Full Judgment Text
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PETITIONER:
HARBANS SINGH AND ANOTHER
Vs.
RESPONDENT:
STATE OF PUNJAB
DATE OF JUDGMENT:
16/10/1961
BENCH:
GUPTA, K.C. DAS
BENCH:
GUPTA, K.C. DAS
GAJENDRAGADKAR, P.B.
SARKAR, A.K.
WANCHOO, K.N.
CITATION:
1962 AIR 439 1962 SCR Supl. (1) 104
CITATOR INFO :
RF 1963 SC 200 (17)
R 1965 SC 26 (19)
R 1965 SC 257 (8)
R 1970 SC1566 (5)
F 1972 SC 622 (27,31)
R 1973 SC 55 (19)
R 1973 SC1204 (9)
R 1973 SC2195 (8)
F 1973 SC2622 (7)
R 1974 SC 606 (8,9)
R 1976 SC1994 (6)
R 1985 SC 416 (13)
ACT:
Appeal against acquittal -interference by
appellate court, when permissible-Dying
declaration Corroboration, if necessary.
HEADNOTE:
The High Court set aside the Trial Court’s
order of acquittal of the appellants and convicted
them on a charge of murder under s. 302 of the
Indian Penal Code. On appeal by the appellants by
special leave
^
Held, that this Court in its earlier
decisions emphasised that interference with an
order of acquittal should be based only on
"complying and substantial reasons" and held that
unless such reasons were present an Appeal Court
should not interface with an order of acquittal,
but this Court did not try to curtail the powers
of the appe11ate court under s. 423 of the Code of
Criminal Procedure. Though in its more recent
pronouncements this Court laid less emphasis on
105
"compelling reasons" the principle has remained
the same. That principle is that in deciding
appeals against acquittal the Court of Appeal must
examine the evidence with particular care and must
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also examine the reasons on which the order of
acquittal was based and should interfere with the
order only when satisfied that the view taken by
the acquitting judge was clearly unreasonable.
Once the Court came to the conclusion that the
view of the lower court was unreasonable that
itself was a "compelling reason" for interference.
Once it was found that the High Court applied
the correct principles in setting aside the order
of acquittal this Court will not ordinarily
interfere with the High Court’s order of
conviction in appeal against acquittal o enter
into the evidence to ascertain whether the High
Court was right in its view of the evidence. Only
such examination of the evidence would ordinarily
be necessary as is needed to see that the High
Court approached the question properly and applied
the principle correctly.
If the judgment of the High Court did not
disclose a careful examination of the evidence in
coming to the conclusion that the view of the
acquitting court was unreasonable or if it
appeared that the High Court erred on questions of
law or misread the evidence or the judgment of the
trial court, this Court would, unless the case was
sent back to the High Court for re-hearing,
appraise the evidence for itself to examine the
reasons on which the lower court based its order
of acquittal and then decide whether the High
Courts view that the conditions of the lower court
was unreasonable, was correct. If on such
examination it appeared to the Court that the view
of the acquitting court was unreasonable the
acquittal would be set aside and if on the other
had it appeared that the view was not unreasonable
the order of acquittal would be restored.
Suraj Pal Singh v. State, [1952] S.C.R. 194,
Ajmer Singh v. State of Punjab [1953] S.C.R. 418,
Puran v. State of Punjab A.I.R. 1953 S.C. 459,
Chinta v. State of M. P., Cr. A. No. 178 of 59 and
Ashrafkha Haibatkha Pathan v. State of Bombay, Cr.
A. No. 38 of 1960, referred to.
It was neither a rule of law nor of prudence
that a dying declaration should be corroborated by
other evidence before a conviction could be ba ed
thereon.
Ram Nath v. state of M. P. A.l.R. 1953 S.C.
420, referred to.
Khushal Ram v. State of Bombay, [l958]
S.C.R. 552, followed.
