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2017 DIGILAW 877 (DEL)

Anil Kumar v. State

2017-03-09

ANU MALHOTRA, GITA MITTAL

body2017
ORDER : Crl. M. (Bail) 2268/2016 1. We have heard learned counsel for the appellants as well as the learned APP for the State. 2. It is pointed out by the learned counsel for the appellant that the prosecution has primarily relied on a dying declaration which has been claimed to have been recorded by ASI Abhinandan (PW-16) at Safdarjang Hospital, late in the night of 10th April, 2010. It is contended by the learned counsel for the appellant that it is the case of the prosecution itself that the deceased was badly burnt and was in a critical condition when she was removed to the hospital. 3. Our attention is drawn to the MLC No.30326 (Ex.PW-19/A) which was prepared on 10th April, 2010 when the deceased was rushed to the hospital after receiving burns by the appellant and his relatives. In this MLC, it has been noted that the general condition of the deceased was critical; she was disoriented and semiconscious; her pulse was running at 110 per minute and; she was having low blood pressure at 100/60 mm Hg. 4. Learned counsel for the appellant would contend that apart from the deceased being absolutely unfit to make any statement, further more, there is doubt in her fitness as allegedly recorded by Dr. Shilpi (PW-9) on the application dated 10th April, 2010 submitted by ASI Abhinandan. It is further submitted that this fitness has been endorsed as having been given on 10th April, 2010 at 1:45 p.m. whereas the incident of burning took place in the evening of 10th April, 2010. Learned counsel would contend that the alleged dying declaration recorded by ASI Abhinandan (PW-16) also fails to comport with the requirements of the Rules on the subject, inasmuch as the same has not been witnessed or attested by any doctor or any other person and the manner in which the toe impressions of the deceased appears, it suggests that the toe impressions were taken on a blank paper and the statement scribed thereon subsequently. 5. It is further contended by the learned counsel for the appellant that the last portion of this declaration clearly appears to have been forcibly accommodated in the space which remained available above the toe impressions. 6. In the above facts and circumstances, the appellant has made out an arguable case in support of his appeal. 7. 5. It is further contended by the learned counsel for the appellant that the last portion of this declaration clearly appears to have been forcibly accommodated in the space which remained available above the toe impressions. 6. In the above facts and circumstances, the appellant has made out an arguable case in support of his appeal. 7. The nominal roll of the appellant shows that as on 10th February, 2017 he has been in jail for more than six years and eight months. 8. In view of the above, it is directed as follows: (i) Subject to the appellant furnishing a personal bond in the sum of Rs.15,000/- with one surety of the like amount to the satisfaction of the learned Trial Court, the remaining sentence of the appellant shall remain suspended during the pendency of the appeal; (ii) prior to his release, the appellant shall furnish the address as well as the mobile phone number which he would be using and the phone number of a close relative to the SHO of Police Station Nangloi. In case of any change in either his telephone number or address, the appellant shall keep the SHO of Police Station Nangloi informed of the same; (iii) during the pendency of the appeal, the appellant shall report at any time during day light hours on the second or the fourth Saturday of the month to the SHO of Police Station Nangloi commencing from 25th March, 2017 and; (iv) the appellant will not get in touch with any of the witnesses in the case or the relatives of the deceased. The application is allowed in the above terms. Application allowed.