Narender Kumar & Ors. vs State (Delhi Admn.)
2009 Latest Caselaw 766 Del

*      HIGH COURT OF DELHI : NEW DELHI

                      Crl. Appeal No.33/1993



%               Judgment delivered on: 6th March, 2009


1.Narender Kumar, s/o Sh. Purshottam Dass
R/o Q.No.B4, P.S. Chandni Mahal,
Delhi.

2.Vijay Kumar, S/o Nathani Paswan,
R/o B-49, South Ganesh Nagar,
Delhi.

3.Om Prakash, S/o Sahdev Prashad,
R/o E-2/7, Shastri Nagar,
Near Sarai Rohilla, Delhi.                       .... Appellants

               Through: Mr K.B. Andely, Sr Advocate with
                        Mr M.L. Yadav, Mr Javed Hashmi,
                        Mr M.Shamikh and Mr Mohit
                        Mathur, Advocates.

                                   Versus.

State (Delhi Admn.)                           ..... Respondent

                          Through : Mr M.N.Dudeja, Advocate.

Coram:
HON'BLE MR. JUSTICE V.B. GUPTA
HON'BLE MR.JUSTICE BADAR DURREZ AHMED

1. Whether the Reporters of local papers may
be allowed to see the judgment?                               Yes




Crl. Appeal. No.33/1993                              Page 1 of 38
 2. To be referred to Reporter or not?                      Yes

3. Whether the judgment should be reported
in the Digest?                                             Yes


V.B. GUPTA, J.

All the three appellants namely Narender Kumar,

Vijay Kumar and Om Prakash have been convicted by

the Additional Sessions Judge under Sections 302/34 of

Indian Penal Code (for short as IPC) and have been

sentenced to undergo life imprisonment and also liable

to pay fine of Rs. 5,000/- each. In default of payment of

fine, they had to further undergo R.I. for period of four

months each.

2. In addition, appellants Vijay Kumar and Om

Prakash have also been convicted for offence under

Section 330/34 IPC and have been sentenced to

undergo R.I. for period of two years and a fine of

Rs.1,000/- each. In default of payment of fine, they

have been sentenced to undergo R.I. for one month.

Substantive sentence under both the offences for

appellant Vijay Kumar and Om Prakash were ordered

to run concurrently.

3. Being aggrieved with the judgment of the Addl

Sessions Judge, present appellants have filed this

appeal.

4. Prosecution case is that on 1st August, 1980 one

Laxman Singh @ Hanuman, s/o Sh Huba Singh was

picked up from Railway Station, Subzi Mandi by the

police and was confined illegally in Andha Mugal police

post till 5th August, 1980. In the police post, in order

to extract confession he was given beating and

interrogated by police. On 5th August, 1980, Laxman

Singh suffered burn injuries at quarter No.4 at police

post, Andha Mugal and was first taken to Hindu Rao

Hospital and then to LNJP hospital by ASI Mool Chand.

5. The Doctor asked the ASI to procure the services

of a Magistrate for recording of dying declaration. In

the first instance, a case under Section 309 IPC vide

FIR No.763/80 at P.S. Subzi Mandi was registered,

later on, after the recording of dying declaration of the

said Laxman Singh, another F.I.R. was registered

under Section 307 IPC. The injured died in hospital

on 6th August, 1980 and thus the case was converted to

one under Section 302 IPC.

6. The investigation of this case was also shifted

from the local police to the crime branch. It was

revealed in the course of investigation that deceased

had been brought to Andha Mugal Police Post by

appellants Vijay Kumar and Om Prakash and one

person namely Tyagi on 1st August, 1980 from Railway

Station, Subzi Mandi and was beaten constantly by

these persons who wanted him to speak out about

some theft cases. The injured was also threatened to

be killed in case he did not furnish any information

regarding stolen articles.

