Narender Kumar, Vijay Kumar and Om Prakash vs State (Delhi Admn.)

V.B. Gupta, J.—All the three appellants namely Narender Kumar, Vijay Kumar and Om Prakash have been convicted by the Additional Sessions Judge under Sections 302/34 of Indian Penal Code (for short as IPC) and have been sentenced to undergo life imprisonment and also liable to pay fine of Rs. 5,000/- each. In default of payment of fine, they had to further undergo R.I. for period of four months each.

In addition, appellants Vijay Kumar and Om Prakash have also been convicted for offence u/s 330/34 IPC and have been sentenced to undergo R.I. for period of two years and a fine of Rs. 1,000/- each. In default of payment of fine, they have been sentenced to undergo R.I. for one month. Substantive sentence under both the offences for appellant Vijay Kumar and Om Prakash were ordered to run concurrently.

Being aggrieved with the judgment of the Addl Sessions Judge, present appellants have filed this appeal.

Prosecution case is that on 1st August, 1980 one Laxman Singh @ Hanuman, s/o Sh Huba Singh was picked up from Railway Station, Subzi Mandi by the police and was confined illegally in Andha Mugal police post till 5th August, 1980. In the police post, in order to extract confession he was given beating and interrogated by police. On 5th August, 1980, Laxman Singh suffered burn injuries at quarter No. 4 at police post, Andha Mugal and was first taken to Hindu Rao Hospital and then to LNJP hospital by ASI Mool Chand.

The Doctor asked the ASI to procure the services of a Magistrate for recording of dying declaration. In the first instance, a case u/s 309 IPC vide FIR No. 763/80 at P.S. Subzi Mandi was registered, later on, after the recording of dying declaration of the said Laxman Singh, another F.I.R. was registered u/s 307 IPC. The injured died in hospital on 6th August, 1980 and thus the case was converted to one u/s 302 IPC.

The investigation of this case was also shifted from the local police to the crime branch. It was revealed in the course of investigation that deceased had been brought to Andha Mugal Police Post by appellants Vijay Kumar and Om Prakash and one person namely Tyagi on 1st August, 1980 from Railway Station, Subzi Mandi and was beaten constantly by these persons who wanted him to speak out about some theft cases. The injured was also threatened to be killed in case he did not furnish any information regarding stolen articles.

As per dying declaration given by injured Laxman Singh, on the morning of 5th August, 1980 at about 10:30 a.m. when he was sitting in the police post and was taking his meals, appellant Narender Kumar, Head Constable, poured kerosene oil on him from the stove kept there and other two appellants namely, Om Prakash and Vijay Singh constables lit match sticks on him. This dying declaration was recorded by the Metropolitan Magistrate. Later on 6th August, 1980, the injured Laxman Singh died.

After completion of the investigation, the appellants were charge sheeted u/s 302/330/365, 343, 218/120B I.P.C.

On 12th January, 1984, trial court framed charges for offence u/s 302 read with Section 34 IPC against all the three appellants and in addition, it framed charge u/s 330 read with Section 34 IPC against appellants Om Prakash and Vijay Kumar.

Prosecution in support of its case examined, in all, 26 witnesses. Thereafter, statements of all the appellants were recorded u/s 313 Cr.P.C. and no defence evidence was produced by any of the appellants.

In their statement u/s 313 Cr.P.C., the appellants admitted that during the month of August, 1980 they were posted in police post Andha Mugal. However, they denied the alleged incident.

Appellant, Narender Kumar has also taken up defence that this false case has been made due to enmity with the brother of deceased, namely, Sher Singh as he was arrested by him in case u/s 112/117 Delhi Police Act and he was fined Rs. 30/- by the Court. At his instance he has been falsely implicated.

Appellant Vijay Kumar and Om Prakash took the defence that it is a false case and they have been falsely implicated.

