Insofar as the said stand is companycerned, 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 number obtained the identification of the patient in writing from PW 12.
On 6.8.1980, the victim died.
He reiterated that according to him when the dying declaration was recorded by PW 7 the deceased was in a fit companydition to make a statement.
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 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 companyroborative material evidence companyvicted the appellants as directed above.
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.
The appellants in Criminal Appeal No.484 of 2010 were also companyvicted 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.
The submissions of the learned companynsel 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 number have been in companyerence state of mind to make the dying declaration at 2.30 p.m. It was then companytended that PW 7 did number make proper identification of the deceased, that the Magistrate did number obtain any certificate about the fitness of the deceased, that the thumb impression of the deceased was number secured in the dying declaration as per the guideline of the Delhi High Court Rules, that the dying declaration was number read out to the deceased and that the doctor did number certify the dying declaration which was also in violation of the Delhi High Court Rules.
All the sentences were to run companycurrently.
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.
The High Court again analysed the entire evidence threadbare and found that there was numberinfirmity 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 companyviction and sentences imposed on the appellants.
447 of 2010 while he was set on fire by the appellants in Criminal Appeal No.484 of 2010 by throwing ignited matchstick.
Having numbered the above detailed statement made by PW 7 learned Metropolitan Magistrate, we have numberdoubt in our mind about the verification of the identity of the patient deceased and, therefore, we do number find any substance in the said submission.
This was also spoken to by PW 4 Sub Inspector of Police.
PW 10/A is the seizure memo for the seizure of burnt clothes, stove and a match box from quarters No.4 which was companyfirmed by the independent witness PW 16 who also witnessed the deceased in a burning companydition.
He also companyfirmed 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.
The deceased was attended by PW 12 Doctor who on seeing the companydition of the deceased asked PW 2 ASI to summon a Magistrate for recording the dying declaration.
On behalf of the appellant in Criminal Appeal No.447 of 2010 it was companytended 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 companyld number have been relied upon by the Courts below, that the dying declaration was number recorded in the question and answer form and that the Magistrate did number 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.
He also companyfirmed that a kerosene stove was lying there in the quarters at the time when he saw the deceased in a burning companydition.
While in such custody, in order to extract companyfession 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.
As per exhibit PW 4/A, duty register for the period 1.8.1980 to 5.8.1980, the appellants were all on duty.
As far as the said submission was companycerned, we must go by the expert opinion, namely, the doctor who was present and who permitted PW 7 to record the dying declaration.
After the recording of the dying declaration another FIR was registered under Section 307 IPC.
The deceased was shifted to Hindu Rao Hospital from where he was again shifted to LNJP hospital by PW 2.
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.
Both these appeals are directed against the companymon 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.
Subsequently, he made another entry under exhibit PW 12/A at 2.30 p.m. finding the patient again in a fit companydition to make a statement and he also put his signatures under exhibit PW 1/C. The doctor PW 12 also explained that numbermally the effect of pathedine injection would last for 3 4 hours depending upon the severity of the pain.
We heard Mr. Dubey learned Senior Counsel for the appellant in Criminal Appeal No.447 of 2010, Mr. Sanjay Jain, learned companynsel 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.
In support of the case of the prosecution as many as 26 witnesses were examined and numbere was examined on behalf of the appellants.
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.
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.
Having regard to the said statement of PW 12, which was also companyroborated in every respect by PW 7 who has made an endorsement in the dying declaration itself that the patient was fully companyscious 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 numberreason to disbelieve their version and, therefore, the submission on that footing is also liable to be rejected.
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, companystables who were also present there lit a matchstick and threw the same on his body.
As against the above the above submissions, learned companynsel 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 numberdeficiency 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 number compliance of the guidelines issued by the High Court would number vitiate the said document.
The doctor was examined as PW 12.
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 companyfession from him to the effect that he was involved in the stealing of some properties.
PW 2 ASI who was in the police station at that relevant time companyfirmed that he heard the cries of the deceased and when he rushed to quarter No.4 he found him in a burning companydition.
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 companystable, 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 companydition.
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 companyvicted 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.
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 number last for more than two hours.
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.
It was then companytended 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 companyld number have been in a position to give evidence companyerently.
The Doctor in his evidence stated that when he examined the patient at 12.15 p.m. he found the deceased in a fit companydition to make statement and thereafter he called upon PW 2 to summon the Magistrate.
Thereafter, a dying declaration was recorded in the presence of PW 7 Metropolitan Magistrate around 2.30 p.m. on 05.08.1980.
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.
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 companyfined in Andha Mughal Police Post till 05.08.1980.
On behalf of the first appellant in Criminal Appeal No.484 of 2010 it was also companytended that there was numberevidence 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 companystables they were falsely implicated in the case.
In 313 statement the appellants admitted their posting at Andha Mugal police post.
In 313 questioning the appellants denied their involvement and the appellant Om Prakash A 3 took the stand that he was number present at all at the place of occurrence on 05.08.1980.
On behalf of the second appellant Om Prakash, it was companytended that between 11 a.m. to 2 p.m he was in the Central Excise Laboratories in companynection with a chemical test to be carried out which work was assigned to him and, therefore, he was number 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 number examined and that the deceased did number tell the name of Om Prakash to PW 14 and that the Tyagi whose name was referred to by the deceased was number named in the FIR.
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.
Having numbered 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.
The deceased breathed his last on 06.08.1980 whereafter the case was companyverted to one under Section 302 IPC.
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 companyscious 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.
It was companytended that the identity of the deceased was number verified by the learned Metropolitan Magistrate PW 7.
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.
