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PETITIONER: STATE OF RAJASTHAN

       Vs.

RESPONDENT: BHUP RAM

DATE OF JUDGMENT:       13/01/1997

BENCH: A.S. ANAND, K.T THOMAS

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T Thomas J.      Respondent’s  wife   (Mst  Chawli)  was  shot  dead  on 20.7.1985 while  she was  sleeping in  her house. Respondent Bhup Singh  was alleged  to be  the  killer.  Police,  after investigation, upheld  the allegation  and  challenged  him. Though the  Sessions Court convicted him of murder, the High Court of Rajasthan acquitted him. This appeal has been filed by special  leave by  the State of Rajasthan in challenge of the aforesaid acquittal.      Prosecution case  in a  very short  story:  Chawli  was first married to respondent’s brother who died after a brief marital life.  Thereafter, Chawli  was given  in marriage to the respondent,  but the new alliance was marred by frequent skirmishes and  bickerings between  the spouses.  Chawli was residing in  the house  of  her  parents.  The  estrangement between the  couple reached  a point  of no  return and  the respondent wished to get rid of her. So he went to her house on the  night of  occurrence and  shot at her with a pistol. When he  tried to use the firearm again, Chawli’s father who heard the  sound of  the first  shot rushed  towards him and caught him but the killer escaped with the pistol.      Chawli told everybody present in the house that she was shot at  by her  husband Bhup  Singh. She  was taken  to the hospital and  the doctor  who attended  on  her  thought  it necessary to  inform a  judicial magistrate  that her  dying declaration could  be recorded.  Pursuant to it PW5- Bhagwan Singh who  was judicial  magistrate of  first class,  Alwar, went to  the hospital and recorded her dying declaration. At 2.30 P.M.  she breathed her last. Police registered the case on the  sis of  a statement  recorded  from  Bhajan  Lal,  a neighbour.  On   22.7.1985,  respondent   was  arrested   in connection with another criminal case and on the strength of the information  elicited  from  him  the  police  recovered Article 4 - pistol.      The bullet recovered from the body of Chawli as well as Article 4 - pistol were sent to the ballistic expert. In his report, the  said expert  affirmed the  possibility  of  the bullet having been fired from the said pistol.      During trial  chawli’s father  (Ram Ratan  -  PW1)  her

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sister (Rameshwari  -PW2) and  Bhajan Lal - PW3 who gave the first information  statement have  been declared  hostile as they all  supported the  respondent. His  version  was  that somebody else  had shot  her dead and respondent was falsely implicated. Chawli’s  mother Smt. Mangli was examined by the respondent as  defence witness  No.2 to  support  his  plea. However, the  trial court,  after rejecting  the evidence of PW1, PW2  and PW3  and also DW2, placed full reliance on the dying declaration  proved by  PW -  judicial magistrate  and also on the evidence pertaining to the recovery of Article 4 - pistol  and convicted  the respondent and sentenced him to imprisonment for life.      The Division  Bench of  the High  Court  of  Rajasthan, which heard  the appeal filed by the respondent, declined to act on  the dying  declaration. The High Court held that the evidence relating  to recovery  of pistol  was  outside  the scope of  Section 27  of the  Evidence Act  inasmuch as  the recovery was  effected during investigation of another case. As nothing else remained for the prosecution to embark upon, the Division Bench acquitted the respondent.      If the  dying  declaration  recorded  by  PW5  judicial magistrate is reliable, there is no legal hurdle in basing a conviction on it even without any supporting material.      The  statement   in  Ex.   P-8  dying   declaration  is unmistakbly clear  that her husband Bhup Singh shot her with a pistol.  But learned  Judges of the High Court highlighted two features  in Ex.  P-8 dying  declaration as infirmities, vitiating its evidentiary value. First is, deceased answered the questions put to her by the magistrate in Bagri language whereas PW5  recorded it  in  Hindi  in  a  narrative  from. According to  the Division  Bench the magistrate should have recorded the  dying declaration in the form of questions and answers. Second  is, PW5 magistrate had not ascertained from the doctor  whether deceased  was in  a position  to give  a conscious dying declaration.      Dr. Naresh  Kumar (PW7) who attended the deceased first when she  was brought to the hospital with bullet injury has given evidence  that he sent a requisition to the magistrate as he  felt that  a dying  declaration from  Chawli could be record. PW5  0  judicial  magistrate  has  deposed  that  he recorded in Hindi what the deceased told him. The doctor and the  judicial  magistrate  have  said  in  one  accord  that deceased was  conscious when  the statement was made. In the above situation  there was  no justification  for  the  High Court to  assume that  the  deceased  would  not  have  been conscious when  she  gave  the  statement  to  the  judicial magistrate.  Similarly,  it  was  a  wrong  assumption  that deceased would  not have  spoken in  Hindi because  PW5  has stated in  his evidence  positively that  deceased gave  her answers in  Hindi. Even  otherwise, it  is too much to think that judicial  magistrate would  have  recorded  differently from what the deceased had said to him.      Assuming that  the deceased  gave her  statement in her own language, the dying declaration would not vitiate merely because it  was recorded in a different language. We hear in mind that  it is  not unusual that courts record evidence in the language  of the  court even  when witnesses  depose  in their own  language.  Judicial  officers  are  used  to  the practice of  translating the statements from the language of the parties  to the  language of the court. Such translation process would  not  set  either  the  admissibility  of  the statement or its reliability, unless there are other reasons to doubt the truth of it.      Nor would  dying declaration  go bad merely because the magistrate did  not record  it in  the form of questions and