It has been contended by learned Counsel for the Appellants that initially the case was registered u/s 309 IPC which shows that deceased wanted to commit suicide and later on, after his death, the present case was converted into a murder case and thus contradiction in the case of prosecution is self evident.

Another contention is that there is no allegation against appellant Narender Kumar that he was a party in bringing the deceased to the police post and thus deceased was never in the custody of appellant Narender Kumar.

Learned Counsel also contended that no reliance can be placed on the so called dying declaration recorded by the Magistrate, when prosecution witnesses Sher Singh (PW-5), Huba Singh (PW-6) and Smt. Indira Devi (PW-9) admit that after getting the information about the incident they immediately reached the hospital where the injured was admitted. It shows that these witnesses had time and opportunity to talk to injured Laxman and there was every possibility that they could have provoked him to falsely implicate the present appellants.

Further, it is contended that the injured Laxman could not have been in a position to make any statement to the Magistrate since MLC (Ex.PW12/A) shows that the patient was admitted at 11:20 a.m. and a pathedine injection was administered to the patient at 11.25 am. Dr. S.K.Nayyar, (PW-12) states that the effect of the injection remains for a period of three to four hours. Under these circumstances, when the pathedine injection was given at 11.25 a.m., then it is bound to have some sedative effect on the mind and body of the patient and it was not possible for him to give proper and correct statement.

While challenging the dying declaration recorded by the Magistrate, it is also contended that Magistrate did not obtain proper identification of the deceased and no certificate was obtained by the Magistrate that the patient is fit, before recording his statement. The dying declaration was neither signed nor thumb impression of the patient was obtained. It was not recorded in question answer form. Moreover after recording the dying declaration, the Magistrate did not read over the same to the patient.

It is also contended that the Magistrate did not record the dying declaration as required under High Court Rules and Orders. Under these circumstances, the dying declaration becomes suspicious and false implication of appellants cannot be ruled out.

No doctor has given a certificate to the effect that the patient was fit for giving statement. The Supreme Court in Satish Kumar v. State of Punjab 2003 [1] JCC 110 where the prosecution case was based on dying declaration and no time was written on dying declaration nor there was any certificate of any doctor that at the time of recording declaration that the injured was in a fit state to give any statement, held that there would be serious doubts about the authenticity of the dying declaration. Relying on this decision, it was contended that in the present case also serious doubts arose.

Regarding appellant Om Prakash, it is contended that he left the police post on 5th August, 1980 at 9:45 a.m. and came back at 4:25 p.m. For this purpose departure entry No. 12 (Ex. PW26/A) has been recorded which shows that this appellant infact had taken case property to the Excise Laboratory at Battery Lane after collecting the same from the police station Sabzi Mandi and was not present at the time of the incident.

Another contention is that Ram Kishan, S.I., chowki incharge was also present in the police post at the relevant time and he had also participated in extinguishing the fire but he has not been associated nor cited as a witness and as such inference should be drawn against the prosecution.

It is also contended that injured Laxman did not disclose the name of any of the appellants to the doctor who had prepared the MLC. There has been no corroboration to the so-called dying declaration from any other source. No witness has been examined to prove the fact that deceased Hanuman was picked up from Subzi Mandi Railway Station. Moreover in the dying declaration, it has been stated by deceased Laxman that he was picked up on the night by Vijay Kumar, Om Prakash and one person namely Tyagi from the Railway Station Subzi Mandi but said Tyagi has not been named in the F.I.R.

Lastly, it is contended that it is unbelievable that the present appellants who are police officials will put a person on fire in the police post when other senior police officers are also present in the office. Moreover appellants had no enmity or motive to put the deceased on fire and there are material contradictions in the statements of witnesses. Under these circumstances, the appellants are liable to be acquitted.

On the other hand, it has been argued by learned Counsel for the State that deceased Laxman had been brought to Andha Mugal Police Post by Vijay Singh, Om Prakash and one other person namely Tyagi on 1st August, 1980 from Railway Station, Subzi Mandi and was beaten constantly since these police officials wanted to extort confession from him with regard to some theft cases. The deceased was also threatened to be killed in case he did not furnish some information regarding stolen articles.

