Bharat v. State

14. Mr. Harsh Prabhakar, learned counsel for the appellant has carefully taken us through the record of the learned trial court which includes the record made by the police shortly after the incident.

15. The first document in this regard is the PCR form which is maintained by the police which records the details of a call actually made by the deceased Vinod Kumar himself at 7:51:27 hours (Ex. PW11/A) after he was attacked. This record notes that the caller had informed that he had been stabbed with a knife in his stomach on the Vasundara Road near the Dharamshila Cancer Hospital.

16. It appears on receipt of information, the PCR van had proceeded to the spot at and sent a report to the control room at 8:26:28 a.m. The PCR form (Ex. PW11/A) notes that the deceased had suffered injury on the right side of his stomach below his ribs; that he was conscious and that the SHO was also on the spot. This document clearly states that Vinod’s brother-inlaw (Saadu) Bharat aged about 40 years, R/o Sector-9, Noida, had inflicted the knife wound on account of prior animosity. The document also refers the time at which the Rukka was dispatched from the hospital.

17. So far as the Rukka is concerned, Mr. Prabhakar has drawn our attention to Ex. PW-3/C, which document, in fact, also notes the fact that the deceased had made the complete disclosure of the above incident to his son Praveen Kumar in the presence of PCR officials.

18. The prosecution, in fact, has placed reliance on this statement, clearly a dying declaration, which was made by the deceased to his son Praveen Kumar (PW-2). Its genuineness is supported by the fact that it stands mentioned in the Rukka (Ex. PW3/C) as well, which is the first document in this regard.

19. As to the circumstances in which this declaration was made, it becomes necessary to advert the evidence of Praveen Kumar, son of the deceased, as PW-2 and ASI Satyawan Singh (PW-5), who was in the PCR Van. It is the testimony of (PW-2) Parveen Kumar that while on a morning walk, he had received information from a cyclist about a stabbing incident which had happened near the Dharamsheela Cancer Hospital, at the side of nala. He went to the side of the nala and found that the victim who was in the PCR van by then, was Shri Vinod - his father who was in an injured condition. On inquiry from his father, as to what had transpired, his father had disclosed that he had been stabbed by PW-2’s uncle (Mausa) i.e. the present appellant who should not be spared and should be punished. Praveen Kumar had stated that this conversation was heard by the PCR officials who had flashed the message on their wireless.

20. Though effort was made on behalf of the appellant during trial as well as Mr. Prabhakar, learned counsel, before us to challenge the presence of PW-2, that is the son of the deceased, at the spot, however, we are unable to disbelieve his testimony in as much as it finds contemporaneous corroboration in oral testimony of other witnesses as well as the documents proved on record including the Rukka which has been referred to above.

21. The evidence of Praveen Kumar (PW-2) is fully supported by the oral testimony of PW-5, ASI Satyawan Singh, who was the incharge of the PCR van which had reached the spot on receipt of the message from the police control room about the incident, and moved the then injured Vinod into the van to shift him to the hospital. This witness establishes the presence of Praveen Kumar (PW-2) at the spot and his conversation with his injured father who was in the van. PW-5 also established the statement made by Vinod to PW-5, with regard to the manner in which the deceased Vinod had received the stab injury at the instance of Bharat, the appellant before us.

22. Mr. Varun Goswami, learned APP would submit that PW-5 was a truthful witness, had no reason to wrongly implicate the appellant and must be believed. Mr. Goswami, places reliance on AIR 2013 SC 3344 Pramod Kumar vs. State in support before us. With regard to the testimony of the police witness, we may usefully extract para 10 of this precedent which reads thus:- “10. …The witnesses from the department of police cannot per se be said to be untruthful or unreliable. It would depend upon the veracity, credibility and unimpeachability of their testimony. This Court, after referring to State of U.P. v. Anil Singh, State, Govt. of NCT of Delhi v. Sunil and another and Ramjee Rai and others v. State of Bihar, has laid down recently in Kashmiri Lal v. State of Haryana that there is no absolute command of law that the police officers cannot be cited as witnesses and their testimony should always be treated with suspicion. Ordinarily, the public at large show their disinclination to come forward to become witnesses. If the testimony of the police officer is found to be reliable and trustworthy, the court can definitely act upon the same. If, in the course of scrutinising the evidence, the court finds the evidence of the police officer as unreliable and untrustworthy, the court may disbelieve him but it should not do so solely on the presumption that a witness from the department of police should be viewed with distrust. This is also based on the principle that quality of the evidence weighs over the quantity of evidence.

