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Friday, March 14, 2014

Murder or Suicide - Alibi - Dying Declaration - DW 8 Evidence that the victim bolted inside - after breaking open the doors and after put off the fire - intimation was passed to accused in the field who shifted the victim to hospital - Both courts failed to consider this evidence - come to conclusion as murder basing on Dying Declaration - out of 6, two were dead prior to incident i.e. Rati Ram and Balbir Prasad are already dead and nothing need be said about their involvement in the incident - two are residing in far away place - other two are infields - Dying Declaration not separable and as such whole this is to be discarded as false - High court failed to consider this aspect - Alibi clearly proved with cogent evidence , No court should pick holes in evidence purposefully as it should be considered on par with prosecution evidence same treatment - Apex court set aside the conviction of lower courts and acquit the accused = Jumni and Others …..Appellants Versus State of Haryana …Respondent =2014 (March. Part ) judis.nic.in/supremecourt/filename=41315

 Murder or Suicide - Alibi - Dying Declaration - DW 8 Evidence that the victim bolted inside - after breaking open the doors and after put off the fire - intimation was passed to accused in the field who shifted the victim to hospital - Both courts failed to consider this evidence - come to conclusion as murder basing on Dying Declaration - out of 6, two were dead prior to incident i.e.  Rati Ram and Balbir Prasad  are  already  dead  and nothing need be said about their involvement  in  the  incident - two are residing in far away place - other two are infields - Dying Declaration not separable and as such whole this is to be discarded as false - High court failed to consider this aspect - Alibi clearly proved with cogent evidence , No court should pick holes in evidence purposefully as it should be considered on par with prosecution evidence same treatment - Apex court set aside the conviction of lower courts and acquit the accused =

value of the testimony of alibi witnesses and the severability  of  a  dying
declaration.=