A dying declaration did not become less
credible if a number of persons were names are
culprits
106
Khurshaid Hussain. v. Emperor,(1941) 43
Cr.L.J.59, held erroneous.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 115 of 1959.
Appeal by special leave from the judgment and
order dated May 23, 1958, of the Punjab High Court
in Criminal Appeal No. 414 of 1957.
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N.C. Chatterjee. I.M. Lal, C.L. Sareen and
Mohan La1 Agarwal, for the appellant.
N. S. Bindra and P. D. Menon, for the
respondent.
1961. October 16. The Judgment of the Court
was delivered by
DAS GUPTA, J.-Six persons including the
present appellants were tried by the Additional
Sessions Judge Ferozpur on several charges in
connection with the death by homicidal injuries of
two brothers Munshi Singh and Hazura Singh. Of
these six, Bhag Singh was the father of the other
five accused persons. All the six accused persons
were acquitted by the Additional Sessions Judge;
on appeal by the State, the High Court of Punjab
set aside the orders of acquittal in respect of
Harbans Singh and Major Singh and convicted them
under section 302 of the Indian Penal Code. The
appeal was dissmissed in respect of the other
four, viz., Bhag Singh, Gursi, Bant Singh and Gian
Singh. It is against this order of conviction that
Harbans Singh and Major Singh have filed the
present appeal after obtaining special leave from
this Court.
The prosecution case is that at about 8 or 9
P.M. on July 23, 1956, shortly after Munshi Singh
had returned home and complained to his father
Hira Singh about the conduct of Harbans Singh and
Bant Singh in abusing him. Munshi Singh ran out of
his house on hearing some cries; but when he
reached the Dharamshala not far from his house
107
these two appellants, along with their father Bhag
Singh and their brothers Bant Singh, Gian Singh
and Gursi fell upon him and caused numerous
injuries with the weapons which they carried.
Harbans Singh, it is said, struck Munshi Singh on
the abdomen with a Sela in his hand. Munshi
Singh’s brother Hazura Singh and his father Hira
Singh also had followed Munshi Singh when he ran
out of the house. On seeing this attack on Munshi
Singh, EIazllra Singh tried to intervene, but he
too was attacked and received several injuries.
Harbans Singh, it is said, gave him a Sela thrust
in the abdomen. Munshi Singh died on the spot;
Hazura Singh was brought to the hospital at
Gidderbha the following morning and received some
treatment but he also died of his injuries the
following day, that is, the 24th July.
All the accused pleaded not guilty, the
defence being that they had been falsely
implicated out of enmity.
To prove its Base the prosecution relied on
the evidence of two persons, the deceased’s father
Hira Singh and their uncle Bhag Singh and the
dying declaration alleged to have been made by
Hazura Singh, once in the village before Devendra
Singh, the Sub-Inspector of Police who had come to
the village that night in connection with some
other investigation and for the second time at
Gidderbha hospital before a Magistrate.
On a consideration of the evidence the Trial
Judge came to the conclusion that the prosecution
case had not been proved against any of the
accused person. Being of opinion that the First
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Information Report had been recorded as late as 4-
30 P.M. On the 24th July he thought that "the
complainant party was not able to day who the
assailants were and the police was making time to
find out the culprits after investigation and the
First Information Report was delayed on that
account." He was doubtful also about the truth of
the Sub-Inspector’s
108
story that he actually reached the village of
occurrence on that very night and consequently
doubtful about any statement having been made by
Hazura Singh to him on that night. In any case, he
thought Hazura Singh’s dying declaration had
little probative value because as many as six
persons had been named and that it could not be
relied upon without corroboration. The learned
Judge was also not satisfied that Bhag Singh
(Prosecution Witness) "was present in the village
or at his house at the time of the occurrence"
since "his statement was not recorded in the
Inquest Report prepared by the police at
midnight". The learned Judge also thought it
unsatisfactory that nobody other than these two
near relatives, that is, the father and uncle of
the deceased persons had been examined as
witnesses of the occurrence. These were the main
reasons for which he came to the conclusion that
the case had not been proved against any of the
accused beyond reasonable doubt and accordingly
acquitted the accused
The High Court was of opinion that the
learned Judge was wholly "wrong in holding that
Bhag Singh was not mentioned in the Inquest
Report"; that he had misread the time of the first
Information Report as 4-30 P. M. for 4-30 A. M.
and that he was again in error in concluding that
"the statement made by Hazura Singh to the police
on their arrival at 1-15 A.M. was inadmissible".
