Mohd. Islam vs State (Nct Of Delhi)
2001 Latest Caselaw 743 Del

ORDER

Usha Mehra, J.

1. A document as valuable as a dying declaration is supposed to be fool-proof, it must incorporate the particulars which it is supposed to contain. A dying declaration enjoys almost a sacrosanct status as a piece of evidence as it comes from the mouth of a person who is about to die and at that stage of life he is not likely to make a false statement.

2. Keeping the above principle of law in view, we have to see whether on the basis of statement made by the deceased Mohd. Zafar Imam @ Pan Babu aged about 15 years vide Ex.PW-17/A, conviction and sentence of the appellant can be sustained. Whether the statement of the deceased recorded by the Investigating Officer (in short the I.O.) vide Ex.PW-17/A enjoys the status of a dying declaration? Is it a foolproof evidence to prove that it was the appellant who burnt the deceased by pouring Kerosene oil on the deceased on 6th April, 1994?

3. Challenge to the impugned order of conviction and sentence is primarily on the grounds; (i) that the dying declaration Ex.PW-17/A recorded of the deceased Mohd. Zafar by the I.O. is not admissible in the evidence because Dr. Neeraj Gupta the doctor on duty who declared the deceased to be fit to make the statement had not been examined; (ii) the MLC has not been proved as per requirement of law; (iii) the alleged dying declaration was neither recorded by the SDM nor by the doctor on duty. Moreover, such a lengthy dying declaration could not have been made by the person who had 95% to 97% burns; (iv) that the independent witnesses have not supported the case of the prosecution. There being no eye witness to the incidence of burning the mere fact that deceased was employed by the accused by itself is no circumstance to hold the appellant guilty. Hence conviction is bad in law; (v) that there was no motive to kill the deceased; lastly (vi) the alleged absconding of the accused and the subsequent arrest from the place as shown by the I.O. had not been supported by the independent witnesses.

4. Prosecution's case in short is that accused was running embroidery workshop on the second floor of house No. 4506, Lambi Gali, Kucha Pandit, Hauz Qazi, Delhi. That the deceased was employed with the accused. Deceased wanted to go back to his native place in Bihar hence demanded his salary from the accused. Accused was not interested to relieve him at that time because he wanted him to complete the work which was entrusted to him. When the deceased insisted for the money and of going to his home town the accused got annoyed. He set him on fire on 6th April, 1994 at about 9.45 PM on the second floor of house No. 4506, Lambi Gali, Kucha Pandit, Hauz Qazi, Delhi, by pouring kerosene oil. The deceased was rushed to JPH Hospital by one Mustaz Ahmad (PW-3). The PW3 at the relevant time was running a shop at 4511, Lambi Gali, Hauz Qazi, Delhi. The deceased was taken to the hospital at 11.00 PM. Dr. Neeraj Gupta was on duty. According to alleged history given to Dr. Neeraj Gupta and as recorded on MLC Ex.PW-1/A the deceased was burnt by Islam by pouring kerosene oil. When the alleged history was recorded by Dr. Neeraj Gupta the deceased was conscious. At about 12.05 AM on the intervening night of 6th and 7th April, 1994, Dr. Neeraj Gupta declared the deceased to be fit to make the statement. Accordingly the statement of the deceased was recorded by the Investigating Officer, Insp. Roshal Lal (PW-17). In the said statement the deceased implicated the appellant herein who according to the deceased poured kerosene oil and set him on fire. On the basis of the said statement of deceased, accused was arrested and challan was filed in the Court.

5. Prosecution examined number of witnesses. Those have been categorised by the learned Addl. Sessions Judge in three categories namely formal witnesses, eye witnesses and the material witnesses.

6. Since no one saw deceased being burnt by the accused, therefore, we have to see what circumstantial evidence had been produced to prove the guilt of the accused. Before we deal with each of the circumstance, we are conscious of the fact that motive plays important role in a case based on circumstantial evidence.