There  is
no allegation or evidence of any matrimonial disharmony between Jagdish  and
Asha Devi who had been married  for  about  nine  years  nor  is  there  any
allegation of any demand or harassment for dowry from Asha Devi.
5.    The case of  the  prosecution  is  entirely  dependent  on  the  dying
declaration of Asha Devi. 
 The  statement/dying  declaration
reads as follows:-
           “Stated that I was married at the age of  16  years.   I  am  25
           years old.  I have two sons, one is 5 years old while the second
           is 1½ old.  My husband is serving  in  military.   Sometimes  he
           visits us after a week and  sometimes  after  15  days.   In  my
           house, my father-in-law Rati Ram, mother-in-law Jumni, Jeth Prem
           Chand, Jethani Bala Rani, two Devars Sham Lal and Balbir Parshad
           are staying.  My father-in-law, mother-in-law, Jeth Jethani  and
           both the Devers had been harassing me from the  very  beginning.
           My mother-in-law,  father-in-law,  Jeth  Jethani  and  both  the
           Devers had been making plans to  eliminate  me.   Last  week  my
           mother-in-law, father-in-law, Jeth,  Jethani  and  Devers  said,
           “let us get her bitten from a dog and in this way she  would  be
           eliminated”.  Yesterday, during  noon  time,  my  mother-in-law,
           father-in-law, Devers, Jeth and  Jethani  had  given  me  severe
           beatings.  Thereafter yesterday at about  3.00  PM  when  I  was
           about to go to police station to lodge a  report,  all  of  them
           prevented me and said, “if she is bent upon to do so, she should
           be eliminated by setting her ablaze”.  After  getting  up  today
           morning, I went to my mother-in-law and in a  fit  of  anger,  I
           broke my bangles (a sign  of  indignation  against  the  married
           status).  My mother-in-law, said that fault lies with her (Asha)
           and she should be finished.  Mother-in-law, father-in-law, Jeth,
           Jethani and both the devers after  conniving  with  one  another
           tied me with my Chuni (head gear) and poured kerosene  oil  upon
           me.  The kerosene oil also entered in my  eyes.   Mother-in-law,
           father-in-law, Jeth Jethani and both the devers set me  on  fire
           together.  I made a lot of noise.  The incident occurred at 7.30
           AM.  My mother-in-law Jumni, father-in-law Rati Ram,  Jeth  Prem
           Chand, Jethani Bala Rani and both the Devars Sham Lal and Balbir
           Parshad are responsible for setting me on fire.  After my death,
           both of my children be handed over to my parents.  Otherwise  my
           in-laws would kill them also.” =
 Prem  Nath  and  Raj  Bala  produced
alibi witnesses before the Trial  Judge  to  show  that  Prem  Nath  was  an
employee in the HMT factory in Pinjore and that on 4th April  1996  as  well
as on 5th April 1996 he was in Pinjore and there was no question of  his  or
his wife’s involvement in the incident. 
The accused  also  produced  Chandan
Singh, Sub-Inspector, Food Supply, Yamunanagar as  DW-7  to  prove,  on  the
basis of the ration card issued to Jagdish and Rati Ram, that they lived  in
the same neighbourhood but not together as stated by Asha  Devi.  
Similarly,
Puran Chand a neighbour of Jagdish was produced as DW-8  and  his  testimony
was to the effect that he saw smoke coming out of  Jagdish’s  house  and  he
heard some children making a noise.  
Thereupon he went  to  Jagdish’s  house
and found that the door of the tenement was bolted from inside.   He,  along
with one Gurbachan broke open the door and found Asha Devi  lying  burnt  in
the tenement.  
They put out the fire and called Rati Ram who was working  in
the nearby fields.  Thereafter,  Rati  Ram  took  Asha  Devi  to  the  Civil
Hospital.  Puran Chand also stated that Prem Nath  and  Raj  Bala  were  not
present at the spot.=
 Unfortunately, the High Court overlooked the evidence of  Puran  Chand
(DW-8) who stated that Asha Devi’s tenement was locked from inside and  that
the door had to be broken open by him and Gurbachan who found her burning.
Plea of alibi . as Prem Chand and Raj Bala  are  concerned,  both
the Trial Judge and the High Court have given us the  impression  that  they
proceeded on the basis that these two accused persons are required to  prove
their innocence.  In fact it is for the prosecution  to  prove  their  guilt
