Raghubir Singh and Bijender Singh vs State of Haryana

Jora Singh, J.—Crl.Appeal No. 605-DB of 2006 was preferred by Raghubir Singh son of Hari Singh and Crl.Appeal No. 649-DB of 2006 was preferred by Bijender Singh son of Devi Ram, to challenge the judgment of conviction dated 8.8.2006 and order of sentence dated 10.8.2006 passed by Additional Sessions Judge (I), Faridabad, arising out of FIR No. 992 dated 5.11.2004 under Sections 302/34 IPC, PS City Palwal. By the said judgment, they were convicted under Sections 302/34 IPC and sentenced to undergo RI for life and to pay a fine of Rs. 2,000/-, in default of payment of fine, to further undergo RI for six months, each.

Prosecution story, in brief, is that Mahender Singh son of Lal Chand, resident of Sundana, District Rohtak, was posted as JBT Teacher in Primary School in Village Khedla and was a tenant of Hari Kishan, Mitrolwale, at Rasulpur, near Octroi Palwal. On 4.11.2004 at about 10.30 AM, he was in his school, then Bijender and Dr. Raghubir on a motorcycle had gone to the school. At that time, Mahender Singh was in the class room. He was summoned by them near the gate of the school. Mahender Singh had money dealings with Raghubir and Bijender Singh. Bijender Singh requested Mahender Singh to settle the account. After informing the Headmaster, Mehender Singh on a motorcycle came to his rented room with Raghubir and Bijender Singh. After checking the accounts, Rs. 37,000/-was found due from Bijender Singh. Bijender Singh replied that he is going to the mandi to bring payment. At 3.20 PM again Bijender Singh and Raghubir Singh came to the room of Mahender Singh and reported that payment was not received by them. Bijender Singh requested Mahender Singh to arrange a bottle of liquor. A boy was summoned by Mahender Singh to bring a bottle of liquor. Mahender Singh, Bijender Singh and Raghubir Singh started consuming liquor. They all three had taken two pegs each, then Bijender Singh had gone to bathroom. After two minutes, Raghubir Singh also went outside. Both were talking with each other outside the room. After some time, they came inside the room and requested Mahender Singh to prepare new peg from the bottle. Bijender Singh had put a rope around the neck of Mahender Singh and started pulling the same. Raghubir Singh had caught hold Mahender Singh from his hands. Bijender Singh brought half filled bottle from the room and sprinkled liquor from the bottle on Mahender Singh. Mahender Singh was set on fire by Bijender Singh. On hearing raula of Mahender Singh, Hari Kishan, Mohit and Master Hanuman came to the spot. Bijender Singh and Raghubir Singh had fled away from the spot. Mahender Singh was shifted to Government Hospital, Palwal. Then he was referred to Safdarjung Hospital, Delhi.

Ruqa was received from Government Hospital, Palwal. On receipt of ruqa, ASI Ram Kumar had gone to Government Hospital, Palwal. Information was collected from the doctor regarding the patient.

On 5.11.2004, ASI Sukhbir Singh along with police official had gone to Safdarjung Hospital, Delhi. Opinion was obtained from the doctor regarding the fitness of patient. Patient was declared fit to make statement. Then his statement (Ex.PK) was recorded. After making endorsement at 6.15 PM, statement was sent to Police Station City, Palwal, on the basis of which, formal FIR (Ex.PJ) was recorded on 5.11.2004 at 9.10 PM. ASI Sukhbir Singh along with party had gone to the place of occurrence but found the same locked.

On 6.11.2004, investigation of the case was with SI Ram Kumar. He along with police party had gone to the place of occurrence. Rough site plan (Ex.PO) with correct marginal notes was prepared. Half burnt towel was also lifted from the place of occurrence and the same was taken into police possession vide memo (Ex.PA). Bijender Singh and Raghubir Singh were produced before him by Ajit Singh. Accused were produced in the Court and were remanded to police custody. On 8.12.2004, motorcycle was got recovered by Bijender Singh and the same was taken into police possession vide memo (Ex.PL). After completion of investigation, challan was presented in the Court.

After hearing learned Public Prosecutor for the State, defence counsel for the accused and from the perusal of evidence on the file, a prima facie case was made out to frame charge against the accused under Sections 302/34 IPC. Accordingly, charge under Sections 302/34 IPC was framed against the accused, to which they pleaded not guilty and claimed trial.

