12 March 2014
Supreme Court
Download

JUMNI Vs STATE OF HARYANA

Bench: RANJANA PRAKASH DESAI,MADAN B. LOKUR
Case number: Crl.A. No.-001159-001159 / 2005
Diary number: 13522 / 2005
Advocates: SANJAY JAIN Vs KAMAL MOHAN GUPTA


1

Page 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1159 OF 2005

Jumni and Others                     …..Appellants

Versus

State of Haryana                      …Respondent

AND

CRIMINAL APPEAL NO. 603 OF 2005

Prem Nath and Another                     …..Appellants

Versus

State of Haryana                      …Respondent

J U D G M E N T

Madan B. Lokur, J.

1. The two questions for consideration and discussion relate  

to  the  value  of  the  testimony  of  alibi  witnesses  and  the  

severability of a dying declaration.

2. In  the  present  appeals,  we are  of  the  opinion  that  the  

testimony of the alibi witnesses of two of the four appellants  

deserves  acceptance  and  the  dying  declaration  so  closely  Crl. Appeal No. 1159 of 2005                                                                                     Page 1 of 21

2

Page 2

concerns all four appellants that it is not possible to sever the  

role of the sets of appellants, resulting in our giving the benefit  

of doubt to the remaining two appellants.

The facts: 3. Six relatives (by marriage) of deceased Asha Devi were  

accused of having murdered her and thereby having committed  

an offence punishable under Section 302 of the Indian Penal  

Code. The accused persons were Rati Ram (father-in-law, now  

died),  Jumni  (mother-in-law and appellant  in  Criminal  Appeal  

No. 1159 of 2005), Sham Lal (brother-in-law and appellant in  

Criminal Appeal No. 1159 of 2005), Balbir Prasad (brother-in-

law and appellant in Criminal Appeal No.1159 of 2005, who, we  

were  told  has  since  died),  Prem  Nath  (brother-in-law  and  

appellant  in  Criminal  Appeal  No.  603 of  2005)  and Raj  Bala  

(wife of Prem Nath and appellant in Criminal Appeal No. 603 of  

2005).

4. Asha Devi was married at the age of 16 to Jagdish who  

was employed in the army.  According to her father, Asha Devi  

lived with Jagdish for about one year and thereafter she lived in  

village Bhojpur  in  district  Jagadhari,  Haryana,  in  a one room  

tenement along with her  two children aged 5 years and 1½  

years.   Her  in-  laws  were  staying  in  an  adjacent  tenement.  Crl. Appeal No. 1159 of 2005                                                                                     Page 2 of 21

3

Page 3

There  is  no  allegation  or  evidence  of  any  matrimonial  

disharmony  between  Jagdish  and  Asha  Devi  who  had  been  

married for about nine years nor is there any allegation of any  

demand or harassment for dowry from Asha Devi.

5. The case of the prosecution is entirely dependent on the  

dying declaration of  Asha Devi.  In  her  statement,  Asha Devi  

stated that at about 12.00 noon on 4th April 1996 she was given  

a severe beating by all her in-laws.  Thereafter, at about 3.00  

p.m. she wanted to lodge a complaint with the police but all her  

in- laws prevented her from doing so.  Rather, they suggested  

that she should be set ablaze.  

6. On the morning of 5th April 1996, Asha Devi seems to have  

had a quarrel and in a fit of anger she broke her bangles.  Upon  

this, Jumni said that she should be finished.  Consequently, all  

her in-laws tied her up and poured kerosene on her and set her  

on fire.  This was at about 7.30 a.m.    

7. At  about  10.30  a.m.  Asha  Devi  was  taken  to  the  Civil  

Hospital at Jagadhari.  Seeing her condition with 100% burns,  

the doctor on duty, Dr. M.R. Passi (PW-1) immediately informed  

the  police  who  took  urgent  steps  for  having  her  statement  

recorded. Ms. Sarita Gupta, Judicial Magistrate, 1st Class (PW-9)  

Crl. Appeal No. 1159 of 2005                                                                                     Page 3 of 21