and that seems to have been lost in the consideration of the case.  =
 It is no doubt true that when an alibi is set up,  the  burden  is  on
the accused to lend credence to the defence put up by him  or  her.  However
the approach of the court should not be such as to pick holes  in  the  case
of the accused person.  The defence evidence  has  to  be  tested  like  any
other testimony, always keeping in mind that a person is  presumed  innocent
until he or she is found guilty.
 It is true that when a person is on his or her death bed, there is  no
reason to state a falsehood but it is equally true that it is  not  possible
to delve into the mind of a person who is facing death. 
In the present  case
the death of  Asha  Devi  and  the  circumstances  in  which  she  died  are
extremely unfortunate but at the same time it  does  appear  that  for  some
inexplicable reason she put the blame for  her  death  on  all  her  in-laws
without  exception.  Perhaps  a  more  effective  investigation  or  a  more
effective cross-examination of the witnesses  would  have  brought  out  the
truth but unfortunately on the record as it stands, there is no  option  but
to give the benefit of doubt to Jumni (and Sham Lal) and to hold  that  they
were not proved guilty of the offence of having murdered Asha Devi. 
The evidence of the alibi witnesses clearly brings  out  that  on  4th
April 1996 Prem Nath was in his factory from 2.00 p.m.  onwards  till  10.00
p.m. and later in the night he was seen by his tenant at  about  10.30  p.m.
On the next day that is 5th April 1996 Prem Nath and Raj Bala were  seen  by
their tenant at 7.45 a.m. and about 11.00 a.m. Prem Nath purchased and  took
delivery of a scooter from Hind Motors Ltd., Chandigarh before going to  the
factory at about 6.00 p.m.  On 5th April 1996 his wife Raj Bala  distributed
sweets on the purchase of a new scooter.  But, what is of equal importance  is
that neither the Trial Court nor the High  Court  adverted  to  the  crucial
evidence of Puran Chand (DW-8) who stated that he saw smoke  coming  out  of
Jagdish’s tenement and children  were  making  a  noise.   When  he  reached
there, he saw flames and smoke coming out from the ventilator  of  Jagdish’s
tenement and along with Gurbachan, he had to break  down  the  door  of  the
tenement which was locked from inside and they found Asha Devi on fire.   If
this statement of Puran Chand is  correct,  and  there  does  not  seem  any
reason to doubt it since nothing was put to him  in  this  regard  in  cross
examination, a case of suicide by  Asha  Devi  is  a  possibility.  At  this
stage, it may be noted that the investigating officer Gurdial Singh  (PW-10)
could not say if the bolt of the tenement was broken or not.
On a reading of the dying declaration it  is  quite  clear  that  Asha
Devi was very disturbed on the morning of 5th April 1996  and  that  is  why
she broke her bangles in the presence of Jumni. This may be because  of  the
events of the previous day or her being a victim of  continuous  harassment.
This, coupled with a lack of response from  Jumni  on  the  morning  of  5th
April 1996 may have completely frustrated Asha Devi leading  her  to  commit
suicide. Whatever be the cause of Asha Devi being  upset,  the  evidence  of
Puran Chand has not been challenged and so it cannot be  glossed  over.   In
the face of this, it is not possible to discount  the  theory  suggested  by
learned counsel that the case  was  possibly  one  of  the  suicide  out  of
extreme frustration and not of murder.
44.   Insofar as Prem Nath and Raj Bala are concerned  there  is  sufficient
material to accept their alibi and they must be  acquitted  of  the  charges
made against them.
45.   As mentioned above Rati Ram and Balbir Prasad  are  already  dead  and
nothing need be said about their involvement  in  the  incident.  Were  they
alive, they too would have been entitled to the benefit of doubt  since  the
facts pertaining to them were similar to those of Jumni and Sham Lal.
Conclusion:
46.   The plea of alibi set up by Prem Nath and Raj Bala deserve  acceptance
and are accepted. They are found not guilty of having  murdered  Asha  Devi.
Jumni and Sham Lal are given the benefit of doubt  and  the  charge  against
them of having murdered Asha Devi is not proved beyond a  reasonable  doubt.
Both the appeals are accordingly allowed.
2014 (March. Part ) judis.nic.in/supremecourt/filename=41315
                     RANJANA PRAKASH DESAI, MADAN B. LOKUR                                         

REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                      CRIMINAL APPEAL NO. 1159 OF 2005
Jumni and Others                                      …..Appellants

                                   Versus

State of Haryana                                       …Respondent

                                     AND

                       CRIMINAL APPEAL NO. 603 OF 2005

Prem Nath and Another                                 …..Appellants

                                   Versus

State of Haryana                                       …Respondent


                               J U D G M E N T

Madan B. Lokur, J.

1.    The two questions for  consideration  and  discussion  relate  to  the
value of the testimony of alibi witnesses and the severability  of  a  dying
declaration.
2.    In the present appeals, we are of the opinion that  the  testimony  of
the alibi witnesses of two of the four appellants  deserves  acceptance  and
the dying declaration so closely concerns all four  appellants  that  it  is
not possible to sever the role of the sets of appellants, resulting  in  our
giving the benefit of doubt to the remaining two appellants.
The facts:
3.    Six relatives (by marriage) of deceased  Asha  Devi  were  accused  of
having murdered her and  thereby  having  committed  an  offence  punishable
under Section 302 of the Indian Penal Code. The accused  persons  were  Rati
Ram  (father-in-law,  now  died),  Jumni  (mother-in-law  and  appellant  in
Criminal Appeal No. 1159 of 2005), Sham Lal  (brother-in-law  and  appellant
in Criminal Appeal No. 1159 of  2005),  Balbir  Prasad  (brother-in-law  and
appellant in Criminal Appeal No.1159 of 2005, who, we were  told  has  since
died), Prem Nath (brother-in-law and appellant in Criminal  Appeal  No.  603
of 2005) and Raj Bala (wife of Prem Nath and appellant  in  Criminal  Appeal
No. 603 of 2005).
4.    Asha Devi was married at the age of 16 to Jagdish who was employed  in
the army.  According to her father, Asha Devi lived with Jagdish  for  about
one year and thereafter she lived in village Bhojpur in district  Jagadhari,
Haryana, in a one room tenement along with her two  children  aged  5  years
and 1½  years.  Her in- laws were staying in an adjacent tenement. There  is
no allegation or evidence of any matrimonial disharmony between Jagdish  and
Asha Devi who had been married  for  about  nine  years  nor  is  there  any
allegation of any demand or harassment for dowry from Asha Devi.
5.    The case of  the  prosecution  is  entirely  dependent  on  the  dying
declaration of Asha Devi.
In her statement, Asha Devi stated that  at  about
12.00 noon on 4th April 1996 she was given a severe beating by all  her  in-
laws.  Thereafter, at about 3.00 p.m. she wanted to lodge a  complaint  with
the police but all her in- laws prevented her from doing so.   Rather,  they
suggested that she should be set ablaze.
6.    On the morning of 5th April 1996,  Asha  Devi  seems  to  have  had  a
quarrel and in a fit of anger she broke her bangles.  Upon this, Jumni  said
that she should be finished.  Consequently, all her in-laws tied her up  and
poured kerosene on her and set her on fire.  This was at about 7.30 a.m.
7.    At about 10.30 a.m. Asha Devi was  taken  to  the  Civil  Hospital  at
Jagadhari.  Seeing her condition with 100% burns, the doctor  on  duty,  Dr.
M.R. Passi (PW-1) immediately informed the police who took urgent steps  for
having her statement recorded. Ms. Sarita Gupta,  Judicial  Magistrate,  1st
Class (PW-9) was deputed for this purpose.  According to Ms.  Sarita  Gupta,
she recorded the statement of Asha Devi in the Civil Hospital between  11.22
a.m. and 12.05 p.m. on 5th  April  1996.   The  statement/dying  declaration
reads as follows:-
           “Stated that I was married at the age of  16  years.   I  am  25
           years old.  I have two sons, one is 5 years old while the second
           is 1½ old.  My husband is serving  in  military.   Sometimes  he
           visits us after a week and  sometimes  after  15  days.   In  my
           house, my father-in-law Rati Ram, mother-in-law Jumni, Jeth Prem
           Chand, Jethani Bala Rani, two Devars Sham Lal and Balbir Parshad
           are staying.  My father-in-law, mother-in-law, Jeth Jethani  and
           both the Devers had been harassing me from the  very  beginning.
           My mother-in-law,  father-in-law,  Jeth  Jethani  and  both  the
           Devers had been making plans to  eliminate  me.   Last  week  my
           mother-in-law, father-in-law, Jeth,  Jethani  and  Devers  said,
           “let us get her bitten from a dog and in this way she  would  be
           eliminated”.  Yesterday, during  noon  time,  my  mother-in-law,
           father-in-law, Devers, Jeth and  Jethani  had  given  me  severe
           beatings.  Thereafter yesterday at about  3.00  PM  when  I  was
           about to go to police station to lodge a  report,  all  of  them
           prevented me and said, “if she is bent upon to do so, she should
           be eliminated by setting her ablaze”.  After  getting  up  today
           morning, I went to my mother-in-law and in a  fit  of  anger,  I
           broke my bangles (a sign  of  indignation  against  the  married
           status).  My mother-in-law, said that fault lies with her (Asha)
           and she should be finished.  Mother-in-law, father-in-law, Jeth,
           Jethani and both the devers after  conniving  with  one  another
           tied me with my Chuni (head gear) and poured kerosene  oil  upon
           me.  The kerosene oil also entered in my  eyes.   Mother-in-law,
           father-in-law, Jeth Jethani and both the devers set me  on  fire
           together.  I made a lot of noise.  The incident occurred at 7.30
           AM.  My mother-in-law Jumni, father-in-law Rati Ram,  Jeth  Prem
           Chand, Jethani Bala Rani and both the Devars Sham Lal and Balbir
           Parshad are responsible for setting me on fire.  After my death,
           both of my children be handed over to my parents.  Otherwise  my
           in-laws would kill them also.”
8.    Soon after the statement was recorded Asha Devi’s  father  Devi  Dayal
(PW-6) arrived in the Civil Hospital (although he says that he  reached  the
hospital at about 11.45 a.m. but after the  Magistrate  left)  and  he  made
arrangements to take her to Chandigarh but she died on the way.
9.    On these broad facts, investigations were carried  out  and  a  charge
sheet was filed against the six accused persons  for  having  murdered  Asha
Devi.
Proceedings in the Trial Court:
10.   Before the Additional Sessions Judge, in Case  No.  35  of  1996,  the