On the morning of 5th August, 1980, while deceased was sitting in the police post and was taking his meal, appellant Narender Kumar poured kerosene oil while other appellants Om Prakash and Vijay Singh lit match sticks on him. After the injured sustained burn injuries, he was brought to the hospital, where he gave dying declaration implicating all the present appellants. Thus the present case is based on dying declaration of the deceased.

It is contended that the deceased has given his dying declaration to PW-7 Sh. R.S. Mahla, who is a judicial Magistrate and he has taken all the precautions before recording the dying declaration and also obtained certificate from Dr. S.K. Nair (PW-12) who found the patient fit to make statement. The mere fact that there are certain irregularities, will not vitiate the dying declaration.

As per prosecution case one Tyagi has also brought the deceased to the police post but deceased has not named him in his dying declaration, thus it goes on to show that the dying declaration is truthful. Similarly, deceased has not named either Chowki Incharge, S.H.O. of the police station or ACP of the area in his dying declaration which goes to show that deceased never wanted to take any revenge from the police and has narrated true facts as to what had happened to him and who has done what. Moreover, deceased did not have any enmity with any of the Appellants.

It is a case of custodial death as deceased died in the police station. It is also the case of prosecution that deceased was tortured while in custody. The fact of torture is corroborated by the post mortem report (Ex.PW25/A) which among other things states that

there are large number of bruises and abrasions on different parts of the body of the deceased.

In Smt. Shakila Abdul Gafar Khan Vs. Vasant Raghunath Dhoble and Another, the Supreme Court, dealing with a custodial death case, held;

Rarely in cases of police torture of custodial death, direct ocular evidence of the complicity of the police personnel alone who can only explain the circumstances in which a person in their custody had died. Bound as they are by the ties of brotherhood, it is not unknown that the police personnel prefer to remain silent and more often than not even pervert the truth to save their colleagues - and the present case is an apt illustration - as to how one after the other police witnesses feigned ignorance about the whole matter.

The exaggerated adherence to and insistence upon the establishment of proof beyond every reasonable doubt by the prosecution, at times even when the prosecuting agencies are themselves fixed in the dock, ignoring the ground realities, the fact-situation and the peculiar circumstances of a given case, as in the present case, often results in miscarriage of justice and makes the justice delivery system suspect and vulnerable. In the ultimate analysis the society suffers and a criminal gets encouraged. Tortures in police custody, which of late are on the increase, receive encouragement by this type of an unrealistic approach at times of the courts as well because it reinforces the belief in the mind of the police that no harm would come to them if one prisoner dies in the lock-up because there would hardly be any evidence available to the prosecution to directly implicate them with the torture.

The courts are also required to have a change in their outlook approach, appreciation and attitude, particularly in cases involving custodial crimes and they should exhibit more sensitivity and adopt a realistic rather than a narrow technical approach, while dealing with the cases of custodial crime so that as far as possible within their powers, the truth is found and guilty should not escape so that the victim of the crime has the satisfaction that ultimately the majesty of law has prevailed.

In the light of observations made by the Supreme Court in Smt. Shakila (Supra), we have to analyse the evidence on record in this case.

During relevant period all the appellants were posted at Police Post Andha Mugal, as Surender Dev S.I. (PW-4) states that Jai Chand, S.I. of Crime Branch had taken into possession duty roster (Ex.PW4/A) for the period 1st August, 1980 to 5th August, 1980 of police post Andha Mugal, vide memo (Ex. PW-4/B).

As per entries in this duty roster, all the three appellants were on duty at police post Andha Mugal during this period. So this demolishes the plea of appellant''s counsel that Narender Kumar was not present at the relevant time.

