NARENDER KUMAR Vs. STATE OF NCT OF DELHI

Tags Murder

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Crl.), 447 of 2010, Judgment Date: Dec 16, 2015

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.

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.

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 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.

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. 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. 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.

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 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 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.

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 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.

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.

Having perused the materials on records, we find the following facts are
not in dispute, namely:
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.

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 spot along with PW-
16 who is an independent witness, both of whom witnessed the deceased in a
burning condition.

The deceased was shifted to Hindu Rao Hospital from where he was again
shifted to LNJP hospital by PW-2.

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.

FIR 763/1980 was registered at Subzi Mandi police station for an offence
under Section 309 IPC.

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.

After the recording of the dying declaration the offence was altered as one
under Section 307 IPC.
On 6.8.1980, the victim died. Thereafter, the offence was altered as one
under Section 302 IPC.

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.

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.

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.

In 313 statement the appellants admitted their posting at Andha Mugal
police post.

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 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.

The deceased died on 6.8.1980.

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 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.

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.

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 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.

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.

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 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.

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.

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 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 hold that the dying declaration was proved in the
manner known to law and, therefore, there is no scope to reject the same.

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 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.

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 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.

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.

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 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.

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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