principal argument of  the  prosecution  was  that  in  view  of  the  dying
declaration there was no doubt at all that the accused persons  were  guilty
of having murdered Asha Devi.    
11.  Prem  Nath  and  Raj  Bala  produced
alibi witnesses before the Trial  Judge  to  show  that  Prem  Nath  was  an
employee in the HMT factory in Pinjore and that on 4th April  1996  as  well
as on 5th April 1996 he was in Pinjore and there was no question of  his  or
his wife’s involvement in the incident. The accused  also  produced  Chandan
Singh, Sub-Inspector, Food Supply, Yamunanagar as  DW-7  to  prove,  on  the
basis of the ration card issued to Jagdish and Rati Ram, that they lived  in
the same neighbourhood but not together as stated by Asha  Devi.  Similarly,
Puran Chand a neighbour of Jagdish was produced as DW-8  and  his  testimony
was to the effect that he saw smoke coming out of  Jagdish’s  house  and  he
heard some children making a noise.  Thereupon he went  to  Jagdish’s  house
and found that the door of the tenement was bolted from inside.   He,  along
with one Gurbachan broke open the door and found Asha Devi  lying  burnt  in
the tenement.  They put out the fire and called Rati Ram who was working  in
the nearby fields.  Thereafter,  Rati  Ram  took  Asha  Devi  to  the  Civil
Hospital.  Puran Chand also stated that Prem Nath  and  Raj  Bala  were  not
present at the spot.
12.   One of the questions considered by the Trial Judge  was  whether  Asha
Devi was in a  fit  condition  to  make  a  statement,  particularly  since,
according to Dr. M.R. Passi, she  had  100%  superficial  as  well  as  deep
burns.  The Trial Judge noted that Dr. Passi testified that  Asha  Devi  was
fit to make a dying declaration and that he  was  present  when  Ms.  Sarita
Gupta was recording her dying declaration.  He stated  that  Asha  Devi  was
responding to the questions put to her by the Magistrate.
13.   The Trial Judge also considered the statement of Ms. Sarita Gupta  who
had confirmed from Dr. Passi regarding the fitness of Asha Devi  to  make  a
statement.  Ms. Sarita Gupta stated that only after Asha Devi  was  declared
fit to make a statement that her statement was recorded  and  read  over  to
her.  According to Ms. Sarita Gupta, during the recording of her  statement,
Asha Devi was conscious and responding to verbal commands.  She also  stated
that Dr. Passi was present throughout when  Asha  Devi’s  dying  declaration
was being recorded.
14.   On these facts, the Trial Judge concluded that Asha Devi  was  fit  to
make a dying declaration.
15.   The next question addressed by the Trial Judge was whether  the  dying
declaration contained any falsehood.  In this regard, the Trial  Judge  came
to the  conclusion  that  there  was  nothing  to  suggest  that  the  dying
declaration was incorrect in any manner or that Asha Devi  made  allegations
out of some vengeance.
16.   Finally, the Trial Judge examined the plea of  alibi  raised  by  Prem
Nath and Raj Bala and in this regard  he  concluded  that  there  was  every
possibility of both of them being present in village  Bhojpur  both  on  4th
April 1996 when Asha Devi was given a  beating  as  well  as  in  the  early
morning of 5th April 1996 when Asha Devi was set on fire.
17.   On the above conclusions, the Trial Judge held, in  his  judgment  and
order dated 28th October 1998, that all the accused were  guilty  of  having
murdered Asha Devi.
18.   Feeling aggrieved, the accused persons filed Criminal Appeal No.  524-
DB of 1998 in the High Court of Punjab  &  Haryana.   By  its  judgment  and
order dated 25th October 2004, the High Court dismissed their appeal.
Proceedings in the High Court:
19.   The High Court considered the evidence of Dr. Passi  as  well  as  the
evidence of Ms. Sarita Gupta and upheld the conclusion of  the  Trial  Judge
that Asha Devi was in a fit state of mind to make  a  statement  before  the
Magistrate.
20.   The High Court also upheld the conclusion that  Asha  Devi  was  in  a
condition to speak  coherently  and  was  capable  of  making  a  statement.
Consequently,  the  High  Court  accepted  the   validity   of   the   dying
declaration.
21.   The High Court then considered the question whether it could be  held,
despite the dying  declaration,  that  Prem  Nath  and  Raj  Bala  were  not
involved  in  the  incident  concerning  Asha  Devi.   Relying  upon  a  few
decisions of this Court, the High Court was of the view that  there  was  no
error in law in accepting a part of  the  dying  declaration  and  rejecting
another part of the dying declaration.  The High  Court  then  examined  the
evidence of the alibi witnesses in  an  attempt  to  ‘bifurcate’  the  dying
declaration. However, the High Court rejected their testimony and  concluded
that there was every possibility of Prem Nath and  Raj  Bala  being  present
both on 4th April 1996 when Asha Devi was subjected to a beating as well  as
on 5th April 1996 when she was allegedly set on fire.
22.   The High Court affirmed the conviction of the accused as well  as  the
sentence imposed upon them.
23.   Unfortunately, the High Court overlooked the evidence of  Puran  Chand
(DW-8) who stated that Asha Devi’s tenement was locked from inside and  that
the door had to be broken open by him and Gurbachan who found her burning.
Plea of alibi
24.    On a consideration of the material before us, what strikes  us  as  a
little odd is that insofar as Prem Chand and Raj Bala  are  concerned,  both
the Trial Judge and the High Court have given us the  impression  that  they
proceeded on the basis that these two accused persons are required to  prove
their innocence.  In fact it is for the prosecution  to  prove  their  guilt
and that seems to have been lost in the consideration of the case.
25.   It is no doubt true that when an alibi is set up,  the  burden  is  on
the accused to lend credence to the defence put up by him  or  her.  However
the approach of the court should not be such as to pick holes  in  the  case
of the accused person.  The defence evidence  has  to  be  tested  like  any
other testimony, always keeping in mind that a person is  presumed  innocent
until he or she is found guilty.
26.   Explaining the essence of a plea of alibi, it  was  observed  in  Dudh
Nath Pandey v. State of U.P.[1] that:
           “The plea of alibi postulates the physical impossibility of  the
           presence of the accused at the scene of offence by reason of his
           presence at another place. The plea can therefore  succeed  only
           if it is shown that the accused was so far away at the  relevant
           time that he could not be present at the place where  the  crime
           was committed.”


