NARENDER KUMARversusSTATE OF NCT OF DELHI

                   [2015] 15 S.C.R. 179


                  NARENDER KUMAR                              A
                            v.
                STATE OF NCT OF DELHI
            (Criminal Appeal No. 447 of 2010)
                                                              B
                   D.ECEMBER 16, 2015
    [FAKKIR MOHAMED IBRAHIM KALIFULL:A AND
             UDAY UM ESH LAUT, JJ.)
      Penal Code, 1860: s.302 rlw s.34- Prosecution case
was that the victim-deceased was picked up by the appellants C
police officials and illegally confined in police post and was
beaten severely to extract confession from him that he was
involved in stealing of some· properties and thereafter
kerosene was poured on him and set on fire by appellants
by thro_wing ignited matchstick - Dying declaration was D
recorded by magistrate in the presence of doctor- Conviction
by courts below on the basis of dying declaration -
Challenged on the ground that the identity of the deceased
was not verified by the magistrate before recording dying
declaration and thus dying declaration was not reliable - On E
appeal, held: The dying declaration was recorded by the
magistrate after doctor noted the condition of the patient and
after ensuring that the patient was fully conscious and capable
of making statement - There was no reason to disbelieve
the version of the doctor and the magistrate - Further, dying F
declaration is not liable to be rejected on mere omis_sion of
getting thumb impression or signature of the deceased- No
interference with the order of conviction.
     Dismissing the appeals, the Court
                                                              .G
     HELD: 1. It was contended that the identity of the
deceased was not verified by the Metropolitan Magistrate
PW-7. The evidence of PW-7 the Magistrate was to the
effect that PW-12, the doctor identified the patient to him
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                           179
180      SUPREME COURT REPORTS              [2015] 15S.C.R.


A though he had not obtained the identification of the
    patient in writing from PW-12. That apart, in the initial
    part of the evidence he has narrated as to how PW-2 the
    ASI approached him to record the dying declaration of
    the deceased, that he was accompanied by PW-2 to the
B ·hospital, that he was taken to the patient thereafter,
    namely, the deceased and after satisfying himself that
    the patien1: was fully conscious and was capable of
    making the statement and making an endorsement and
    also after getting it endorsed by PW-12 he proceeded to
c record the dying declaration of the deceased. Having
    regard to the said statement of PW-12, which was also
    corroborated in every respect by PW-7 who has made
  · an endorsement in the dying declaration itself that the
    patient was fully conscious and capable of making his
o statement and the said witnesses are official witnesses
    one of whom, namely, PW-12 is an expert witness, there
    is no reason to disbelieve their version and, therefore,
    the submission on that footing is liable to be rejected.
    [Paras 9and13] [189-A-D; 190-D-E]
E      2. It was then contended that the dying declaration
  did not contain either the signature or thumb impression
  of the deceased which is in violation of the guidelines
  issued by the High Court of Delhi in regard to the
  recording of dying declaration. In the first place, it must
F be stated that it was only a guideline. The guidelines
  were issued by the High Court in order to ensure that
  any defect in regard to the identity of the deceased or
  the veracity of the contents of the dying declaration are
  not doubted on the ground that the concerned patient
G himself could not have made such a statement in order
  to implicate someone in the offence. Merely because
  there was a defect in following the said guideline, which,
  is of a trivial nature and when the dying declaration