4

Page 4

was deputed for this purpose.  According to Ms. Sarita Gupta,  

she recorded the statement of Asha Devi in the Civil Hospital  

between 11.22 a.m.  and 12.05 p.m.  on 5th April  1996.   The  

statement/dying declaration reads as follows:-

“Stated that I was married at the age of 16 years.  I  am 25 years old.  I have two sons, one is 5 years old  while the second is 1½ old.  My husband is serving in  military.   Sometimes he visits  us  after  a week and  sometimes after 15 days.  In my house, my father-in- law Rati Ram, mother-in-law Jumni, Jeth Prem Chand,  Jethani  Bala  Rani,  two Devars  Sham Lal  and Balbir  Parshad are staying.  My father-in-law, mother-in-law,  Jeth Jethani and both the Devers had been harassing  me  from  the  very  beginning.   My  mother-in-law,  father-in-law,  Jeth  Jethani  and both  the  Devers  had  been making plans to eliminate me.  Last week my  mother-in-law, father-in-law, Jeth, Jethani and Devers  said, “let us get her bitten from a dog and in this way  she would  be  eliminated”.   Yesterday,  during  noon  time,  my  mother-in-law,  father-in-law,  Devers,  Jeth  and  Jethani  had  given  me  severe  beatings.  Thereafter  yesterday at  about  3.00  PM when I  was  about to go to police station to lodge a report, all of  them prevented me and said, “if she is bent upon to  do  so,  she  should  be  eliminated  by  setting  her  ablaze”.  After getting up today morning, I went to my  mother-in-law  and  in  a  fit  of  anger,  I  broke  my  bangles  (a  sign  of  indignation  against  the  married  status).  My mother-in-law, said that fault lies with her  (Asha)  and  she  should  be  finished.   Mother-in-law,  father-in-law, Jeth, Jethani and both the devers after  conniving with  one another  tied me with my Chuni  (head gear) and poured kerosene oil upon me.  The  kerosene oil also entered in my eyes.  Mother-in-law,  father-in-law, Jeth Jethani and both the devers set me  on fire together.  I made a lot of noise.  The incident  occurred at 7.30 AM.  My mother-in-law Jumni, father- in-law Rati Ram, Jeth Prem Chand, Jethani Bala Rani  and both the Devars Sham Lal and Balbir Parshad are  responsible for setting me on fire.  After my death,  both of my children be handed over to my parents.  Otherwise my in-laws would kill them also.”    

Crl. Appeal No. 1159 of 2005                                                                                     Page 4 of 21

5

Page 5

8. Soon after the statement was recorded Asha Devi’s father  

Devi  Dayal  (PW-6)  arrived  in  the  Civil  Hospital  (although he  

says that he reached the hospital at about 11.45 a.m. but after  

the Magistrate left) and he made arrangements to take her to  

Chandigarh but she died on the way.  

9. On these broad facts, investigations were carried out and  

a charge sheet was filed against the six accused persons for  

having murdered Asha Devi.

Proceedings in the Trial Court: 10. Before the Additional  Sessions Judge,  in Case No.  35 of  

1996,  the principal  argument  of  the prosecution was that  in  

view of the dying declaration there was no doubt at all that the  

accused persons were guilty  of  having murdered Asha Devi.  

11. Prem Nath and Raj Bala produced alibi witnesses before  

the Trial Judge to show that Prem Nath was an employee in the  

HMT factory in Pinjore and that on 4th April 1996 as well as on  

5th April 1996 he was in Pinjore and there was no question of his  

or  his  wife’s  involvement  in  the  incident.  The  accused  also  

produced  Chandan  Singh,  Sub-Inspector,  Food  Supply,  

Yamunanagar as DW-7 to prove, on the basis of the ration card  

issued to Jagdish and Rati  Ram, that they lived in the same  

neighbourhood  but  not  together  as  stated  by  Asha  Devi.  Crl. Appeal No. 1159 of 2005                                                                                     Page 5 of 21

6

Page 6

Similarly, Puran Chand a neighbour of Jagdish was produced as  

DW-8 and his testimony was to the effect that he saw smoke  

coming  out  of  Jagdish’s  house  and  he  heard  some  children  

making a noise.   Thereupon he went to Jagdish’s house and  

found that the door of the tenement was bolted from inside.  

He, along with one Gurbachan broke open the door and found  

Asha Devi lying burnt in the tenement.  They put out the fire  

and  called  Rati  Ram who  was  working  in  the  nearby  fields.  

Thereafter,  Rati  Ram  took  Asha  Devi  to  the  Civil  Hospital.  

Puran Chand also stated that Prem Nath and Raj Bala were not  

present at the spot.   