7. As per dying declaration given by injured Laxman

Singh, on the morning of 5th August, 1980 at about

10:30 a.m. when he was sitting in the police post and

was taking his meals, appellant Narender Kumar, Head

Constable, poured kerosene oil on him from the stove

kept there and other two appellants namely, Om

Prakash and Vijay Singh constables lit match sticks on

him. This dying declaration was recorded by the

Metropolitan Magistrate. Later on 6th August, 1980,

the injured Laxman Singh died.

8. After completion of the investigation, the

appellants were charge sheeted under Section

302/330/365, 343, 218/120B I.P.C.

9. On 12th January, 1984, trial court framed charges

for offence under Section 302 read with Section 34 IPC

against all the three appellants and in addition, it

framed charge under Section 330 read with Section 34

IPC against appellants Om Prakash and Vijay Kumar.

10. Prosecution in support of its case examined, in all,

26 witnesses. Thereafter, statements of all the

appellants were recorded under Section 313 Cr.P.C.

and no defence evidence was produced by any of the

appellants.

11. In their statement under Section 313 Cr.P.C., the

appellants admitted that during the month of August,

1980 they were posted in police post Andha Mugal.

However, they denied the alleged incident.

12. Appellant, Narender Kumar has also taken up

defence that this false case has been made due to

enmity with the brother of deceased, namely, Sher

Singh as he was arrested by him in case under Section

112/117 Delhi Police Act and he was fined Rs.30/- by

the Court. At his instance he has been falsely

implicated.

13. Appellant Vijay Kumar and Om Prakash took the

defence that it is a false case and they have been

falsely implicated.

14. It has been contended by learned counsel for the

Appellants that initially the case was registered under

Section 309 IPC which shows that deceased wanted to

commit suicide and later on, after his death, the

present case was converted into a murder case and

thus contradiction in the case of prosecution is self

evident.

15. Another contention is that there is no allegation

against appellant Narender Kumar that he was a party

in bringing the deceased to the police post and thus

deceased was never in the custody of appellant

Narender Kumar.

16. Learned counsel also contended that no reliance

can be placed on the so called dying declaration

recorded by the Magistrate, when prosecution

witnesses Sher Singh (PW-5), Huba Singh (PW-6) and

Smt. Indira Devi (PW-9) admit that after getting the

information about the incident they immediately

reached the hospital where the injured was admitted.

It shows that these witnesses had time and opportunity

to talk to injured Laxman and there was every

possibility that they could have provoked him to falsely

implicate the present appellants.

17. Further, it is contended that the injured Laxman

could not have been in a position to make any

statement to the Magistrate since MLC (Ex.PW12/A)

shows that the patient was admitted at 11:20 a.m. and

a pathedine injection was administered to the patient

at 11.25 am. Dr. S.K.Nayyar, (PW-12) states that the

effect of the injection remains for a period of three to

four hours. Under these circumstances, when the

pathedine injection was given at 11.25 a.m., then it is

bound to have some sedative effect on the mind and

body of the patient and it was not possible for him to

give proper and correct statement.

18. While challenging the dying declaration recorded

by the Magistrate, it is also contended that Magistrate

did not obtain proper identification of the deceased

and no certificate was obtained by the Magistrate that

the patient is fit, before recording his statement. The

dying declaration was neither signed nor thumb

impression of the patient was obtained. It was not

recorded in question answer form. Moreover after

recording the dying declaration, the Magistrate did not

read over the same to the patient.

19. It is also contended that the Magistrate did not

record the dying declaration as required under High

Court Rules and Orders. Under these circumstances,

the dying declaration becomes suspicious and false

implication of appellants cannot be ruled out.

20. No doctor has given a certificate to the effect that

the patient was fit for giving statement. The Supreme

Court in Satish Kumar v. State of Punjab 2003 [1]

JCC 110 where the prosecution case was based on

dying declaration and no time was written on dying

declaration nor there was any certificate of any doctor

that at the time of recording declaration that the

injured was in a fit state to give any statement, held

that there would be serious doubts about the

authenticity of the dying declaration. Relying on this

decision, it was contended that in the present case also

serious doubts arose.

