Evidence Act, 1872 – Section 32 – Statement of – Indubitably explains the circumstances resulting in the death – Even if death was not imminent when statement was recorded, it can still be used.
CORAM: HON’BLE MS. JUSTICE MUKTA GUPTA
Delivered on: May 27, 2016
KARAN ….. Appellant Represented by: Mr.Sunil Kumar, Advocate. versus STATE ( NCT OF DELHI) ….. Respondent
Represented by: Ms.Rajni Gupta, APP for the State with Inspector Birender Singh, PS Shahdara.
MUKTA GUPTA, J.
1. Aakash suffered a stab injury on July 11, 2010 in the presence of his friend Sameer PW-3 when both of them had gone to Gulshan Dhaba near Hanuman Mandir, G.T.Road, Shahdara, Delhi owned by the two brothers Raju PW-1 and Shalu PW-2. Statement of Aakash was recorded on July 12, 2010 after he underwent the surgery and was declared fit for statement. Aakash was later shifted to GTB Hospital where he died on December 27, 2010. A charge-sheet was filed against Karan, the appellant herein for offence punishable under Section 304 IPC, however while framing the charge the learned Trial Court besides framing charge under Section 304-I IPC framed an alternative charge for offence punishable under Section 302 IPC. As per the autopsy surgeon, out of 7 external injuries only injury at Sl.No.7 corresponded with the wound in the MLC and other injuries were bedsores etc., hence Karan was convicted for offence punishable under Section 307IPC and acquitted of the charges for offences punishable under Sections 304 and 302 IPC. The present appeal challenges the said judgment dated August 14, 2014 convicting Karan for offence punishable under Section 307 IPC and the order on sentence dated September 15, 2014 directing him to undergo rigorous imprisonment for a period of 5 years and to pay a fine of ₹5,000/- in default whereof to undergo simple imprisonment for 3 months.
2. Learned counsel for the appellant challenging the conviction states that both Raju and Shalu PW-1 and PW-2, the public witnesses have not supported the prosecution case as both stated that they did not see who stabbed Aakash. As per PW-1 neither he witnessed the stabbing nor his brother PW-2 as he was not present at the shop. Even PW-2 reiterates that he did not see the person who stabbed. Sameer PW-3 who supported the case of the prosecution in examination-in-chief could not withstand the cross-examination and admitted that there were 4-5 persons and he did not know who stabbed Aakash. Sameer PW-3 is not an eye-witness which is apparent from the fact that he said that Aakash was stabbed twice whereas in the MLC only one stab injury was noted. Even as per the statement of Aakash, on the basis of which FIR was registered, the stab injury is not attributed to Karan. This version of Aakash is also fortified by the fact that for 5 months no action was taken by the Police. Only after the death of Aakash, Section 304 IPC was added to the investigation and Karan was arrested. PW-2 categorically stated that even after the incident Karan continued having regular meals at their hotel. The alleged weapon of offence has not been recovered. Hence Karan is entitled to be acquitted.
3. Learned APP for the State on the other hand contends that the aberration in the statement of Aakash on the basis of which FIR was registered, was for the reason that he was not in a fit state of mind as the same was taken immediately after he was operated. Sameer has identified Karan as the assailant who stabbed Aakash even in the cross-examination and thus testimony of Sameer is sufficient to uphold the conviction. Though PW-2 stated that Karan used to visit their hotel even after the incident, however PW-1 stated that Karan did not visit the hotel after the incident. PW-8 has deposed that injury No.7 was sufficient to cause death and thus Karan has been rightly convicted for offence punishable under Section 307 IPC.
4. FIR No.396/2010 was registered on the complaint of Aakash, the injured for offence punishable under Section 324/34 IPC at PS Shahdara on a rukka sent by SI Kapil Kumar PW-14. In his statement Aakash S/o Ram Gopal stated that he was residing with his family at M.S.Park, G.T.Road, Shahdara. On July 11, 2010 at around 9.00 PM he along with his friend Sameer was going to his uncle’s house at Circular Road, Ram Lila ground. On the way he and his friend Sameer stopped for taking dinner at Gulshan Dhaba. At around 10.00 PM while they were having dinner one boy misbehaved with him. When Aakash protested, the boy engaged in a scuffle with Aakash. In the meantime few more friends of that boy came and they also started beating Aakash. Out of those boys one boy took out the knife and stabbed him due to which he got injured. His friend Sameer took him to GTB hospital where he was under treatment. He stated that he can recognise the boys and action be taken against them who gave knife blow to him.
5. In the endorsement to the rukka SI Kapil Kumar noted that he had received the MLC No.C-3241/2010 of Aakash and the Doctor has declared him fit for statement. But since the injured had been taken for the operation, his statement was recorded when the injured came back of the operation theatre. As Aakash was not giving his statement properly, after some time his statement was recorded. It is on the basis of this endorsement learned APP contends that Aakash was not in a fit state of mind when his statement was recorded, so he could not specifically state that Karan was the person who gave him the knife blow.
6. It would be appropriate to note testimony of SI Kapil Kumar in this regard who stated that when he reached GTB hospital along with Constable Krishan, he obtained the MLC of injured Aakash in which he was endorsed fit for statement. He took the statement of injured Aakash when he came out from the operation theatre. In his cross-examination he admitted that he correctly recorded the statement of injured Aakash verbatim.
7. Dr.Jatin Bodwal PW-8 who conducted the post-mortem on the body of the deceased Aakash on December 28, 2010 noted the following injuries: