-6/ Onkar Singh, to whom also the same is
handed over by an unknown person accompanying PW-3/ Rajinder
Bansal . Therefore, there is a doubt on the recovery of the weapon and
its chain of custody as well.
76. Given the above nature of evidence, in our opinion, therefore,
the learned Trial Court has erred in convicting the appellant. There
were enough doubts that remained from the testimony of the
prosecution witnesses and documents. As noted hereinabove, PW-
1/ Bhagmal Singh did not appear to be a wholly reliable witness and,
therefore, there was need for his testimony to be corroborated by other
evidence, which, in our opinion, the prosecution has failed to do to an
extent that we can move from a stage of suspicion to a stage of finding
that there could be no other person but the appellant who would have
caused the injury to the deceased.
CONCLUSION :
77. In our conclusion, therefore, the prosecution failed to prove its
case against the appellant beyond all reasonable doubt.
78. We, accordingly, set aside the judgment of conviction dated
30.07.2004 and consequently, the order on sentence dated 31.07.2004
passed by the learned Trial Court.
79. The appellant is acquitted of the charges levelled against him.
However, the bail bonds and the surety furnished by the appellant
shall stand discharged 60 days from today.
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80. A copy of this Judgment be communicated to the concerned Jail
Superintendent and the learned Trial Court for necessary information.
NAVIN CHAWLA, J
RAVINDER DUDEJA, J
OCTOBER 28, 2026/sg/hn
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