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Reportable

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.447 OF 2010

Narender Kumar          …Appellant VERSUS

State of NCT of Delhi              …Respondent   

With

CRIMINAL APPEAL NO.484 OF 2010

J   U  D  G   M   E   N   T

Fakkir Mohamed Ibrahim Kalifulla, J.

1. The appellant in Criminal Appeal No.447 of 2010 is A-1 and

the appellants in Criminal Appeal No.484 of 2010 are A-2 and A-3.

Both  these  appeals  are  directed  against  the  common  judgment

rendered by the Division Bench of  Delhi  High Court in Criminal

Appeal No.33 of 1993 dated 06.03.2009 preferred by the appellants

in both these appeals.  

2. At the very outset it must be stated that the appellants were

Police Constables. The appellant in Criminal Appeal No.447 of 2010

was  Head  Constable  and  the  other  two  appellants  in  Criminal

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Appeal No.484 of 2010 were Constables. The appellant in Criminal

Appeal No.447 of 2010 was convicted for the offence under Section

302 read with  Section 34 along  with  the  appellants  in  Criminal

Appeal  No.484  of  2010  and  was  sentenced  to  undergo  life

imprisonment apart from fine of Rs.5000/- each and in default of

the  payment  of  fine  to  undergo  rigorous  imprisonment  for  four

months.  The appellants in Criminal Appeal No.484 of 2010 were

also convicted for the offence under Section 330 read with Section

34  IPC  and  sentenced  to  undergo  rigorous  imprisonment  for  a

period of two years along with fine of Rs.1000/- each and in default

of payment of fine to undergo rigorous imprisonment for one month.

All the sentences were to run concurrently.

3. The  case  of  the  prosecution  was  that  on  01.08.1980  the

deceased Laxman Singh alias Hanuman was picked up from the

railway  station  of  Subzi  Mandi  by  the  Police  and  was  illegally

confined in Andha Mughal  Police  Post  till  05.08.1980.   While  in

such  custody,  in  order  to  extract  confession  from  him  he  was

beaten  severely  and  on  05.08.1980  he  suffered  burn  injuries  at

quarters  No.4  of  police  post  Andha  Mughal  from where  he  was

taken to Hindurao Hospital and then to LNJP Hospital by PW-1 ASI. Crl.A. No.447/ 2010 & Crl.A. No.484/2010                                            2 of 20

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At LNJP Hospital PW-12 Doctor asked PW-2 to procure the services

of Magistrate as the deceased wanted to make a declaration when

he was in the last spell of his life time. After the above occurrence

initially a case was registered at Subzi Mandi Police Station vide FIR

No.763 of 80 for the offence under Section 309 IPC. Thereafter, a

dying  declaration  was  recorded  in  the  presence  of  PW-7

Metropolitan Magistrate around 2.30 p.m. on 05.08.1980. After the

recording of the dying declaration another FIR was registered under

Section  307 IPC.  The  deceased breathed  his  last  on 06.08.1980

whereafter the case was converted to one under Section 302 IPC.

The dying declaration of the deceased revealed that he was brought

to Andha Mughal Police Post by the appellants in Criminal Appeal

No.484 of  2010 along  with  one  other  person  by  name Tyagi  on

01.08.1980  from  the  railway  station  of  Subzi  Mandi  and  after

bringing him to the police post he was beaten severely to extract a

confession  from  him  to  the  effect  that  he  was  involved  in  the

stealing  of  some properties.  According  to  the  prosecution as  the

deceased was pleading ignorance, ultimately on 05.08.1980 around

10.30  a.m.  kerosene  was  poured  on  him  by  the  appellant  in

Criminal Appeal No. 447 of 2010 while he was set on fire by the

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appellants in Criminal Appeal No.484 of 2010 by throwing ignited

matchstick.  

4. In  support  of  the  case  of  the  prosecution  as  many  as  26

witnesses were examined and none was examined on behalf of the

appellants.  In  313  questioning  the  appellants  denied  their

involvement and the appellant Om Prakash A-3 took the stand that

he was not present at all at the place of occurrence on 05.08.1980.