H
   NARENDER KUMAR v. STATE OF NCT OF DELHI              181


recorded is otherwise proved by ample evidence, the A
whole of the dying declaration cannot be thrown out. In
the case on hand, the dying declaration was recorded
by PW-7 who was summoned by PW-12 the doctor who
noted the condition of the patient and PW-7 was brought
to the hospital by PW-2, the ASI and before recording B
the dying declaration PW-12 endorsed the capability of
the deceased to make the statement apart from PW-7
himself ensuring that the deceased was in a fit condition
to make the statement and thereafter the said statement
was recorded by PW-7 a responsible judicial Officer. It c
cannot be held that simply because PW-7 omitted to get
the thumb impression or signature of the deceased the
dying declaration should be rejected. The dying
declaration was proved in the manner known to law and,
therefore, there was no scope to reject the same. o
[Paras 14 and 15] [190-F·H; 19-A-F]
     3. PWs-17 and 18 stated that on 5.8.1980 appellan~­
A-3 was in the Excise office at about 10.30or11 a.m. and
remained there till 2 p.m. According to the deceased, he
was burnt at -the instance of the appellants just about E
10.30 a.m. in the quarters of polic~ post. Therefore, prior
to 10.30 a.m. the whereabouts of the accused·A-3 were
not surely stated. He was assigned the task of taking
the sample at 9.40 a.m. Therefore, between 9.40 a.m. and
10.30 a.m. the location of the said accused was not F
shown to have been in a different place other than the
place of occurrence. That apart, the trial Court noted
that the excise laboratory at battery line was just 5-6
minutes drive from the police post. The trial Court made
a detailed analysis of this issue and found that there G
was no truth in the claim of alibi of the appellant-A-3.
[Para 17] [192-D-H]


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182         SUPREME COURT REPORTS                [2015] 15S.C.R.


A         CRIMINAL APPELLATE JURISDICTION : Criminal
      Appeal No. 44 7 of 2010.
           From the Judgment and Order dated 06.03.2009 of the
      High Court of Delhi at New Delhi in Criminal Appeal No. 33 of
      1993.
B                               WITH
           Criminal Appeal No. 484 of 2010.
           R. S. Sodhi, Sr. Adv., Mrs. Manisha Bhandari, Omkar
      Shrivastava, Divyadeep Chaturvedi, Ankit Kushwaha,
c     Mrs. Nipush Mola Joshi, Mrs. Sarla Chandra, Sanjay Jain,
      Advs. for the Appellant.
           S. K. Dubey, Sr. Adv., Subhash Kaushik, Yogesh Tiwari,
      Yash Pal Dhingra, P. K. Dey, Ms. Sadhana Sandhu, R. S. Nagar,
      S.S. Rawat (for D.S. Mahra),Advs. forthe Respondent.
D          The Judgment of the Court was delivered by
         FAKKIR MOHAMED IBRAHIM KALIFULLA, J. 1. The
   appellant in Criminal Appeal No.44 7 of 2010 is A-1 and the
   appellants in Criminal Appeal No.484 of 2010 are A-2 and
 E A-3. Both these appeals are directed against the common
   judgment rendered by the Division Bench of Delhi High Court
   in Criminal Appeal No.33of1993 dated 06.03.2009 preferred
   by the appellants in both these appeals.
         2. At the very outset it must be stated that the appellants
 F were Police Constables. The appellant in Criminal Appeal
   No.44 7 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.44 7 of 201 O
   was convicted for the offence under Section 302 read with
 G Section 34 along with the appellants in Criminal Appeal No.484
   of 2010 and was sentenced to undergo life imprisonment apart
   from fine of Rs.5000/- each and in default of the payment of
   fine to undergo rigorous imprisonment for four months. The
   appellants in Criminal Appeal No.484 of 2010 were also
 H convicted for-the offence under Section 330 read with Section
    NARENDER KUMAR v. STATE OF NCT OF DELHI                        183
     [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

