Full Judgment Text
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CASE NO.:
Appeal (crl.) 323 of 2003
PETITIONER:
Narain Singh and Anr.
RESPONDENT:
State of Haryana
DATE OF JUDGMENT: 05/02/2004
BENCH:
DORAISWAMY RAJU & ARIJIT PASAYAT
JUDGMENT:
J U D G M E N T
ARIJIT PASAYAT,J.
Appellants call in question legality of the judgment
rendered by a Division Bench of the Punjab and Haryana High
Court whereby the conviction made and sentence imposed by
the Trial Court was affirmed so far as the appellants are
concerned. Four persons faced trial for allegedly causing
homicidal death of one Kaushal Singh (hereinafter referred
to as ’the deceased’) after abducting him. All the four
accused persons faced trial for the offences punishable
under Sections 364, 302, 323 read with Section 34 of the
Indian Penal Code, 1860 (for short ’the IPC’). They were
found guilty of the charged offences. Sentences of life
imprisonment, rigorous imprisonment for 10 years and two
months respectively were imposed for three offences, and
fine with default stipulation in case of non-payment of
fine. The High Court in appeal held accused Mahabir Singh
and Rakesh (A-2 and A-4 respectively) to be not guilty and
directed their acquittal, but maintained the conviction and
sentence so far as appellants are concerned.
The prosecution version as unfolded during trial is
essentially as follows:
Deceased and appellant no.1 (Narain Singh) were
brothers. Appellant Hamir Singh is the son of appellant
Narain. There was series of litigations between them in
respect of some properties. On 4.5.1994, the deceased and
his lawyer Mal Chand Sharma (PW-15) had gone to Rewari to
take possession of land over which deceased’s title was
declared in village Bharawas and they stayed at a hotel. At
about 9.30 a.m. they went to the Tehsil office, by a hired
Jeep. Tehsildar asked them to come at 1.00 p.m. While the
informant and the deceased were going on foot towards Jeep
which was parked across road at about 10.30 a.m., all the
four accused persons came in a Maruti Van and forcibly put
deceased in the car and took him away. Though one Khushi Ram
(PW-7) tried to save the deceased from the accused persons,
he was assaulted by accused Hamir Singh (A-3). The accused
persons took away the deceased. PW-15 immediately reported
the matter to police. On the basis of his report, first
information report was registered at about 10.50 a.m. and
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the investigation was undertaken. Police officials went in
search of the deceased who was found in old house in village
Bharawas. The statement of deceased was recorded under
Section 161 of the Code of Criminal Procedure, 1973 (in
short ’the Cr.P.C.’) which was treated subsequently to be
the dying declaration. He was brought to Rewari for
treatment. Dr. Vinod Kumar (PW-12) examined him at 12.00
noon. The deceased was taken to the Jeypore hospital but on
the way he breathed his last in the afternoon. On
examination, PW-12 had found 21 injuries on the body of the
deceased. Subsequently when the deceased breathed his last
post-mortem was conducted by PW-14 on 15.5.1995 and the
injuries noticed by him were more or less the same as were
noticed by PW-12. During the course of investigation,
recoveries were made of the lathi and the Khukri which were
allegedly used by the accused persons for assaulting the
deceased. On completion of investigation charge sheet was
placed.
Twenty witnesses were examined to further the
prosecution version and PWs 7 and 8 were stated to be
eyewitnesses. Apart from PW-15, PW-8 was driver of the Jeep
in which the deceased and PW-15 had travelled. PW-7 was
claimed to be the eyewitness who tried to save the deceased
when he was forcibly taken in the car and sustained injuries
and PW-15 his advocate gave the first report to the police.
During trial none of the alleged eyewitnesses supported the
prosecution version. Therefore, prosecution relied on the
dying declaration purported to have been made by the
deceased. The Trial Court found that the dying declaration
was acceptable to fasten the guilt of the accused and,
therefore, convicted and sentenced them as indicated above.
All the four accused persons preferred appeal before the
High Court which came to hold that the dying declaration was
not sufficient to hold the accused Mahabir and Rakesh (A-2
and A-4 respectively) to be guilty. However, since the
present appellant had a motive to murder the deceased and
the dying declaration was acceptable, so far as they are
concerned. Accordingly while acquitting accused Mahabir and
Rakesh (A-2 and A-4 respectively), present appellants were
convicted.
In support of the appeal, learned counsel for the
appellant submitted that this is a case where the informant
who was an advocate did not support the prosecution version.
According to him, the assaults were made by some persons on
the deceased near the Tehsil office and not at the place
claimed by the prosecution. PW-7 who is supposed to have
sustained injuries while trying to save the deceased also
did not support the prosecution version. Similar was the
position of driver PW-8. It was submitted that the medical
evidence clearly rules out the manner of assault as claimed
by the prosecution. The logic applied for disbelieving the
involvement of Mahabir and Rakesh is equally applicable so
far as the appellants are concerned. The so-called dying
declaration itself is not believable.
Learned counsel for the State, on the other hand,
submitted that merely because the dying declaration was
disbelieved in part, that cannot be ground to acquit present
appellants. Undisputedly, the deceased had sustained
injuries and merely because the hypothetical answers given
by the doctor (PW-19) show that the injuries were not
possible by the weapon claimed to have been used by the
appellants, that cannot be a ground to discard the evidence.