After pointing out these "errors" in the reasoning
of the learned Trial Judge the High Court said:-
"We have no hesitation in concluding
that for the said reasons the judgment of the
learned Additional Sessions Judge is wholly
erroneous resulting in complete miscarriage
of justice.
After having gone through the testimony
of both of the eye-witnesses and examining
the other material, particularly the two
dying
109
declarations, we are of the view that the
projection case was substantially true and
have been proved.
As regards complicity of Harbans Singh
and Major Singh, there appears to be no
doubt. Both of them had been assigned
participation and were responsible for the
fatal blow on each of the deceased. In this
respect the testimony of both of the
witnesses and the dying declarations are
consistent. They were accordingly held guilty
under section 302, Indian Penal code."
The main contention raised by Mr. Chatterjee
on behalf of the appellants is that the High Court
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had no sufficient reasons for interfering with the
order of acquittal made by the Additional Sessions
Judge and that the High Court itself had been
guilty of "errors", especially as the High Court
has misread the judgment of the learned Additional
Sessions Judge and had attributed to him
statements which are not to be found in his
judgment.
The question as regards the correct
principles to be applied by a Court hearing an
appeal against acquittal of a person has engaged
the attention of this Court from the very
beginning. In many cases, especially the earlier
ones, the Court has in laying down such principles
emphasised the necessity of interference with an
order of acquittal being based only on "compelling
and substantial reasons" and has expressed the
view that unless such reasons are present an
Appeal court should not interfere with an order of
acquittal. (Vide Suraj Pal Singh v. The State (1);
Ajmer Singh v. State of Punjab (2); Puran v. State
of Punjab (3). The use of the words "compelling
reasons" embarrassed some of the High Courts in
exercising their jurisdiction in appeals against
acquittals and difficulties occasionally arose as
to what this Court had meant by the
(1) [1952] S. C. R. 194. (2) [1953] S. C. R.
418.
3)A.l.R. (1953) S. C. 459.
110
words "compelling reasons". In later years the
Court has often avoided emphasis on "compelling
reasons" but nonetheless adhered to the view
expressed earlier that before interfering in
appeal with an order of acquittal a Court must
examine not only questions of law and fact in all
their aspects but must also closely and carefully
examine the reasons which impelled the lower
courts to acquit the accused and should interfere
only if satisfied after such examination that the
conclusion reached by the lower court that the
guilt of the person has not been proved is
unreasonable. (Vide Chinta v. The State of Madhya
Pradesh (1); Ashrafkha Haibatkha Pathan v. The
State of Bombay (2),
It is clear that in emphasising in many cases
the necessity of "compelling reasons" to justify
an interference with an order of acquittal the
Court did not in any way try to curtail the power
bestowed on appellate courts under s 423 of the
Code of Criminal Procedure when hearing appeals
against acquittal; but conscious of the intense
dislike in our jurisprudence of the conviction of
innocent persons and of the facts that in many
systems of jurisprudence the law does not provide
at all for any appeal against an order of
acquittal the Court was anxious to impress can the
appellate courts the importance of bestowing
special care in the sifting of evidence in appeal
against acquittals. As has already been pointed
out less emphasis is being given in the more
recent pronouncements of this Court on "compelling
reasons". But, on close analysis, it iq clear that
the principles laid down by the court ill this
matter have remained the same. What may be called
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the golden thread running through all these
decisions is the rule that in deciding appeals
against acquittal the Court of Appeal must examine
(1) Criminal Appeal No. 178 of 1959 decided
on l8-11-60.
