2015 Supreme(SC) 1192

SUPREME COURT OF INDIA
Fakkir Mohamed Ibrahim Kalifulla, Uday Umesh Lalit, JJ.
Narender Kumar – Appellant
Versus
State of NCT of Delhi – Respondent
Criminal Appeal Nos. 447 & 484 of 2010
Decided on : 16-12-2015

IMPORTANT POINT
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 is of a trivial 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.

Headnote:Criminal Trial – Indian Penal Code, 1872 – S.302, 330 r/w 34 – Appreciation of evidence – Evidence Act, 1872 – S.32 – Dying declaration – – Appellants held guilty by Trial Court and High Court – Deceased brutally beaten by accused while in custody and set on fire – Recording of dying declaration was established and found to be truthful and statement contained therein was made voluntarily and recorded correctly – Doctor who noted condition of patient and PW-7 was brought to the hospital by PW-2, the ASI and before recording dying declaration PW-12 endorsed capability of deceased to make the statement apart from PW-7 himself ensuring that 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 – Held – dying declaration was proved in the manner known to law and, therefore, there is no scope to reject the same – No truth in the claim of alibi – No merit in appeals. (Para 15 to 20)

       Facts of the Case:

       The appellant in Criminal Appeal No.447 of 2010 was Head Constable and the other two appellants in Criminal 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.

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

       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 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 declined to interfere with the conviction and sentences imposed on the appellants.

       Finding of the Court:

       High Court 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 declined to interfere with the conviction and sentences imposed on the appellants. High Court’s judgment not interfered.

       Result : Appeals dismissed.