Delhi High Court (May 22, 2001) 2001 (TLS)125201 2001-DLT-93-764 :: 2001-AD (Del)-5-721 MOHAMMAD ISLAM Vs. State (National Capital Territory of Delhi) Usha Mehra ( 1 ) A document as valuable as a dying declaration is supposed to be fool-proof, it must incorporate the particulars which it is supposed to contain. A dying declaration enjoys almost a sacrosanct status as a piece of evidence as it comes from the mouth of a person who is about to die and at-that stage of life he is not likely to make a false statement. ( 2 ) KEEPING the above principles of law in view, we have to see whether on the basis of statement made by the deceased Mohd. Zafar Imam @ Pan Babu aged about 15 years vide Ex. Public Witness-17/a, conviction and sentence of the appellant can be sustained. Whether the statement of the deceased recorded by the Investigating Officer (in short the I. O.) vide Ex. Public Witness-17/a enjoys the status of a dying declaration ? Is it a foolproof evidence to prove that it was the appellant who burnt the deceased by pouring kerosene oil on the deceased on 6/04/1994 ? ( 3 ) CHALLENGE to the impugned order of conviction and sentence is primarily on the grounds ; (i) that the dying declaration Ex. Public Witness-17/a recorded of the deceased mohd. Zafar by the 1. 0. is not admissible in the evidence because Dr. Neeraj Gupta the doctor on duty who declared the deceased to be fit to make the statement had not been examined; (ii) the MLC has not been proved as per requirement of law; (iii) the alleged dying declaration was neither recorded by the SDM nor by the doctor on duty. Moreover, such a lengthy dying declaration could not have been made by the person who had 95% to 97% burns; (iv) that the independent witnesses have not supported the case of the prosecution. There being ho eye-witness to the incidence of burning the mere fact that deceased was employed by the accused by itself is no circumstances to hold the appellant guilty. Hence conviction is bad in law; (v) that there was no motive to kill the deceased; lastly (vi) the alleged absconding of the accused and the sub- sequent arrest from the place as shown by the 1. 0. had not been supported by the independent witnesses. Hence conviction is bad in law; (v) that there was no motive to kill the deceased; lastly (vi) the alleged absconding of the accused and the sub- sequent arrest from the place as shown by the 1. 0. had not been supported by the independent witnesses. ( 4 ) PROSECUTION s case in short is that accused was running embroidery workshop on the second floor of House No. 4506, Lambi Gali, Kucha Pandit, Hauz Qazi, Delhi. That the deceased was employed with the accused. Deceased wanted to go back to his native place in Bihar hence demanded his salary from the accused. Accused was not interested to relieve him at that time because he wanted him to complete the work which was entrusted to him. When the deceased insisted for the money and of going to his home town the accused got annoyed. He set ban en fire on 6/04/1994 at about 9. 45 PM on the second floor of house No. 4506, Lambi Gali, Kucha Pandit, Hauz Qazi, delhi, by pouring Kerosene oil The deceased was rushed to JPN Hospital by one mustaz Ahmad (public witness3 ). Thepublic Witness3 at the relevant time was runniag a shop at 4511, lambi Gali, Hauz Qazi, Delhi. The deceased was taken to the hospital at ll. OO PM. Dr. Neeraj Gupta was on duty. According to alleged history given to Dr. Neeraj Gupta and as recorded op MLC Ex. Public Witness1/a the deceased was burnt by Islam by pouring kerosene oil. When the alleged history was recorded by Dr. Neeraj Gupta the deceased was conscious. At about 12. 05 AM on the intervening night of 6th and 7/04/1994, Dr. Neeraj Gupta declared the deceased to be fit to make the statement. Accordingly the statement of. the deceased was recorded by the Investigating Officer, Insp. Roshan Lal (public witness17 ). In the said statement the deceased implicated the appellant herein who according to the deceased poured kerosene oil and set him on fire. On the basis of the said statement of deceased, accused was arrested and challan was filed in the Court. ( 5 ) PROSECUTION examined number of witnesses. Those have been categorised by the learned Addl. Sessions Judge in three categories namely formal witnesses, eye-witnesses and the material witnesses. On the basis of the said statement of deceased, accused was arrested and challan was filed in the Court. ( 5 ) PROSECUTION examined number of witnesses. Those have been categorised by the learned Addl. Sessions Judge in three categories namely formal witnesses, eye-witnesses and the material witnesses. ( 6 ) SINCE no one saw deceased being burnt by the accused, therefore, we have to see what circumstantial evidence had been produced to prove the guilt of the accused. Before we deal with each of the circumstances, we are conscious of the fact that motive plays important role in a case based on circumstantial evidence. ( 7 ) IN order to prove motive, prosecution examined Fazle Haq (public witness5) father of the deceased He not only identified the dead body of his son