In order to substantiate its case, prosecution examined PW1 Master Hanuman. He stated that on the date of occurrence, he was sitting in a room of the house wherein the occurrence had taken place. Owner and two more persons were also with him. On hearing noise, they had gone to the upper story of the house and noticed flames. Master Mahender Singh was heard while crying, who had caught fire. With the help of quilt, they made an effort to extinguish the fire. Two persons were seen while running away from the place of occurrence. Mahender Singh was shifted to Palwal Hospital. Doctor advised to shift him to Rohtak Medical College, Rohtak. Then Mahender Singh was brought to Diamond Hospital, Palwal, but the doctor refused to entertain him. Then Mahender Singh was shifted to Safdarjung Hospital, Delhi. Mahender Singh was his room mate. Two persons were seen sitting with Mahender Singh.

PW2 Hari Kishan stated that Mahender Singh was his tenant. He was occupying a room on the first floor. Master Hanuman was also his tenant. At about 6.30 PM, Master Hanuman was sitting with him. Some one from the liquor vend reported that upper portion of his house has caught fire. He along with Hanuman, Omi @ Om Parkash and three more persons had gone to upper portion of the house. Master Mahender Singh was found crying while burning. With the help of quilt, they had extinguished the fire. Then Mahender Singh was shifted to Palwal Hospital, from where, he was referred to Rohtak Medical College, Rohtak. After that, Mahender Singh was brought to Diamond Hospital, Palwal, but the doctor refused to entertain him. Then he was shifted to Safdarjung Hospital, Delhi. When Mahender Singh was on fire, at that time two persons were seen while running away from the spot.

PW3 Dr. Rajesh Kumar stated that on 4.11.2004, Mahender Singh was medico legally examined and observed as under:

Superficial to deep burns present approximately 80%.

PW4 Mohit stated that on 4.11.2004, he had gone to Palwal to see his uncle Mahender Singh.Two persons had thrown some substance on his uncle and was set on fire with match stick. After that, they had fled away from the spot.

PW5 Constable Arvind Kumar stated that one sealed parcel was handed over to him by MHC Ram Chander and the same was deposited in the FSL, Madhuban.

PW6 HC Ram Chander stated that on 6.11.2004, he was serving as MHC, PS City, Palwal. One sealed parcel was deposited with him by ASI Ram Kumar and that parcel was handed over to Constable Arvind Kumar for depositing in the office of FSL, Madhuban.

PW7 Dr. Prem Kumar stated that on 9.11.2004, he had conducted postmortem examination on the dead body of Mahender Singh and noticed as under:

Deceased had 80% burn injuries over the body and there were no other physical injury found on the body during the examination. Cause of death was septicemia following burn injuries over the body.

PW8 ASI Balbir Singh stated that on 5.11.2004, he was on duty in Safdarjung Hospital, Delhi. Mahender Singh was admitted in the hospital with burn injuries. Application (Ex.PF) was moved requesting the doctor to opine as to whether patient is fit to make statement. Mahender Singh was declared fit to make statement. Then he recorded the statement of Mahender Singh (Ex.PG). Patient had died on 8.11.2004 at 8.25 PM, then moved application (Ex.PE/1) for conducting postmortem examination. Inquest report (Ex.PH) was prepared on 9.11.2004. After postmortem examination, dead body was handed to the relatives of the deceased for cremation.

PW9 ASI Balbir Singh on receipt of statement from ASI Sukhbir Singh had recorded formal FIR (Ex.PJ).

PW10 SI Ajit Singh on 16.11.2004 had recorded the statement of Amit and after completion of investigation, prepared report u/s 173 Cr.P.C.

PW11 ASI Sukhbir Singh stated that on 5.11.2004, he had gone to Safdarjung Hospital, Delhi, to record the statement of Mahender Singh. Application scribed by ASI Ram Kumar was presented before the Medical Officer to opine as to whether patient is fit to make statement or not. Patient was declared fit, then statement of Mahender Singh (Ex.PK) was recorded. After making endorsement (Ex.PK/1), statement was sent to the police station.

PW12 HC Ami Chand stated that in his presence, burnt towel alongwith clothes were taken into police possession vide memo (Ex.PA), after the same were made into a sealed parcel. On 8.12.2004, a motorcycle was taken into police possession vide memo (Ex.PL).

PW13 Constable Sarvan Kumar had prepared scaled site plan (Ex.PM).

PW14 Dr. S.S.Sarol stated that on 5.11.2004 at about 2.00 PM, in view of application (Ex.PF), Mahender Singh was declared fit to make statement. At 5.00 PM, application (Ex.PN) was moved by ASI Ram Kumar, then patient was declared fit to make statement by the doctor vide his opinion (Ex.PN/1).

PW15 SI Ram Kumar had partly investigated the case in hand.

After close of the prosecution evidence, statements of the accused were recorded u/s 313 Cr.P.C. They denied all the prosecution allegations and pleaded to be innocent. Defence version of the accused was that the case is false.