It would be pertinent to point out that none of the Appellants has taken this defence in their statement recorded u/s 313 Cr.P.C. that the deceased Laxman burnt himself or tried to commit suicide.

The fact that deceased has been burnt in the premises of police post Andha Mugal, has been corroborated by prosecution witness Mool Chand, ASI (PW-2) as he states that he heard the alarm of ''Bachao Bachao'' from quarter No. 4, which also forms part of the police post and he saw flames coming from that quarter. He and chowki incharge, Ram Singh who was sitting in his room, rushed to quarter No. 4 and few other persons also reached there and on reaching they found that deceased Hanuman was burning. In quarter No. 4, constable Vijay Kumar (appellant) was residing along with other constables. He does not know as to how there was fire in the said quarter.

In cross-examination, he admitted that when they entered quarter No. 4, they found a stove was lying there but he does not know whether it belongs to appellant Vijay Kumar.

Om Prakash, (PW-6) an independent witness also admits the factum of incident of burning, as he states that on 5th August, 1980, he was standing outside police post Andha Mugal and noticed some smoke from the window of a room in chowki. After some time, he noticed some flames and somebody was crying ''Bachao Bachao''. Thereupon, he along with ASI Mool Chand (PW-2) and another person, went to that room and found one boy in flames. Meanwhile, SI Ch. Ram Kishan also came and the fire was extinguished and injured was removed to the hospital. The police came and took into possession burnt clothes, stove and match box vide seizure memo Ex. Pw-10/A. It bears his signature at point ''A''. The stove contained some kerosene oil.

In cross-examination, this witness stated that the boy had set himself on fire and he (PW6) says so, because he did not see any other person there.

The main thrust of appellants is that dying declaration cannot be believed since PW-5 and other members of the family of the deceased did get a chance to see him in the hospital before the said dying declaration was recorded and this gave full opportunity to these persons to have tutored deceased Laxman for falsely naming the appellants. The dying declaration also suffers from various infirmities and irregularities and the same cannot be relied upon being totally untrustworthy since the Magistrate has recorded the same in violation of the guidelines laid down in High Court Rules and orders.

Another plea is that the Magistrate, without being satisfied as to whether the patient was fit to give statement, had recorded the dying declaration (Ex.PW7/B) which has been signed by this doctor at the foot of the statement.

The question to be seen is as to whether the dying declaration is truthful, voluntarily and inspires confidence or not? If these conditions are fulfilled, then in view of Section 32 of the Indian Evidence Act, dying declaration can be acted upon.

Section 32(1) of the Indian Evidence Act which deals with dying declaration reads as under;

Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant.-Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:

(1) When it relates to cause of death.-When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of the person''s death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceedings in which the cause of his death comes into question.

(2 to 8) xxx xxx xxx xxx xxx

Section 32(1) of the Indian Evidence Act is an exception to the rule of hearsay and makes admissible the statement of a person who dies, whether the death is a result of homicide or of suicide, provided the statement relates to the cause of death, or exhibits circumstances leading to the death.

In cases of homicide, statements made by a person, since deceased, are admissible to prove the cause and circumstances of the man''s death. Such statements are called dying declarations..

The principle on which the dying declarations are admitted in evidence is indicated in the legal maxim:

Nemo moriturus praesumitur mentire" i.e., a man will not meet his Maker with a lie in his mouth.

In order that a dying declaration as to the cause of the death may be admissible in evidence at the trial of a prisoner for the murder of the declarant it must be shown that at the time the statement was made the death of the declarant was imminent and that he had abandoned all hope of living, i.e., believed that death must follow. But it is not necessary to prove that the declarant believed that death would ensure immediately.

The general principle on which this species of evidence is admitted is, that they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone, when every motive to falsehood is silenced, and the mind induced by the most powerful considerations to speak the truth; a situation so solemn, and so awful, is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a Court of Justice (See The King v. William Woodcock (1789) 1- Leach 500).