but also testified that his son Zafar Imam was employed with the accused Mohd. Islam since 1993. Deceased had not been paid his wages for the last 6 to 7 months. He denied the suggestion that deceased never wrote to him about the non-payment of wages by the accused. The fact that the deceased had demanded wages from the accused even on the morning of 6th april,, stood corroborated by the testimony of Mr. Ataullah (public witness8 ). Thoughpublic Witness-8 was declared hostile on other points yet in cross-examination by the APP he admitted this fact which admission is admissible in law. He said: "mohd. Zafar wanted to go back to his native village and asked accused mohd. Islam for money for the labour work he has done in the factory being run by the accused Mohd. Islam. He was told by the accused that since he has lot of orders in the hands of the accused, he can go after two weeks but zafar is insisting to go. Mohd Islam tried to raise money from the market but he could not arrange the same and informed Mohd. Zafar that he will arrange the money tomorrow and he can go to his village. " ( 8 ) MR. Ataullah (public witness8) was co-employee of the deceased at the relevant time. He was thus the best person to know as to what transpired on that fateful day. Ataullah (public witness8) might not have supported the case of the prosecution in toto but the admission on this aspect fully support the case of the prosecution. " ( 8 ) MR. Ataullah (public witness8) was co-employee of the deceased at the relevant time. He was thus the best person to know as to what transpired on that fateful day. Ataullah (public witness8) might not have supported the case of the prosecution in toto but the admission on this aspect fully support the case of the prosecution. It establishes motive of the accused to do away with the deceased because accused got annoyed with deceased as. the later insisted on going to his native village and demanded money. It led the accused taking this drastic step on the fateful night of 6/04/1994. The fact that deceased demanded his salary in order go to back home and accused insisting not to go till he completed the work and that he had not been able to arrange money from the market stood established from the testimony of Ataullah (public witness8 ). The insistence on the part of the deceased enraged the accused which led to the dispute is a sufficient indication of the motive on the part of the accused to take the life of the deceased. ( 9 ) THE next question for consideration is, whether the appellant poured kerosene oil on the deceased ? To prove the guilt of the accused prosecution examined Mustaz ahmed (public witness3), Asgar Ali (public witness7) and Ataullah (public witness8 ). All these witnesses admittedly on one or the other aspect turned hostile, however, their testimonies and the extent which lend support to the case of the prosecution can be relied upon. Asgar Ali (public witness7) and Ataullah (public witness8) tried to save the accused by building alibi for the accused but the circumstance which have coirs on record falsify this version. They have not been able to prove the alibi to the hilt. Hence the plea of alibi set up by these witnesses appears to be false for the reason that the deceased got burnt at about 9. 45 PM on the 2nd floor of house No. 4506 i. e. where accused was running his factory. Secondly accused did not take the deceased would have been the first person to take the deceased to the hospital. 45 PM on the 2nd floor of house No. 4506 i. e. where accused was running his factory. Secondly accused did not take the deceased would have been the first person to take the deceased to the hospital. If the accused had come back with Asgar Ali (public witness7) and ataullah (public witness8) at about 10 P. M. (as stated by them) and saw him burning, the accused being the employer of the deceased to the hospital. But that was not done. Instead the deceased was taken to hospital by a public spirited person namely Mustaz ahmad (public witness3 ). It does not appeal to reason that the employer would leave his employee in that condition to chances. Thirdly the deceased or the person who brought the deceased to the hospital at the first available opportunity furnished the cause of his burn when he informed the doctor on duty that deceased was burnt by islam i. e. the appellant herein. It was so recorded in MLC Ex. Public Witness-l/a at 11. 00 PM. MLC Ex. Public Witness1/a negative the assertion ofpublic Witness-7 andpublic Witness-8. Lastly deceased was burnt at> the factory premises of the accused i. e. on second floor of that house. It stood proved from the testimonies of Asgar Ali (public witness7) and Ataullah (public witness8) when they said iri their statement recorded in court, Asgar Ali (public witness7) said :- "on the said day at 10. 15 PM when I returned to the factory after taking meal, 1 saw Mohd. Zafar on fire. I saw people trying to put off the fire. 1 went upstairs, People also came there. Due to rush of people I could not go down. He was removed to the hospital by public persons. " ataullah (public witness8) said :- "thereafter myself, Mohd. Islam and Asgar went to lake food and when we returned at 10. 