In defence, DW1 Ami Chand stated that as per record maintained by Palwal Co-operative Marketing Society Limited, Palwal, Bijender Singh was the Director and Member of the Managing Committee. Meeting of the society was convened on 4.11.2004. Ex.D1 is the copy of appointment letter and Ex.D2 is the copy of agenda. Ex.D3 is the copy of entrry of proceedings book. Meeting had started at 12.30 PM and continued upto 3.30 PM. Office bearers were present from 11.00 AM till 4.00 PM. Bijender Singh had participated in the meeting.

DW2 Sachinder Singh stated that on 4.11.2004, there was election of the society for the posts of Chairman and Vice-Chairman. Agenda, copy of which is Ex.D2, was circulated. Proceedings went on from 12.30 PM to 3.30 PM. Office bearers were present in the office from 11.00 AM to 4.00 PM Bijender Singh remained present throughout the proceedings.

DW3 Kirori Mal, Headmaster, stated that as per record maintained by the school, Mahender Singh was serving as a teacher in the school. On 4.11.2004, Mahender Singh came to the school and was marked present at 8.45 AM. He had left the school during school hours. Ex.D4 is the copy of attendance register.

After hearing learned Public Prosecutor for the State, defence counsel for the accused and from the perusal of evidence on the file, accused were convicted and sentenced as stated aforesaid.

We have heard learned Counsel for the appellants, State and gone through the evidence on the file.

Learned Counsel for the appellants argued that there are two dying declarations on the file. One dying declaration (Ex.PG) was recorded by ASI Balbir Singh, whereas second dying declaration (Ex.PK) was recorded by ASI Sukhbir Singh.

Dying declaration of Mahender Singh (Ex.PG) is reproduced as under:

Stated that I am r/o the above said address. At that time, I am tenant of Hari Kishan, Mitrolwale at Rasulpur near Octroi Palwal and posted as JBT Teacher in Village Khedla. I am JBT Teacher in Govt. School at Khedla since 5-6 years. I know very well to Bijender, Sarpanch of this village, Doctor Raghubir and other persons. I have money dealings with Ex- Sarpanch Bijender s/o Devi Ram, caste Jat and a sum of Rs. 37,000/-was due towards him. I demanded my money 810 days back then he told me that he has not received the payment of paddy. Wait for eight days. Thereafter on 4.11.2004 when I was in school duty then at about 10.30 AM both Bijender and Dr. Raghubir came by motorcycle at the gate of my school and my class was in front of the gate. They called me Master to go to Palwal. Today we will settle your balance account of money. At that time, I got leave from the Headmaster. I along with them sitting on their motorcycle had come to my rented house at Palwal. We were all three sat there saw the accounts. Then Rs. 37,000/-was found in balance for me. Thereafter, they both Ex.Sarpanch Bijender and Dr. Raghubir told me that they were going to Mandi to bring the payment and account will be settled in the evening and they went away from that place. Thereafter, in the evening at about 3.20 PM they returned. Ex. Sarpanch Bijender told me that weather is cold. Today payment has not been received and said to me to arrange a liquor bottle. I called from the roof of my house in the wine shop then after some time a boy brought a bottle of liquor. Then we all three had consumed the liquor. Thereafter my room mate Hanuman and my nephew Mohit had come there and we put the bottle under the cot. Thereafter Hanuman and my nephew Mohit after changing the clothes sat with landlord on ground floor. Thereafter Bijender entered in the bathroom. After some time, Raghubir also went outside. Thereafter both of them were talking outside. After some time, they both returned inside and sat there. Bijender, Sarpanch, put a rope around my neck and both were pulling the rope. I tried to stop the rope and I could not speak. Thereafter, Bijender took a bottle and had put some liquid on him. I was feeling coolness. Thereafter I took the rope from Bijender and called loudly. Then my nephew, Master Hanuman and landlord had come there from the ground floor. Then Ex.Sarpanch had burnt a match stick and threw on me, and they ran away from that place. I ran to the side of Mori and laid on the water. Meanwhile, landlord, Hanuman and Mohit put off the fire. Thereafter they took me to Govt. Hospital, Palwal, for treatment, where treatment was given to me. Thereafter, I was referred and sent from Govt. Hospital, Palwal, to Safdarjung Hospital. Now, I am admitted here and taking the treatment. This incident took place when Bijender, Ex.Sarpanch, Dr. Raghubir and one other person put kerosene and set me on fire. Legal action be taken against them. Statement recorded, heard, which is correct.