34 IPC and sentenced to undergo rigorous imprisonment for A
a period of two years along with fine of Rs.1000/- each and in
default of payment of fine to undergo rigorous imprisonment
for one month. All the sentences were to run concurrently.
       3. The case of the prosecution was that on 01.08.1980
the deceased Laxman Singh alias Hanuman was picked up              8
from the railway station of Subzi Mandi by the Police and was
illegally confined in Andha Mughal Police Post till 05.08.1980.
While in such custody, in order to extract confession from him
he was beaten severely and on 05.08.1980 he suffered burn
injuries at quarters No.4 of police post Andha Mughal from         C
where he was taken to Hindurao Hospital and then to LNJP
Hospital by PW-1 ASl.At LNJP Hospital PW-12 Doctor asked
PW-2 to procure the services of Magistrate as the deceased
wanted to make a declaration when he was in the last spell of
his life time. After the above occurrence initially a case was     D
registered at Subzi Mandi Police Station vide FIR No. 763 of
80 for the offence under Section 309 IPC. Thereafter, a dying
declaration was recorded in the presence of PW-7
Metropolitan Magistrate around 2.30 p.m. on 05.08.1980. After
the recording of the dying declaration another FIR was             E
registered under Section 307 IPC. The deceased breathed
his last on 06.08.1980 whereafter the case was converted to
one under Section 302 IPC. The dying declaration of the
deceased revealed that he was brought to Andha Mughal
Police Post by the appellants in Criminal Appeal No.484 of         F
2010 along with one other person by name Tyagi on
01.08.1980 from the railway station of Subzi Mandi and after
bringing him to the police post he was beaten severely to
extract a confession from him to the effect that he was involved
in the stealing of some properties. According to the prosecution   G
as the deceased was pleading ignorance, ultimately on
05.08.1980 around 10.30 a.m. kerosene was poured on him
by the appellant in Criminal Appeal No. 447 of 2010 while he
was set on fire by the appellants in Criminal Appeal No.484 of
2010 by throwing ignited matchstick.                               H
184         SUPREME COURT REPORTS                 [2015]15S.C.R.


A           4. In support of the case of the prosecution as many as
      26 witnesses were examined and none was examined on
      behalf of the appellants. In 313 questioning the appellants
      denied their involvement and the appellant Om Prakash A-3
      took the stand that he was not present at all at the place of
B     occurrence on 05.08.1980. The appellant in Criminal Appeal
      No.447 of 2010 took the defence that since because the
      brother of the deceased, one Sher Singh was arrested by him
      and was fined R$.30 for the offence under Section 112/117 of
      the Delhi Police Act, to wreck vengeance on him he was
c     implicated. PW-4/A was the duty register for the period
      01.08.1980 to 05.08.1980 of Andha Mughal Police Station
      which disclosed that all the three were on duty between
      01.08.1980 to 05.08.1980. PW-2 ASI who was in the police
      station at that relevant time confirmed that he heard the cries
D     of the deceased and when he rushed to quarter No.4 he found
      him in a burning condition. He also confirmed that the said
      quarter was in the name of A-2 Vijay Kumar the first appellant
      in Criminal Appeal No.484 of 2010 who was residing there
      along with others. He also confirmed that a kerosene stove
 E    was lying there in the quarters at the time when he saw the
      deceased in a burning condition. PW-1 O/A is the seizure memo
      for the seizure of burnt clothes, stove and a match box from
      quarters No.4 which was confirmed by the independent witness
      PW-16 who also witnessed the deceased in a burning
 F    condition. The dying declaration of the deceased was recorded
      by PW-7 a Metropolitan Magistrate who after receiving the
      certificate of fitness certified from PW-12 Doctor that the
      deceased was fit to make a statement recorded his dying
      declaration. The Trial Court having analysed the evidence
G     rejected the plea of the appellant in Criminal Appeal No.44 7
      of 2010 that he was implicated falsely to wreck vengeance on
      him and also rejected the plea of alibi taken by the second
      appellant in Criminal Appeal No.484 of 2010. The Trial Court
      found the dying declaration recorded by PW-7 in exhibit PW-
 H    7/C as truthful and unassailable and by relying upon the other
      NARENDER KUMAR v. STATE OF NCT OF DELHI                    185
       [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

  corroborative material evidence convicted the appellants as A
  directed above. The High Court again analysed the entire
  evidence threadbare and found that there was no infirmity in
  the analysis of the evidence made by the Trial Court in particular
  the truthfulness and the reliability of the dying declaration
  recorded by PW-7 and declined to interfere with the conviction B
  and sentences imposed on the appellants. We heard Mr. Dubey
  learned Senior Counsel for the appellant in Criminal Appeal
  No.447 of 2010, Mr. Sanjay Jain, learned counsel forthe first
  appellant-Vijay Kumar in Criminal Appeal No.484 of 2010 and
  Mr. Sodhi, learned Senior Counsel for the second appellant~ C
  Om Prakash in Criminal Appeal No.484 of 2010.
         5. The submissions of the learned counsel for the
  appellants were that the dying declaration was wholly unreliable
  for the reason that admittedly after the deceased was admitted
  to the hospital on 05.08.1980 around 11.20 a.m. as he was D
  writhing in pain, pathedine injection was applied and, therefore,
  he would not have been in coherence state of mind to make
  the dying declaration at 2.30 p.m. It was then contended that
  PW-7 did not make proper identification of the deceased, that
  the Magistrate did not obtain any certificate about the fitness E
  of the deceased, that the thumb impression of the deceased
  was not secured in the dying declaration as per the guideline
  of the Delhi High Court Rules, that the dying declaration was
  not read out to the deceased and that the doctor did not certify
  the dying declaration which was also in violation of the Delhi F
  High Court Rules. On behalf of the appellant in Criminal Appeal
  No.44 7 of 2010 it was contended that because a case was
  filed by the said appellant against the brother of the deceased,
  the family of the deceased had a grudge against him and,
  therefore, he was falsely implicated, that, therefore, the G
  evidence of PW-5 who was the brother of the deceased could
  not have been relied upon by the Courts below, that the dying
• declaration was not recorded in the question and answer form
  and that the Magistrate did not ascertain as to whether the
  deceased was mto make a statement at that point of time H
186         SUPREME COURT REPORTS                 [2015] 15S.C.R.


A     and that since the deceased was visited by his close relatives
      in the hospital he was tutored to make a statement against the
      appellants. On behalf of the second appellant Om Prakash, it
      was contended that between 11 a.m. to 2 p.m he was in the
      Central Excise Laboratories in connection with a chemical test
B     to be carried out which work was assigned to him and,
      therefore, he was not present at all at the place of occurrence,
      that the S.I. of Police Mr. Ram Kishan who was also present at
      the place of occurrence was not examined and that the ·
      deceased did not tell the name of Om Prakash to PW-14 and
c     that the Tyagi whose name was referred to by the deceased
      was not named in the FIR. On behalf of the first appellant in
      Criminal Appeal No.484 of 2010 it was also contended that
      there was no evidence for any motive to kill the deceased, that
      the family member of the deceased were all involved in some
o     crime or other and since the appellants were all constables
      they were falsely implicated in the case.
          6. As against the above the above submissions, learned
   counsel for respondent State Mr. D.K. Dey submitted that the
   dying declaration exhibit P-7/C was rightly relied upon by the
 E trial Court as well as the High Court, that there was no deficiency
   or defect in the recording of the dying declaration by PW-7 the
   Metropolitan Magistrate, that the said document was truthful
   recording of the statement of the deceased and, therefore,
   certain minor defects relating to non-compliance of the
 F guidelines issued by the High Court would not vitiate the said
   document. Learned counsel also submitted that the presence
   of the appellant in the Police Station on the relevant days and
   on the crucial date, namely, 5.8.1980 was not in dispute, that
   the evidence of the police officer PW-4 and PW-2 confirmed
 G the said fact, that the plea of alibi by Om Prakash one of the
   accused was not fully established and when once the plea of
   alibi failed then there was no defence for the said accused.
   The learned counsel submitted that the trial Court and the High ·
   Court having examined all the above facts in detail, before
 H
    NARENDER KUMAR v. STATE OF NCT OF DELHI                       187
     [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

finding the appellants guilty of the offence the conviction and   A
sentence imposed upon them does not call for interference.
      7. Having heard the respective learned counsel and
having examined the material evidence placed before us and
having perused the judgment of the trial Court as well as that
of the High Court, we are also convinced that the conviction      8
and sentence imposed upon the appellants do not call for
interference.
      8. Having perused the materials on records, we find the
following facts are not in dispute, namely:                       c
    a. The deceased Laxman Singh@ Hanuman s/o Huba
        Singh was picked up by two of the appellants along
        with one Tyagi on 1.8.1980 and confined in Andha
        Mugal police post till 5.8.1980.
    b. On 5.8.1980, at about 10.30 a.m. on hearing the hue        D
        and cry of the deceased who was kept in quarter No.4
        which was in occupation of Vijay Kumar along with
        some other police constable, PW-2 ASI rushed to the
        spot along with PW-16 who is an independent witness,
        both of whom witnessed the deceased in a burning          E
        condition.
    c. The deceased was shifted to Hindu Rao Hospital from
        where he was again shifted to LNJP hospital by
        PW-2.                                                     F
    d. The deceased was attended by PW-12 Doctor who
       on seeing the condition of the deceased asked PW-2
       ASI to summon a Magistrate for recording fne dying
       declaration.
    e. FIR 763/1980 was registered at Subzi Mandi police          G
       station for an offence under Section 309 IPC.
    f.   At the instance of PW-2, PW-7 the Metropolitan
         Magistrate arrived at the Hospital on 5.8.1980 to
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188            SUPREME COURT REPORTS                [2015] 15 S.C.R.


A               record the dying declaration of the deceased. The
                dying declaration was recorded by PW-7 at 2.30 p.m.
         g. Afterthe recording of the dying declaration the offence
            was altered as one under Section 307 IPC.

B         h. On 6.8.1980, the victim died. Thereafter, the offence
             was altered as one under Section 302 IPC.
          i.    After the alteration of the charge of the offence under
                section 302 IPC the investigation was handed over to
                crime branch by the local police.
c         j.    As per exhibit PW-4/A, duty register for the period
                1.8.1980 to 5.8.1980, the appellants were all on duty.
                This was also spoken to by PW-4 Sub Inspector of
                Police.

 D        k.    As per exhibit PW-1 O/A seizure memo, burnt cloth,
                stove and match box were recovered from quarter
                No.4 which was also spoken to by PW-16.
          I.    In 313 statement the appellants admitted their posting
                 atAndha Mugal police post.
 E
          m. 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
 F
              beatings, that while beating him he opened a stove
              lying nearby and poured the kerosene oil over the
            • deceased while the other two accused Om Prakash
              and Vijay Singh, constables who were also present
              there lit a matchstick and threw the same on his body.
 G
          n. The deceased died on 6.8.19-80.
           9. Having noted the above uncontroverted facts, when
      we examine the defence canvassed on behalf of the
      appellants, according to them PW-7/C the dying declaration
 H
    NARENDER KUMAR v. STATE OF NCT OF DELHI                       189
     [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

cannot be relied upon for various defects. It was contended A
that the identity of the deceased was not verified by the learned
Metropolitan Magistrate PW-7. Insofar as the said stand is
concerned, when we peruse the evidence of PW-7 the learned
Magistrate, we find that he has stated that PW-12 Dr. Nayar
identified the patient to him though he had not obtained the B
identification of the patient in writing from PW-12. That apart,
in the initial part of the evidence he has narrated as to how
PW-2 the Assistant Sub-Inspector of Police approached him
to record the dying declaration of the deceased, that he was
accompanied by PW-2 to the hospital, that he was taken to         c
the patient thereafter, namely, the deceased Laxman Singh
s/o of Huba Singh and after preliminary orientation and after
satisfying himself that the patient was fully conscious an9 was
~apable of making the statement and making an endorsement
vide PW-7/D and also after getting it endorsed it by PW-12 he D
proceeded to record exhibit PW-7/C, the dying declaration of
the deceased.
      10. Having noted the above detailed statement made by
PW-7 learned Metropolitan Magistrate, we have no doubt in
our mind about the verification of the identity of the patient/   E
deceased and, therefore, we do not find any substance in the
said submission.
      11. It was then contended that the patient was
administered pathedine injection for the pain and suffering that F
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 deceasetl could not have been in a position to give
evidence coherently. As far as the said submission was
concerned, we must go by the expert opinion, namely, the doctor G
who was present and who permitted PW-7 to record the dying
declaration. The doctor was examined as PW-12. The Doctor
in his evidence stated that when he examined the patient at
12.15 p.m. he found the deceased in a fit condition to make
statement and thereafter he called upon PW-2 to summon the H
190         SUPREME COURT REPORTS                   [2015] 15 S.C.R.