7. In order to prove motive, prosecution examined Fazle Haq (PW-5) father of the deceased. He not only identified the dead body of his son but also testified that his son Zafar Imam was employed with the accused Mohd. Islam since 1993. Deceased had not been paid his wages for the last 6 to 7 months. He denied the suggestion that deceased never wrote to him about the non-payment of wages by the accused. The fact that the deceased had demanded wages from the accused even on the morning of 6th April, stood corroborated by the testimony of Mr. Ataullah (PW-8). Though PW-8 was declared hostile on other points yet in cross-examination by the APP he admitted this fact which admission is admissible in law. He said:

"Mohd. Zafar wanted to go back to his native village and asked accused Mohd. Islam for money for the labour work he has done in the factory being run by the accused Mohd. Islam. He was told by the accused that since he has lot of orders in the hands of the accused, he can go after two weeks but Zafar is insisting to go. Mohd. Islam tried to raise money from the market but he could not arrange the same and informed Mohd. Zafar that he will arrange the money tomorrow and he can go to his village."

8. Mr. Attaullah (PW-8) was co-employee of the deceased at the relevant time. he was thus the best person to know as to what transpired on that fateful day. Ataullah (PW-8) might not have supported the case of the prosecution in toto but the admission on this aspect fully support the case of the prosecution. It establishes motive of the accused to do away with the deceased because accused got annoyed with deceased as the later insisted on going to his native village and demanded money. It led the accused taking this drastic step on the fateful night of 6th April, 1994. The fact that deceased demanded his salary in order go to back home and accused insisting not to go till he completed the work and that he had not been able to arrange money from the market stood established from the testimony of Ataullah (PW-8). The insistence on the part of the deceased enraged the accused which led to the dispute is a sufficient indication of the motive on the part of the accused to take the life of the deceased.

9. The next question for consideration is, whether the appellant poured kerosene oil on the deceased? To prove the guilt of the accused prosecution examined Mustaz Ahmad (PW-3), Asgar Ali (PW-7) and Ataullah (PW-8). All these witnesses admittedly on one or the other aspect turned hostile, however, their testimonies and the extent which lend support to the case of the prosecution can be relied upon. Asgar Ali (PW-7) and Ataullah (PW-8) tried to save the accused by building alibi for the accused but the circumstance which have come on record falsify this version. They have not been able to prove the alibi to the hilt. Hence the plea of alibi set up by these witnesses appears to be false for the reason that the deceased got burnt at about 9.45 PM on the 2nd floor of house No. 4506 i.e. where accused was running his factory. secondly accused did not take the deceased to the hospital. If the accused had come back with Asgar Ali (PW-7) and Ataullah (PW-8) at about 10 P.M. (as stated by them) and saw him burning, the accused being the employer of the deceased would have been the first person to take the deceased to the hospital. But that was not done. Instead the deceased was taken to hospital by a public spirited person namely Mustaz Ahmad (PW-3). It does not appeal to reason that the employer would leave his employee in that condition to chances. Thirdly the deceased or the person who brought the deceased to the hospital at the first available opportunity furnished the cause of his burn when he informed the doctor on duty that deceased was burnt by Islam i.e. the appellant herein. It was so recorded in MLC Ex. PW-1/A at 11.00 PM. MLC Ex.PW1/A negative the assertion of PW-7 and PW-8. Lastly deceased was burnt at the factory premises of the accused i.e. on second floor of that house. It stood proved from the testimonies of Asgar Ali (PW-7) and Ataullah (PW-8) when they said in their statement recorded in court, Asgar Ali (PW-7) said:-

"On the said day at 10.15 PM when I returned to the factory after taking meal, I saw Mohd. Zafar on fire. I saw people trying to put off the fire. I went upstairs. People also came there. Due to rush of people I could not go down. He was removed to the hospital by public persons."