00 PM we noticed that shrikes were coming from upstairs of mohd. Zafar. and also see crowd of people. There I saw Mohd. Zafar on fire and people were putting off the fire. " ( 10 ) THE public witness Mustaz Ahmed vide his statement Ex. Public Witness3/8 which statement he admitted having made to the police and bear his signatures nowhere mentioned that accused was there and tried to extinguish fire along with other persons. Accused, therefore, appears to be absent even till 10. " ( 10 ) THE public witness Mustaz Ahmed vide his statement Ex. Public Witness3/8 which statement he admitted having made to the police and bear his signatures nowhere mentioned that accused was there and tried to extinguish fire along with other persons. Accused, therefore, appears to be absent even till 10. 30 P. M. though according to asgar Ali (public witness7) and Ataullah (public witness8) they had come back at about 10. 00 or 10. 15 p. M. and saw the deceased in burn condition on the second floor. They gave their explanation for not carrying the deceased to hospital but nowhere said that accused tried to extinguish fire or took him to hospital. From the above facts the plea of alibi stands negated. This plea appears to have been set up as afterthought, hence rightly rejected by the learned trial Court. ( 11 ) HAVING found the plea of alibi to be false and the motive to burn the deceased being there, we have now to see who burnt the deceased ? According to prosecution it was this appellant and for that purpose relied the MLC Ex. Public Witness-l/a and the statement of the deceased recorded by the 10 vide Ex. Public Witness-17/a. ( 12 ) COUNSEL for the appellant contended that the cause of burn as recorded in Ex. PW1/a has not been proved nor the reading of the same show that the history was given by the deceased. For the sake of arguments if we accept this contention of the appellant that the cause of burn was not given by the deceased but was furnished by the person who brought the deceased to the hospital, (that is Mustaz Ahmadpublic Witness-3) even then it lend support to the case of the prosecution. It proves that Mohd. Islam burnt the deceased. Even if we accept thai the history of burn was given by Mustaz ahmad (public witness3) that does not create any doubt nor create dent in the case as set up by the prosecution because it was Mustaz Ahmad (public witness3) who after hearing shrikes of the deceased went to the factory of the deceased. Therefore, he was the one who could have known as to how the deceased caught fire. ( 13 ) DOCTOR on the MLC Ex. Public Witness1/a opined that the deceased when brought to the hospital was conscious. Therefore, he was the one who could have known as to how the deceased caught fire. ( 13 ) DOCTOR on the MLC Ex. Public Witness1/a opined that the deceased when brought to the hospital was conscious. That smell of kerosene was coming from his body. Perusal of Ex. Public Witness1/a also show that deceased was brought to hospital by Mustaz Ahmad (public witness3) and not by the accused Mohd. Islam. This shows that accused after burning the deceased disappeared from the scene of crime. He was not available tt the spot of incident when deceased was brought down and taken to hospital. Inspector Roshan lal (public witness17) testified that on receipt of the secret information accused was arrested at Chowk Rodgran in Hauz Qazi vide arrest Memo Ex. Public Witness 17/d. Had the accused been there at the spot or accompanied the deceased to hospital, he could not have been arrested from Chowk Rodgran in Hauz Quazi. This circumstances amply proves the case of the prosecution that accused after burning the deceased absconded from the site. ( 14 ) SIMILARLY, the attempt made by Mustaz Ahmad (public witness3) to build a defence for the accused by saying in the cross-examination by the accused that accused also accompanied him to the hospital, is not only unbelievable but appears to be false. It is contrary to the documentary as well as oral evidence available on record namely the mlc Ex. Public Witness1/a and even the testimonies of Asgar Ali (public witness7) and Ataullah (public witness8) falsify this plea of Mustaz Ahmad (public witness3 ). Neither Asgar Ali (public witness7) nor Ataullah (public witness8) anywhere stated that the accused took the deceased to the hospital or accompanied Mustaz Ahmad (public witness3) to the hospital. Similarly doctor nowhere recorded on the MLC that the deceased was brought by the accused or accused was present. If for argument sake it is believed that accused had accompanied the deceased to hospital then being the employer he would have given the history of burn on MLC Ex. Public Witness1/a and the name of the person who brought the deceased to hospital. Accused could not have told the doctor that he burnt the deceased. This circumstances also negate the pica that accused accompanied the deceased to the hospital. Public Witness1/a and the name of the person who brought the deceased to hospital. Accused could not have