A     Magistrate. Subsequently, he made another entry under exhibit
      PW-12/A at 2.30 p.m. finding the patient again in a fit condition
      to make a statement and he also put his signatures under
      exhibit PW-1/C.
            12. The doctor PW-12 also explained that normally the
8     effect of pathedine injection would last for 3-4 hours depending
      upon the severity of the pain. He further stated that the
      deceased had suffered 80% burn injuries as per the entries in
      the MLC, that he was given medicines at 12.50 p.m. and if the
      pain was severe the effect of pathedine injection may not last
C     for more than two hours. He reiterated that according to him
      when the dying declaration was recorded by PW-7 the
      deceased was in a fit condition to make a statement.
             13. Having regard to the said statement of PW-12, which.
      was also corroborated in every respect by PW-7 who has made
0
      an endorsement in the dying declaration itself that the patient
      was fully conscious and capable of making his statement and
      the said witnesses are official witnesses one of whom, namely,
      PW-12 is an expert witness, we have no reason to disbelieve
 E    their version and, therefore, the submission on that footing is
      also liable to be rejected.
           14. It was then contended that the dying declaration did
      not contain either the signature or thumb impression of the
      deceased which is in violation of the guidelines issued by the
 F    High Court of Delhi in regard to the recording of dying
      declaration.
        15. When we consider the said submission, in the first
  place, it must be stated that it was only a guideline. The
  guidelines were issued by the High Court in order to ensure
G that any defect in regard to the identity of the deceased or the
  veracity of th& contents of the dying declaration are not doubted
  on the grounC: that the concerned patient himself could not have
  made such a statement in order to implicate someone in the
  offence. The issuance of the guidelines is for the purpose of
H
    NARENDER KUMAR v. STATE OF NCT OF DELHI                          191
     [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

ensuring and for testing the genuineness of the dying                A
declaration of person who is in the last moment of his life.
Merely because there was a defect in following the said
guideline, which, as is now pointed out, is of a trivial nature
and if the dying declaration recorded is otherwise proved by
ample evidence, both oral as well as documentary, on the             B
ground of such trivial defects, the whole of the dying declaration
cannot be thrown out. In the case on hand, we have noted that
the dying declaration was recorded by PW-7 who was
summoned by PW-12 the doctor who noted the condition of
the patient and PW-7 was brought to the hospital by PW-2,            C
the ASI and before recording the dying declaration PW-12
endorsed the capability of the deceased to make the statement
apart from PW-7 himself ensuring that the deceased was in a
fit condition to make the statement and thereafter the said
statement was recorded by PW-7 a responsible judicial Officer.       D
It cannot be held that simply because PW-7 omitted to get the
thumb impression or signature of the deceased the dying
declaration should be rejected. As has been noted by the High
Court in its judgment where it has reached a conclusion that
the recording of the dying declaration was established and           E
found to be truthful and the statement contained therein was
made voluntarily and recorded correctly, there is no reason to
doubt the said document PW-7/C for the reason that the
signature or thumb impression was not obtained on the said
document. Therefore, we hold that the dying declaration was          F
proved in the manner known to law and, therefore, there is no
scope to reject the same.
      16. On behalf of the second appellant in Criminal Appeal
No.484 of 2010, a plea was raised to the effect that between
11 a.m. and 2 p.m. on 5.8.1980 he was in the Central Excise          G
Laboratory as he was directed to deposit a substance for test
in the said laboratory where he had to stay back between 11
a.m. to 2 p.m. The plea of alibi was raised on the above basis
and in fact the prosecution themselves examined PW-20 one
A.S. Negi, LDC of Excise Department who in his deposition            H
192         SUPREME COURT REPORTS                  [2015] 15S.C.R.