The appellant in Criminal Appeal No.447 of 2010 took the defence

that since because the brother of the deceased, one Sher Singh was

arrested by him and was fined Rs.30 for the offence under Section

112/117 of the Delhi Police Act, to wreck vengeance on him he was

implicated. PW-4/A was the duty register for the period 01.08.1980

to 05.08.1980 of Andha Mughal Police Station which disclosed that

all the three were on duty between 01.08.1980 to 05.08.1980. PW-2

ASI who was in the police station at that relevant time confirmed

that  he heard the cries of  the deceased and when he rushed to

quarter  No.4  he  found  him  in  a  burning  condition.  He  also

confirmed that the said quarter was in the name of A-2 Vijay Kumar

the  first  appellant  in  Criminal  Appeal  No.484  of  2010  who  was

residing there along with others. He also confirmed that a kerosene Crl.A. No.447/ 2010 & Crl.A. No.484/2010                                            4 of 20

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stove was lying there in the quarters at the time when he saw the

deceased in a burning condition. PW-10/A is the seizure memo for

the seizure of burnt clothes, stove and a match box from quarters

No.4 which was confirmed by the independent witness PW-16 who

also  witnessed  the  deceased  in  a  burning  condition.  The  dying

declaration of the deceased was recorded by PW-7 a Metropolitan

Magistrate who after receiving the certificate of fitness certified from

PW-12  Doctor  that  the  deceased  was  fit  to  make  a  statement

recorded his dying declaration. The Trial Court having analysed the

evidence  rejected  the  plea  of  the  appellant  in  Criminal  Appeal

No.447 of 2010 that he was implicated falsely to wreck vengeance

on  him and  also  rejected  the  plea  of  alibi  taken  by  the  second

appellant in Criminal Appeal No.484 of 2010. The Trial Court found

the  dying  declaration  recorded  by  PW-7  in  exhibit  PW-7/C  as

truthful  and  unassailable  and  by  relying  upon  the  other

corroborative material evidence convicted the appellants as directed

above.  The  High  Court  again  analysed  the  entire  evidence

threadbare and found that there was no infirmity in the analysis of

the evidence made by the Trial Court in particular the truthfulness

and the reliability of the dying declaration recorded by PW-7 and

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declined to interfere with the conviction and sentences imposed on

the appellants. We heard Mr. Dubey learned Senior Counsel for the

appellant  in  Criminal  Appeal  No.447  of  2010,  Mr.  Sanjay  Jain,

learned  counsel  for  the  first  appellant-Vijay  Kumar  in  Criminal

Appeal No.484 of 2010 and Mr. Sodhi, learned Senior Counsel for

the  second  appellant-Om Prakash  in  Criminal  Appeal  No.484  of

2010.  

5. The  submissions  of  the  learned  counsel  for  the  appellants

were that the dying declaration was wholly unreliable for the reason

that admittedly after the deceased was admitted to the hospital on

05.08.1980  around  11.20  a.m.  as  he  was  writhing  in  pain,

pathedine injection was applied and, therefore, he would not have

been in coherence state of mind to make the dying declaration at

2.30 p.m. It was then contended that PW-7 did not make proper

identification of  the deceased,  that the Magistrate did not  obtain

any certificate about the fitness of the deceased, that the thumb

impression of the deceased was not secured in the dying declaration

as per the guideline of the Delhi High Court Rules, that the dying

declaration was not read out to the deceased and that the doctor

did not certify the dying declaration which was also in violation of Crl.A. No.447/ 2010 & Crl.A. No.484/2010                                            6 of 20

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the Delhi High Court Rules. On behalf of the appellant in Criminal

Appeal No.447 of 2010 it was contended that because a case was

filed by the said appellant against the brother of the deceased, the

family of the deceased had a grudge against him and, therefore, he

was falsely implicated, that,  therefore,  the evidence of  PW-5 who

was the brother of the deceased could not have been relied upon by

the Courts below, that the dying declaration was not recorded in the

question and answer form and that the Magistrate did not ascertain

as to whether the deceased was fit  to make a statement at that

point of time and that since the deceased was visited by his close

relatives in the hospital he was tutored to make a statement against

the appellants. On behalf of the second appellant Om Prakash, it

was contended that between 11 a.m. to 2 p.m he was in the Central

Excise Laboratories in connection with a chemical test to be carried

out which work was assigned to him and, therefore,  he was not

present at all at the place of occurrence, that the S.I. of Police Mr.

Ram Kishan who was also present at the place of occurrence was

not examined and that the deceased did not tell the name of Om

Prakash to PW-14 and that the Tyagi whose name was referred to

by the deceased was not named in the FIR. On behalf of the first

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appellant in Criminal Appeal No.484 of 2010 it was also contended

that there was no evidence for any motive to kill the deceased, that

the family member of the deceased were all involved in some crime

or  other  and since  the  appellants  were  all  constables  they  were

falsely implicated in the case.                    