12. One of the questions considered by the Trial  Judge was  

whether Asha Devi was in a fit condition to make a statement,  

particularly since, according to Dr. M.R. Passi,  she had 100%  

superficial as well as deep burns.  The Trial Judge noted that Dr.  

Passi  testified  that  Asha  Devi  was  fit  to  make  a  dying  

declaration and that he was present when Ms. Sarita Gupta was  

recording her dying declaration.  He stated that Asha Devi was  

responding to the questions put to her by the Magistrate.  

13. The Trial Judge also considered the statement of Ms. Sarita  

Gupta who had confirmed from Dr. Passi regarding the fitness  

Crl. Appeal No. 1159 of 2005                                                                                     Page 6 of 21

7

Page 7

of Asha Devi to make a statement.  Ms. Sarita Gupta stated  

that only after Asha Devi was declared fit to make a statement  

that  her  statement  was  recorded  and  read  over  to  her.  

According  to  Ms.  Sarita  Gupta,  during  the  recording  of  her  

statement, Asha Devi was conscious and responding to verbal  

commands.   She  also  stated  that  Dr.  Passi  was  present  

throughout  when  Asha  Devi’s  dying  declaration  was  being  

recorded.  

14. On these facts, the Trial Judge concluded that Asha Devi  

was fit to make a dying declaration.

15. The  next  question  addressed  by  the  Trial  Judge  was  

whether the dying declaration contained any falsehood.  In this  

regard, the Trial Judge came to the conclusion that there was  

nothing to suggest that the dying declaration was incorrect in  

any manner or that Asha Devi made allegations out of some  

vengeance.   

16. Finally, the Trial Judge examined the plea of alibi raised by  

Prem Nath and Raj Bala and in this regard he concluded that  

there was every possibility of both of them being present in  

village  Bhojpur  both  on  4th April  1996  when  Asha  Devi  was  

given a beating as well as in the early morning of 5 th April 1996  

Crl. Appeal No. 1159 of 2005                                                                                     Page 7 of 21

8

Page 8

when Asha Devi was set on fire.  

17. On  the  above  conclusions,  the  Trial  Judge  held,  in  his  

judgment  and  order  dated  28th October  1998,  that  all  the  

accused were guilty of having murdered Asha Devi.

18. Feeling  aggrieved,  the  accused  persons  filed  Criminal  

Appeal  No.  524-DB  of  1998  in  the  High  Court  of  Punjab  &  

Haryana.  By its judgment and order dated 25th October 2004,  

the High Court dismissed their appeal.   

Proceedings in the High Court: 19. The High Court considered the evidence of Dr.  Passi  as  

well  as  the  evidence  of  Ms.  Sarita  Gupta  and  upheld  the  

conclusion of the Trial Judge that Asha Devi was in a fit state of  

mind to make a statement before the Magistrate.

20. The High Court also upheld the conclusion that Asha Devi  

was  in  a  condition  to  speak  coherently  and  was  capable  of  

making a statement.  Consequently, the High Court accepted  

the validity of the dying declaration.  

21. The High Court then considered the question whether it  

could be held, despite the dying declaration, that Prem Nath  

and Raj Bala were not involved in the incident concerning Asha  

Devi.  Relying upon a few decisions of this Court, the High Court  

was of the view that there was no error in law in accepting a  Crl. Appeal No. 1159 of 2005                                                                                     Page 8 of 21

9

Page 9

part of the dying declaration and rejecting another part of the  

dying declaration.  The High Court then examined the evidence  

of  the  alibi  witnesses  in  an  attempt  to  ‘bifurcate’  the  dying  

declaration. However, the High Court rejected their testimony  

and concluded that there was every possibility of Prem Nath  

and Raj Bala being present both on 4th April 1996 when Asha  

Devi was subjected to a beating as well as on 5th April 1996  

when she was allegedly set on fire.  

22. The High Court affirmed the conviction of the accused as  

well as the sentence imposed upon them.

23. Unfortunately, the High Court overlooked the evidence of  

Puran Chand (DW-8) who stated that Asha Devi’s tenement was  

locked from inside and that the door had to be broken open by  

him and Gurbachan who found her burning.