      This was more elaborately explained in Binay Kumar Singh v.  State  of
Bihar[2] in the following words:
           “We must bear in mind that an alibi is not an exception (special
           or general) envisaged in the Indian Penal Code or any other law.
           It is only a rule of evidence recognised in Section  11  of  the
           Evidence Act that facts which are inconsistent with the fact  in
           issue are relevant.”


      Illustration (a) given under Section 11 of the Evidence  Act  is  then
partially reproduced in the decision, but it is fully reproduced below:
           “The question is whether A committed a crime at  Calcutta  on  a
           certain date; the fact that on that date, A  was  at  Lahore  is
           relevant.


           The fact that, near the time when the crime was committed, A was
           at a distance from the place where it was committed, which would
           render it highly improbable,  though  not  impossible,  that  he
           committed it, is relevant.”


This Court then went on to say,

           “The Latin word alibi means “elsewhere” and that  word  is  used
           for convenience when an accused takes recourse to a defence line
           that when the occurrence took place he was so far away from  the
           place of occurrence that it  is  extremely  improbable  that  he
           would have participated in the crime. It is a basic law that  in
           a criminal case,  in  which  the  accused  is  alleged  to  have
           inflicted physical injury to another person, the  burden  is  on
           the prosecution to prove that the accused  was  present  at  the
           scene and has participated in the crime. The burden would not be
           lessened by the mere fact  that  the  accused  has  adopted  the
           defence of alibi. The plea of the accused in such cases need  be
           considered only when the  burden  has  been  discharged  by  the
           prosecution satisfactorily. But once the prosecution succeeds in
           discharging the burden it  is  incumbent  on  the  accused,  who
           adopts the plea of alibi, to prove it with absolute certainty so
           as to exclude the possibility of his presence at  the  place  of
           occurrence. When the presence of the accused  at  the  scene  of
           occurrence  has   been   established   satisfactorily   by   the
           prosecution through reliable evidence, normally the court  would
           be slow to believe any counter-evidence to the  effect  that  he
           was elsewhere when the occurrence happened. But if the  evidence
           adduced by the accused is of  such  a  quality  and  of  such  a
           standard that the court  may  entertain  some  reasonable  doubt
           regarding his presence at the scene  when  the  occurrence  took
           place, the accused would, no doubt, be entitled to  the  benefit
           of that reasonable doubt. For that purpose, it would be a  sound
           proposition to be laid down that,  in  such  circumstances,  the
           burden on the accused is rather heavy.  It  follows,  therefore,
           that strict proof is  required  for  establishing  the  plea  of
           alibi.”


      This view was  reiterated  in  Jayantibhai  Bhenkarbhai  v.  State  of
Gujarat.[3]
27.   On the standard of proof, it was held in Mohinder  Singh  v.  State[4]
that the standard of proof required in regard to a plea  of  alibi  must  be
the same as the standard applied to the prosecution  evidence  and  in  both
cases it should be a reasonable standard.  Dudh  Nath  Pandey  goes  a  step
further and seeks  to  bury  the  ghost  of  disbelief  that  shadows  alibi
witnesses, in the following words:
           “Defence witnesses are entitled to equal treatment with those of
           the  prosecution.  And,   courts   ought   to   overcome   their
           traditional, instinctive disbelief in defence  witnesses.  Quite
           often, they tell lies but so do the prosecution witnesses.”




28.   The defence put up by Prem Nath and Raj Bala needs to be  examined  in
the light of the law laid down by this Court. What is the defence put up  by
them?  Subhash Saini, Office Assistant with HMT in Pinjore appeared as  DW-1
and stated that Prem Nath was on duty on 4th April, 1996 from 2.00  p.m.  to
10.00 p.m.   On the next day that is on 5th April, 1996 he was on  half  day
leave and was on duty from 6.00 p.m. to 10.00 p.m.
29.   This witness also stated that the entry and exit  of  an  employee  to
and from the factory premises is recorded in  a  punching  machine  and  two
employees of the factory supervise the machine to avoid proxy punching.   If
there is any suspicion   about any employee, the identity card  is  demanded
from him or her.  The Trial Court and the High Court had  observed  that  it
is possible to ‘manipulate’ the punching machine.  While  this  may  be  so,
there is nothing to suggest that  despite  the  presence  of  employees  and
other safeguards having been set up by HMT, Prem Nath  had  manipulated  the
punching machine. The view of both the courts was speculative in nature  and
cannot form the basis for rejecting the alibi.
30.   Jagan Nath Mishra (DW-2) is the tenant of  Prem  Nath  and  he  stated
that he met Prem Nath at about 10.30 p.m. on the night of  4th  April  1996.