6. As against the above the above submissions, learned counsel

for  respondent  State  Mr.  D.K.  Dey  submitted  that  the  dying

declaration exhibit P-7/C was rightly relied upon by the trial Court

as well as the High Court, that there was no deficiency or defect in

the  recording  of  the  dying declaration by  PW-7 the  Metropolitan

Magistrate, that the said document was truthful recording of the

statement  of  the  deceased  and,  therefore,  certain  minor  defects

relating  to  non-compliance  of  the  guidelines  issued  by  the  High

Court would not vitiate the said document.  Learned counsel also

submitted that the presence of the appellant in the Police Station

on the relevant days and on the crucial date, namely, 5.8.1980 was

not in dispute, that the evidence of the police officer PW-4 and PW-2

confirmed the said fact, that the plea of alibi by Om Prakash one of

the accused was not fully established and when once the plea of

alibi failed then there was no defence for the said accused.  The Crl.A. No.447/ 2010 & Crl.A. No.484/2010                                            8 of 20

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learned counsel submitted that the trial Court and the High Court

having  examined all  the above facts  in  detail,  before  finding the

appellants guilty of the offence the conviction and sentence imposed

upon them does not call for interference.

7. Having  heard  the  respective  learned  counsel  and  having

examined  the  material  evidence  placed  before  us  and  having

perused the judgment of the trial Court as well as that of the High

Court,  we  are  also  convinced  that  the  conviction  and  sentence

imposed upon the appellants do not call for interference.  

8. Having perused the materials on records, we find the following

facts are not in dispute, namely:

a. The deceased Laxman Singh @ Hanuman s/o Huba

Singh was picked up by two of the appellants along

with  one  Tyagi  on  1.8.1980  and  confined  in  Andha

Mugal police post till 5.8.1980.  

b. On 5.8.1980, at about 10.30 a.m. on hearing the hue

and cry of the deceased who was kept in quarter No.4

which was in occupation of  Vijay Kumar along with

some other police constable, PW-2 ASI rushed to the

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spot along with PW-16 who is an independent witness,

both  of  whom witnessed the  deceased in  a  burning

condition.   

c. The deceased was shifted to Hindu Rao Hospital from

where he was again shifted to LNJP hospital by PW-2.   

d. The deceased was attended by PW-12 Doctor who on

seeing the condition of the deceased asked PW-2 ASI

to  summon  a  Magistrate  for  recording  the  dying

declaration.

e. FIR 763/1980 was registered at  Subzi  Mandi  police

station for an offence under Section 309 IPC.   

f. At  the  instance  of  PW-2,  PW-7  the  Metropolitan

Magistrate  arrived  at  the  Hospital  on  5.8.1980  to

record the dying declaration of the deceased. The dying

declaration was recorded by PW-7 at 2.30 p.m.

g. After the recording of the dying declaration the offence

was altered as one under Section 307 IPC.

h. On 6.8.1980, the victim died. Thereafter, the offence

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was altered as one under Section 302 IPC.   

i. After the alteration of the charge of the offence under

section 302 IPC the investigation was handed over to

crime branch by the local police.   

j. As  per  exhibit  PW-4/A,  duty  register  for  the  period

1.8.1980 to 5.8.1980, the appellants were all on duty.

This  was  also  spoken  to  by  PW-4  Sub  Inspector  of

Police.

k. As  per  exhibit  PW-10/A seizure  memo,  burnt  cloth,

stove and match box were recovered from quarter No.4

which was also spoken to by PW-16.

l. In 313 statement the appellants admitted their posting

at Andha Mugal police post.

m.As per the dying declaration after  the deceased was

taken  into  custody  on  1.8.1980,  he  was  severely

beaten time and again by the accused, that on 5.8.80

at  10.30  a.m.  while  he  was  taking  his  food  in  the

police  post,  Narender  Kumar,  Head  Constable  gave

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him  beatings,  that  while  beating  him  he  opened  a

stove lying nearby and poured the kerosene oil  over

the deceased while the other two accused Om Prakash

and  Vijay  Singh,  constables  who  were  also  present

there lit a matchstick and threw the same on his body.

n. The deceased died on 6.8.1980.

9. Having  noted  the  above  uncontroverted  facts,  when  we

examine  the  defence  canvassed  on  behalf  of  the  appellants,

according to them PW-7/C the dying declaration cannot be relied

upon for various defects.  It was contended that the identity of the

deceased was not verified by the learned Metropolitan Magistrate

PW-7.  Insofar as the said stand is concerned, when we peruse the

evidence of PW-7 the learned Magistrate, we find that he has stated

that PW-12 Dr. Nayar identified the patient to him though he had

not obtained the identification of the patient in writing from PW-12.