Plea of alibi 24.  On a consideration of the material before us, what strikes  

us as a little odd is that insofar as Prem Chand and Raj Bala are  

concerned, both the Trial Judge and the High Court have given  

us the impression that they proceeded on the basis that these  

two accused persons are required to prove their innocence.  In  

fact it is for the prosecution to prove their guilt and that seems  

to have been lost in the consideration of the case. Crl. Appeal No. 1159 of 2005                                                                                     Page 9 of 21

10

Page 10

25. It is no doubt true that when an alibi is set up, the burden  

is on the accused to lend credence to the defence put up by  

him or her. However the approach of the court should not be  

such as to pick holes in the case of the accused person.  The  

defence evidence has to be tested like any other testimony,  

always keeping in  mind that  a  person is  presumed innocent  

until he or she is found guilty.

26. Explaining the essence of a plea of alibi, it was observed  

in Dudh Nath Pandey v. State of U.P.1 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.”

This  was  more  elaborately  explained  in  Binay  Kumar  

Singh v. State of Bihar2 in the following words:  

“We  must  bear  in  mind  that  an  alibi  is  not  an  exception  (special  or  general)  envisaged  in  the  Indian Penal Code or any other law. It is only a rule of  evidence recognised in  Section 11 of  the Evidence  Act that facts which are inconsistent with the fact in  issue are relevant.”  

Illustration (a) given under Section 11 of the Evidence Act  

is  then  partially  reproduced  in  the  decision,  but  it  is  fully  

reproduced below:

1 (1981) 2 SCC 166 2 (1997) 1 SCC 283  Crl. Appeal No. 1159 of 2005                                                                                     Page 10 of 21

11

Page 11

“The  question  is  whether  A committed  a  crime at  Calcutta on a certain date; the fact that on that date,  A was at Lahore is relevant.

The  fact  that,  near  the  time  when  the  crime  was  committed, A was at a distance from the place where  it  was  committed,  which  would  render  it  highly  improbable,  though  not  impossible,  that  he  committed it, is relevant.”

This Court then went on to say,

“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. It is a basic law  that  in  a  criminal  case,  in  which  the  accused  is  alleged to  have inflicted  physical  injury  to another  person,  the burden is  on the prosecution  to prove  that the accused was present at the scene and has  participated in the crime. The burden would not be  lessened  by  the  mere  fact  that  the  accused  has  adopted the defence of alibi. The plea of the accused  in  such  cases  need  be  considered  only  when  the  burden  has  been  discharged  by  the  prosecution  satisfactorily.  But once the prosecution succeeds in  discharging  the  burden  it  is  incumbent  on  the  accused, who adopts the plea of alibi, to prove it with  absolute certainty so as to exclude the possibility of  his presence at the place of occurrence. When the  presence of the accused at the scene of occurrence  has  been  established  satisfactorily  by  the  prosecution through reliable evidence, normally the  court would be slow to believe any counter-evidence  to  the  effect  that  he  was  elsewhere  when  the  occurrence happened. But if  the evidence adduced  by the accused is  of  such a quality  and of  such a  standard  that  the  court  may  entertain  some  reasonable  doubt  regarding  his  presence  at  the  scene when the occurrence took place, the accused  would,  no doubt,  be entitled to the benefit  of  that  reasonable  doubt.  For  that  purpose,  it  would  be  a  sound  proposition  to  be  laid  down  that,  in  such  circumstances, the burden on the accused is rather  heavy.  It  follows,  therefore,  that  strict  proof  is  required for establishing the plea of alibi.”

Crl. Appeal No. 1159 of 2005                                                                                     Page 11 of 21

12

Page 12

This view was reiterated in Jayantibhai Bhenkarbhai v.  

State of Gujarat.3

27. On the standard of proof, it was held in Mohinder Singh  

v. State4 that the  standard of proof required in regard to a  

plea of alibi must be the same as the standard applied to the  

prosecution  evidence  and  in  both  cases  it  should  be  a  

reasonable standard. Dudh Nath Pandey goes a step further  

and  seeks  to  bury  the  ghost  of  disbelief  that  shadows  alibi  

witnesses, in the following words:

“Defence witnesses are entitled to equal treatment  with those of the prosecution. And, courts ought to  overcome  their  traditional,  instinctive  disbelief  in  defence witnesses. Quite often, they tell lies but so  do the prosecution witnesses.”  

28. The defence put up by Prem Nath and Raj Bala needs to  

be examined in the light of the law laid down by this Court.  