11. Thus, the submission that the whole case should be thrown overboard because of non-examination of independent witness and reliance on the official witnesses cannot be accepted. …”

23. In our view, the prosecution has proved the dying declaration made by the deceased to his son in the presence of police officials without any doubt. The dying declaration was made very shortly after the occurrence as there was no possibility of any concoction improvement therein. No reason has been suggested as to why deceased would falsely implicate the appellant for commission of the offence or causing the injury to the deceased.

24. It is noteworthy that PW-2, the son of the deceased would be really interested in bringing the real culprit to book and would have no reason to falsely implicate the appellant who is also closely related to him.

25. The learned trial Judge has accepted the fact that the deceased had actually disclosed the circumstances in which he received the injury and its correctness. Vinod died shortly thereafter. The statement is admissible in evidence as a dying declaration under Section 32 of the Evidence Act. We see no reason to disagree with the learned trial judge.

26. In fact on acceptance of the correctness of the dying declaration, the guilt of the appellant stands established and nothing further actually remains to be examined. However, in as much as the learned counsel for the appellant has sought to challenge the other evidence led by the prosecution, we may briefly advert to the other challenge as well.

RECOVERY AND FORENSIC EXAMINATION

27. We now come to the challenge led by the appellant to the last piece of important evidence proved by the prosecution on record after his arrest on 09.12.2012. It is the case of the prosecution that the appellant made a disclosure statement (Ex. PW6/C) which was recorded by PW-36 Inspector Vijay Kumar. Pursuant to this disclosure statement, the appellant led the police to the recovery of a blood stained jersey (Ex. P[2]) from some bushes which were about 100 metres from the scene of occurrence. The appellant additionally led the police to the recovery of blood stained knife (Ex. P[3]) from the premises in Dallupura which had been tenanted by him. Mr. Prabhakar, learned counsel for the appellant has contended at some length that it is the case of the prosecution that the police had extensively scanned the scene of the occurrence on 05.12.2012 when nothing was found. It is submitted that therefore, the jersey clearly was planted piece of evidence.

28. We may note that in the instant case the name of the accused was revealed on 05.12.2012 itself by the deceased himself in his dying declaration and became known to the police very shortly after the incident. Therefore, the police may not have extensively scrutinized or thoroughly searched the place where the offence had occurred or its surroundings.

29. The evidence on record discloses that the jersey was not found lying in the open but was found lying in some bushes which were about 100 metres from the scene of the occurrence. It is not possible to doubt the recovery of the jersey for the sole reason that it wasn’t recovered on the day of the incident. We also find that the police subjected the recovered articles that is the knife and the jersey to forensic examination. The reports (Ex. PA & PB) from the Forensic Science Department have been proved on record wherein it is clearly opined that the human blood was found on both articles. It is well settled that it is neither necessary nor always possible for the prosecution to link the blood to the injury by grouping and it may be sufficient for the prosecution to establish the existence of human blood on the recovered articles.

30. The absolute proposition that recovery having been effected from an open place must be disbelieved stood rejected by the Supreme Court in the pronouncement reported at (1999) 4 SCC 370 State of Himachal Pradesh v. Jeet Singh. In this regards, it was held thus:

31. In the present case, we are unable to disbelieve the recoveries of the incriminating articles attributed to the appellant.

32. Mr. Prabhakar has also assailed the judgment on the ground that the seizure memo of the clothing of the articles of the deceased prepared by the police does not refer to the fact that the said clothing had any knife cuts. It is contended that if the incident had occurred in the manner as was alleged by the police, the articles would have been having knife cuts.

33. The record placed before us would show that the clothes (including shirt, sweater and vest) of the deceased were removed by the medical officer who had examined the deceased, upon his being brought to the casualty of Lal Bahadur Shastri Hospital, Khichripur, Delhi. This fact is duly recorded in his MLC (Ex.PW-12/A). It is these clothes which were passed on by the duty constable Sanjeev (PW-26) to SI Jagdish Kumar (PW-3), the then Investigating Officer of the case, whereupon the said articles were taken into possession vide seizure memo (Ex.PW-3/A). Noticeably, the shirt of the deceased at the time of the seizure, passed on to the Investigating Officer, was contained in a parcel which had already been sealed by the hospital administration. In these circumstances, the absence of any mention about existence of cut marks on the seizure memo by the police is inconsequential. Extra Judicial Confession

