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Om Parkash Alias Billu Bhatia Vs. the State - Court Judgment

LegalCrystal Citation
CourtDelhi High Court
Decided On
Case NumberCriminal Appeal No. 16 of 1978
Reported in15(1979)DLT277
ActsIndian Penal Code (IPC), 1860 - Sections 307; Code of Criminal Procedure (CrPC) , 1973 - Sections 161; Evidence Act, 1872 - Sections 32(1)
AppellantOm Parkash Alias Billu Bhatia
RespondentThe State
Advocates: A.N. Mulla,; A.C. Azad and; K.K. Sud, Advs
Cases ReferredTapinder Singh v. State of Punjab and
.....under section 302--injured died after 5 days--accused arrested and convicted on the basic of dying declaration--conviction can be sustained on the basis of dying declaration alone.; om parkash inflicted several knife injuries to rohtas on 11-7-1977. injured immediately removed to hospital. case registered under section 307 indian penal code. investigating officer recorded dying declaration and also statement under section 161 criminal procedure code of rohtas on 13-7-1977. dying declaration attested by the doctor. injured died on 16-7-1977. case converted to one under section 302 indian penal code. appellant convicted and sentenced for offence of murder.; (ii) evidence act (1872) - section 32(1)--scope of.; that conviction can indubitably be based on a dying declaration if on..........foot of the statement. this statement (ex. public witness 12/a) which ulimately converted into a dying declaration, inter alia, contained the name of the assailant, viz: billu bhatia. (8) the appellant was arrested on 13-7-77 in jahangir pun colony. it is alleged that, at the time of his arrest, two keys were recovered from his pocket, which were taken into possession by preparing a recovery memo. it is further alleged that the appellant made disclosure statement ex. public witness 13/d to the effect that he was keeping the dagger in the dickey of his scooter and that he could get the same recovered. with the help of said keys, it is alleged that the appellant got recover dagger ex. p1 from the dickey of his scooter. it was taken into possession by preparing a recovery memo. (9) as a.....

F.S. Gill, J.

(1) This appeal is directed against the judgment of Shri J. D. Jain, Additional Sessions Judge, Delhi, whereby he convicted the appellant under section 302 of the Indian Penal Code and sentenced him to undergo imprisonment for life.

(2) On 11-7-77 at about 10 P.M. Rohtas (since deceased) met Raj Kumar alias Raje near Clock Tower, Subzi Mandi, Delhi. Both of them then came towards Tilak Chowk and sat near the shop of Lachhman Halwai. When they were talking to each other, it is alleged 0m Parkash alias Billu Bhatia appellant came there from behind and started shouting at Rohtas by saying that he was trying to behave like a big 'dada'. After uttering the strong words, he attacked Rohtas with a knife and inflicted several injuries on his back, hip and left knee, etc. It is further alleged that on seeing the attack having been made on the appellant, Raje Public Witness had run away from the scene.

(3) After receiving the injuries, Rohtas started running towards his house. At the same time he was raising hue and cry to solicit help. Piarey Public Witness met him in the way. Seeing his condition, he immediately removed him to Hindu Rao Hospital in a taxi. Rohtas was admitted as an indoor patient by the Casualty Medical Officer.

(4) At that time constable Sukhbir Singh was on duty in the hospital. He reported the admission of the injured to the Subzi Mandi Police Station on telephone. A report to that effect was entered in the Daily Diary. S. I. Nahar Singh was entrusted with the case. He immediately reached the hospital, along with constable Kanwar Pal and obtained the medico-legal certificate of the injured. He then approached the doctor for permission to record the statement of Rohtas but was declined the request on the ground that the injured was not fit for making any statement.

(5) While in the hospital, S. I. Nahar Singh sent report Ex. Pw 18/A1 to the Duty Officer in the Police Station. On receipt of the same, F.I.R. Ex. Public Witness 19/A was recorded and a case under section 307 of the I. P.C. was thus registered. S. I. Nahar Singh, however, continued with the investigation.