That apart, in the initial part of the evidence he has narrated as to

how PW-2 the Assistant Sub-Inspector of Police approached him to

record  the  dying  declaration  of  the  deceased,  that  he  was

accompanied by PW-2 to the hospital,  that he was taken to the

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patient  thereafter,  namely,  the  deceased  Laxman  Singh  s/o  of

Huba Singh and after preliminary orientation and after satisfying

himself that the patient was fully conscious and was capable of

making the statement and making an endorsement vide PW-7/D

and also  after  getting  it  endorsed it  by  PW-12 he  proceeded  to

record exhibit PW-7/C, the dying declaration of the deceased.

10. Having  noted  the  above  detailed  statement  made  by  PW-7

learned Metropolitan Magistrate,  we have no doubt in our mind

about the verification of the identity of the patient/deceased and,

therefore, we do not find any substance in the said submission.

11. It  was  then  contended  that  the  patient  was  administered

pathedine  injection  for  the  pain  and  suffering  that  he  was

undergoing by around 11.30 a.m. and that the effect of pathedine

would remain at least for four hours and, therefore, the deceased

could not have been in a position to give evidence coherently.  As

far  as  the  said  submission  was  concerned,  we  must  go  by  the

expert  opinion,  namely,  the  doctor  who  was  present  and  who

permitted PW-7 to record the dying declaration.  The doctor was

examined as PW-12.  The Doctor in his evidence stated that when

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he examined the patient at 12.15 p.m. he found the deceased in a

fit condition to make statement and thereafter he called upon PW-2

to summon the Magistrate.  Subsequently, he made another entry

under exhibit PW-12/A at 2.30 p.m. finding the patient again in a

fit condition to make a statement and he also put his signatures

under exhibit PW-1/C.  

12. The doctor PW-12 also explained that normally the effect of

pathedine injection would last for 3-4 hours depending upon the

severity  of  the  pain.  He  further  stated  that  the  deceased  had

suffered 80% burn injuries as per the entries in the MLC, that he

was given medicines at 12.50 p.m. and if the pain was severe the

effect of pathedine injection may not last for more than two hours.

He reiterated that according to him when the dying declaration was

recorded by PW-7 the deceased was in a fit condition to make a

statement.

13. Having regard to the said statement of PW-12, which was also

corroborated  in  every  respect  by  PW-7  who  has  made  an

endorsement in the dying declaration itself  that the patient was

fully conscious and capable of making his statement and the said

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witnesses are official witnesses one of whom, namely, PW-12 is an

expert witness, we have no reason to disbelieve their version and,

therefore,  the  submission  on  that  footing  is  also  liable  to  be

rejected.

14. It  was  then  contended  that  the  dying  declaration  did  not

contain either the signature or thumb impression of the deceased

which is in violation of the guidelines issued by the High Court of

Delhi in regard to the recording of dying declaration.

15. When we consider the said submission, in the first place, it

must be stated that it was only a guideline.  The guidelines were

issued by the High Court in order to ensure that  any defect  in

regard to the identity of the deceased or the veracity of the contents

of the dying declaration are not doubted on the ground that the

concerned patient himself could not have made such a statement

in order to implicate someone in the offence.  The issuance of the

guidelines  is  for  the  purpose  of  ensuring  and  for  testing  the

genuineness of the dying declaration of person who is in the last

moment of his life.  Merely because there was a defect in following

the said guideline,  which,  as is  now pointed out,  is  of  a  trivial

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nature and if the dying declaration recorded is otherwise proved by

ample evidence, both oral as well as documentary, on the ground of

such trivial defects, the whole of the dying declaration cannot be

thrown out.  In the case on hand, we have noted that the dying

declaration was recorded by PW-7 who was summoned by PW-12

the doctor who noted the condition of the patient and PW-7 was

brought to the hospital by PW-2, the ASI and before recording the

dying declaration PW-12 endorsed the capability of the deceased to

make the statement  apart  from PW-7 himself  ensuring that  the

deceased  was  in  a  fit  condition  to  make  the  statement  and

thereafter the said statement was recorded by PW-7 a responsible

judicial  Officer.   It  cannot  be  held  that  simply  because  PW-7

omitted to get the thumb impression or signature of the deceased

the dying declaration should be rejected.  As has been noted by the

High Court in its judgment where it has reached a conclusion that

the recording of the dying declaration was established and found to

be  truthful  and  the  statement  contained  therein  was  made

voluntarily and recorded correctly, there is no reason to doubt the

said document PW-7/C for the reason that the signature or thumb

impression was not obtained on the said document.  Therefore, we

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hold that the dying declaration was proved in the manner known to

law and, therefore, there is no scope to reject the same.

