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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.