Hari Prakash lived on the terrace of D-2337, Sultanpuri with his mother Sundari Devi. Hari's younger brother Narain and his wife Savita lived in a room on the first floor. The brothers got into an argument on October 24, 1992 over the ground floor room, which had been rented out. Narain wanted the room for himself.

Matters reached a head on the night of November 3. In his statement to the police, Hari said that at about 8.10 pm, Narain and Savita beat him up and then Narain's brother-in-law Surat Singh alias Bunty stabbed him in the stomach, face and right shoulder.

He was rushed to DDU Hospital, and died on November 17. The three accused were arrested on November 4, and based on Bunty's statement, the knife was recovered from his jhuggi (no 1604) near the Sultanpuri bus stand. Bunty subsequently died on December15.

The prosecution examined 18 witnesses, of whom the alleged eyewitness Jagan Nath turned hostile. The prosecution had thus to rely on Hari's statement.The judge had to decide whether this statement could be treated as a dying declaration. Public Prosecutor A C Verma said Hari's statement was recorded by sub-inspector Balbir Singh in hospital after the doctor declared him fit. But defence counsel R S Kashyap argued that the statement could not be treated as a dying declaration because it was neither recorded by a magistrate nor a doctor, nor was it in the standard question and answer form.

The judge referred to a Supreme Court ruling (Dalip Singh and others versus State of Punjab): ``... the practice of the Investigating Officer himself recording a dying declaration ought not to be encouraged. This is not to suggest that such dying declarations are always untrustworthy, but... the one recorded by the police officer may be relied upon if there was no time or facility available to the prosecution foradopting any better method.'' The judge also said in this particular case, the IO didn't go explicitly to record a dying declaration, as there was no indication at the time that Hari's condition was fatal. What the police recorded was a complaint, therefore it was not necessary for either a doctor or a magistrate to be present.

Additional Sessions Judge (ASJ) Raghbir Singh said in his order: ``There is nothing on record to suggest that the said statement is not genuine and trustworthy ... It is well known that an injured would never shield the real culprit. There was no ground or reason whatsoever for the injured/deceased Hari Prakash to falsely implicate the accused persons, who are his close relations. No prior enmity has been shown or alleged by anyone. Therefore, under these circumstances, I have no reason to doubt the genuineness of the dying declaration.''

The judge added, ``All the three accused persons acted simultaneously and played their own role meaning thereby that they all had the commonintention to do the act of murder for which they were well prepared.''

When this argument failed, the defence counsel said that even if the statement is authentic the couple cannot be held guilty for murder. The ASJ cited another apex court ruling: ``... a criminal court that fastens vicarious liability must satisfy itself as to the prior meeting of minds of the principal culprit and his companions who are sought to be constructively made liable in respect of every act committed by the former.''