(May 22, 2001) 2001 (TLS)125201

2001-DLT-93-764 :: 2001-AD (Del)-5-721

MOHAMMAD ISLAM Vs. State (National Capital Territory of Delhi)

Usha Mehra

( 1 ) A document as valuable as a dying declaration is supposed to be fool-proof, it must incorporate the particulars which it is supposed to contain. A dying declaration enjoys almost a sacrosanct status as a piece of evidence as it comes from the mouth of a person who is about to die and at-that stage of life he is not likely to make a false statement.

( 2 ) KEEPING the above principles of law in view, we have to see whether on the basis of statement made by the deceased Mohd. Zafar Imam @ Pan Babu aged about 15 years vide Ex. Public Witness-17/a, conviction and sentence of the appellant can be sustained. Whether the statement of the deceased recorded by the Investigating Officer (in short the I. O.) vide Ex. Public Witness-17/a enjoys the status of a dying declaration ? Is it a foolproof evidence to prove that it was the appellant who burnt the deceased by pouring kerosene oil on the deceased on 6/04/1994 ?

( 3 ) CHALLENGE to the impugned order of conviction and sentence is primarily on the grounds ; (i) that the dying declaration Ex. Public Witness-17/a recorded of the deceased mohd. Zafar by the 1. 0. is not admissible in the evidence because Dr. Neeraj Gupta the doctor on duty who declared the deceased to be fit to make the statement had not been examined; (ii) the MLC has not been proved as per requirement of law; (iii) the alleged dying declaration was neither recorded by the SDM nor by the doctor on duty. Moreover, such a lengthy dying declaration could not have been made by the person who had 95% to 97% burns; (iv) that the independent witnesses have not supported the case of the prosecution. There being ho eye-witness to the incidence of burning the mere fact that deceased was employed by the accused by itself is no circumstances to hold the appellant guilty. Hence conviction is bad in law; (v) that there was no motive to kill the deceased; lastly (vi) the alleged absconding of the accused and the sub- sequent arrest from the place as shown by the 1. 0. had not been supported by the independent witnesses.

( 4 ) PROSECUTION s case in short is that accused was running embroidery workshop on the second floor of House No. 4506, Lambi Gali, Kucha Pandit, Hauz Qazi, Delhi. That the deceased was employed with the accused. Deceased wanted to go back to his native place in Bihar hence demanded his salary from the accused. Accused was not interested to relieve him at that time because he wanted him to complete the work which was entrusted to him. When the deceased insisted for the money and of going to his home town the accused got annoyed. He set ban en fire on 6/04/1994 at about 9. 45 PM on the second floor of house No. 4506, Lambi Gali, Kucha Pandit, Hauz Qazi, delhi, by pouring Kerosene oil The deceased was rushed to JPN Hospital by one mustaz Ahmad (public witness3 ). Thepublic Witness3 at the relevant time was runniag a shop at 4511, lambi Gali, Hauz Qazi, Delhi. The deceased was taken to the hospital at ll. OO PM. Dr. Neeraj Gupta was on duty. According to alleged history given to Dr. Neeraj Gupta and as recorded op MLC Ex. Public Witness1/a the deceased was burnt by Islam by pouring kerosene oil. When the alleged history was recorded by Dr. Neeraj Gupta the deceased was conscious. At about 12. 05 AM on the intervening night of 6th and 7/04/1994, Dr. Neeraj Gupta declared the deceased to be fit to make the statement. Accordingly the statement of. the deceased was recorded by the Investigating Officer, Insp. Roshan Lal (public witness17 ). In the said statement the deceased implicated the appellant herein who according to the deceased poured kerosene oil and set him on fire. On the basis of the said statement of deceased, accused was arrested and challan was filed in the Court.

( 5 ) PROSECUTION examined number of witnesses. Those have been categorised by the learne