34. The matter did not end with the making of the dying declaration by the deceased. It appears that the appellant also became remorseful of his conduct as the prosecution has led evidence of extra judicial confession made by him to his friend Baljeet @ Ballan (PW-6) and regret shown by him to his sister. It is in the testimony of Sh. Baljeet @ Ballan (PW-6) that on 06.12.2012 at about 7.00 a.m. the appellant came to his Jhuggi and requested Baljeet’s mobile phone on the pretext that he wanted to call his sister urgently. The witness has testified that PW-6 was using mobile which was actually registered in the name of his younger brother, from which he permitted the appellant to make the phone call to his sister. In this conversation, the appellant sought forgiveness for the mistake that he had committed in murdering his co-brother-in-law. It is in the evidence of PW-6 that when he enquired from the appellant as to what had happened, whence the appellant unequivocally declared that he had murdered his co-brother-inlaw Vinod by inflicting a knife injury. After making this declaration, the appellant is stated to have run away from the spot. This witness further claimed that the appellant had thereafter returned to his (Baljeet’s) Jhuggi on 09.12.2012 at about 5 p.m. and requested him for some food. He made the appellant to sit in his Jhuggi and went out under the pretext that he was going to arrange some eatables from the market. Thereafter, PW-6 informed the police. The police reached there and the appellant was apprehended.

35. Mr. Harsh Prabhkar, learned counsel for the appellant, has assailed the veracity of the extra judicial confession contending that the prosecution had failed to secure easily available corroboration of this testimony by proving the full chain of call records to establish that a call was actually made by PW-6 to his sister. In our view, nothing turns on the call records in as much as PW-6 would have heard only one side of the conversation which would have been the appellant’s utterances. In any case, the witness Baljeet @ Ballan clearly stated that independent of the call to his sister, the appellant had made a full confession to him as well. This witness has also withstood cross-examination. His testimony stands corroborated from the arrest of the appellant as well.

36. In support of the contention, that an extra judicial confession forms a valuable piece of corroborative evidence, Mr. Varun Goswami, learned APP has placed reliance on the pronouncement of the judgment of the Supreme Court reported in (2012) 6 SCC 403 Sahadevan and Anr. Vs. State of Tamil Nadu. In paras 15 and 16 of this pronouncement, the Supreme Court has authoritatively laid down the principles which apply to the weight it is to be attached to an extra judicial confession. We extract the same hereunder: “…15. Now, we may examine some judgments of this Court dealing with this aspect. 15.[1] In Balwinder Singh v. State of Punjab, [1995 Supp. (4) SCC 259], this Court stated the principle that:

The Court, further expressed the view that: “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…”

15.5. In the case of Aloke Nath Dutta v. State of W.B. [(2007) 12 SCC 230], the Court, while holding the placing of reliance on extra-judicial confession by the lower courts in absence of other corroborating material, as unjustified, observed:

15.7. Dealing with the situation of retraction from the extrajudicial confession made by an accused, the Court in the case of Rameshbhai Chandubhai Rathod v. State of Gujarat [(2009) 5 SCC 740], held as under:

16. Upon a proper analysis of the above-referred judgments of this Court, it will be appropriate to state the principles which would make an extra- judicial confession an admissible piece of evidence capable of forming the basis of conviction of an accused. These precepts would guide the judicial mind while dealing with the veracity of cases where the prosecution heavily relies upon an extra-judicial confession alleged to have been made by the accused. i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution. ii) It should be made voluntarily and should be truthful. iii) It should inspire confidence. iv) An extra-judicial confession attains greater credibility and evidentiary value, if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence. v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities. vi) Such statement essentially has to be proved like any other fact and in accordance with law…” (Emphasis by us)

37. Baljeet @ Ballan (PW-6) was a friend of the appellant. It is not urged that he was inimical to the appellant in any way. No suggestion to this effect has been pointed out. The appellant’s visit to PW-6’s jhuggi seems to be in normal course and natural. The appellant also appears to have made the extra judicial confession voluntarily and in a fit state of mind. The same is supported by the other evidence noted by the trial court and by us here, and does not suffer from any discrepancies or improbabilities. The utterances of the appellant to and before PW-6 have been duly proved in accordance with law.

38. The testimony of the witness in Court was unassailable at the instance of the appellant. We may also note that the witness PW-6 had also made a statement under Section 164 of the Cr. PC on 05.02.2013 (Ex. PW6/D) which was on the same lines as his deposition in court. In view of the above, the extra judicial confession attributed to the appellant clearly further implicates him and supports the other evidence led by the prosecution in support of this contention.

39. In view of the above, the appeal is dismissed.

40. Let the LCR be returned forthwith.

41. Copy of this judgment be sent to the convict through the Jail Superintendent.

(GITA MITTAL) JUDGE (R.K. GAUBA) JUDGE July 12, 2016 nk