(2) Criminal Appeal No. 38 of 1960 decided on
14-12-60.
111
the evidence with particular care, must examine
also the reasons on which the order of acquittal
was based and should interfere with the order only
when satisfied that the view taken by the
acquitting Judge is clearly unreasonable. Once the
appellate court comes to the conclusion that the
view taken by the lower court is clearly an
unreasonable one that itself is a "compelling
reason" for interference. For, it is a court’s
duty to convict a guilty person when the guilt is
established beyond reasonable doubt, no less than
it is its duty to acquit the accused when such
guilt is not so established.
When the High Court’s judgment shows clearly
that the matter has been approached in the proper
manner and the correct principles have been
applied, there is very little scope for this Court
to interfere with an order made by the High Court
convicting an accused person in an appeal against
acquittal. Once it is found that the principles
laid down by this Court have been correctly
applied this Court will not ordinarily embark upon
a reappraisal of the evidence to ascertain whether
the High Court was right in its view of the
evidence. The only examination of the evidence
that this Court may find itself called upon to
undertake will ordinarily be just so much as is
necessary to see whether the High Court has
approached the question properly and applied the
principles correctly.
The position may however be different if the
judgment of the High Court while indicating its
conclusion that in its opinion the view taken by
the lower court is unreasonable does not disclose
a careful examination of the evidence for coming
to such conclusion. Or it may appear from the High
Court’s judgment that the High Court has erred on
questions of law or has obviously misread the
evidence on the record or the judgment of the
Trial Court. What is this Court to do in such
cases ? We are unable to agree
112
with Mr. Chatterjee that the only proper course
for this court to take is to set aside the order
made by the High Court and restore the order of
acquittal. For, even where the High Court’s
judgment suffers from any of these defects it may
very well be that the High Court’s conclusion that
the view of the lower court is unreasonable is
correct. So, unless this Court thinks fit to send
the case back to the High Court for re-hearing of
the appeal and its disposal in accordance with
law, it becomes the duty of this Court in cases
like these which fortunately are likely to be few
in number-to appraise the evidence for itself, to
examine the reasons on which the lower court based
the order of acquittal and then decide whether the
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High Court’s conclusion that the view taken by the
lower Court on the question of the guilt of the
accused is clearly unreasonable, is correct. If
satisfied that the view was clearly unreasonable,
this Court is bound to dismiss the appeal and to
maintain the order of conviction made by the High
Court; if on the contrary, this Court is not
satisfied on such examination that the conclusion
reached by the lower court that the guilt of the
accused has not been proved was clearly
unreasonable, the order of acquittal would be
restored.
The judjment of the High Court in the present
case does not contain much discussion of the
evidence in the case. All the discussion of the
eviddnce is confined to the few sentences which we
have quoted earlier in this judgment. We also
notice that the learned judges of the High Court
were under some misapprehension in thinking that
the Additional Sessions Judge had held that Bhag
Singh was not mentioned as a witness in the
Inquest Report. What the Additional Sessions Judge
had pointed out was that Bhag Singh’s statement
had not been recorded in the Inquest Report. The
Additional Sessions Judge was certainly right in
this. While the High Court might have well thought
that no doubt against
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the credibility of Bhag Singh should be based on
this fact that his statement was not recorded, the
High Court was not justified in attributing to the
Trial Judge something which he did not say.
It is also not quite clear how the learned
Judge said about the appellant Major Singh that he
had been assigned participation and was
responsible for the fatal blow on each of the
deceased. In fact, neither of the two who claim to
be the eye-witnesses of the occurrence has said
that Major Singh dealt a fatal blow on either
Hazura Singh or Munshi Singh. While it is true
that a general statement is made by both the
witnesses as regards all the six accused having
attacked both Munshi Singh and Hazura Singh
neither of them has spoken of any particular
injury having been caused by Major Singh. Hazura
Singh himself in his dying declaration did say
that Major Singh gave him a Sela blow on his left
wrist but does not speak of any other injury
having been caused by Major Singh either to him or
to Munshi Singh except that he also said generally
that all the accused gave blows on the person of
Munshi Singh. The High Court has therefore clearly
misdirected itself in thinking that Major Singh
was responsible for any of the fatal injuries.