told the doctor that he burnt the deceased. This circumstances also negate the pica that accused accompanied the deceased to the hospital. ( 15 ) NEW, turnmg to the question as to whether the statement of the deceased recorded by Inspector Roshan Lal Ext. Public Witness17/a can be treated as a dying declaration counsel for the appellant contended that this statement cannot be treated as a dying declaration for the reasons: (i) that Dr. Neeraj Gupta who declared the deceased to be fit to make the statement had not been examined; (ii) the statement Ex. Public Witness-17/a had not been recorded by the doctor nor by the S. D. M. therefore, it creates doubt about it being the statement of the deceased; (iii) such a lengthy statement as Ex. Public Witness-17/a could not be made by a person who had 97% burns; and finally (iv) reliance on mlc Ex. Public Witness-1/a was misplaced as it was not proved properly nor the doctor who conducted the post-mortem was examined. ( 16 ) SO far as the question of non-appearance of Dr. Neeraj Gupta is concerned, us signatures on MLC Ex. Public Witness-l/a stood proved by the testimony of Mr. A. R. Mathew (public witness1) i. e. record clerk, LNJP Hospital. As per Mr. Methew (public witness1), Dr. Neeraj gupta and Dr. Neeraj Kaha left their jobs and their whereabouts were not available nor know. In these circumstances, prosecution examined Mr. A. R. Mathew (public witness1) to prove the signatures of Dr. Neeraj Gupta and that of Dr. Kalra. Mr. Mathew was ac- quainted with their signatures. He identified the signature of Dr. Neeraj Gupta on the mlc Ex. Public Witness-1/a at point "a". Since the doctor was not available and his whereabouts were not known, it does not mean the statement recorded by the said doctor would became a waste paper. In the absence of the said doctor prosecution was left with no alternative but to prove his statement either by examining another doctor and if no other doctor acquaintedwith his signature then through the testimony of the person who was acquainted with the doctor s signature who had seen him writing and signing. Mr. A. R. Mathew (public witness1) was such a person. He identified Dr. Mr. A. R. Mathew (public witness1) was such a person. He identified Dr. Gupta s signatures on the mlc Ex. Public Witness-1/a. So far as Ex. Public Witness-17/a is concerned, it stood proved by the testimony of Inspector Roshan Lal (public witness17 ). He recorded the deceased s statement after doctor declared him fit to make the statement. Inspector Roshan Lal (public witness17) completed the recording of deceased s by about 1. 00 P. M. He requested the doctor on duty i. e. Dr. Neeraj Gupta to endorse the same. Dr. Neeraj Gupta did endorse the statement of the deceased Ex. Public Witness-17/a at point b . Inspector Roshan Lal (public witness17) identified the endorsement in the handwriting of Dr. Neeraj Gupta at point a which according to Inspector Roshan Lal was endorsed by the doctor ,in his presence. Dr. Neeraj Gupta signed at point a in the presence of the 1. 0. Hence, Ex. Public Witness-17/a on the basis of which rukka was issued and which became a dying declaration after the death of the deceased stood-duly proved by the testimony of Inspector Roshan Lal (public witness17 ). Even if Dr. Neeraj Gupta could not be examined because of his non- availability, it would not render the dying declaration in question unreliable or illegal. As mentioned above, the deceased was found conscious when brought to the hospital at about 11. 00 o Clock. At 12. 05 again Dr. Neeraj Gupta declared him fit to make the statement and in fact statement of the deceased was recorded immediately thereon by the I. O. as proved on record vide Ex. Public Witness-17/a. The said statement of the deceased was got foot marked by the 1. 0. in the presence of the doctor on duty which is apparent when doctor endorsed the same. On the basis of Ex. Public Witness-17/a rukka was prepared and sent at 1. 40 AM in the intervening night of 6th and 7/04/1994 to the police station for registration of the case. It shows that the said dying declaration was recorded by the 1. 0 in the presence of the doctor. Therefore the contention of the counsel for the appellant that since dying declaration was not recorded by a doctor does not materially effect the case of the prosecution. It shows that the said dying declaration was recorded by the 1. 0 in the presence of the doctor. Therefore the contention of the counsel for the appellant that since dying declaration was not recorded by a doctor does not materially effect the case of the prosecution. So far as the objection that dying declaration was not recorded by a SDM, to our mind, the explanation given by the counsel for the State has merits. There was hardly any time for the 10 to call the sdm. Had the 10 not recorded the statement of the deceased vide Ex. Public Witness-17/a perhaps the prosecution would-have been deprived of even this statement recorded vide ex. Public Witness-17/a. It would not have been available. Possibility of deceased thereafter loosing consciousness cannot be ruled out particularly when we know that deceased had 95% to 97% burn and time was too short with the 1. 