21. Regarding appellant Om Prakash, it is contended

that he left the police post on 5th August, 1980 at 9:45

a.m. and came back at 4:25 p.m. For this purpose

departure entry No.12 (Ex. PW26/A) has been recorded

which shows that this appellant infact had taken case

property to the Excise Laboratory at Battery Lane

after collecting the same from the police station Sabzi

Mandi and was not present at the time of the incident.

22. Another contention is that Ram Kishan, S.I.,

chowki incharge was also present in the police post at

the relevant time and he had also participated in

extinguishing the fire but he has not been associated

nor cited as a witness and as such inference should be

drawn against the prosecution.

23. It is also contended that injured Laxman did not

disclose the name of any of the appellants to the doctor

who had prepared the MLC. There has been no

corroboration to the so-called dying declaration from

any other source. No witness has been examined to

prove the fact that deceased Hanuman was picked up

from Subzi Mandi Railway Station. Moreover in the

dying declaration, it has been stated by deceased

Laxman that he was picked up on the night by Vijay

Kumar, Om Prakash and one person namely Tyagi from

the Railway Station Subzi Mandi but said Tyagi has not

been named in the F.I.R.

24. Lastly, it is contended that it is unbelievable that

the present appellants who are police officials will put

a person on fire in the police post when other senior

police officers are also present in the office. Moreover

appellants had no enmity or motive to put the deceased

on fire and there are material contradictions in the

statements of witnesses. Under these circumstances,

the appellants are liable to be acquitted.

25. On the other hand, it has been argued by learned

counsel for the State that deceased Laxman had been

brought to Andha Mugal Police Post by Vijay Singh,

Om Prakash and one other person namely Tyagi on 1st

August, 1980 from Railway Station, Subzi Mandi and

was beaten constantly since these police officials

wanted to extort confession from him with regard to

some theft cases. The deceased was also threatened to

be killed in case he did not furnish some information

regarding stolen articles.

26. On the morning of 5th August, 1980, while

deceased was sitting in the police post and was taking

his meal, appellant Narender Kumar poured kerosene

oil while other appellants Om Prakash and Vijay Singh

lit match sticks on him. After the injured sustained

burn injuries, he was brought to the hospital, where he

gave dying declaration implicating all the present

appellants. Thus the present case is based on dying

declaration of the deceased.

27 It is contended that the deceased has given his

dying declaration to PW-7 Sh.R.S.Mahla, who is a

judicial Magistrate and he has taken all the

precautions before recording the dying declaration and

also obtained certificate from Dr. S.K.Nair (PW-12)

who found the patient fit to make statement. The

mere fact that there are certain irregularities, will not

vitiate the dying declaration.

28. As per prosecution case one Tyagi has also

brought the deceased to the police post but deceased

has not named him in his dying declaration, thus it

goes on to show that the dying declaration is truthful.

Similarly, deceased has not named either Chowki

Incharge, S.H.O. of the police station or ACP of the

area in his dying declaration which goes to show that

deceased never wanted to take any revenge from the

police and has narrated true facts as to what had

happened to him and who has done what. Moreover,

deceased did not have any enmity with any of the

Appellants.

29. It is a case of custodial death as deceased died in

the police station. It is also the case of prosecution

that deceased was tortured while in custody. The fact

of torture is corroborated by the post mortem report

(Ex.PW25/A) which among other things states that

"there are large number of bruises and abrasions on

different parts of the body of the deceased".

30. In Smt.Shakila Abdul Gafar Khan v. Vasant

Raghunath Dhoble and Anr. AIR 2003 SC 4567,

the Supreme Court, dealing with a custodial death

case, held;

"Rarely in cases of police torture of custodial death, direct ocular evidence of the complicity of the police personnel alone who can only explain the circumstances in which a person in their custody had died. Bound as they are by the ties of brotherhood, it is not unknown that the police personnel prefer to remain silent and more often than not even pervert the truth to save their colleagues - and the present case is an apt illustration - as to how one after the other police witnesses feigned ignorance about the whole matter."