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The appellants had the motive to kill the deceased and that
is the distinctive feature between the acquitted A-2 and A-4
and the appellants.
Learned counsel for the informant who has filed/applied
for impleadment adopted stand of the State.
Though in law there is no bar in acting on a part of
the dying declaration, it has to pass the test of
reliability. Section 32(1) of the Indian Evidence Act, 1872
(in short ’the Evidence Act’) is an exception to the general
rule that hearsay evidence is not admissible evidence and
unless evidence is tested by cross-examination it is not
creditworthy. A dying declaration made by a person on the
verge of his death has a special sanctity as at that solemn
moment a person is most unlikely to make any untrue
statement. The shadow of impending death is by itself
guarantee of the truth of the statement of the deceased
regarding circumstances leading to his death. But at the
same time the dying declaration like any other evidence has
to be tested on the touchstone of credibility to be
acceptable. It is more so, as the accused does not get an
opportunity of questioning veracity of the statement by
cross-examination. The dying declaration if found reliable
can form the base of conviction.
It is, however, seen that there are some circumstances
which assume importance in view of the fact that the
informant (PW-15) who was advocate of the deceased has
departed from the statement supposed to have given during
investigation, and in the first information report. Similar
is the position of the witness who is supposed to have
received injuries. In the dying declaration, specific roles
were attributed to all the accused persons. The High Court
found the roles attributed to the accused Rakesh to be
unacceptable, as he was not found present when the police
arrived at the house from where the deceased was supposedly
recovered. Similar is the situation so far as accused-
appellant Hamir is concerned. In the dying declaration the
deceased had said that it was Mahabir and appellant Narain
who were trying to kill him. The High Court found that
since Mahabir would not have benefited from the death; he
cannot be convicted. The reasoning is fallacious. A definite
role was attributed to Mahabir and it was stated that he
wanted to kill the deceased. On mere surmise that there was
no motive, a different approach was adopted. Added to this,
there are other suspicious circumstances. Firstly, the
incident is supposed to have taken place at 10.30 a.m. and
the report was lodged with the police at 10.50 a.m. The
distance of police station from the house from where the
deceased was allegedly recovered, is about 8 kms. It would
have certainly taken some time to reach that place.
According to the prosecution, the statements of two
witnesses were immediately recorded at the spot by the
police. This is unusual because the first effort should
have been in the normal course to send the deceased to the
nearest hospital for treatment. Doctor (PW-12) examined the
deceased at about 12.00 noon after the deceased was brought
there after covering at least ten kilometers. The dying
declaration is supposed to have been taken after recording
the evidence of the witnesses. It is more baffling, that
the investigating officer did not accompany the deceased to
the hospital and claimed to have sent him along with the
constable who was not examined. The High Court has
erroneously observed that the first effort of the police was
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to save the life of the deceased and, therefore, the
statements were not recorded immediately. This is contrary
to what the investigating officer (PW-16) himself stated.
Strangely, the original statement stated to be dying
declaration has not been brought on record and what was
purported to be exhibited document was a carbon copy. Doctor
(PW-19) in his evidence also stated that the injuries found
on the deceased were of such nature that he would not be in
a position to give any statement without getting medical aid
from a specialist and that too after two to three hours.
Doctors (PWs 12 and 19) have also stated that the deceased
would not have been in a position to give a detailed
statement like the one produced by the prosecution as a
dying declaration. The time period between the recording of
F.I.R., examination of the witnesses and recording statement
of deceased, that too after traveling 8 kms. and again
bringing deceased to hospital to be examined by PW-12 has to
much more than one hour and ten minutes as stated by the
prosecution. The alleged dying declaration runs to several
pages being a very detailed and elaborate one, and the
recording of which itself would take considerable time.
Significantly, in his cross-examination (PW-16) says
that he does not remember recording the statement of the
deceased. Doctor (PW-19) has also stated as to the injuries
found on the body of the deceased by PW-12 and as indicated
in the injury report and in the post-mortem report were not
such as could be possible by the Khukri which was shown to
him in Court and purported to have been recovered on the
basis of information given by accused Hamir. Adding to that,
the number of the car which was supposed to have been used
for taking away the deceased from the road near the Tehsil
office was differently described during trial. In the
circumstances of the case, merely because the accused and
the deceased were claimed to be inimical towards each other,
that would not be sufficient to adopt a different method of
analyzing or appreciating the evidence which was common for
all the four persons without any distinct or reasonably
distinguishable features. The Trial Court and the High Court
having accepted this position, on the hypothetical
distinction of a supposed motive could not have adopted
different yardstick. When the so-called dying declaration
was itself not proved, as noted above, the question of
acting on it did not arise. There is no evidence to
establish kidnapping and/or murder to attract Section 364
IPC and Section 302 IPC. PW-7 allegedly suffered injuries at
the hands of the appellants for which they were convicted in
terms of Section 323/34 IPC. PW-7 himself did not support
prosecution version in this regard.
Judged in the aforesaid background, the only inevitable
conclusion permissible on the nebulous and suspect nature of
the evidence let in would be that the prosecution has not
established accusations so far as appellants are concerned.
Their conviction is set aside and the appeal is allowed. The
prayer for impleadment is disposed of. Accused-appellant
Hamir be set at liberty forthwith unless required in any
other case. The bail bonds of accused Narain Singh who is on
bail shall stand cancelled.
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