Page 1 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

Crl.A. No.447/ 2010 & Crl.A. No.484/2010

1 of 20

Page 2 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

Page 3 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

Crl.A. No.447/ 2010 & Crl.A. No.484/2010

3 of 20

Page 4 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

Page 5 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

Crl.A. No.447/ 2010 & Crl.A. No.484/2010

5 of 20

Page 6 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

Page 7 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

Crl.A. No.447/ 2010 & Crl.A. No.484/2010

7 of 20

Page 8 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

Page 9 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

Crl.A. No.447/ 2010 & Crl.A. No.484/2010

9 of 20

Page 10 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

Crl.A. No.447/ 2010 & Crl.A. No.484/2010

10 of 20

Page 11 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

Crl.A. No.447/ 2010 & Crl.A. No.484/2010

11 of 20

Page 12 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

Crl.A. No.447/ 2010 & Crl.A. No.484/2010

12 of 20

Page 13 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

Crl.A. No.447/ 2010 & Crl.A. No.484/2010

13 of 20

Page 14 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

Crl.A. No.447/ 2010 & Crl.A. No.484/2010

14 of 20

Page 15 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

Crl.A. No.447/ 2010 & Crl.A. No.484/2010

15 of 20

Page 16 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

Crl.A. No.447/ 2010 & Crl.A. No.484/2010

16 of 20

Page 17 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

Page 18 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

Page 19 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

Crl.A. No.447/ 2010 & Crl.A. No.484/2010

19 of 20

Page 20 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

Crl.A. No.447/ 2010 & Crl.A. No.484/2010

20 of 20