(6) On the morning of 13-7-77, the Investigating Officer again approached the doctor for recording the statement of Rohtas, but he was informed that the injured was not in a fit condition for being examined. On the same day when he approached for the second time. Dr. A. Chaturvedi declared the injured fit for making the statement. At the same time Dr. Chaturvedi deputed Dr. J. K. Narang to accompany the Investigating Officer and be present at the time of the examination of the patient.

(7) S. I. Nahar Singh recorded the statement of Rohtas injured. It was signed by the maker and a certificate to authenticate the same was also given by Dr. Narang at the foot of the statement. This statement (EX. Public Witness 12/A) which ulimately converted into a dying declaration, inter alia, contained the name of the assailant, viz: Billu Bhatia.

(8) The appellant was arrested on 13-7-77 in Jahangir Pun Colony. It is alleged that, at the time of his arrest, two keys were recovered from his pocket, which were taken into possession by preparing a recovery memo. It is further alleged that the appellant made disclosure statement EX. Public Witness 13/D to the effect that he was keeping the dagger in the dickey of his scooter and that he could get the same recovered. With the help of said keys, it is alleged that the appellant got recover dagger EX. P1 from the dickey of his scooter. It was taken into possession by preparing a recovery memo.

(9) As a result of the injuries, Rohtas died in the hospital on 16-7-77 at about 2.45 P.M. Dr. L. P. Rehmani performed the post-mortem examination of the dead body and found the following external injuries :

1.I stitched would 11/2 long, placed vertically on the right side of back 1' lateral to the midline at the level of 12th Thoracic Vertebra. 2. I stitched wound 9' long placed obliquely in the right rennal angle with corrugated rubber drainage tube coming oat (possibly operational). 3. I stitched wound 2' long placed transversely on the postero lateral aspect of left knee. 4. I stitched wound 21/2' long placed obliquely transversed on the left gluteal area. 5. 2 stitched wounds 11/2' long each, placed horizontally on the left inguinal area (vene section). 6. An abrasion 11/2' X 1/4' on the right leg shin.

The doctor opined that all the injuries were ante-mortem, but injury No. 2 was operational, whereas injuries Nos. 1, 3 and 4 had been caused by a sharp-edged weapon, while injury No. 6 by blunt force. He considered injury No. 1 to be sufficient to cause death in the ordinary course of nature. The death was stated by him to be due to shock and haemorrhage resulting from the above injuries.

(10) After the completion of the investigation the appellant was challenged in the court of a Magistrate, who committed him to Sessions. The learned Additional Sessions Judge convicted and sentenced the appellant as already indicated in para 1 ibid.

(11) According to the prosecution there were two eye witnesses in this case, namely, Lachhman Dass and Raje, Public Witness s, but both of them were declared hostile. They had been cross-examined by the Additional Public Prosecutor and were confronted and contradicted with their statements made before the police. Another important witness is Piarey, who had met the deceased when he was in an injured condition. He got admitted Rohtas in Hindu Rao Hospital. In the court he has stated that he had found Rohtas lying injured in Bhim Gali and had removed him to the hospital in a taxi for his admission there. He has not said anything incriminating against the appellant. He too was declared hostile and was confronted with his statement before the police for the purposes of contradiction.

(12) The fate of this case, thereforee, principally hinges on the dying declaration EX. Public Witness 12/A. It will, of course, be examined whether or not the said declaration receives any corroboration on material points from the other evidence on record.

(13) For the proper appreciation of the various contentions advanced on behalf of the parties, it seems necessary to reproduce the dying declaration here. It reads :

'SHRIRohtas S/o Shri Parma aged 22 years R/o 597 Gali Robin. Cinema Wali, Subzi Mandi, Delhi, made the following statement: I reside at the above mentioned address. On 11-7-77, I was coming from Gonda to my house at Subzi Mandi. Rajje, who resides near Tilak Chowk, who is my friend, met me at Ghanta Ghar Subzi Market. I and Rajje came towards Tilak Chowk, while talking and sat in front of the shop of Lachhman. During that time at about 10.20 P.M. Billu Bhatia came from behind and gave many knife blows to me while saying that I posed to be a Dada. The blows hit me on my back, left hip and near my left knee. Rajje fled away from the spot on seeing me being attacked with knife. I rushed towards my house while crying. Pyare met me on the next chowk, who removed me to Hindu Rao Hospital in a taxi. I have heard the statement and the same is correct. 'Y' sd/- Rohtas Attested by : 'Z' (in Hindi) Nabar Singh S.I. 13-7-1977 Certified that this statement is taken in my presence. sd/- Dr. J. Kamal Narain 13-7-77 (in English)'

Now we proceed to look into the above declaration both closely and critically. Sub-section (1) of Section 32 of the Indian Evidence Act is the relevant provision dealing with dying declarations. It is as under:

'WHENthe statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.'