Ataullah (PW-8) said:-

"Thereafter myself, Mohd. Islam and Asgar went to take food and when we returned at 10.00 PM we noticed that shrieks were coming from upstairs of Mohd. Zafar and also see crowd of people. There I saw Mohd. Zafar on fire and people were putting off the fire."

10. The public witness Mustaz Ahmed vide his statement Ex.PW3/B which statement he admitted having made to the police and bear his signatures nowhere mentioned that accused was there and tried to extinguish fire along with other persons. Accused, therefore, appears to be absent even till 10.30 P.M. though according to Asgar Ali (PW-7) and Ataullah (PW-8) they had come back at about 10.00 or 10.15 P.M. and saw the deceased in burn condition on the second floor. They gave their explanation for not carrying the deceased to hospital but nowhere said that accused tried to extinguish fire or took him to hospital. From the above facts the plea of alibi stands negated. This plea appears to have been set up as afterthought, hence rightly rejected by the learned trial court.

11. Having found the plea of alibi to be false and the motive to burn the deceased being there, we have now to see who burnt the deceased being there, we have now to see who burnt the deceased? According to prosecution it was this appellant and for that purpose relied the MLC Ex.PW-1/A and the statement of the deceased recorded by the IO vide Ex.PW-17/A.

12. Counsel for the appellant contended that the cause of burn as recorded in Ex.PW1/A has not been proved nor the reading of the same show that the history was given by the deceased. For the sake of arguments if we accept this contention of the appellant that the cause of burn was not given by the deceased but was furnished by the person who brought the deceased to the hospital, (that is Mustaz Ahmad PW-3) even then it lend support to the case of the prosecution. It proves that Mohd. Islam burnt the deceased. Even if we accept that the history of burn was given by Mustaz Ahmad (PW-3) that does not create any doubt nor create dent in the case as set up by the prosecution because it was Mustaz Ahmad (PW-3) who after hearing shrieks of the deceased went to the factory of the accused. Therefore, he was the one who could have known as to how the deceased caught fire.

13. Doctor on the MLC Ex.PW1/A opined that the deceased when brought to the hospital was conscious. That smell of kerosene was coming from his body. Perusal of Ex.PW1/A also show that deceased was brought to hospital by Muztaz Ahmad (PW-3) and not by the accused Mohd. Islam. This shows that accused after burning the deceased disappeared from the scene of crime. He was not available at the spot of incident when deceased was brought down and taken to hospital. Inspector Roshal Lal (PW-17) testified that on receipt of the secret information accused was arrested at Chowk Rodgran in Hauz Qazi vide arrest Memo Ex.PW-17/D. Had the accused been there at the spot or accompanied the deceased to hospital, he could not have been arrested from Chowk Rodgran in Hauz Quazi. This circumstance amply proves the case of the prosecution that accused after burning the deceased absconded from the site.

14. Similarly, the attempt made by Mustaz Ahmad (PW-3) to build a defense for the accused by saying in the cross-examination by the accused that accused also accompanied him to the hospital, is not only unbelievable but appears to be false. It is contrary to the documentary as well as oral evidence available on record namely the MLC Ex.PW-1/A and even the testimonies of Asgar Ali (PW-7) and Ataullah (PW-8) falsify this plea of Mustaz Ahmad (PW-3). Neither Asgar Ali (PW-7) nor Ataullah (PW-8) anywhere stated that the accused took the deceased to the hospital or accompanied Mustaz Ahmad (PW-3) to the hospital. Similarly doctor nowhere recorded on the MLC that the deceased was brought by the accused or accused was present. If for argument sake it is believed that accused had accompanied the deceased to hospital then being the employer he would have given the history of burn on MLC Ex.PW1/A and the name of the person who brought the deceased to hospital. Accused could not have told the doctor that he burnt the deceased. This circumstance also negate the plea that accused accompanied the deceased to the hospital.