LTI Mahender Singh Attested Sd/-in English Balbir Singh, ASI PS Sarojini Nagar 5.11.2004

IInd Dying declaration of Mahender Singh (Ex.PK) is reproduced as under:

Stated that I am r/o the above said address and posted as JBT Teacher in Primary School in Village Khedla since 5 years and living in a rented house at Rasulpur Road, Palwal. Yesterday, on 4.11.2004, at about 10.00 AM when I was present in my school then both Bijender and Dr. Raghubir came by motorcycle at my school. They called me on the gate. Bijender told me that Masterji today we settle the accounts. I said that I am going with you after informing the Headmaster. We all three sat on the motorcycle and had come to my house at Palwal. We were all three sat there and saw the accounts. Then my amount of Rs. 37,000/-was in balance from Bijender.

Thereafter, Bijender told me today he is going to Mandi to bring his payment. Today I will make your payment. At about 3.20 PM, Bijender and Raghubir, r/o Khedla had again come at my residence. Bijender told me that payment has not been received. I said does not matter. Bijender told me to arrange something. I called a boy from the roof of my house in the liquor shop for arranging a liquor bottle at the upper portion of the house. I took a bottle of liquor at the stairs and brought to the upper portion of the house and made the payment to that boy. We all three had started to consume the liquor. We all three had consumed two pegs each of the liquor. Bijender had got up and went to the bathroom. After 2 minutes, Raghubir also went outside. These two of them were talking outside. I called them to come inside. These two persons came inside. I started to make the peg from the bottle of liquor. Bijender put a rope in my neck and started pulling the rope and I tried to stop. Raghubir had caught hold my hand. Bijender had raised the hands and took a half filled bottle from the side of room and had put on me. I do not know which thing was filled in that bottle and I shouted. Bijender burnt a match stick and put on me and my clothes had caught the fire. One person was present in the other room to whom I have not seen. Voice was heard. On hearing my voice, my landlord Hari Kishan, my nephew Mohit, my room mate Master Hanuman and Om Parkash, r/o Khedla had come on the upper portion. After leaving me, Bijender and Raghubir ran away from the spot. They took me to Govt. Hospital, Palwal, for treatment. Thereafter, I was referred to Delhi. My statement has been got recorded by you, heard, which is correct.

Sd/- in English Mahender Singh Attested ASI PP Camp, Palwal 5.11.04

Both the dying declarations are dated 5.11.2004, but record is silent at what time, Mahender Singh (deceased) was declared fit to make statement. Dying declarations were not attested by the doctor. After recording dying declarations, no certificate by the doctor that patient remained fit during his statement. No doctor from Safdarjung Hospital, Delhi, appeared with record to state that patient remained under his treatment. In case, the doctor had refused to attest the dying declarations, then Investigating Officer should have made a note that the doctor was requested to attest the dying declarations but he did not agree to attest the same. First dying declaration is (Ex.PG), but no reference of Ex.PG in the second dying declaration (Ex.PK) recorded by ASI Sukhbir Singh. According to the doctor, deceased was fit to make statement at 2.00 PM, but no time when Ex.PG was recorded. Second time, patient was fit to make statement at 5.00 PM, whereas time of Ex.PK is 6.15 PM. If the patient was declared fit to make statement at 2.00 PM, then question is whether patient was fit to make statement when statement (Ex.PG) was recorded. Second time, patient was declared fit to make statement at 5.00 PM, but at 6.15 PM, patient can be unfit. Death was due to burn injuries. Pain killers were given. Pain killers were sedative in nature. So, prosecution cannot argue that at the time of recording of dying declaration, patient was in a fit state of mind to make statement. Second time, patient was declared fit to make statement at 5.00 PM. Application was moved by ASI Ram Kumar but Ram Kumar while appearing in Court did not state a word that he had sent the Investigating Officer with an application to record the statement of patient. When ASI Ram Kumar did not visit Safdarjung Hospital, Delhi, to present the application for getting opinion of the doctor, then question is who obtained the fitness certificate. First statement was thumb marked, whereas second was signed. No doctor stated a word that signatures on Ex.PK are of the deceased. Occurrence is dated 4.11.2004, dying declarations were recorded on 5.11.2004 and death was on 8.11.2004, but no effort was made to request the Judicial Magistrate to record the dying declaration. After recording first dying declaration (Ex.PG), there was no idea to record the second dying declaration (Ex.PK). In case ASI Balbir Singh had recorded first dying declaration (Ex.PG), then why no action in view of Ex.PG. Dying declaration without corroboration cannot be made the basis of conviction. Occurrence was witnessed by the landlord, namely, Hari Kishan, Master Hanuman and Mohit, nephew of the deceased, but above said witnesses when appeared in Court then did not support the prosecution story by saying that they had seen the appellants while committing the crime. Rather stated that appellants present in the Court facing trial were not seen while committing the crime. Statements of Master Hanuman, Hari Kishan and Mohit shows that prosecution story is not genuine one. In fact, deceased used to take liquor. He was residing alone. Under depression, he seems to have committed the crime, that is why, burn injuries were noticed below the face and neck. On the day of occurrence, there was election of the society. Bijender Singh was the Director of the society and remained in the premises of the society from 11.00 AM to 4.00 PM. Headmaster of the school while appearing as DW3 also stated that Mahender Singh (deceased) used to remain drunk most of the time and was alcoholic. There was no motive to commit the crime. If something was due from the appellants, then some documentary proof could easily be produced that Rs. 37,000/-was due from them. When nothing was due from the appellants, then they were not expected to set on fire the deceased.