The dying declaration is entitled to great weight. The Court has to satisfy itself that the dying declaration is of such a nature as to inspire full confidence in the court in its correctness. The court has to be on guard that the statement of the deceased was not as a result of either tutoring, prompting or a product of imagination. The Court has to be further satisfied that the deceased was in that state of mind and had a clear opportunity to observe and identify the assailants. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration as has been held by the Supreme Court in a catena of cases.

Dying declarations may be oral or written (see opening words of section), although in most cases such statements are made orally before death ensues and is reduced to writing by someone, eg, a magistrate, a doctor, a police officer. If it is recorded, no oath is necessary, the accused need not be present, nor is the presence of a magistrate absolutely necessary, although to assure authenticity it is usual to call a magistrate, if available, for recording the statement of a man about to die. When a person whose evidence is required is in imminent danger of death, his statements should be recorded by a magistrate exercising judicial functions. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate. What evidentiary value or weight has to be attached to such a statement, must necessarily depend on the facts and circumstances of each particular case. When none of the witnesses including the Police Officer who recorded the statement could be attributed with any kind of ill- feeling against the accused, their evidence cannot be rejected.

The earliest case in which the law on the point of dying declaration was considered in detail by the Supreme Court is Khushal Rao Vs. The State of Bombay, where it held that:

(1) that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated;

(2) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; (3) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other piece of evidence; (4) that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; (5) that a dying declaration which has been recorded by a competent magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character, and (6) that in order to test the reliability of a dying declaration, the Court has to keep in view the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties. Hence, in order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination. But once the court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration.

In Laxman Vs. State of Maharashtra, it has been held that;

Where it is proved by the testimony of the magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise.

In State of Uttar Pradesh Vs. Ram Sagar Yadav and Others, the Court, speaking through Chandrachud CJ., held as under:

It is well settled that, as a matter of law, a dying declaration can be acted upon without corroboration. See Khushal Rao Vs. The State of Bombay, Harbans Singh and Another Vs. State of Punjab, Gopalsingh and Another Vs. State of Madhya Pradesh and Another, . There is not even a rule of prudence which has hardened into a rule of law that a dying declaration cannot be acted upon unless it is corroborated. The primary effort of the Court has to be to find out whether the dying declaration is true. If it is, no question of corroboration arises. It is only if the circumstances surrounding the dying declaration are not clear or convincing that the Court may, for its assurance, look for corroboration to the dying declaration....

Coming to the dying declaration in the present case, it would be fruitful to reproduce the relevant portion of the dying declaration proceedings conducted by the Magistrate in this regard.

Application (Ex.PW7/A) was moved before the concerned Magistrate by the I.O. for recording the dying declaration of Laxman Singh. Accordingly, Sh.R.S.Mahla (PW7) visited Irwin Hospital on 5th August, 1980 and recorded the dying declaration of the deceased. The relevant proceedings recorded by PW7 read as under:

Today dated 5th August, 1980 at 2.30 p.m., I came to the Irwin Hospital at the request of I.O. who has moved an application for recording the dying declaration of Laxman Singh reported to be a case by police u/s 309 IPC. I have satisfied myself that the patient Laxman Singh s/o Sh. Hawah Singh, House No. 10501, Subzi Mandi Railway Station, Bagichi Pirji ki is fully conscious. The patient is fully capable of making statement. Now, I start to note down his statement. On oath.

This endorsement of Magistrate is Ex.PW7/D. Thereafter, he recorded the statement of Laxman Singh in Hindi and the deceased stated before the Magistrate on oath. The translation of the same read as under;

That today on 5th August, 1980 at 11:00 A.M. Narender Kumar, Head Constable and Vijay Singh, constable and Om Prakash, constable were present in police post Andha Mugal. Earlier I used to commit theft but have left it about six years ago and was earning my livelihood by doing labourer work and bringing up my family. On Thursday night, Vijay Singh, Om Prakash and Tyagi (all police officials) picked me up from Railway Station, Subzi Mandi and they took me to the police chowki. There I was given regular beatings after every two hours in the morning and evening and they were questioning me as to where the stolen property is. On my reply that I do not commit theft any more, they threatened to kill me.