It is not disputed that a dying declaration is like any other evidence and is admissible although it is not tested by cross-examination. If the declaration, on scrutiny is truthful and reliable, conviction can indubitably be based on the same. But if the court feels that it is not wholly reliable or integral part thereof is not entirely true, it may receive further corroboration from rest of the evidence, otherwise being partly unreliable it would be unsafe to convict a person on its strength.

(14) The basic principles governing the mode of appraising the intrinsic value and efficacy of a dying declaration have been most lucidly and elaborately enunciated in Khushal Rao v. State of Bombay, Air 1950 SC 22. A relevant portion there from is quoted below :

'ITcannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated ; each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence ; a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence ; a dying declaration which has been recorded by a competent magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character, and in order to test the reliability of a dying declaration, the Court has to keep in view, the circumstances, like the opportunity of the dying man for observation, whether the capacity of the man to remember the facts stated, had not been impaired at the time he was making the statement, by circumstances beyond his control ; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it ; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties.'

It is further laid down therein that :

'INorder to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination. But once, the Court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration. If, on the other hand, the court, after examining the dying declaration in all its aspects, and testing its veracity, has come to the conclusion that it is not reliable by itself, and that it suffers from an infirmity, then, without corroboration it cannot form the basis of a conviction. Thus, the necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, but from the fact that the Court, in a given case, has come to the conclusion that that particular dying declaration was not free from the infirmities.'

How far the evidence of a particular case satisfies the above tests, always poses one of the most vital and momentous question for determination.

(15) In the present case Mr. A. N. Mulla has contended that the dying declaration Ex. Public Witness 12/A is neither reliable nor trustworthy and, thereforee, it is not sufficient to maintain the conviction. It is also argued that this declaration is of a weak type as it had not been made before a Magistrate. Instead it had been recorded by the Investigating Officer himself. It is thus canvassed that its recording by a police officer makes its contents suspicious. In our view the mere fact that this dying declaration had been recorded by a police officer does not ipso facto make it unreliable. It can be believed if it is otherwise trustworthy and satisfies the legal requirements. It is well settled that a dying declaration can be made before any person including a police officer. In order to hold it authentic, it has, however, to be scrutinised and determined whether in the circumstances of a given case it would be credible.

(16) In this case we find that the deceased got the injuries on 11th July 1977 at about 10.30 P.M., while the dying declaration was recorded on 13th July 1977 at about 3.30 P.M. It is amply proved that Rohtas was admitted in Hindu Rao Hospital by Piarey at about 10.50 P.M. on 11th July 1977 (See statement of Dr. Mini Seth Public Witness 1). Dr. Seth had referred the injured to the Surgical Side Emergency Ward as is evident from report Ex. Public Witness 1/A. Rohtas was immediately attended to and was given the requisite medical aid. When approached by the police officer, the Doctor informed him that the injured was not in a; fit condition to make a statement. The Investigating Officer (S.I. Nahar Singh) met the doctors a number of times in an effort to examine Rohtas but every time he was told that the patient was unfit to make the statement.

(17) On 13th July 1977 at about 9.30 A. M., when the 1.0. enquired from Dr. Ashok Chaturvedi (Public Witness 2), he was informed that Rohtas was still unfit to make any statement, but later on the same day at 3.30 P.M. when approached again, Dr. Chaturvedi gave clearance to him by declaring that Rohtas was fit for examination. This fact was duly recorded in the medico-legal certificate Ex. Public Witness 1/A, ate is evident from the entry appearing therein. Dr. Chaturvedi had also deputed Dr. J. K. Narang Public Witness 12 to be present when the statement of the injured was to be recorded by the Investigating Officer.