16. On behalf of the second appellant in Criminal Appeal No.484

of 2010, a plea was raised to the effect that between 11 a.m. and 2

p.m. on 5.8.1980 he was in the Central Excise Laboratory as he

was directed to deposit a substance for test in the said laboratory

where he had to stay back between 11 a.m. to 2 p.m.  The plea of

alibi  was raised on the above basis and in fact the prosecution

themselves  examined  PW-20  one  A.S.  Negi,  LDC  of  Excise

Department who in his deposition stated that on 5.8.1980 he was

working as LDC in Excise laboratory,  he knew Om Prakash the

accused, that the accused met him at 11 a.m. to deposit a sample,

that thereafter he asked him to come after 2 p.m. as they used to

receive samples only between 2 and 4 p.m. and that one Har Lal,

UDC was also sitting in the same room in which PW-20 was sitting

and that  accused Om Prakash brought  the sample only  after  2

p.m. which was deposited by Har Lal, UDC.  It is quite apparent

that the appellant Om Prakash himself being a police constable the

prosecuting agency wanted to support the appellant and, therefore,

came  forward  to  examine  PW-20  whose  version  has  otherwise Crl.A. No.447/ 2010 & Crl.A. No.484/2010                                            17 of 20

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nothing to do with the case of the prosecution, on the other hand it

was detrimental to the case of prosecution.  PWs-17 to 19 were also

examined to support the above version.

17. PWs-17 and 18 also  stated that  on 5.8.1980 appellant  Om

Prakash was in the Excise office at 2, Battery Lane, Rajpur Road,

Delhi at about 10.30 or 11 a.m. and remained there till 2 p.m. As

was noted by us earlier, the evidence of PWs-17, 18, 19 and 20

were  all  wholly  unnecessary  to  speak  about  the  case  of  the

prosecution. We can understand if they had been examined on the

side of Om Prakash.  In any event, even going by the version of

those witnesses he was found in the office of excise laboratory after

10.30 a.m. until 2 p.m.  According to the deceased, he was burnt

at  the  instance  of  the  appellants  just  about  10.30  a.m.  in  the

quarter No.4 of police post of Andha Mughal.  Therefore, prior to

10.30 a.m. the whereabouts of the accused Om Prakash were not

surely stated.  He was assigned the task of taking the sample at

9.40 a.m. Therefore, between 9.40 a.m. and 10.30 a.m. the location

of the said accused was not shown to have been in a different place

other than the place of occurrence.  That apart, the trial Court has

noted  that  the  excise  laboratory  at  battery  line  was  just  5-6 Crl.A. No.447/ 2010 & Crl.A. No.484/2010                                            18 of 20

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minutes drive from the police post.  The trial Court made a detailed

analysis of this issue and has found that there was no truth in the

claim of alibi of the second appellant Om Prakash.

18. Having regard to the above factors noted by the trial Court as

well as by the High Court, we are also of the view that there is no

substance in the said plea made on behalf of the said appellant.

19. On  behalf  of  Narender  Kumar,  the  appellant  in  Criminal

Appeal No. 447/2010, it was faintly suggested that he had earlier

booked  the  brother  of  deceased  one  Sher  Singh  for  an  offence

under Delhi Police Act for which the said Sher Singh came to be

fined the sum of Rs.30 and, therefore, to wreck vengeance on him

he was falsely implicated.  As was rightly rejected by the trial Court

as well as the High Court the said defence appears to be a very

remote one as compared to a very solid evidence in the form of

dying  declaration  contained  in  exhibit  PW-7/C  in  which  the

deceased categorically  referred to the specific  role played by the

said appellant Narender Kumar that he poured the kerosene from a

stove  which  was  lying  in  the  quarters  No.4  which  was  also

recovered later on under exhibit PW-10/A.  Therefore, it is too late

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in the day for the appellant to raise such a flimsy ground by way of

defence.  We do not find any scope to accede to such a plea raised

on behalf of the appellant in Criminal Appeal No.447/2010.

20. Having regard to our above conclusions, we do not find any

merit  in  both  the  appeals.   The  appeals  fail  and the  same are

dismissed.

….………………………………………...J. [Fakkir Mohamed Ibrahim Kalifulla]

….………………………………………...J. [Uday Umesh Lalit]

New Delhi; December 16, 2015

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