Today morning at 10:30 A.M. when I was having my meals in the police post, Narender Kumar Head Constable again gave me beatings and he opened a stove lying nearby and poured kerosene oil over me. Om Prakash and Vijay Singh (both constables) who were present there lifted the match box, lit the match stick and put me on fire. Till the time the oil was being sprinkled over me, I thought that it was a joke.

PW7 in this regard has stated that before recording the statement of the patient, he had obtained the opinion of Dr.Nair (PW12), if the patient was in a position to make a statement and he gave his endorsement to this effect vide (Ex.PW7/E) and signatures of PW12 are at portion ''C'' which he signed in his presence in token of the opinion given by him that the patient is at the stage of dying as well as these signatures are also in respect of his recording the dying declaration of Laxman Singh.

In cross examination PW7, admitted that he did not obtain the identification of the patient in writing from PW12 or from any other person. PW 12 verbally identified the patient before him. PW7 also admits that he did not obtain, either the signature or thumb impression of the patient and did not feel the need of calling doctor to be present at the time of recording of dying declaration, because the patient was fully conscious during the period when he recorded his statement. PW7 had enquired from the patient if he was making the statement voluntarily without any pressure, but he did not make any such endorsement to this effect on his proceedings.

As per PW12 he examined the patient at 12.05 p.m. and recorded entries in MLC sheet (Ex.PW12) wherein he found the patient fit to make statement. He also made another entry on Ex.PW12/A at 2.30 p.m. on the same day and has found the patient fit to make statement and endorsement in this regard is Ex.PW12/C which is also signed by him.

Regarding effect of pathedine injection, PW12 in cross-examination states that if the pain is very severe, the affect of injection would last for about two hours. It was nowhere suggested to this witness that a patient under the effect of pathedine injection could not give proper and correct statement. The trial court in this regard has observed that;

The effect of sedative cannot be felt the same way by every person as it would depend on the severity of the injuries or burns suffered by a particular person and a person in great agony and pain would not be easily put to rest even by an injection of pathedine. Persons with lesser pain would definitely feel its impact and effect instantly and can be kept under its effect for a comparatively longer periods but where a person is almost under intolerable pain, he would not easily yield down before the strongest sedatives too.

The dying declaration was recorded at 2.30 p.m. and MLC (PW12/A) bears an endorsement that at about 2.30 p.m., the patient was fit to make statement and this endorsement is in the hand of PW12. So, at that time, admittedly the pathedine injection had no affect on the patient.

Though, it is correct that in the present case dying declaration has neither been got signed nor thumb impression of deceased was taken but we cannot lose sight of the fact that this dying declaration was recorded by a judicial officer who is an independent person and whose duty is to administer justice. He is neither interested in the success of the case nor in its failure. By recording dying declarations he is performing his judicial duties. There is nothing on record to show that PW7 had any motive in recording a wrong dying declaration. High Court Rules provide for certain guidelines and normally magistrates should keep in mind these guidelines while recording dying declarations. If the guidelines, though procedural, are followed, it would lend greater credence to this important piece of evidence. But, merely because the magistrate has not strictly followed some of the guidelines does not vitiate the dying declaration when it can otherwise be established that it was truthful and was made voluntarily and has been recorded correctly.

As regards the signing or obtaining the thumb impression of the deceased the Delhi High Court Rules, Rule 5, Chapter 13-A lays down that:

At the conclusion of the statement, the Judicial Magistrate shall read out the same to the declarant and obtain his signature or thumb-impression in token of its correctness unless it is not possible to do so.