(18) S.I.NAHAR Singh recorded the dying declaration Ex. Public Witness 12/A in the presence of Dr. Narang. It was signed by the deceased and was attested by the scribe i.e. Sub-Inspector Nahar Singh. At the foot of the statement a certificate was also appended by Dr. J. Kamal Narang to the effect that the statement had been taken in his presence. These are proved facts.

(19) The learned counsel for the appellant has contended that no dying declaration had actually been recorded and that the one purported to have been written was a forged document prepared by the police in connivance with Dr. Narang. We are constrained to observe that there is no basis for making such a sweeping and tempestuous allegation. From the medical record Ex. Public Witness 1/A we find that Dr. Chaturvedi had certified at 3.30 P.M. about Rohtas's fitness and thereafter Dr. Narang had accompanied the Investigating Officer, not of his own volition, but under the directions of his senior doctor (Dr. Chaturvedi). Thenceafter the statement of the injured was recorded. Dr. Chaturvedi has testified as Public Witness 2 that he had directed Dr. Narang to go with the 1.0. and be present when the patient would be examined. There is absolutely no reason to disbelieve Dr. Chaturvedi or Dr. Narang on this account.

(20) It is most uncharitable for the learned counsel for the appellant to impute such a malicious motive about the conduct of the doctors, who were solely functioning to discharge their duties. There was no reason for them to involve themselves in the manner it is alleged. Whatever they were doing, it was in the due discharge of their duties. In our view the statements of Dr. Chaturvedi and Dr. Narang are absolutely credible. They in fact lend an assurance to the fact that the dying declaration was recorded by S.I. Nahar Singh at the appointed place and time and that the deceased was in a fit state of mind while making the same.

(21) The other attack made by the appellant's counsel is about the genuineness of the dying declaration. He has also questioned the manner of its recording and language employed by the deceased. In particular he has referred to the opening sentence of the statement, which is to the effect: 'I reside at the, above-mentioned address'. It is argued that this stanza could not be in the words and language of the deceased. We find no force in this contention. It will be noticed that the complete residential address of the maker of the statement had been recorded earlier where he gave his name and parentage. Instead of repeating the place of residence, it was quite natural that a reference to the same was made in the opening part of the statement. A mere perusal of the statement would show that all the facts relating to the occurrence had been narrated there in a very coincisie and spontataeous manner. The declaration is not only lucid and precise but also contains the requisite details of the incident. We thus find no substance in the contention of Mr. Mulla and repel the same.

(22) It may be observed here that there is no statutory form prescribed for recording a dying declaration. It can, thereforee, be recorded in any manner and by any person. In the present case we find it to be very natural, coherent and truthful. No material discrepancy or infirmity has been pointed out by the learned counsel to detract its value. The whole incident has been narrated without embellishment and without making any effort to inculpate innocent persons.

(23) We further notice that throughout Rohtas had been under the care and attention of the various doctors on duty. There was hardly any opportunity for others to meet and brief him. The statement was made by the deceased when he was fully conscious. It had been certified by the doctors that the injured was in proper frame of mind and was fit to make the statement. The circumstances leading to his death were fully described by him. Time, place and even name with sub-caste to identify the appellant had been explicitly stated. He had clearly mentioned the assailant as Billu Bhatia. From the circumstances appearing on the record we are satisfied that no one had prompted the deceased to make the statement in question. It had been made without any aid or interference. In our view dying declaration Ex. Public Witness 12/A reflects the facts truly as noticed and experienced by the maker. There is absolutely no valid ground to doubt its authenticity.

(24) Dying declaration in this case is a singular document, which serves as a pillar of strength to the prosecution. It has remarkably stood the fury and criticism to which it was subjected by the appellant's counsel, while applying the various tests during the course of arguments. The following observations made by the Supreme Court in Tapinder Singh v. State of Punjab and another, : 1970CriLJ1415 will also fortify our view :

'Adying declaration is admitted in evidence on the principle of necessity. The fact that it is not tested by cross-examination on behalf of the accused merely serves to put the Court on its guard by imposing on it an obligation to scrutinize all the relevant circumstances. If the dying declalration is acceptable as truthful then even in the absence of other corroborative evidence the Court can act upon it and convict the accused.'