Learned State counsel argued that no dispute regarding the occurrence. Only dispute is as to who had committed the crime. In the morning, deceased had gone to attend the school and this fact is clear from the statement of DW3. After some time, he had left the school with the permission of the Headmaster. Headmaster, no doubt, stated that without information, Mahender Singh had left the school. Dying declarations are to the effect that Mahender Singh had money dealings with the appellants. Appellants had gone to the school on a motorcycle. In the evening, again the appellants had gone to the room of the deceased. As per evidence on the file, two persons were seen while leaving the place of occurrence on a motorcycle. Landlord Hari Kishan, Master Hanuman and Mohit while appearing in the Court supported the prosecution story by saying that they had seen the deceased when set on fire, but stated that they failed to identify the accused. Earlier to the occurrence, deceased had no enmity with the appellants. Only payment was due from the appellants. So, the appellants had motive to commit the crime. When deceased had no enmity with some body else, then there was no idea to name the appellants. If, as per defence version, deceased was alcoholic, then there was no idea to commit suicide. Nothing on the file that deceased used to remain under depression. After obtaining opinion from the doctor regarding fitness of the patient, dying declarations were recorded. First dying declaration (Ex.PG) was recorded by ASI Balbir Singh, PS Sarojini Nagar, Delhi. Intimation was sent to PS City, Palwal. On receipt of information, ASI Sukhbir Singh had gone to Safdarjung Hospital, Delhi, and then recorded dying declaration (Ex.PK). Ex.PG and Ex.PK are on the same lines. No difference. ASI Balbir Singh had not met ASI Sukhbir Singh. 80% burn injuries were noticed. In case of burning, if the pain killers are administered to the patient, then patient remains mentally sound. No question to the doctor that when pain killers are given to the patient with 80% burn injuries, then patient is to be in coma and not mentally fit to make statement. If Mahender Singh with 80% burn injuries failed to make reference of first dying declaration, then on his short ground, prosecution story is not to be ignored when there was no motive to implicate the appellants and no plea of alibi in the statements of the appellants u/s 313 Cr.P.C.

Mahender Singh was serving as a teacher in Village Khedla. On the day of occurrence, i.e., 4.11.2004, he had gone to attend the school. After making entry in the attendance register, after some time, he had left the school. This fact is clear from the statement of DW3. In examination- in-chief, Headmaster Kirori Mal (DW3) stated that at 8.45 AM, Mahender Singh marked his presence and left the school during school hours. In cross-examination, he stated that Mahender Singh was alcoholic and used to remain drunk most of the time but no complaint to the authorities. If Mahender Singh used to attend the school under the influence of liquor, then why Headmaster remained silent. He could easily report the matter to the higher authorities.

According to prosecution story, Mahender Singh had money dealings with the appellants. Rs. 37,000/-was due from the appellants. Mahender Singh was set on fire at 6.15 PM by the appellants, when he was shifted to Government Hospital, Palwal, by his landlord Hari Kishan. Dr. Rajesh Kumar (PW3) stated that on 4.11.2004, Mahender Singh was brought by Hari Kishan with 80% burn injuries and was medico legally examined. Ex.PC is the copy of MLR. Burns were noticed below face involving neck. Patient had not given history to Dr. Rajesh Kumar.

After medico legally examining the patient, ruqa (Ex.PC/1) was sent to Police Station, Palwal.

ASI Balbir Singh, PS Sarojini Nagar, Delhi, was on duty in Safdarjung Hospital, Delhi, who on coming to know about the admission of Mahender Singh with burn injuries, moved application dated 4.11.2004 requesting the doctor to opine regarding the fitness of the patient. Patient was declared unfit at 8.10 PM.

On 5.11.2004, again application was moved requesting the doctor as to whether patient was fit to make statement. At 2.00 PM, patient was declared fit to make statement, then statement (Ex.PG) was recorded by ASI Balbir Singh.