31.   This witness further stated that he left his residence to attend  duty
the next morning at about 7.45 a.m. (This  has  wrongly  been  mentioned  as
5.45 a.m. in the impugned judgment and we have verified  from  the  original
record that it is actually 7.45 a.m.)  At that time he  met  Prem  Nath  and
Raj Bala. He also stated that when he returned at about  5.45  p.m.  he  was
given sweets by Raj Bala because they had purchased a new scooter.
32.   On 5th April 1996 Prem Nath had taken half day leave for  the  purpose
of purchasing a scooter.  This was testified by Bhim Sen  Verma  (DW-3).  It
was stated by K.N. Sharma (DW-5) that Prem Nath was on  duty  on  4th  April
1996 up to 10.00 p.m. and on half day duty on 5th April 1996.
33.   K.K. Kanwal from Hind Motors Ltd. in Chandigarh  entered  the  witness
box as DW-6 and affirmed that at about 11.00 a.m. on  5th  April  1996  Prem
Nath had purchased and taken delivery of a  scooter  from  his  company.  He
further stated that prior to taking delivery of a vehicle,  it  takes  about
an hour to complete all procedural formalities in this regard.
34.   The evidence of the alibi witnesses clearly brings  out  that  on  4th
April 1996 Prem Nath was in his factory from 2.00 p.m.  onwards  till  10.00
p.m. and later in the night he was seen by his tenant at  about  10.30  p.m.
On the next day that is 5th April 1996 Prem Nath and Raj Bala were  seen  by
their tenant at 7.45 a.m. and about 11.00 a.m. Prem Nath purchased and  took
delivery of a scooter from Hind Motors Ltd., Chandigarh before going to  the
factory at about 6.00 p.m.  On 5th April 1996 his wife Raj Bala  distributed
sweets on the purchase of a new scooter.  35.      The Trial Court  and  the
High Court have disbelieved the entire case put up  by  Prem  Nath  and  Raj
Bala by holding that they could very well have been in  village  Bhojpur  at
12.00 noon on 4th April 1996 when Asha Devi was given  a  beating  and  they
could have travelled back to Pinjore to  enable  Prem  Nath  to  be  in  the
factory at 2.00 p.m. Nothing is said about how they could have stopped  Asha
Devi at 3.00 p.m. from going to the police to lodge a  complaint.  The  same
night, they could have left Pinjore to be in village Bhojpur  early  morning
on 5th April 1996 at about 7.30  a.m.  when  Asha  Devi  was  set  on  fire.
Thereafter, they could have come back to Pinjore to enable Prem Nath  to  be
in Hind Motors at about 10.00 a.m. to  purchase  a  scooter  at  11.00  a.m.
There is nothing on record to indicate  the  distance  between  Pinjore  and
village Bhojpur but we were orally told that it takes more than a couple  of
hours to cover that distance. Prem Nath did not have any means  of  personal
conveyance which could have enabled him to undertake these journeys.
36.   Apart from the conclusions of the  Trial  Court  and  the  High  Court
appearing far-fetched, the testimony of Jagan Nath Mishra (DW-2) the  tenant
of Prem Nath has not been correctly appreciated because of  a  typing  error
in transcribing it from the original record. As mentioned above, Jagan  Nath
Mishra had seen Prem Nath and Raj Bala at 7.45 a.m. on 5th April  1996  (and
not  at  5.45  a.m.  as  wrongly  transcribed  in  the  impugned  judgment).
Consequently, Prem Nath and Raj Bala could not have been in village  Bhojpur
at 7.30 a.m. on 5th April 1996.  This evidence has gone unchallenged.
37.   It seems to us that although the High Court has  given  due  weightage
to the dying declaration of Asha Devi but having accepted it, it  has  tried
to pick holes in the defence evidence to justify the contents of  the  dying
declaration. Given the law laid  down  by  this  Court,  this  was  not  the
correct manner of approaching the evidence brought forth by  Prem  Nath  and
Raj Bala. In our opinion, the alibi witnesses have made out  a  strong  case
of demonstrating the improbability of Prem Nath and Raj Bala being  involved
in the incident of beating up Asha Devi at about 12.00  noon  on  4th  April
1996, of stopping her at about 3.00 p.m. from going to the police  to  lodge
a complaint and setting her on fire at about 7.30 a.m. on 5th April 1996.
Severability of a dying declaration:
38.   The next question is whether Asha  Devi’s  dying  declaration  can  be
split up to segregate the case of Prem Nath and Raj Bala from  the  case  of
the other accused persons.
39.   In Godhu v. State of Rajasthan[5] this Court found  itself  unable  to
subscribe to the view that if a part of the dying declaration is  found  not
to be correct, it must result in its rejection in entirety. It was held,
           “The rejection of a part of the dying declaration would put  the
           court on the guard and induce it to apply  a  rule  of  caution.
           There may be cases wherein the part  of  the  dying  declaration
           which is not found to be correct is so indissolubly linked  with
           the other part of the dying declaration that it is not  possible
           to sever the two parts. In such an event the court would well be
           justified in rejecting the whole of the dying declaration. There
           may, however, be other cases wherein the two parts  of  a  dying
           declaration may be severable and the  correctness  of  one  part
           does not depend upon the correctness of the other part.  In  the
           last mentioned cases the court would not  normally  act  upon  a
           part of the dying declaration, the other part of which  has  not
           been  found  to  be  true,  unless  the  part  relied  upon   is
           corroborated in material particulars by the  other  evidence  on
           record. If such other evidence shows  that  part  of  the  dying
           declaration relied upon is correct and trustworthy the court can
           act upon that part of the dying  declaration  despite  the  fact
           that another part of the dying declaration has not  been  proved
           to be correct.”