In view of all this we consider it necessary
to examine the judgment of the Trial Court and
also the evidence on record ourselves for a proper
decision of this appeal.
Turning to the judgment of the Trial Court we
find that the main circumstance which weighed with
him for doubting the truth of the prosecution
story is what he considered the considerable delay
in recording the First Information Report. From
the printed record before us we find that Narendar
Nath Moharrir Head Constable, who actually entered
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the formal First Information Report, stated in his
evidence that he made the entry at "4.30 P.M." on
the 24th July 1956. It is apparently this
114
fact taken with the fact that the report did not
reach the Magistrate Shri Pasricha before 8.45
P.M. on the 24th July that made the learned Judge
think that the First Information was made at the
Police Station at 4.30 P.M. He has unfortunately
not noticed that the record of the First
Information Report Ex. PP1 shows the time of
record as 4.30 A.M. He also overlooked
Narendranath’s own evidence in cross-examination
in these words: "I have perused the Roznamcha
entries and find that this special report was
despatched by me through Chanan Singh Foot
Constable at 5.15 A.M. I cannot say why he did not
deliver it to the Magistrate till 8.45 P.M." It is
quite clear that 5.15 A.M. as recorded in the
printed record in Narender Nath’s cross-
examination is not a mistake for 5.15 P.M. If that
had been so there would have been no point in his
saying that he could not say why the Constable did
not deliver it to the Magistrate till 8.45 P.M.
when this statement in cross-examination is
considered along with the recording of the time in
Ex. PP1 itself there is no escape from the
conclusion that 4.30 P.M. as stated in Narender
Nath’s Examination-in-Chief was a slip of tongue
and the correct time of the record was 4.30 A.M.
and that the fact that it reached the Magistrate
at 8.45 P.M. that day may well be due to the fact
that the Constable was negligent and took his own
time about going to the Magistrate or to some
other reason not clear from the record. The
reasoning of the Trial Judge based on his wrong
view about the time of recording of the formal
First Information Report that the complainant
party was not able to say who the assailants were
and so delay was made, therefore falls to the
ground.
The learned Judge has also misdirected
himself in thinking that the dying declaration had
very little probative value because as many as six
accused persons had been named and that no
conviction could in law be based on such dying
declaration without corroboration. The law does
not make any
115
distinction between a dying declaration in which
one person is named and a dying declaration in
which several persons are named as culprits. A
dying declaration implicating one person may well
be false while a dying declaration implicating
several persons may be true. Just as when a number
of persons are mentioned as culprits by a person
claiming to be an eye-witness in his evidence in
court the court has to take care in deciding
whether he has lied or made a mistake about any of
them, so also when a number of persons appear to
have been mentioned as culprits in a dying
declaration that court has to scrutinise the
evidence in respect of each of the accused. But it
is wrong to think that a dying declaration becomes
less credible if a number of persons are named as
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culprits. The contrary view taken in the Lahore
High Court in Khurshaid Hussain v. Emperor (1) on
which apparently the Trial Judge has relied is
clearly erroneous.
The learned Judge appears to have relied also
on what was said by this Court in Ram Nath v.
State of Madhya Pradesh(2) on the need of
corroboration for a dying declaration. Speaking
for the Court Mahajan J. (as he then was) observed
in that case:-
"It is settled law that it is not safe
to convict an accused person merely on the
evidence furnished by a dying declaration
without further corroboration because such a
statement is not made on oath and is not
subject to cross-examination and because the
maker of it might be mentally and physically
in a state of confusion and might well be
drawing upon his imagination while he was
making the declaration."