On receipt of ruqa from Safdarjung Hospital, Delhi, regarding admission of Mahender Singh in the hospital, ASI Sukhbir Singh was deputed to visit Safdarjung Hospital, Delhi. On 5.11.2004, Doctor was requested as to whether patient was fit to make statement or not. At 5.00 PM, vide opinion (Ex.PN/1), patient was declared fit to make statement. Then statement of Mahender Singh (Ex.PK) was recorded. After making endorsement at 6.15 PM, statement was sent to the police station, on the basis of which, formal FIR was recorded.

Now there are two dying declarations, one recorded by ASI Balbir Singh (Ex.PG) dated 5.11.2004, and other by ASI Sukhbir Singh (Ex.PK) dated 5.11.2004. When the case of the prosecution is based on the dying declaration, then not safe to record conviction without corroboration of dying declarations. Court is required to scrutinize the evidence with great care and caution as to whether dying declaration made by the deceased is genuine one or not. Two dying declarations but there is no difference. As per both the dying declarations, Mahender Singh had money dealings with the appellants and Rs. 37,000/-was due from the appellants. Few days earlier to the occurrence, payment was demanded. On 4.11.2004, Mahender Singh was in the school, then the appellants on a motorcycle had gone to the school at about 10.30 AM. Mahender Singh had marked his presence in the school at 8.45 AM and after some time had left the school. According to the dying declarations, after obtaining leave, Mahender Singh had left the school and gone with the appellants on their motorcycle. Appellants and deceased came to the room of the deceased, which was on rent with him. Appellants had left the room by saying that they are going to mandi to arrange payment and account is to be settled in the evening. In the evening, appellants again came but they failed to arrange payment. Mahender Singh was requested to arrange a bottle of liquor. Appellants and deceased had consumed liquor, then deceased was set on fire by the appellants. After that, they had left the place of occurrence on a motorcycle.

PW2 Hari Kishan is the landlord and stated that Mahender Singh was occupying one room on rent. In the evening while someone from the side of liquor vend reported that upper portion of the house is on fire, then he along with Master Hanuman and 3-4 more persons had gone to the upper portion of the house. Mahender Singh was found crying because of having been burnt. Then stated that two persons were seen while running away from the spot but he did not see their faces. So one thing is clear from the statement of Hari Kishan that he was present and had seen the deceased when he was on fire. Master Hanuman was also present at that time. Two persons were seen while leaving the place of occurrence. Master Hanuman also stated that he was sharing the room with Mahender Singh. On the day of occurrence, he along with two more persons was present in the house of with the landlord. He heard someone saying as to what has happened on the upper storey. Then he had gone to the upper storey. Mahender Singh was heard crying. He was on fire. He (Master Hanuman) along with Hari Kishan and one more person had extinguished the fire. Mahender Singh was shifted to the hospital. Two persons were seen while running away from the scene of occurrence. Master Hanuman also stated that two persons were seen sitting in the room with Mahender Singh, but stated that he cannot identify them. From of the statements of Master Hanuman, it is clear that landlord Hari Kishan was also present at the time of occurrence. Two persons were seen while leaving the scene of occurrence. Mahender Singh was on fire. Fire was extinguished with the help of quilt.

Mohit (PW4) is the nephew of deceased and stated that on the day of occurrence at about 5-6.00 PM, he had gone to the room of his uncle Mahender Singh, then two persons were seen while throwing some substance on his uncle Mahender Singh and he was set on fire with match stick and those two persons had fled away from the spot. Mohit is a student, aged about 12 years. He had also seen the occurrence and two persons while leaving the scene of occurrence. Meaning thereby, occurrence is an admitted fact. The only dispute is who had set on fire the deceased.

First dying declaration (Ex.PG) was recorded by ASI Balbir Singh after getting opinion from the doctor, who declared the patient fit to make statement at 2.00 PM. After recording dying declaration, intimation was sent to Police Station, Palwal, by the doctor. After that, no evidence on the file that ASI Balbir Singh had ever met ASI Sukhbir Singh.