15. Now, turning to the question as to whether the statement of the deceased recorded by Inspector Roshan Lal Ext.PW-17/A can be treated as a dying declaration? Counsel for the appellant contended that this statement cannot be treated as a dying declaration for the reasons: (i) that Dr. Neeraj Gupta who declared the deceased to be fit to make the statement had not been examined; (ii) the statement Ex.PW-17/A had not been recorded by the doctor nor by the S.D.M., therefore, it creates doubt about it being the statement of the deceased; (iii) such a lengthy statement as Ex.PW-17/A could not be made by a person who had 97% burns; and finally (iv) reliance on MLC Ex.PW-1/A was misplaced as it was not proved properly nor the doctor who conducted the post-mortem was examined.

16. So far as the question of non-appearance of Dr. Neeraj Gupta is concerned, his signatures on MLC Ex.PW-1/A stood proved by the testimony of Mr. A.R.Mathew (PW-1) i.e. record clerk, LNJP Hospital. As per Mr. Mathew (PW-1), Dr. Neeraj Gupta and Dr. Neeraj Kalra left their jobs and their whereabouts were not available nor know. In these circumstances, prosecution examined Mr.A.R. Mathew (PW-1) to prove the signatures of Dr. Neeraj Gupta and that of Dr. Kalra. Mr. Mathew was acquainted with their signatures. He identified the signature of Dr. Neeraj Gupta on the MLC Ex.PW-1/A at point "A". Since the doctor was not available and his whereabouts were not known, it does not mean the statement recorded by the said doctor would become a waste paper. In the absence of the said doctor prosecution was left with no alternative but to prove his statement either by examining another doctor and if no other doctor acquainted with his signature then through the testimony of the person who was acquainted with the doctor's signature who had seen him writing and signing. Mr. A.R. Mathew (PW-1) was such a person. He identified Dr. Gupta's, signatures on the MLC Ex.PW-1/A. So far as Ex.PW-17/A is concerned, it stood proved by the testimony of Inspector Roshan Lal (PW-17). He recorded the deceased's statement after doctor declared him fit to make the statement. Inspector Roshal Lal (PW-17) completed the recording of deceased's by about 1.00 P.M. He requested the doctor on duty i.e. Dr. Neeraj Gupta to endorse the same. Dr. Neeraj Gupta did endorse the statement of the deceased Ex.PW-17/A at point 'B'. Inspector Roshan Lal (PW-17) identified the endorsement in the handwriting of Dr. Neeraj Gupta at point 'A' which according to Inspector Roshan Lal was endorsed by the doctor in his presence. Dr. Neeraj Gupta signed at point 'A' in the presence of the I.O. Hence, Ex.PW-17/A on the basis of which rukka was issued and which became a dying declaration after the death of the deceased stood duly proved by the testimony of Inspector Roshan Lal (PW-17). Even if Dr. Neeraj Gupta could not be examined because of his non-availability, it would not render the dying declaration in question unreliable or illegal. As mentioned above, the deceased was found conscious when brought to the hospital at about 11.00 O'Clock. At 12.05 again Dr. Neeraj Gupta declared him fit to make the statement and in fact statement of the deceased was recorded immediately thereon by the I.O. as proved on record vide Ex.PW-17/A. The said statement of the deceased was got foot marked by the I.O. in the presence of the doctor on duty which is apparent when doctor endorsed the same. On the basis of Ex.PW-17/A rukka was prepared and sent at 1.40 AM in the intervening night of 6th & 7th April, 1994 to the police station for registration of the case. It shows that the said dying declaration was recorded by the I.O. in the presence of the doctor. Therefore the contention of the counsel for the appellant that since dying declaration was not recorded by a doctor does not materially effect the case of the prosecution. So far as the objection that dying declaration was not recorded by a SDM, to our mind, the explanation given by the counsel for the State has merits. There was hardly any time for the IO to call the SDM. Had the IO not recorded the statement of the deceased vide Ex.PW-17/A perhaps the prosecution would have been deprived of even this statement recorded vide Ex.PW-17/A. It would not have been available. Possibility of deceased thereafter loosing consciousness cannot be ruled out particularly when we know that deceased had 95% to 97% burn and time was too short with the I.O. To avoid any such possibility I.O. recorded the statement immediately when doctor on duty declared the deceased fit to make the statement coupled with the fact that that statement has been duly endorsed by Dr. Neeraj Gupta. Such a statement vide Ex.PW-17/A, therefore, cannot be held to be inadmissiable in evidence. In the circumstances of this case we find no infirmity in this dying declaration as recorded by the I.O. and having been endorsed by the doctor on duty.