0. To avoid any such possibility 1. 0. recorded the statement immediately when doctor on duty declared the deceased fit to make the statement coupled with the fact that statement has been duly endorsed by Dr. Neeraj Gupta. Such a statement vide Expublic witness-17/a, therefore, cannot be held to be inadmissible in evidence. In the circumstances of this case we find no infirmity in this dying declaration as recorded by the 1. 0. and having been endorsed by the doctor on duty. ( 17 ) IT is a fact on record that the dying declaration Ex. Public Witness-17/a was not recorded during the course of investigation. It was recorded by the 10 and basing on this FIR was registered. In these circumstances such a statement vide Ex. Public Witness-17/a cannot be said to have been made to 10 during the investigation of the case. Hence such a statement as Ex. Public Witness-17/a can rightly be called a dying declaration. In similar circumstances the Supreme Court in the case of Manna Raja v. State of M. P. , AIR 1976 SC 2199 held that making of a statement before the police where the victim succumbs to his in- juries, such a statement can be treated as a dying declaration and is admissible under section 32 (1) of the Evidence Act. In similar circumstances the Supreme Court in the case of Manna Raja v. State of M. P. , AIR 1976 SC 2199 held that making of a statement before the police where the victim succumbs to his in- juries, such a statement can be treated as a dying declaration and is admissible under section 32 (1) of the Evidence Act. Apex Court further observed that; "though a dying declaration must be approached with caution for the reason that the maker of the statement cannot be subjected to cross-examination, there is neither a rule of law nor a rule of prudence which has hardened into a rule of law that a dying declaration cannot be acted upon unless it is cor* roborated. Thus court must not look out for corroboration unless it comes to the conclusion that the dying declaration suffered from any intimity by reason of which it was necessary to look out for corroboration. " ( 18 ) IN the case of Dalai Singh and others v. State of Punjab, 1979 SCC (Crl.) 968 the Apex Court observed that: "it is better to leave such dying declaration out of consideration until and unless the prosecution satisfies the court as to why it was not recorded by a magistrate or by a doctor. It is not that such dying declarations are always untrustworthy, but better and more reliable methods of recording dying declaration of an injured per- son should be taken recourse to and the one recorded by the police officer may be relied upon if there was no time or facility available to the prosecution for adopting any better method. " ( 19 ) IN the case in hand admittedly the dying declaration recorded vide Ex. Public Witness- 17/a was recorded by the 10 not during the course of investigation nor the 10 had time at his hand to call for the SDM. He, however, got the statement Ex. Public Witness-17/a endorsed from the doctor on duty. This fact stood proved by the testimony of Inspector roshan Lal (public witness17 ). Dying declaration recorded vide Ex. Public Witness-17/a is in fact got corroborated from the MLC Ex. Public Witness-1/a. It was recorded by the doctor on duty wherein the alleged history of burn of the deceased indicated the accused to be the person who burnt him. This fact stood proved by the testimony of Inspector roshan Lal (public witness17 ). Dying declaration recorded vide Ex. Public Witness-17/a is in fact got corroborated from the MLC Ex. Public Witness-1/a. It was recorded by the doctor on duty wherein the alleged history of burn of the deceased indicated the accused to be the person who burnt him. The fact that deceased was conscious is apparent from the endorsement made on the MLC by the doctor on duty at 12. 05 AM when he opined that the deceased was, fit to make the statement. This fact overwhelming proves that deceased was mentally alert and conscious when he made the statement vide Ex. Public Witness-17/a. Such a statement merits acceptance and needs no corroboration. Such a dying declaration as ex. Public Witness-17/a requires according high degree of value. A dying declaration, it is needless to say, does not require any corroboration as held by ApexCourt in the case of khushal Rao v. State of Bombay, AIR 1958 SC 52 . The dying declaration recorded by police official and attested by doctor is admissible in evidence. We find no infirmity in the dying declaration recorded by 10 in circumstances of this case, Ex. public witness17/a cannot be rejected in view of State of Punjab v. Amarjeet Singh, AIR 1988 SC 2013 . ] ( 20 ) IN view of our above discussion, we find no merit in the appeal nor any abound to interfere with the order of conviction and sentence passed by the learned additional Sessions Judge vide order 7/09/1996. The appeal is accordingly dismissed but with no order as to costs. Order be conveyed to the appellant through superintendent, Central Jail, Tihar. --- *** --- .