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

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

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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 4

th

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 5

th

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, 1

st

Class (PW-9)

Crl. Appeal No. 1159 of 2005

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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 5

th

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

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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 4

th

April 1996 as well as on

5

th

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

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

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 4

th

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

Page 8 when Asha Devi was set on fire.

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

judgment and order dated 28

th

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 25

th

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

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 4

th

April 1996 when Asha

Devi was subjected to a beating as well as on 5

th

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

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 Bihar

2

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

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

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. State

4

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 4

th

April, 1996 from 2.00 p.m. to

10.00 p.m. On the next day that is on 5

th

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

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 4

th

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

Page 14 32.On 5

th

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 4

th

April 1996 up to 10.00 p.m. and

on half day duty on 5

th

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 5

th

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 4

th

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 5

th

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

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 4

th

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 5

th

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

Page 16 original record. As mentioned above, Jagan Nath Mishra had

seen Prem Nath and Raj Bala at 7.45 a.m. on 5

th

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 5

th

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 4

th

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 5

th

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

Page 17 39.In Godhu v. State of Rajasthan

5

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 4

th

April

1996 and 5

th

April 1996. There is no distinction made in the

5

(1975) 3 SCC 241

Crl. Appeal No. 1159 of 2005

Page 17 of 21

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

4

th

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 4

th

April 1996 and 5

th

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 4

th

April 1996 and setting her on fire

on 5

th

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

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 5

th

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 5

th

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

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

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

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