The question was however considered again by this
Court in Khushl Rao v. State of Bombay(3). After
pointing out that in Ram Nath’s Case (Supra) the
116
Court after a careful examination of the facts of
that case distinctly came to the conclusion that
the dying declaration was not true and could not
be relied upon this Court stated in the later case
that the observations of the Court in Ram Nath’s
case were in the nature of obiter dicta. The Court
then proceeded to review the relevant provisions
of the Evidence Act and of the decided cases in
the different High Courts in India and in this
Court and stated the law in these words:-
"that it cannot be laid down as an
absolute rule of law that a dying declaration
cannot form the sole basis of conviction
unless it is corroborated; (2) that each case
must be determined on its own facts keeping
in view the circumstances in which the dying
declaration was made; (3) that it cannot be
laid down as a general position that a dying
declaration is a weaker kind of evidence than
other pieces of evidence; (4) that a dying
declaration stands on the same footing as
anotherpiece of evidence and has to be judged
in the light of surrounding circumstances and
with reference to the principles governing
the weighing of evidence; (5) that a dying
declaration which has been recorded by a
competent magistrate in the proper manner,
that is to say, in the form of questions and
answers, and, as far as practicable, in the
words of the maker of the declaration, stands
on a much higher footing than a dying
declaration which depends upon oral testimony
which may suffer from all the infirmities of
human memory and human character, and (6)
that in order to test the reliability of a
dying declaration, the Court has to keep in
view the circumstances like the opportunity
of the dying man for observation, for
example, whether there was sufficient light
if the crime was committed at night; whether
the capacity of the man to remember the facts
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stated had not been impaired at the time he
117
was making the statement by circumstances
beyond his control that the statement has
been consistent throughout if he had several
opportunities of making a dying declaration
apart from the official record of it; and
that the statement had been made at the
earliest opportunity and was not the result
of tutoring by interested parties.
"Hence, in order to pass the test of
reliability a dying declaration has to be
subjected to a very close scrutiny, keeping
in view the fact that the statement has been
made in the absence of the accused who had no
opportunity of testing the veracity of the
statement by cross-examination. But once the
court has come to the conclusion that the
dying declaration was the truthful version as
to the circumstances of the death and the
assailants of the victim, there is no
question of further corroboration. If, on the
other hand, the Court, after examining the
dying declaration in all its aspects and
testing its veracity, has come to the
conclusion that it is not reliable by itself,
and that it suffers from an infirmity, then,
without corroboration it cannot form the
basis of a conviction. Thus, the necessity
for corroboration arises not from any
inherent weakness of a dying declaration as a
piece of evidence, as held in some of the
reported cases, but from the fact that the
court, in a given case has come to the
conclusion that that particular dying
declaration was not free from the infirmities
referred to above or from other infirmities
as may be disclosed in evidence in that
case."
In view of this latest pronouncement of this
Court-which it should be stated in fairness to the
Trial Judge was made long after he gave his
judgment-it must be held that it is neither a rule
of law nor of prudence that a dying declaration
requires to be corroborated by other evidence
before a conviction can be based thereon. The
evidence furnished by the dying declaration must
be considered by the Judge, just as the evidence
of any
118
witness, though undoubtedly some special
considerations arise in the assessment of dying
declarations which do not arise in the case of
assessing the value of a statement made in Court
by a person claiming to be witness of the
occurrence. In the first place, the Court has to
make sure as to what the statement of the dead man
actually was. This itself is often a difficult
task, specially where the statement had not been
put into writing. In the second place, the court
has to be certain about the identity of the
persons named in the dying declaration-a
difficulty which does not arise where a person
gives his depositions is Court and identifies the
person who is present in court as the person whom
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he has named. Other special considerations which
arise in assessing the value of dying declarations
have been mentioned by this Court in Khushal Rao
v. State of Bombay(1) and need not be repeated
here.