The interpretation of the words "in token of its correctness unless it is not possible to do so" comes out to be that it is not a mandatory rule to always take a thumb impression or obtain signatures. It only instills confidence in the statement/ dying declaration that, it is voluntary and true. But that does not mean that it should be discarded when it is otherwise established. Signature or thumb impression only represents that whatever the declarant stated has been correctly recorded. In the present case, the Magistrate who was alone in the room recorded the dying declaration and there seems to be no reason as to why he would record falsely when he neither knew the deceased nor the appellants.

Hence, from the entire evidence on record, we come to the conclusion that the deceased Laxman @ Hanuman truly implicated all the appellants and had mentioned their specific roles, which ultimately led to his death.

Now comes the question of appellant Om Parkash regarding whom it was contended that he left the police post at 11:00 a.m. and came back to the police post at 4:00 pm on 5.8.1980. No such plea has been taken by the appellant Om Parkash himself u/s 313 Cr.P.C. He simply stated that he has been falsely implicated.

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. [Sarkar on Evidence, 15th Edition Reprint 2004, Volume 1, page 258-259.]

The basic law is that it is for the prosecution to prove its case beyond reasonable doubt that the accused was present at the occurrence and has participated in the crime. When the prosecution establishes satisfactorily that the accused was present it is incumbent on the accused, who adopts the plea of alibi to prove that he was not at all present on the spot.

The Supreme Court in Dudh Nath Pandey Vs. State of Uttar Pradesh, held 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.

Much reliance had been placed on DD entries No. 12 and 24, that is, PW-26/A and PW26/D which contains the departure and arrival of constable Om Prakash for the aforesaid period. In this respect PW18, PW19 and PW20 have stated that on 5th August, 1980 Om Prakash came to the excise control laboratory at Battery Lane at 11:00 a.m. to deposit certain samples but he was asked to come after 2:00 pm. as they used to deposit samples between 2:00 to 4:00 p.m.

PW18 nowhere stated as to in which case Om Prakash deposited the samples, nor any entries of register regarding deposit of samples by Om Prakash on 5th August, 1980 in excise laboratory, has been proved on record.

On the other hand, PW17 has stated that accused Om Prakash used to come to his canteen to take tea along with one more constable. While PW19 states that on that date Om Prakash made enquiries from him as to where samples are deposited, so he sent him upstairs where the lab was located.

When as per statement of PW17 Om Prakash used to visit the canteen in the excise office at Battery Lane, then where was the question of appellant Om Prakash, asking PW18 about the location as to where the samples are to be deposited. Even assuming for arguments sake that appellant Om Prakash had gone to excise laboratory for depositing the samples, admittedly he had gone only after 11:00 a.m. as the samples were not deposited at that time and he was asked to come again at 2:00 p.m. The plea of alibi cannot be sustained as appellant Om Prakash was within the satellite range of the incident. Plea of alibi is only established when it is highly improbable for a person to be at the spot of occurrence when the incident happens, which is not so in the present case, since the excise laboratory is not far away from police post Andha Mugal. Secondly, there is no explanation on behalf of appellant Om Prakash as to where he was from 11.00 a.m. to 2.00 p.m. on 5th August, 1980, when admittedly sample was deposited by him after 2.00p.m. So, this plea of alibi taken by Om Prakash appellant is not sustainable.

The cause of death given by Dr. Vishnu Kumar (PW25) was due to toxanemia and shock consequent upon burns caused by fire. The present appellants with pre-determination had put the deceased on fire knowing fully well that this would result into his death. The fact that deceased was kept in illegal custody in police post Andha Mugal from 1st August, 1980 to 5th August, 1980 has also been duly proved on record. Thus, all the three appellants have been rightly convicted by the trial court and the present appeal is not sustainable and the same is hereby dismissed.

Since the appellants are on bail, they are ordered to be taken into custody to undergo the remaining sentence as awarded by the trial court.

Period of detention already undergone by them in this case, shall be set off in terms of Section 428 of the Code of Criminal Procedure, 1973.