40.   Although at law there is no difficulty in segregating the role of  two
sets of accused persons if the dying declaration is severable,  the  present
case indicates that the role of the accused persons  cannot  be  segregated.
This is because Asha Devi’s  dying  declaration  mentions  all  the  accused
persons as being involved in all the events that  had  taken  place  on  4th
April 1996 and 5th April 1996.  There is no distinction made in the role  of
any of the accused persons and they have  all  been  clubbed  together  with
regard to the harassment of Asha Devi; making plans to eliminate  her;  Asha
Devi being beaten up on 4th April 1996; all the accused  persons  preventing
her from lodging a complaint with the police; all the accused persons  tying
up Asha Devi with her chunni and  pouring  kerosene  oil  on  her  and  then
setting her on fire.  Asha Devi has referred to each one of  them  as  being
involved in every incident  on  4th  April  1996  and  5th  April  1996.  If
somewhat different roles were assigned to  at  least  some  of  the  accused
persons, segregation  or  severance  could  have  been  possible.  But  with
everybody being roped in for every event, it is not possible  in  this  case
to segregate or sever the actions of one from another.
41.   Notwithstanding this, as we have seen, it is not  possible  to  accept
the involvement of Prem Nath and Raj Bala in the events that took  place  on
the two fateful days. Nevertheless, it is  quite  possible  that  the  other
four accused were involved in beating up Asha Devi on  4th  April  1996  and
setting her on fire on 5th April 1996.  But, what is of equal importance  is
that neither the Trial Court nor the High  Court  adverted  to  the  crucial
evidence of Puran Chand (DW-8) who stated that he saw smoke  coming  out  of
Jagdish’s tenement and children  were  making  a  noise.   When  he  reached
there, he saw flames and smoke coming out from the ventilator  of  Jagdish’s
tenement and along with Gurbachan, he had to break  down  the  door  of  the
tenement which was locked from inside and they found Asha Devi on fire.   If
this statement of Puran Chand is  correct,  and  there  does  not  seem  any
reason to doubt it since nothing was put to him  in  this  regard  in  cross
examination, a case of suicide by  Asha  Devi  is  a  possibility.  At  this
stage, it may be noted that the investigating officer Gurdial Singh  (PW-10)
could not say if the bolt of the tenement was broken or not.
42.   On a reading of the dying declaration it  is  quite  clear  that  Asha
Devi was very disturbed on the morning of 5th April 1996  and  that  is  why
she broke her bangles in the presence of Jumni. This may be because  of  the
events of the previous day or her being a victim of  continuous  harassment.
This, coupled with a lack of response from  Jumni  on  the  morning  of  5th
April 1996 may have completely frustrated Asha Devi leading  her  to  commit
suicide. Whatever be the cause of Asha Devi being  upset,  the  evidence  of
Puran Chand has not been challenged and so it cannot be  glossed  over.   In
the face of this, it is not possible to discount  the  theory  suggested  by
learned counsel that the case  was  possibly  one  of  the  suicide  out  of
extreme frustration and not of murder.
 43.  It is true that when a person is on his or her death bed, there is  no
reason to state a falsehood but it is equally true that it is  not  possible
to delve into the mind of a person who is facing death. In the present  case
the death of  Asha  Devi  and  the  circumstances  in  which  she  died  are
extremely unfortunate but at the same time it  does  appear  that  for  some
inexplicable reason she put the blame for  her  death  on  all  her  in-laws
without  exception.  Perhaps  a  more  effective  investigation  or  a  more
effective cross-examination of the witnesses  would  have  brought  out  the
truth but unfortunately on the record as it stands, there is no  option  but
to give the benefit of doubt to Jumni (and Sham Lal) and to hold  that  they
were not proved guilty of the offence of having murdered Asha Devi.
44.   Insofar as Prem Nath and Raj Bala are concerned  there  is  sufficient
material to accept their alibi and they must be  acquitted  of  the  charges
made against them.
45.   As mentioned above Rati Ram and Balbir Prasad  are  already  dead  and
nothing need be said about their involvement  in  the  incident.  Were  they
alive, they too would have been entitled to the benefit of doubt  since  the
facts pertaining to them were similar to those of Jumni and Sham Lal.
Conclusion:
46.   The plea of alibi set up by Prem Nath and Raj Bala deserve  acceptance
and are accepted. They are found not guilty of having  murdered  Asha  Devi.
Jumni and Sham Lal are given the benefit of doubt  and  the  charge  against
them of having murdered Asha Devi is not proved beyond a  reasonable  doubt.
Both the appeals are accordingly allowed.


                                                             ……………………………………J
                                              (Ranjana Prakash Desai)


                                                             ……………………………………J
                                              (Madan B. Lokur)
New Delhi;
March 12, 2014


-----------------------
[1]    (1981) 2 SCC 166
[2]    (1997) 1 SCC 283
[3]    (2002) 8 SCC 165
[4]    1950 SCR 821
[5]    (1975) 3 SCC 241


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