17. It is a fact on record that the dying declaration Ex.PW-17/A was not recorded during the course of investigation. It was recorded by the IO and basing on this FIR was registered. In these circumstances such a statement vide Ex.PW-17/A cannot be said to have been made to IO during the investigation of the case. Hence such a statement as Ex.PW-17/A can rightly be called a dying declaration. In similar circumstances the Supreme Court in the case of Manna Raja Vs. State of M.P. held that making of a statement before the police where the victim succumbs to his injuries, such a statement can be treated as a dying declaration and is admissible under Section 32 (1) of the Evidence Act. Apex Court further observed that:

"though a dying declaration must be approached with caution for the reason that the maker of the statement cannot be subjected to cross-examination, there is neither a rule of law nor a rule of prudence which has hardened into a rule of law that a dying declaration cannot be acted upon unless it is corroborated. Thus court must not look out for corroboration unless it comes to the conclusion that the dying declaration suffered from any infirmity by reason of which it was necessary to look out for corroboration."

18. In the case of Dalai Singh and others Vs. State of Punjab 1979 SCC (Crl.) 968 the Apex Court observed that:

"it is better to leave such dying declaration out of consideration until and unless the prosecution satisfies the court as to why it was not recorded by a Magistrate or by a doctor.

It is not that such dying declarations are always untrustworthy, but better and more reliable methods of recording dying declaration of an injured person should be taken recourse to and the one recorded by the police officer may be relied upon if there was no time or facility available to the prosecution for adopting any better method."

19. In the case in hand admittedly the dying declaration recorded vide Ex.PW-17/A was recorded by the IO not during the course of investigation nor the IO had time at his hand to call for the SDM. He, however, got the statement Ex.PW-17/A endorsed from the doctor on duty. This fact stood proved by the testimony of Inspector Roshan Lal (PW-17). Dying declaration recorded vide Ex.PW-17/A is in fact got corroborated from the MLC Ex.PW-1/A. It was recorded by the doctor on duty wherein the alleged history of burn of the deceased indicated the accused to be the person who burnt him. The fact that deceased was conscious is apparent from the endorsement made on the MLC by the doctor on duty at 12.05 AM when he opined that the deceased was fit to make the statement. This fact overwhelming proves that deceased was mentally alert and conscious when he made the statement vide Ex.PW-17/A. Such a statement merits acceptance & needs no corroboration. Such a dying declaration as Ex.PW-17/A requires according high degree of value. A dying declaration, it is needless to say, does not require any corroboration as held by Apex Court in the case of Khushal Rao Vs. State of Bombay . The dying declaration recorded by police official and attested by doctor is admissible in evidence. We find no infirmity in the dying declaration recorded by IO in circumstances of this case. Ex.PW-17/A cannot be rejected in view of State of Punjab Vs. Amarjeet Singh .

20. In view of our above discussion, we find no merit in the appeal nor any ground to interfere with the order of conviction and sentence passed by the learned Additional Sessions Judge vide order 7th September, 1996. The appeal is accordingly dismissed but with no order as to costs. Order be conveyed to the appellant through Superintendent, Central Jail, Tihar.