"The exaggerated adherence to and insistence upon the establishment of proof beyond every reasonable doubt by the prosecution, at times even when the prosecuting agencies are themselves fixed in the dock, ignoring the ground realities, the fact-situation and the peculiar circumstances of a given case, as in the present case, often results in miscarriage of justice and makes the justice delivery system suspect and vulnerable. In the ultimate analysis the society suffers and a criminal gets encouraged. Tortures in police custody, which of late are on the increase, receive encouragement by this type of an unrealistic approach at times of the courts as well because it reinforces the belief in the mind of the police that no harm would come to them if one prisoner dies in the lock-up because there would hardly be any evidence

available to the prosecution to directly implicate them with the torture."

"The courts are also required to have a change in their outlook approach, appreciation and attitude, particularly in cases involving custodial crimes and they should exhibit more sensitivity and adopt a realistic rather than a narrow technical approach, while dealing with the cases of custodial crime so that as far as possible within their powers, the truth is found and guilty should not escape so that the victim of the crime has the satisfaction that ultimately the majesty of law has prevailed."

31. In the light of observations made by the Supreme

Court in Smt. Shakila (Supra), we have to analyse the

evidence on record in this case.

32. During relevant period all the appellants were

posted at Police Post Andha Mugal, as Surender Dev

S.I. (PW-4) states that Jai Chand, S.I. of Crime Branch

had taken into possession duty roster (Ex.PW4/A) for

the period 1st August, 1980 to 5th August, 1980 of

police post Andha Mugal, vide memo (Ex. PW-4/B).

33. As per entries in this duty roster, all the three

appellants were on duty at police post Andha Mugal

during this period. So this demolishes the plea of

appellant‟s counsel that Narender Kumar was not

present at the relevant time.

34. It would be pertinent to point out that none of the

Appellants has taken this defence in their statement

recorded under Section 313 Cr.P.C. that the deceased

Laxman burnt himself or tried to commit suicide.

35. The fact that deceased has been burnt in the

premises of police post Andha Mugal, has been

corroborated by prosecution witness Mool Chand, ASI

(PW-2) as he states that he heard the alarm of „Bachao

Bachao‟ from quarter No.4, which also forms part of

the police post and he saw flames coming from that

quarter. He and chowki incharge, Ram Singh who was

sitting in his room, rushed to quarter No.4 and few

other persons also reached there and on reaching they

found that deceased Hanuman was burning. In

quarter No.4, constable Vijay Kumar (appellant) was

residing along with other constables. He does not

know as to how there was fire in the said quarter.

36. In cross-examination, he admitted that when they

entered quarter No.4, they found a stove was lying

there but he does not know whether it belongs to

appellant Vijay Kumar.

37. Om Prakash, (PW-6) an independent witness also

admits the factum of incident of burning, as he states

that on 5th August, 1980, he was standing outside

police post Andha Mugal and noticed some smoke from

the window of a room in chowki. After some time, he

noticed some flames and somebody was crying „Bachao

Bachao‟. Thereupon, he along with ASI Mool Chand

(PW-2) and another person, went to that room and

found one boy in flames. Meanwhile, SI Ch.Ram

Kishan also came and the fire was extinguished and

injured was removed to the hospital. The police came

and took into possession burnt clothes, stove and

match box vide seizure memo Ex. Pw-10/A. It bears his

signature at point „A‟. The stove contained some

kerosene oil.

38. In cross-examination, this witness stated that the

boy had set himself on fire and he (PW6) says so,

because he did not see any other person there.