In view of this latest pronouncement of this
Court on the question of need of corroboration of
a dying declaration by other evidence, it must be
held that the Trial Judge was wrong in thinking
that he could not act on the dying declaration of
Hazura Singh unless it was corroborated by other
evidence.
In view of the several defects in the
reasoning of the Trial Judge, it is necessary for
us to examine the evidence on the record to see
whether the High Court was right in thinking that
the view taken by the learned Judge was clearly
unreasonable. The most important evidence in the
case is furnished by the dying declaration made by
Hazura Singh. The Investigating Officer, Devender
Singh has said that on July 22, 1956 he had gone
to the village Rikala on an excise raid and from
there he went to Mallan at about 2 P.M. on July
23, to investigate a case under section 392 of the
Indian Penal Code. His further evidence is that it
was on the same night at about midnight that he
started for Dhurkot from Mallan. We see
119
no reason to doubt the truth of his statement that
he did reach Dhurkot shortly after midnight of the
23rd July and that when on hearing that a murder
had taken place near the Dharamshala he came to
the Dharamshala. Hazura Singh who was lying
injured on a cot there made a statement to him, he
recorded the statement correctly. That statement
has been marked Ex. PP. The substance of this
statement is that at about 9 P.M. on the night of
the occurrence his brother Munshi Singh came and
complained about the conduct of Bant Singh,
Harbans Singh and other sons of Bhag Singh and
that shortly after this on hearing shouts of Bant
Singh and others near the Lharamshala, Munshi
Singh went towards that place followed by Hazura
Singh and his father Hira Singh and that when they
reached the place they found Harbans Singh and the
other accused persons all armed with weapons
raising uproar and when Munshi Singh reached the
place and returned the abuse Harbans Singh gave
the first blow to Munshi Singh with a Sela in his
hand hitting him on the front of the chest after
which others of the party also gave blows and when
Hazura Singh stepped forward to rescue his
brother, Harbans Singh gave him a blow with a Sela
in his hand which hit him on the abdomen and the
other accused also gave him blows. The blow given
by Major Singh hit him on his left wrist.
It is clear that this statement was made by
Hazura Singh shortly after midnight i.e., within
about four hours after the occurrence. It has to
be remembered that Hazura Singh had one single
serious injury viz., the penetrating wound on his
abdomen. We are satisfied from the evidence of the
witnesses that there was sufficient moonlight that
to enable Hazura Singh to recognize clearly the
assailant who struck the blow which caused this
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injury. He could have therefore made no mistake
about the indentity of his assailant. Nor is it
likely that he
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would within a few hours of the occurrence ascribe
this fatal blow on him to somebody other than the
real assailant. The several injuries on Hazura
Singh and the numerous injuries on Munshi Singh
justify the conclusion that there was more than
one assailant in the attacking party. Whether or
not Hazura Singh could have made a mistake about
the identity of the other assailants or could have
implicated some of them at least falsely, it will
be unreasonable to think that he would substitute
another person for the one assailant who gave him
the fatal blow. On a consideration of these
circumstances we are therefore satisfied that it
would be unreasonable to doubt or disbelieve the
truth of Hazura Singh’s statement when he said
that Harbans Singh struck him with the Sela in his
hand which hit him on the abdomen. Even if there
was no other evidence on the records as regards
the part taken by the appellant Harbans Singh this
dying declaration of Hazura Singh is so clearly
true that the only reasonable view for a judge of
facts to take is that Harbans Singh caused the
death of Hazura Singh by striking him with a Sela.
As has already been noticed Hazura Singh in
this statement mentioned Harbans Singh as the
person who gave the first blow to Munshi Singh,
the blow which caused one of the injuries on his
chest. We can think of no reason why this main
part should be ascribed falsely to Harbans Singh;
we think, considering the circumstances in which
the statement was made, that this part of Hazura
Singh’s statement is also clearly the truth and
could reasonably be accepted even without any
corroboration.
