Full Judgment Text
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CASE NO.:
Appeal (crl.) 1166 of 2001
PETITIONER:
Dashrath @ Champa and Ors
RESPONDENT:
State of Madhya Pradesh
DATE OF JUDGMENT: 24/10/2007
BENCH:
Dr. ARIJIT PASAYAT & D.K. JAIN
JUDGMENT:
J U D G M E N T
CRIMINAL APPEAL NO.1166 of 2001
Dr. ARIJIT PASAYAT, J.
1. Challenge in this appeal is to the judgment of the
Madhya Pradesh High Court at Jabalpur upholding the
conviction of the appellants for offence punishable under
Section 304 Part I read with Section 34 of the Indian Penal
Code, 1860 (in short the ’IPC’) and the award of sentence of 7
years rigorous imprisonment as awarded by the trial Court.
2. Prosecution version in a nutshell is as follows:
On the morning of 26th April, 1987 Ramesh (hereinafter
referred to as the ’deceased’) was returning from the house of
Ismail Khan. He was waylaid by the three accused persons
who attacked him with knife, lathi and rod. Ramesh sustained
numerous injuries on his person. Rakesh Kumar and Bittu
alias Gurdeo Singh intervened. The incident was witnessed by
his mother Khargi Bai (PW-1), maternal grandmother Tulasa
Bai (PW-22) and others. Ramesh was taken to the Police
Station where he lodged the first information report (Ex.P.10)
which was recorded by Head Constable Santosh Kumar (PW-
20). Ramesh was immediately taken to the District Hospital at
Bina where Dr. Rajnish Shrivastava (PW-11) examined him.
He found as many as 18 injuries on his body as per his report
Ex.P.16. Ramesh was admitted in the hospital. On the
following day he was referred to District Hospital, Sagar for X-
ray and further treatment. There he breathed last on
30.4.1987. Dr. M.C. Jain (PW-16) performed the autopsy on
the next day. Postmortem report is Ex.P.28.
During the course of investigation knife article ’B’ was
recovered from the possession of accused Dashrath alias
Champa on the basis of the information supplied by him.
Accused Govind also made a disclosure statement leading to
recovery of lathi article ’D’ and accused Satish made a
statement leading to the recovery of rod article ’C’.
On completion of investigation, a challan was put up
against the three accused persons for commission of offence
punishable under Section 302 read with Section 34 IPC.
3. The three accused persons were tried. Seven witnesses
were examined as eye-witnesses to further the prosecution
version. They included the mother (PW-1) and grand mother
(PW-22) of the deceased. The other five eye-witnesses
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produced were Laxmi Bai (PW-2), Asgari Begam (PW-4) and
neighbours of the deceased and Santosh Singh (PW-17),
Rakesh (PW-18) and Bittu (PW-19). But none of the witnesses
admitted to having seen the incident. Therefore, the
prosecution with the permission of the Court cross examined
them. The trial Court was of the view that these witnesses
were deliberately making false statements and concealing the
truth. But the First Information Report (Ex.P10) was recorded
by the Head Constable Santosh Kumar (PW-20) on the
information given by the deceased. The said Head Constable
had also recorded the statement of the deceased under Section
161 of the Code of Criminal Procedure, 1973 (in short the
’Cr.P.C.’). His statement is marked as Ex.P.32. Learned
Additional Sessions Judge treated both the statements to be
statements under Section 32(1) of the Indian Evidence Act,
1872 (in short the ’Evidence Act’). Relying on those statements
and the medical evidence, the trial Court found that Ramesh
had died as a result of the injuries inflicted upon him by the
accused persons. But since none of the injuries was found on
the vital organs of the deceased it was held that the offence
committed was covered under Section 304 Part I IPC. The
accused persons challenged correctness of the judgment
before the High Court by filing an appeal which was dismissed
by the impugned order.
4. Learned counsel for the appellants submitted that there
was no material evidence to connect appellants with the crime
and, therefore, both the trial Court and the High Court were
not justified in finding the accused persons guilty. It is
submitted that considering the nature of injuries sustained, it
would have been impossible for the deceased to make any
statement.
5. Learned counsel for the State on the other hand
supported the judgments of the trial Court and the High
Court.
6. The factual scenario as borne out from the records is that
the deceased was brought to District hospital, Bina where he
was admitted for observation and treatment. Dr. Rajnish
Shrivastava (PW-11) found 18 injuries on his person. The
doctor in cross examination stated that the deceased was
examined by him at 1.00 p.m. in the afternoon on 26.4.1987.
At that time the patient had not gone in shock. It was later
that shocks started developing resulting in fall of blood
pressure and vomiting as was recorded in bed head ticket (Ex.