39. The main thrust of appellants is that dying

declaration cannot be believed since PW-5 and other

members of the family of the deceased did get a

chance to see him in the hospital before the said dying

declaration was recorded and this gave full opportunity

to these persons to have tutored deceased Laxman for

falsely naming the appellants. The dying declaration

also suffers from various infirmities and irregularities

and the same cannot be relied upon being totally

untrustworthy since the Magistrate has recorded the

same in violation of the guidelines laid down in High

Court Rules and orders.

40. Another plea is that the Magistrate, without being

satisfied as to whether the patient was fit to give

statement, had recorded the dying declaration

(Ex.PW7/B) which has been signed by this doctor at the

foot of the statement.

41. The question to be seen is as to whether the dying

declaration is truthful, voluntarily and inspires

confidence or not? If these conditions are fulfilled,

then in view of Section 32 of the Indian Evidence Act,

dying declaration can be acted upon.

42. Section 32(1) of the Indian Evidence Act which

deals with dying declaration reads as under;

"32.Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant.-Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:-

(1) When it relates to cause of death.-When the 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 the 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

proceedings in which the cause of his death comes into question.

(2 to 8) xxx xxx xxx xxx xxx"

43. Section 32(1) of the Indian Evidence Act is an

exception to the rule of hearsay and makes admissible

the statement of a person who dies, whether the death

is a result of homicide or of suicide, provided the

statement relates to the cause of death, or exhibits

circumstances leading to the death.

44. In cases of homicide, statements made by a

person, since deceased, are admissible to prove the

cause and circumstances of the man‟s death. Such

statements are called dying declarations‟.

45. The principle on which the dying declarations are

admitted in evidence is indicated in the legal maxim:

"Nemo moriturus praesumitur mentire" i.e., a man will not meet his Maker with a lie in his mouth."

46. In order that a dying declaration as to the cause

of the death may be admissible in evidence at the trial

of a prisoner for the murder of the declarant it must be

shown that at the time the statement was made the

death of the declarant was imminent and that he had

abandoned all hope of living, i.e., believed that death

must follow. But it is not necessary to prove that the

declarant believed that death would ensure

immediately.

47. The general principle on which this species of

evidence is admitted is, that they are declarations made

in extremity, when the party is at the point of death,

and when every hope of this world is gone, when every

motive to falsehood is silenced, and the mind induced

by the most powerful considerations to speak the truth;

a situation so solemn, and so awful, is considered by

the law as creating an obligation equal to that which is

imposed by a positive oath administered in a Court of

Justice (See The King v. William Woodcock, (1789) 1-

Leach 500.

48. The dying declaration is entitled to great weight.

The Court has to satisfy itself that the dying

declaration is of such a nature as to inspire full

confidence in the court in its correctness. The court

has to be on guard that the statement of the deceased

was not as a result of either tutoring, prompting or a

product of imagination. The Court has to be further

satisfied that the deceased was in that state of mind

and had a clear opportunity to observe and identify

the assailants. Once the Court is satisfied that the

declaration was true and voluntary, undoubtedly, it can

base its conviction without any further corroboration

as has been held by the Supreme Court in a catena of

cases.

49. Dying declarations may be oral or written (see

opening words of section), although in most cases such

statements are made orally before death ensues and is

reduced to writing by someone, eg, a magistrate, a

doctor, a police officer. If it is recorded, no oath is

necessary, the accused need not be present, nor is the

presence of a magistrate absolutely necessary,

although to assure authenticity it is usual to call a

magistrate, if available, for recording the statement of

a man about to die. When a person whose evidence is

required is in imminent danger of death, his

statements should be recorded by a magistrate

exercising judicial functions. There is no requirement

of law that a dying declaration must necessarily be

made to a Magistrate. What evidentiary value or

weight has to be attached to such a statement, must

necessarily depend on the facts and circumstances of

each particular case. When none of the witnesses

including the Police Officer who recorded the

statement could be attributed with any kind of ill-

feeling against the accused, their evidence cannot be

rejected.