Some, but significant, corroboration is also lent by the statements of Lachhman Halwai (Public Witness 3) and Piarey (Public Witness 14). The former has stated that he had heard the desperate cries 'Mar Diya, Mar Diya' when the victim was calling for help. He has further added that he had heard that Billu had inflicted knife blows to Rohtas, but did not hear that Billu Bhatia had done so. On the other hand Piarey has deposed that he had picked up Rohtas from the Gali, where he was lying injured and had taken him to the hospital in a taxi. He has also stated that there were two Billu Bhatias in the locality. We feel that instead of one he has stated two persons with this name with the obvious object of helping the present appellant.

(25) The above parts of the statements of Lachhman and Piarey do support the prosecution case to some extent and assure its truthfulness. Apart from this, we have already discussed the unimpeachable evidence of the various doctors to prove the genuineness of the dying declaration (Ex. Public Witness 12/A).

(26) After the arguments had been almost concluded, Mr. Mulla, the learned counsel for the appellant waived a paper by holding it in his hand and stated that it was a copy of the statement of Rohtas deceased made by him under section 161 of the Criminal Procedure Code . and which had been supplied to his client along with other documents relied upon by the prosecution. He pointed out that it is a verbatim copy of the dying declaration Ex. Public Witness 12/A and that its existence has devalued the declaration. We find no merit in this contention. There is no doubt that at the time the police files a report under section 173 of the Criminal Procedure Code ., copies of the documents, on which reliance is placed, are supplied to the accused and that copy of the statement of the deceased recorded under section 161 of the Criminal Procedure Code . had also been given in that process. It may be observed that at the time the statement Ex. Public Witness 12/A was recorded, the Investigating Officer was in the midst of the investigation of the case and that as enjoined by law, he was bound to record the statement of Rohtas injured under section 161 Criminal Procedure Code .

(27) It will be relevant to note here that no question regarding this statement under section 161 Criminal Procedure Code . was put to S.I. Nahar Singh when he appeared as a prosecution witness. He was not even asked at what time he had examined the injured. The learned counsel for the appellant cannot build an argument without having put any question touching this point and affording the Investigating Officer an opportunity to explain as to why and when he had recorded the statement in question.

(28) Admittedly, the prosecution has not utilised the statement under section 161 of the Criminal Procedure Code . as a dying declaration. It is not disputed that a police statement does become a dying declaration if the maker thereof dies. We do not find any force in the contention that merely because a copy of the statement of the deceased made under section 161 of the Criminal Procedure Code . had been supplied to the accused, the dying declaration Ex. Public Witness 12/A, which had been duly proved, had ceased to have any value. In our view the supply of the copy of such a statement does not at all advance the case of the appellant. On the other hand it is a good ground in favor of the prosecution to show its fairness by indicating that it had not tried to withhold any important document. We accordingly consider the argument without any substance and treat the factum of the supply of the copy of the statement under section 161 as redundant for our present purposes. Such a statement could either be used for the contradiction of a subsequent statement of the maker and if he dies, it would become a dying declaration. This statement, either whole or in part cannot be used by the accused unless it had been proved according to law. The mere recording of such a statement or supplying a copy thereof does not in any manner minimise the value of the declaration Ex. Public Witness 12/A as it does not cause any adverse dent.

(29) A dying declaration under section 32(1) of the Indian Evidence Act or a statement under section 161 of the Criminal Procedure Code . could be simultaneously recorded. There is no illegality in preparing these documents contemporaneously.

(30) In our view the legal requirements for believing the dying declaration stand fully established. No infirmity has been pointed out to detract its value. Rohtas deceased had made the statement when he was in a fit state of mind. It was spontaneous in character and had been made without any external aid or influence. The deceased had no earlier occasion to make any statement. The contents of the statement also go to show that it is a true version of the deponent taken down in his language.

(31) For the reasons stated above we find no merit in this appeal. It is accordingly dismissed and the conviction and sentence of the appellant are affirmed.

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