P.17). The observation was recorded at 5.00 p.m. on
26.4.1987. The deceased was admitted in District Hospital,
Sagar. The bed head ticket (Ex.P.27) shows that he was
admitted in the hospital at 11.15 p.m. on 27.4.1987 and in the
bed head ticket the general condition was recorded to be
satisfactory and also that he was conscious. The deceased
breathed his last three days later on 30.4.1987.
7. Though PWs. 18 and 1 stated that the deceased was
unconscious, PW-22 stated that he was in senses. It was also
stated by this witness that the deceased had lodged the report.
She also stated that the police had recorded the statement of
the deceased. Though some of the witnesses resiled from the
statements made during investigation, PW-19 stated that he
and Ramesh’s mother carried him to the police station.
8. Santosh Kumar, Head Constable (PW-20) had testified
that the deceased was fully conscious when he was brought to
the police chowki and it was the deceased who had lodged the
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complaint which was recorded by him. The statement of the
deceased was marked as Ex.P.32. The trial Court and the High
Court relying on the evidence of PW-20 concluded that the
statement given by the deceased was to be treated as a dying
declaration. The bed head ticket of District Hospital, Sagar,
(Ex.P.27) shows that when the deceased was brought he was
conscious and his general condition was satisfactory. These
materials were sufficient to discard the stand of the accused
persons that the deceased was unconscious when he was
brought to the hospital. As the deceased died on 30.4.1987 the
trial Court and the High Court treated the first information
report (Ex. P.10) to be in the nature of the dying declaration;
so was the statement of the deceased (Ex.P.32). In both these
statements the three accused persons have been named as the
assailants. The trial Court and the High Court analysed the
evidence in great detail and found that the prosecution
established its stand because of the dying declaration.
9. At this juncture, it is relevant to take note of Section 32
of the Evidence Act, which deals with cases in which
statement of relevant fact by person who is dead or cannot be
found, etc. is relevant. The general rule is that all oral evidence
must be direct viz., if it refers to a fact which could be seen it
must be the evidence of the witness who says he saw it, if it
refers to a fact which could be heard, it must be the evidence
of the witness who says he heard it, if it refers to a fact which
could be perceived by any other sense, it must be the evidence
of the witness who says he perceived it by that sense. Similar
is the case with opinion. These aspects are elaborated in
Section 60. The eight clauses of Section 32 are exceptions to
the general rule against hearsay just stated. Clause (1) of
Section 32 makes relevant what is generally described as
dying declaration, though such an expression has not been
used in any Statute. It essentially means statements made by
a person as to the cause of his death or as to the
circumstances of the transaction resulting in his death. The
grounds of admission are: firstly, necessity for the victim being
generally the only principal eye-witness to the crime, the
exclusion of the statement might deflect the ends of justice;
and secondly, the sense of impending death, which creates a
sanction equal to the obligation of an oath. The general
principle on which this species of evidence is admitted is that
they are declarations made in extremity, when the party is at
the point of death and when every hope of this world is gone,
when every motive to falsehood is silenced, and the mind is
induced by the most powerful considerations to speak the
truth; a situation so solemn and so lawful is considered by the
law as creating an obligation equal to that which is imposed by
a positive oath administered in a Court of justice. These
aspects have been eloquently stated by Lyre LCR in R. v. Wood
Cock (1789) 1 Leach 500. Shakespeare makes the wounded
Melun, finding himself disbelieved while announcing the
intended treachery of the Dauphin Lewis explain:
"Have I met hideous death within my
view,
Retaining but a quantity of life,
Which bleeds away even as a form of wax,
Resolveth from his figure ’gainst the fire?
What is the world should make me now deceive,
Since I must lose the use of all deceit?
Why should I then be false since it is true
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That I must die here and live hence by truth?"
(See King John, Act 5, Sect.4)
10. The principle on which dying declaration is admitted in
evidence is indicated in legal maxim "nemo moriturus
proesumitur mentiri \026 a man will not meet his maker with a lie
in his mouth."
11. This is a case where the basis of conviction of the
accused is the dying declaration. The situation in which a
person is on deathbed is so solemn and serene when he is
dying that the grave position in which he is placed, is the
reason in law to accept veracity of his statement. It is for this
reason the requirements of oath and cross-examination are
dispensed with. Besides, should the dying declaration be
excluded it will result in miscarriage of justice because the
victim being generally the only eye-witness in a serious crime,
the exclusion of the statement would leave the Court without a
scrap of evidence.