What is the defence put up by them?  Subhash Saini,  Office  

Assistant with HMT in Pinjore appeared as DW-1 and stated that  

Prem Nath was on duty on 4th April,  1996 from 2.00 p.m. to  

10.00 p.m.   On the next day that is on 5th April, 1996 he was on  

half day leave and was on duty from 6.00 p.m. to 10.00 p.m.

29. This  witness  also  stated  that  the  entry  and  exit  of  an  

employee to and from the factory premises is  recorded in a  3 (2002) 8 SCC 165 4 1950 SCR 821 Crl. Appeal No. 1159 of 2005                                                                                     Page 12 of 21

13

Page 13

punching machine and two employees of the factory supervise  

the machine to avoid proxy punching.  If there is any suspicion  

about any employee, the identity card is demanded from him  

or her.  The Trial Court and the High Court had observed that it  

is  possible to  ‘manipulate’  the punching machine.  While this  

may  be  so,  there  is  nothing  to  suggest  that  despite  the  

presence of employees and other safeguards having been set  

up by HMT, Prem Nath had manipulated the punching machine.  

The  view  of  both  the  courts  was  speculative  in  nature  and  

cannot form the basis for rejecting the alibi.   

30. Jagan Nath Mishra (DW-2) is the tenant of Prem Nath and  

he stated that he met Prem Nath at about 10.30 p.m. on the  

night of 4th April 1996.                                

31. This  witness further  stated that  he left  his residence to  

attend  duty  the  next  morning  at  about  7.45  a.m.  (This  has  

wrongly  been  mentioned  as  5.45  a.m.  in  the  impugned  

judgment and we have verified from the original record that it  

is actually 7.45 a.m.)  At that time he met Prem Nath and Raj  

Bala. He also stated that when he returned at about 5.45 p.m.  

he was given sweets by Raj Bala because they had purchased a  

new scooter.

Crl. Appeal No. 1159 of 2005                                                                                     Page 13 of 21

14

Page 14

32. On 5th April 1996 Prem Nath had taken half day leave for  

the purpose of purchasing a scooter.  This was testified by Bhim  

Sen Verma (DW-3). It was stated by K.N. Sharma (DW-5) that  

Prem Nath was on duty on 4th April 1996 up to 10.00 p.m. and  

on half day duty on 5th April 1996.

33. K.K. Kanwal from Hind Motors Ltd. in Chandigarh entered  

the witness box as DW-6 and affirmed that at about 11.00 a.m.  

on 5th April 1996 Prem Nath had purchased and taken delivery  

of a scooter from his company. He further stated that prior to  

taking delivery of a vehicle, it takes about an hour to complete  

all procedural formalities in this regard.

34. The evidence of the alibi witnesses clearly brings out that  

on 4th April 1996 Prem Nath was in his factory from 2.00 p.m.  

onwards till 10.00 p.m. and later in the night he was seen by  

his tenant at about 10.30 p.m.  On the next day that is 5 th April  

1996 Prem Nath and Raj Bala were seen by their tenant at 7.45  

a.m.  and  about  11.00  a.m.  Prem  Nath  purchased  and  took  

delivery of a scooter from Hind Motors Ltd., Chandigarh before  

going to the factory at about 6.00 p.m.  On 5th April 1996 his  

wife  Raj  Bala  distributed  sweets  on  the  purchase  of  a  new  

scooter.  35. The  Trial  Court  and  the  High  Court  have  

Crl. Appeal No. 1159 of 2005                                                                                     Page 14 of 21

15

Page 15

disbelieved the entire case put up by Prem Nath and Raj Bala  

by  holding  that  they  could  very  well  have  been  in  village  

Bhojpur at 12.00 noon on 4th April 1996 when Asha Devi was  

given a beating and they could have travelled back to Pinjore to  

enable Prem Nath to be in the factory at 2.00 p.m. Nothing is  

said about how they could have stopped Asha Devi at 3.00 p.m.  

from going to the police to lodge a complaint. The same night,  

they  could  have  left  Pinjore  to  be  in  village  Bhojpur  early  

morning on 5th April 1996 at about 7.30 a.m. when Asha Devi  

was set  on fire.   Thereafter,  they  could  have come back  to  

Pinjore  to  enable  Prem Nath  to  be  in  Hind  Motors  at  about  

10.00  a.m.  to  purchase  a  scooter  at  11.00  a.m.   There  is  

nothing on record to indicate the distance between Pinjore and  

village Bhojpur but we were orally told that it takes more than a  

couple of hours to cover that distance. Prem Nath did not have  

any means of personal conveyance which could have enabled  

him to undertake these journeys.