A second statement of Hazura Singh was
recorded at the Hospital where he was removed.
This statement appears to have been recorded at
about midnight of the 24th July. In this statement
also he mentioned Harbans Singh and the other
accused persons as having taken part in the
attack. It appears that when this statement was
made
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Hazura Singh’s condition was very bad. Indeed,
after he had made a part of the statement the
Magistrate recorded that he had started giving
indifferent answers and asked the Doctor to give
him the necessary treatment. After the treatment
was given the statement was concluded. We would
not attach much weight to this statement on the
24th July. But, it will be noticed that there is
nothing in this latter statement which detracts
from the truth of the earlier statement made
shortly after the occurrence to the police sub-
Inspector.
There is apart from this the testimony in
Court of Hira Singh the father of the two deceased
persons and his uncle Bhag Singh. As regards Bhag
Singh the learned Trial Judge has pointed out that
Bhag Singh’s statement was not recorded by the
sub-Inspector in the Inquest Report. While there
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is nothing in law which requires the statement of
witnesses to be recorded in the Inquest Report, it
appears to be a common practice in Punjab for
police officers to record statements of witnesses
in Inquest Reports. In the present case the Sub-
Inspector appears to have recorded a fairly full
statement of Hira Singh as also short statements
of Arjan Singh, Matha Singh and Lakal Singh in the
Inquest Report itself. It is somewhat curious
therefore that the Sub-Inspector did not record
the statement of Bhag Singh also in this report
even though it is found that Bhag Singh was named
as a witness of the occurrence in Hazura Singh’s
dying declaration itself. It is also difficult to
understand Bhag Singh’s statement that he left the
place as soon as some neighbours came up after the
occurrence and did not go back to the spot till he
was called by the police. He has offered no
explanation for this rather unusual conduct. In
view of all this, we are not prepared to say that
tho Trial Judge acted unreasonably in doubting his
testimony.
We are unable however to discover any valid
reason for doubting the presence of Hira Singh at
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the place of occurrence. It seems to us that the
main reason for the Trial Judge to doubt the truth
of Hira Singh’s evidence was what he considered
the great delay in lodging the formal First
Information Report. That reason, as we have
already pointed out, does not exist.
On an examination, it seems to us quite
likely that Hira Singh also accompanied Hazura
Singh when the latter followed Munshi Singh
towards the Dharmashala and it also seems to us
improbable that he would give the main part in the
assault falsely to Harbans Singh if somebody else
was responsible for the blow which caused Hazura
Singh’s death. In our view the learned Trial Judge
acted unreasonably in doubting the truth of Hira
Singh’s evidence against Harbans Singh.
On a consideration of the evidence we are
therefore satisfied that the conclusion reached by
the High Court that the view taken by the Trial
Court as regards Harbans Singh’s guilt Was clearly
unreasonable is correct and that the only
reasonable view on the evidence can be that
Harbans Singh committed murder by causing the
death of Hazura Singh and also committed murder by
causing the death of Munshi Singh.
The position is however different as regards
Major Singh. As has already been pointed out the
High Court is wrong in thinking that the evidence
Shows that Major Singh gave any of the fatal
blows. Hazura Singh in his first dying declaration
mentioned Major Singh as having given a below on
him on his left wrist. Apart from Bhag Singh only
Hira Singh has ascribed any specific part to Major
Singh in addition to saying generally that he took
part in the attack. The evidence therefore leaves
scope for thinking that Hazura Singh has made a
mistake about Major Singh or has wrongly
implicated him. We are not therefore prepared to
say that the view taken by the Trial Judge as
regards Major Singh is clearly unreasonable.
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We therefore allow the appeal of Major Singh
set aside the order of conviction and sentence
made against him by the High Court and restore the
order of acquittal made by the Trial Court. The
appeal of Harbans Singh is dismissed. Major Singh
should be set at liberty at once.
Appeal of appellant 2 allowed.
Appeal of appellant 1 dismissed.
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