50. The earliest case in which the law on the point of

dying declaration was considered in detail by the

Supreme Court is Khushal Rao v. State of Bombay,

AIR 1958 SC 22 where it held that:

"(1) that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated;

(2) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; (3) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other piece of evidence; (4) that 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; (5) that 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 (6) that 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, for example, whether there was sufficient light if the crime was committed at night; 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.

Hence, in order 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."

51. In Laxman v. State of Maharashtra, 2002 Cri

LJ 4095 (SC) it has been held that;

"Where it is proved by the testimony of the magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A

certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise."

52. In State of Uttar Pradesh v. Ram Sagar

Yadav, AIR 1985 SC 416 the Court, speaking through

Chandrachud CJ.,held as under:

"It is well settled that, as a matter of law, a dying declaration can be acted upon without corroboration. See Khushal Rao v. State of Bombay, AIR 1958 SC 22; Harbans Singh v. State of Punjab, AIR 1962 SC 439; Gopalsingh v. State of M.P., AIR 1972 SC 1557. There is not even a rule of prudence which has hardened into a rule of law that a dying declaration cannot be acted upon unless it is corroborated. The primary effort of the Court has to be to find out whether the dying declaration is true. If it is, no question of corroboration arises. It is only if the circumstances surrounding the dying declaration are not clear or convincing that the Court may, for its assurance, look for corroboration to the dying declaration....."

53. Coming to the dying declaration in the present

case, it would be fruitful to reproduce the relevant

portion of the dying declaration proceedings conducted

by the Magistrate in this regard.

54. Application (Ex.PW7/A) was moved before the

concerned Magistrate by the I.O. for recording the

dying declaration of Laxman Singh. Accordingly,

Sh.R.S.Mahla (PW7) visited Irwin Hospital on 5th

August, 1980 and recorded the dying declaration of the

deceased. The relevant proceedings recorded by PW7

read as under;-

"Today dated 5th August, 1980 at 2.30 p.m., I came to the Irwin Hospital at the request of I.O. who has moved an application for recording the dying declaration of Laxman Singh reported to be a case by police under Section 309 IPC. I have satisfied myself that the patient Laxman Singh s/o Sh.Hawah Singh, House No.10501, Subzi Mandi Railway Station, Bagichi Pirji ki is fully conscious. The patient is fully capable of making statement. Now, I start to note down his statement. On oath."

55. This endorsement of Magistrate is Ex.PW7/D.

Thereafter, he recorded the statement of Laxman

Singh in Hindi and the deceased stated before the

Magistrate on oath. The translation of the same read

as under;

"That today on 5th August, 1980 at 11:00 A.M. Narender Kumar, Head Constable and Vijay Singh, constable and Om Prakash, constable were present in police post Andha Mugal. Earlier I used to commit theft but have left it about six years ago and was earning my livelihood by doing labourer work and bringing up my family. On Thursday night, Vijay Singh, Om Prakash and Tyagi (all police officials) picked me up from Railway Station, Subzi Mandi and they took me to the police chowki. There I was given regular beatings after every two hours in the morning and evening and they were questioning me as to where the stolen property is. On my reply that I do not commit theft any more, they threatened to kill me.

Today morning at 10:30 A.M. when I was having my meals in the police post, Narender Kumar Head Constable again gave me beatings and he opened a stove lying nearby and poured kerosene oil over me. Om Prakash and Vijay Singh (both constables) who were present there lifted the match box, lit the match stick and put me on fire. Till the time the oil was being sprinkled over me, I thought that it was a joke."

56. PW7 in this regard has stated that before

recording the statement of the patient, he had

obtained the opinion of Dr.Nair (PW12), if the patient

was in a position to make a statement and he gave his

endorsement to this effect vide (Ex.PW7/E) and

signatures of PW12 are at portion „C‟ which he signed

in his presence in token of the opinion given by him

that the patient is at the stage of dying as well as these

signatures are also in respect of his recording the

dying declaration of Laxman Singh.