36. Apart from the conclusions of the Trial Court and the High  

Court  appearing  far-fetched,  the  testimony  of  Jagan  Nath  

Mishra (DW-2) the tenant of Prem Nath has not been correctly  

appreciated because of a typing error in transcribing it from the  

Crl. Appeal No. 1159 of 2005                                                                                     Page 15 of 21

16

Page 16

original  record.  As mentioned above,  Jagan Nath Mishra had  

seen Prem Nath and Raj Bala at 7.45 a.m. on 5th April 1996 (and  

not  at  5.45  a.m.  as  wrongly  transcribed  in  the  impugned  

judgment).  Consequently,  Prem Nath and Raj  Bala could  not  

have been in  village Bhojpur  at 7.30 a.m. on 5th April  1996.  

This evidence has gone unchallenged.

37. It seems to us that although the High Court has given due  

weightage to  the  dying declaration of  Asha Devi  but  having  

accepted it, it has tried to pick holes in the defence evidence to  

justify the contents of the dying declaration. Given the law laid  

down  by  this  Court,  this  was  not  the  correct  manner  of  

approaching the evidence brought forth by Prem Nath and Raj  

Bala. In our opinion, the alibi witnesses have made out a strong  

case of demonstrating the improbability of Prem Nath and Raj  

Bala being involved in the incident of beating up Asha Devi at  

about 12.00 noon on 4th April 1996, of stopping her at about  

3.00 p.m. from going to the police to lodge a complaint and  

setting her on fire at about 7.30 a.m. on 5th April 1996.

Severability of a dying declaration:  38. The  next  question  is  whether  Asha  Devi’s  dying  

declaration can be split up to segregate the case of Prem Nath  

and Raj Bala from the case of the other accused persons. Crl. Appeal No. 1159 of 2005                                                                                     Page 16 of 21

17

Page 17

39. In Godhu v. State of Rajasthan5 this Court found itself  

unable  to  subscribe  to  the  view that  if  a  part  of  the  dying  

declaration  is  found  not  to  be  correct,  it  must  result  in  its  

rejection in entirety. It was held,

“The  rejection  of  a  part  of  the  dying  declaration  would put the court  on the guard and induce it  to  apply a rule of caution. There may be cases wherein  the part of the dying declaration which is not found  to be correct is so indissolubly linked with the other  part of the dying declaration that it is not possible to  sever the two parts. In such an event the court would  well be justified in rejecting the whole of the dying  declaration.  There  may,  however,  be  other  cases  wherein the two parts of a dying declaration may be  severable and the correctness of one part does not  depend upon the correctness of the other part. In the  last mentioned cases the court  would not normally  act upon a part of the dying declaration, the other  part of which has not been found to be true, unless  the  part  relied  upon  is  corroborated  in  material  particulars by the other evidence on record. If such  other  evidence  shows  that  part  of  the  dying  declaration relied upon is correct and trustworthy the  court can act upon that part of the dying declaration  despite  the  fact  that  another  part  of  the  dying  declaration has not been proved to be correct.”

40. Although at law there is  no difficulty in segregating the  

role of two sets of accused persons if the dying declaration is  

severable,  the  present  case  indicates  that  the  role  of  the  

accused persons cannot be segregated. This is because Asha  

Devi’s dying declaration mentions all the accused persons as  

being involved in all the events that had taken place on 4th April  

1996 and 5th April 1996.  There is no distinction made in the  5 (1975) 3 SCC 241 Crl. Appeal No. 1159 of 2005                                                                                     Page 17 of 21

18

Page 18

role  of  any  of  the  accused  persons  and  they  have all  been  

clubbed together with regard to the harassment of Asha Devi;  

making plans to eliminate her; Asha Devi being beaten up on  

4th April  1996;  all  the  accused  persons  preventing  her  from  

lodging a complaint  with the police;  all  the accused persons  

tying up Asha Devi with her chunni and pouring kerosene oil on  

her and then setting her on fire.   Asha Devi has referred to  

each one of them as being involved in every incident on 4th  

April 1996 and 5th April 1996. If somewhat different roles were  

assigned to at least some of the accused persons, segregation  

or  severance  could  have  been  possible.  But  with  everybody  

being roped in for every event, it is not possible in this case to  

segregate or sever the actions of one from another.