On receipt of information from the hospital, ASI Sukhbir Singh, after getting opinion regarding fitness of the patient, recorded dying declaration (Ex.PK). No doubt, after the statements (Ex.PG and Ex.PK), no certificate by the doctor that the patient remained fit during his statements. But ASI Sukhbir Singh, who had recorded statement (Ex.PK), stated that he had requested the Medical Officer to sign the statement, but he had refused to attest the same. In defence, evidence was led to the effect that on the date of occurrence, there was an election in the society. Bijender Singh being office bearer of the society remained present in the office from 11.00 AM to 4.00 PM. No evidence on the file that office of Palwal Co-operative Marketing Society Limited, Palwal, was at a considerable distance from the room of Mahender Singh (deceased) and was not possible for the appellants to visit the house of Mahender Singh at about 6.00 PM. Appellants when examined u/s 313 Cr.P.C. simply stated that the case is false. No plea of alibi that the appellants remained in the office of the society from 11.00 AM to 4.00 PM. Suppose, there was an election in the society and appellants remained in the office of society from 11.00 AM to 4.00 PM, even then prosecution story is not doubtful because in the morning at about 10.00 AM, appellants had gone to the school of Mahender Singh. After getting leave from the Headmaster, Mahender Singh had accompanied the appellants and came back to his rented room. Then appellants requested Mahender Singh to visit mandi to arrange the payment and return in the evening to settle the account. In the evening, again appellants came to settle the account. Appellants were on a motorcycle and two persons, who were seen while leaving the scene of occurrence, were on a motorcycle. Both the statements (Ex.PG and Ex.PK) were recorded after getting opinion from the doctor. Evidence also shows that the doctor remained present during recording of the statements. ASI Sukhbir Singh had no notice about the dying declaration (Ex.PG) recorded by ASI Balbir Singh, because ASI Balbir Singh was posted at Police Station Sarojini Nagar, Delhi, and was on duty in Safdarjung Hospital, Delhi. On receipt of ruqa from Safdarjung Hospital, Delhi, ASI Sukhbir Singh had gone to record the statement. Both the statements are natural. Role attributed to the appellants is the same. Eye witnesses are also consistent on material points. No dispute regarding place of occurrence. The only dispute is regarding identification of the appellants. As discussed earlier, deceased had no enmity with anybody. Deceased had money dealings with the appellants. Money was due from the appellants and for settling the account, firstly in the morning, appellants had gone to the school of the deceased, then deceased had come to his rented room accompanied by the appellants. To arrange the payment, appellants had left the room and came back in the evening. Statements of Master Hanuman, landlord Hari Kishan and Mohit corroborate the dying declarations (Ex.PG and Ex.PK). Only one line that no certificate by the doctor cannot make the statements unnatural because common experience shows that the doctors to avoid appearance in the Court avoid to attest the dying declarations. If Investigating Officer had motive to fabricate the dying declarations, then it was very easy for him to get a certificate from the doctor that during recording of statement, patient remained fit. No doctor from Safdarjung Hospital, Delhi, was examined by the prosecution, who had treated the deceased. But this fact is also not fatal because no dispute regarding unnatural death. When deceased had no dispute with anybody and was not an alcoholic, then there was no idea to commit suicide.

Second dying declaration (Ex.PK) was recorded after getting opinion of the doctor in view of application (Ex.PN), scribed by ASI Ram Kumar. But ASI Ram Kumar when appeared as PW15, then no question was put to him as to whether he had moved application (Ex.PN) for getting opinion of the doctor. In fact, ASI Ram Kumar was Incharge of P.P.Camp, Palwal, and on 5.11.2004, he had sent ASI Sukhbir Singh to Safdarjung Hospital, Delhi, to record the statement of Mahender Singh. This fact is clear from the statement of ASI Sukhbir Singh appearing as PW11. When intimation was received from Safdarjung Hospital, Delhi, then application was scribed for getting opinion of the doctor by ASI Ram Kumar, but ASI Sukhbir Singh was sent to the hospital for recording the statement. After going through the application, Dr. S.S.Sarol stated that at 5.00 PM, application (Ex.PN) was moved by ASI Ram Kumar. Then he gave his opinion (Ex.PN/1) that patient is fit to make statement. No question was put to ASI Ram Kumar while appearing as PW15 as to whether on 5.11.2004, he had gone to Safdarjung Hospital, Delhi, and moved application (Ex.PN) for getting opinion of the doctor. In his examination-in-chief also no question was put by learned Public Prosecutor that application (Ex.PN) was scribed by him and was handed over to ASI Sukhbir Singh to record the statement. So, minor discrepancy to seek opinion regarding fitness of the patient in view of application (Ex.PN) is not fatal to the prosecution. Occurrence was at about 6.15 PM on 4.11.2004, first dying declaration (Ex.PG) and second dying declaration (Ex.PK) were recorded on 5.11.2004 and death was on 8.11.2004 at 8.25 PM in Safdarjung Hospital, Delhi. After recording dying declaration (Ex.PK) on 5.11.2004, Investigating Officer could easily request the Judicial Magistrate to visit the hospital for recording dying declaration, but when there are already two dying declarations, i.e., one recorded by ASI Balbir Singh and second by ASI Sukhbir Singh, then failure to get a third one recorded from the Judicial Magistrate, both the dying declarations cannot be ignored. Master Hanuman, Hari Kishan and Mohit supported the prosecution story, except one thing that they failed to identify the appellants. Appellants were known to Master Hanuman and Hari Kishan and deceased was not related to them. To avoid enmity with the appellants, when one of them was Ex-Sarpanch and second was also politically sound, then it seems that intentionally the witnesses stated that two persons were seen while leaving the place of occurrence and they failed to identify them.