57. In cross examination PW7, admitted that he did

not obtain the identification of the patient in writing

from PW12 or from any other person. PW 12 verbally

identified the patient before him. PW7 also admits that

he did not obtain, either the signature or thumb

impression of the patient and did not feel the need of

calling doctor to be present at the time of recording of

dying declaration, because the patient was fully

conscious during the period when he recorded his

statement. PW7 had enquired from the patient if he

was making the statement voluntarily without any

pressure, but he did not make any such endorsement

to this effect on his proceedings.

58. As per PW12 he examined the patient at 12.05

p.m. and recorded entries in MLC sheet (Ex.PW12)

wherein he found the patient fit to make statement.

He also made another entry on Ex.PW12/A at 2.30 p.m.

on the same day and has found the patient fit to make

statement and endorsement in this regard is

Ex.PW12/C which is also signed by him.

59. Regarding effect of pathedine injection, PW12 in

cross-examination states that if the pain is very severe,

the affect of injection would last for about two hours.

It was nowhere suggested to this witness that a patient

under the effect of pathedine injection could not give

proper and correct statement. The trial court in this

regard has observed that;

"The effect of sedative cannot be felt the same way by every person as it would depend on the severity of the injuries or burns suffered by a particular person and a person in great agony and pain would not be easily put to rest even by an injection of pathedine. Persons with lesser pain would definitely feel its impact and effect instantly and can be kept under its effect for a comparatively longer periods but where a person is almost under intolerable pain, he would

not easily yield down before the strongest sedatives too."

60. The dying declaration was recorded at 2.30 p.m.

and MLC (PW12/A) bears an endorsement that at

about 2.30 p.m., the patient was fit to make statement

and this endorsement is in the hand of PW12. So, at

that time, admittedly the pathedine injection had no

affect on the patient.

61. Though, it is correct that in the present case

dying declaration has neither been got signed nor

thumb impression of deceased was taken but we

cannot lose sight of the fact that this dying declaration

was recorded by a judicial officer who is an

independent person and whose duty is to administer

justice. He is neither interested in the success of the

case nor in its failure. By recording dying declarations

he is performing his judicial duties. There is nothing

on record to show that PW7 had any motive in

recording a wrong dying declaration. High Court Rules

provide for certain guidelines and normally

magistrates should keep in mind these guidelines while

recording dying declarations. If the guidelines, though

procedural, are followed, it would lend greater

credence to this important piece of evidence. But,

merely because the magistrate has not strictly followed

some of the guidelines does not vitiate the dying

declaration when it can otherwise be established that

it was truthful and was made voluntarily and has been

recorded correctly.

62. As regards the signing or obtaining the thumb

impression of the deceased the Delhi High Court

Rules, Rule 5, Chapter 13-A lays down that:

"At the conclusion of the statement, the Judicial Magistrate shall read out the same to the declarant and obtain his signature or thumb-impression in token of its correctness unless it is not possible to do so."

63. The interpretation of the words "in token of its

correctness unless it is not possible to do so" comes

out to be that it is not a mandatory rule to always take

a thumb impression or obtain signatures. It only instills

confidence in the statement/ dying declaration that, it

is voluntary and true. But that does not mean that it

should be discarded when it is otherwise established.

Signature or thumb impression only represents that

whatever the declarant stated has been correctly

recorded. In the present case, the Magistrate who was

alone in the room recorded the dying declaration and

there seems to be no reason as to why he would record

falsely when he neither knew the deceased nor the

appellants.

64. Hence, from the entire evidence on record, we

come to the conclusion that the deceased Laxman @

Hanuman truly implicated all the appellants and had

mentioned their specific roles, which ultimately led to

his death.

65. Now comes the question of appellant Om Parkash

regarding whom it was contended that he left the

police post at 11:00 a.m. and came back to the police

post at 4:00 pm on 5.8.1980. No such plea has been

taken by the appellant Om Parkash himself under

Section 313 Cr.P.C. He simply stated that he has been

falsely implicated.