A stated that on 5.8.1980 he was working as LDC in Excise
  laboratory, he knew Om Prakash the accused, that the accused
  met him at 11 a.m. to deposit a sample, that thereafter he asked
  him to come after 2 p.m. as they used to receive sam pies only
  between 2 and 4 p.m. and that one Har Lal, UDC was also
B sitting in the same room in which PW-20 was sitting and that
  accused Om Prakash brought the sample only after 2 p.m.
  which was deposited by Har Lal, UDC. It is quite apparent
  that the appellant Om Prakash himself being a police constable
  the prosecuting agency wanted to support the appellant and,
c therefore, came forward to examine PW-20 whose version has
  otherwise nothing to do with the case of the prosecution, on
  the other hand it was detrimental to the case of prosecution.
   PWs-17 to 19 were also examined to support the above
  version.
 D           17. PWs-17 and 18 also stated that on 5.8.1980 appellant
      Om Prakash was in the Excise office at 2, Battery Lane, Rajpur
      Road, Delhi at about 10.30or11 a.m. and remained there till
      2 p.m. As was noted by us earlier, the evidence of PWs-17,
      18, 19 and 20 were all wholly unnecessary to speak about the
 E    case of the prosecution. We can understand if they had been
      examined on the side of Om Prakash. In any event, even going
      by the version of those witnesses he was found in the office of
      excise laboratory after 10.30 a.m. until 2 p.m. According to
      the deceased, he was burnt at the instance of the appellants
 F    just about 10.30 a.m. in the quarterNo.4 of police post of Andha
      Mughal. Therefore, prior to 10.30 a.m. the whereabouts of the
      accused Om Prakash were not surely stated. He was assigned
      the task of taking the sample at 9.40 a.m. Therefore, between
      9.40 a.m. and 10.30a.m. the location of the said accused was
 G    not shown to have been in a different place other than the place
      of occurrence. That apart, the trial Court has noted that the
      excise laboratory at battery line was just 5-6 minutes drive from
      the police post. The trial Court made a detailed analysis of
      this issue and has found that there was no truth in the claim of
 H    alibi of the second appellant Om Prakash.
    NARENDER KUMAR v. STATE OF NCT OF DELHI                        193
     [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

      18. Having regard to the above factors noted by the trial A
Court as well as by the High Court, we are also of the view that
there is no substance in the said plea made· on behalf of the
said appellant.
       19. On behalf of Narender Kumar, the appellant in
Criminal Appeal No. 447/2010, it was faintly suggested that B
he had earlier booked the brother of deceased one Sher Singh
for an offence under Delhi Police Act for which the said Sher
Singh came to be fined the sum of Rs.30 and, therefore, to
wreck vengeance on him he was falsely implicated. As was
rightly rejected by the trial Court as well as the High Court the C
said defence appears to be a very remote one as compared
to a very solid evidence in the form of dying declaration
contained in exhibit PW-7/C in which the deceased
categorically referred to the specific role played by the said
appellant Narender Kumar that he poured the kerosene from D
a stove which was lying in the quarters No.4 which was also
recovered later on under exhibit PW-1 O/A. Therefore, it is too
late in the day for the appellant to raise such a flimsy ground
by way of defence. We do not find any scope to accede to
such a plea raised on behalf of the appellant in Criminal Appeal E
No.447/2010.
      20. Having regard to our above conclusions, we do not
find any merit in both the appeals. The appeals fail and the
same are dismissed.
                                                                   F

Devika Gujral                                 Appeals dismissed.