41. Notwithstanding this, as we have seen, it is not possible to  

accept  the  involvement  of  Prem  Nath  and  Raj  Bala  in  the  

events that took place on the two fateful days. Nevertheless, it  

is quite possible that the other four accused were involved in  

beating up Asha Devi on 4th April 1996 and setting her on fire  

on 5th April  1996.   But,  what  is  of  equal  importance is  that  

neither  the  Trial  Court  nor  the  High  Court  adverted  to  the  

crucial evidence of Puran Chand (DW-8) who stated that he saw  

Crl. Appeal No. 1159 of 2005                                                                                     Page 18 of 21

19

Page 19

smoke  coming  out  of  Jagdish’s  tenement  and  children  were  

making a noise.  When he reached there, he saw flames and  

smoke coming out  from the ventilator  of  Jagdish’s  tenement  

and along with Gurbachan, he had to break down the door of  

the  tenement  which  was locked from inside  and they found  

Asha Devi on fire.  If this statement of Puran Chand is correct,  

and there does not seem any reason to doubt it since nothing  

was put to him in this regard in cross examination, a case of  

suicide by Asha Devi is a possibility. At this stage, it may be  

noted that the investigating officer Gurdial Singh (PW-10) could  

not say if the bolt of the tenement was broken or not.  

42. On a reading of the dying declaration it is quite clear that  

Asha Devi was very disturbed on the morning of 5th April 1996  

and that is why she broke her bangles in the presence of Jumni.  

This may be because of the events of the previous day or her  

being a victim of continuous harassment. This, coupled with a  

lack of response from Jumni on the morning of 5th April 1996  

may  have  completely  frustrated  Asha  Devi  leading  her  to  

commit  suicide.  Whatever  be  the  cause  of  Asha  Devi  being  

upset, the evidence of Puran Chand has not been challenged  

and so it cannot be glossed over.  In the face of this, it is not  

Crl. Appeal No. 1159 of 2005                                                                                     Page 19 of 21

20

Page 20

possible to discount the theory suggested by learned counsel  

that the case was possibly one of the suicide out of extreme  

frustration and not of murder.

43. It is true that when a person is on his or her death bed,  

there is no reason to state a falsehood but it is equally true that  

it  is  not  possible to  delve into the mind of  a  person who is  

facing death. In the present case the death of Asha Devi and  

the circumstances in which she died are extremely unfortunate  

but at the same time it does appear that for some inexplicable  

reason  she  put  the  blame  for  her  death  on  all  her  in-laws  

without exception. Perhaps a more effective investigation or a  

more effective cross-examination of the witnesses would have  

brought  out  the  truth  but  unfortunately  on  the  record  as  it  

stands, there is no option but to give the benefit of doubt to  

Jumni (and Sham Lal) and to hold that they were not proved  

guilty of the offence of having murdered Asha Devi.   

44. Insofar as Prem Nath and Raj Bala are concerned there is  

sufficient  material  to  accept  their  alibi  and  they  must  be  

acquitted of the charges made against them.

45. As  mentioned  above  Rati  Ram  and  Balbir  Prasad  are  

already dead and nothing need be said about their involvement  

Crl. Appeal No. 1159 of 2005                                                                                     Page 20 of 21

21

Page 21

in  the  incident.  Were  they  alive,  they  too  would  have been  

entitled to the benefit  of  doubt since the facts pertaining to  

them were similar to those of Jumni and Sham Lal.

Conclusion: 46. The plea of alibi set up by Prem Nath and Raj Bala deserve  

acceptance  and  are  accepted.  They  are  found  not  guilty  of  

having murdered Asha Devi. Jumni and Sham Lal are given the  

benefit  of  doubt  and  the  charge  against  them  of  having  

murdered Asha Devi is not proved beyond a reasonable doubt.  

Both the appeals are accordingly allowed.              

                                                              ……………………………………

J                  (Ranjana Prakash  

Desai)

            ……………………………………J                  (Madan B. Lokur)

New Delhi; March 12, 2014   

Crl. Appeal No. 1159 of 2005                                                                                     Page 21 of 21