66. The Latin word alibi means "elsewhere" and that

word is used for convenience when an accused takes

recourse to a defence line that when the occurrence

took place he was so far away from the place of

occurrence that it is extremely improbable that he

would have participated in the crime. [Sarkar on

Evidence, 15th Edition Reprint 2004, Volume 1, page

258-259.]

67. The basic law is that it is for the prosecution to

prove its case beyond reasonable doubt that the

accused was present at the occurrence and has

participated in the crime. When the prosecution

establishes satisfactorily that the accused was present

it is incumbent on the accused, who adopts the plea of

alibi to prove that he was not at all present on the spot.

68. The Supreme Court in Dudh Nath Pandey v.

State of Uttar Pradesh, AIR 1981 SC 911 held that:

"The plea of alibi postulates the physical impossibility of the presence of the accused at the scene of offence by reason of his presence at another place. The plea can therefore succeed only if it is shown that the accused was so far away at the relevant time that he could not be present at the place where the crime was committed."

69. Much reliance had been placed on DD entries

No.12 and 24, that is, PW-26/A and PW26/D which

contains the departure and arrival of constable Om

Prakash for the aforesaid period. In this respect

PW18, PW19 and PW20 have stated that on 5th August,

1980 Om Prakash came to the excise control

laboratory at Battery Lane at 11:00 a.m. to deposit

certain samples but he was asked to come after 2:00

pm. as they used to deposit samples between 2:00 to

4:00 p.m.

70. PW18 nowhere stated as to in which case Om

Prakash deposited the samples, nor any entries of

register regarding deposit of samples by Om Prakash

on 5th August, 1980 in excise laboratory, has been

proved on record.

71. On the other hand, PW17 has stated that accused

Om Prakash used to come to his canteen to take tea

along with one more constable. While PW19 states

that on that date Om Prakash made enquiries from him

as to where samples are deposited, so he sent him

upstairs where the lab was located.

72. When as per statement of PW17 Om Prakash used

to visit the canteen in the excise office at Battery Lane,

then where was the question of appellant Om Prakash,

asking PW18 about the location as to where the

samples are to be deposited. Even assuming for

arguments sake that appellant Om Prakash had gone

to excise laboratory for depositing the samples,

admittedly he had gone only after 11:00 a.m. as the

samples were not deposited at that time and he was

asked to come again at 2:00 p.m. The plea of alibi

cannot be sustained as appellant Om Prakash was

within the satellite range of the incident. Plea of alibi

is only established when it is highly improbable for a

person to be at the spot of occurrence when the

incident happens, which is not so in the present case,

since the excise laboratory is not far away from police

post Andha Mugal. Secondly, there is no explanation

on behalf of appellant Om Prakash as to where he was

from 11.00 a.m. to 2.00 p.m. on 5th August, 1980, when

admittedly sample was deposited by him after 2.00p.m.

So, this plea of alibi taken by Om Prakash appellant is

not sustainable.

73. The cause of death given by Dr.Vishnu Kumar

(PW25) was due to toxanemia and shock consequent

upon burns caused by fire. The present appellants

with pre-determination had put the deceased on fire

knowing fully well that this would result into his death.

The fact that deceased was kept in illegal custody in

police post Andha Mugal from 1st August, 1980 to 5th

August, 1980 has also been duly proved on record.

Thus, all the three appellants have been rightly

convicted by the trial court and the present appeal is

not sustainable and the same is hereby dismissed.

74. Since the appellants are on bail, they are ordered

to be taken into custody to undergo the remaining

sentence as awarded by the trial court.

75. Period of detention already undergone by them in

this case, shall be set off in terms of Section 428 of the

Code of Criminal Procedure, 1973.

V.B.GUPTA, J

BADAR DURREZ AHMED, J March 6, 2009 Bisht