12. Though a dying declaration is entitled to great weight, it
is worthwhile to note that the accused has no scope of cross-
examination. Such a scope is essential for eliciting the truth
as an obligation of oath could be. This is the reason the Court
also insists that the dying declaration should be of such a
nature as to inspire full confidence of the Court in its
correctness. The Court has to be on guard that the statement
of deceased was not as a result of either tutoring, or prompting
or a product of imagination. The Court must be further
satisfied that the deceased was in a fit state of mind after a
clear opportunity to observe and identify the assailant. Once
the Court is satisfied that the declaration was true and
voluntary, undoubtedly, it can base its conviction without any
further corroboration. It cannot be laid down as an absolute
rule of law that the dying declaration cannot form the sole
basis of conviction unless it is corroborated. The rule requiring
corroboration is merely a rule of prudence. This Court has laid
down in several judgments the principles governing dying
declaration, which could be summed up as under as indicated
in Smt. Paniben v. State of Gujarat (AIR 1992 SC 1817):
(i) There is neither rule of law nor of prudence that
dying declaration cannot be acted upon without corroboration.
[See Munnu Raja & Anr. v. The State of Madhya Pradesh
(1976) 2 SCR 764)]
(ii) If the Court is satisfied that the dying declaration is
true and voluntary it can base conviction on it, without
corroboration. [See State of Uttar Pradesh v. Ram Sagar Yadav
and Ors. (AIR 1985 SC 416) and Ramavati Devi v. State of
Bihar (AIR 1983 SC 164)]
(iii) The Court has to scrutinize the dying declaration
carefully and must ensure that the declaration is not the
result of tutoring, prompting or imagination. The deceased had
an opportunity to observe and identify the assailants and was
in a fit state to make the declaration. [See K. Ramachandra
Reddy and Anr. v. The Public Prosecutor (AIR 1976 SC 1994)]
(iv) Where dying declaration is suspicious, it should
not be acted upon without corroborative evidence. [See
Rasheed Beg v. State of Madhya Pradesh (1974 (4) SCC 264)]
(v) Where the deceased was unconscious and could
never make any dying declaration the evidence with regard to
it is to be rejected. [See Kaka Singh v State of M.P. (AIR 1982
SC 1021)]
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(vi) A dying declaration which suffers from infirmity
cannot form the basis of conviction. [See Ram Manorath and
Ors. v. State of U.P. (1981 (2) SCC 654)
(vii) Merely because a dying declaration does not contain
the details as to the occurrence, it is not to be rejected. [See
State of Maharashtra v. Krishnamurthi Laxmipati Naidu (AIR
1981 SC 617)]
(viii) Equally, merely because it is a brief statement, it is
not to be discarded. On the contrary, the shortness of the
statement itself guarantees truth. [See Surajdeo Oza and Ors.
v. State of Bihar (AIR 1979 SC 1505).
(ix) Normally the Court in order to satisfy whether
deceased was in a fit mental condition to make the dying
declaration look up to the medical opinion. But where the eye-
witness said that the deceased was in a fit and conscious state
to make the dying declaration, the medical opinion cannot
prevail. [See Nanahau Ram and Anr. v. State of Madhya
Pradesh (AIR 1988 SC 912)].
(x) Where the prosecution version differs from the
version as given in the dying declaration, the said declaration
cannot be acted upon. [See State of U.P. v. Madan Mohan and
Ors. (AIR 1989 SC 1519)].
(xi) Where there are more than one statement in the
nature of dying declaration, one first in point of time must be
preferred. Of course, if the plurality of dying declaration could
be held to be trustworthy and reliable, it has to be accepted.
[See Mohanlal Gangaram Gehani v.State of Maharashtra (AIR
1982 SC 839)]
13. In the light of the above principles, the acceptability of
alleged dying declaration in the instant case has to be
considered. The dying declaration is only a piece of untested
evidence and must like any other evidence, satisfy the Court
that what is stated therein is the unalloyed truth and that it is
absolutely safe to act upon it. If after careful scrutiny the
Court is satisfied that it is true and free from any effort to
induce the deceased to make a false statement and if it is
coherent and consistent, there shall be no legal impediment to
make it basis of conviction, even if there is no corroboration.
[See Gangotri Singh v. State of U.P. (JT 1992 (2) SC 417),
Goverdhan Raoji Ghyare v. State of Maharashtra (JT 1993 (5)
SC 87), Meesala Ramakrishan v. State of Andhra Pradesh (JT
1994 (3) SC 232) and State of Rajasthan v. Kishore (JT 1996
(2) SC 595)].
14. There is no material to show that dying declarations were
result of product of imagination, tutoring or prompting. On the
contrary, they appear to have been made by the deceased
voluntarily. It is trustworthy and has credibility.
15. In view of the factual scenario as analysed in the
background and the principles set out above the inevitable
conclusion is that the trial Court and the High Court were
justified in finding the accused persons guilty. There is no
merit in this appeal which is dismissed accordingly. The
appellants who are on bail shall surrender to custody
forthwith to serve remainder of sentence, if any.