According to defence version, deceased was an alcoholic. He used to attend the school under the influence of liquor but if this allegation is taken to be correct one, then question is what was the reason to commit suicide. No complaint by the Headmaster or any other teacher or student that Mahender Singh used to attend the school under the influence of liquor or misbehave with any employee. As per report of laboratory (Ex.PL), diesel was detected on partially burnt towel, socks and clothes recovered from the scene of crime. Admittedly, two persons were present at the scene of crime and they were seen while leaving the scene of crime by the witnesses, namely, Master Hanuman, Hari Kishan and Mohit. If two persons were present with the deceased and deceased had no enmity with any one and had committed suicide, then why those two persons had fled away from the spot. They could easily raise hue and cry and should have made an effort to extinguish the fire. They were expected to shift the deceased to the nearest hospital for medical aid. When deceased was having 80% burns and had no enmity with anyone, then next question is why he named the appellants. On the other hand, as per dying declarations, payment was due from the appellants. To avoid payment, appellants had the motive to commit the crime. After leaving the scene of crime, appellants had maneuvered to win over the witnesses to support the dying declarations and state one line that two unknown persons were seen while leaving the place of occurrence and not the appellants.

First dying declaration (Ex.PG) recorded by ASI Balbir Singh had not reached Police Station, Palwal. Only ruqa was received and on receipt of ruqa, ASI Sukhbir Singh had gone to Safdarjung Hospital, Delhi, and then recorded dying declaration (Ex.PK). He had no knowledge about the first dying declaration because ASI Balbir Singh had not met him. FIR would have been recorded on the basis of statement (Ex.PG), if before leaving police station by ASI Sukhbir Singh, statement (Ex.PG) would have been received in Police Station, Palwal. So no prejudice was caused to the appellants, if no FIR on the basis of statement (Ex.PG), because story as per dying declarations (Ex.PG) and (Ex.PK) is the same.

After the occurrence dated 4.11.2004, dying declarations (Ex.PG and Ex.PK) were recorded on 5.11.2004. Occurrence was witnessed by Master Hanuman, Hari Kishan and Mohit, but no evidence on the file that Master Hanuman and Hari Kishan had met the Investigating Officer before recording dying declaration. When patient is lying with burn injuries, then first priority of the Investigating Officer is to record the statement of the victim. In case statements of witnesses are not recorded if the victim is found to be unfit, then on this ground, prosecution story is not to be ignored. In the present case, statements of Master Hanuman and Hari Kishan were recorded on 6.11.2004, whereas statement of Mohit was recorded on 16.11.2004. Above said PWs did not state a word that their statements were not recorded by the Investigating Officer. In the statements, witnesses have named the appellants. In case some unknown persons were seen while leaving the scene of crime by Master Hanuman, Hari Kishan and Mohit, then they could easily state that some unknown persons were seen while leaving the scene of occurrence. There was no idea to name the appellants. Appellants were rightly named by the witnesses, but later on, in order to avoid litigation qua identity of the accused, the witnesses resiled from their statements. When witnesses resiled from the statements, then from the examination-in-chief and cross-examination, evidence supporting the prosecution story was rightly taken into consideration by the trial Court.

By examining three DWs, an effort was made that at the time of occurrence, appellants were not present with the deceased. In fact, they were busy in the election. When the appellants were examined u/s 313 Cr.P.C., then did not state a word that they were not present at the time of occurrence. No plea of alibi. But after their statements u/s 313 Cr.P.C., evidence was led. Suppose defence evidence is correct one, then it means from 11.00 AM to 4.00 PM, the appellants remained in the office of the society, but no case of the deceased that after 11.00 AM, appellants came to his school and then after getting leave from Headmaster, he had accompanied the appellants and come to his room and the occurrence was before 4.00 PM. According to the story, before 11.00 AM, appellants had gone to the school and brought Mahender Singh to his room. After that, they left the room to arrange payment and again returned in the evening at about 6.00 PM and then by consuming liquor, had set on fire the deceased. Meaning thereby, defence evidence is an after thought.

For the reasons recorded above, we are of the opinion that evidence on the file was rightly scrutinized by the trial Court. Impugned judgment is to be set aside, if the same is perverse and against law and facts.

Both the appeals, i.e., Crl.Appeal No. 605-DB of 2006 and Crl.Appeal No. 649-DB of 2006 are dismissed.