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answers. It  is axiomatic that what matters is the substance and not  the form. Questions put to the dying man would have been formal  and  hence  the  answers  given  are  material. Criminal courts  may evince interest in knowing the contents of what  the dying  person said and the questions put to him are not  very important normally. That part of the statement which relates  to the circumstances of the transaction which resulted in  his death  gets the  sanction of admissibility. Here it  is improper  to throw such statement overboard on a pediantic premise  that it  was not  recorded in the form of questions and  answers. (Vide  Ganpat Mahadeo Mani vs. State of Maharashtra (1993 Supp. (2) SCC 242).      We find  Ext. P-8  dying declaration  as  a  clear  and unambiguous statement.  the infirmities  pointed out  by the High Court are too tenuous to knock off such a very valuable and sturdy item of substantive evidence.      The  High  Court  sidestepped  the  evidence  regarding recovery of  pistol and  the statement  of the accused which led to  it on  the mere ground that the pistol was recovered in  connection  with  another  case.  That  other  case  was registered on  9.7.1985 as  Crime 116  of 1985  against  the respondent and  he was  arrested on  22.7.1985 in connection therewith. PW12  - SHO  of Raising  Nagar Police Station has deposed in  this case that when respondent was questioned he told him that the pistol was wrapped in a bag and was buried near his  house. When  respondent was taken to that place he disinterred Article  4 -  pistol and  handed it  over to the police.      It  is   clear  from   the  above  evidence  that  PW12 discovered the  fact that  respondent had buried Article 4 - pistol. His  statement to  the police that he had buried the pistol  in  the  ground  near  his  house,  therefore,  gets extricated from the ban contained in Sections 25 & 26 of the Evidence Act  as it  became admissible under Section 17. The conditions prescribed in Section 27 for unwrapping the cover of ban  against admissibility of statement of the accused to the police  have been satisfied. They are: (1) A fact should have been  discovered in consequence of information received from the  accused; (2)  He should  have been  accused of  an offence; (3)  He should have been in the custody of a police officer when  he supplied  the information;  (4) The fact so discovered should  have been  deposed to  by the witness. If those conditions are satisfied, that part of the information given by  the accused  which  led  to  such  discovery  gets denuded  of  the  wrapper  of  prohibition  and  it  becomes admissible  in   evidence.  It  is  immaterial  whether  the information was  supplied in  connection with the same crime or a different crime. Here the fact discovered by the police is not  Article 4  - pistol, but that the accused had buried the said  pistol and he knew where it was buried. Of course, discovery of  said fact became complete only when the pistol was recovered by the police.      In this  context, we  think it appropriate to quote the celebrated words  of Sir  John Beaumont  in Pulukuri Kottaya vs. Emperor: (AIR 1947 PC 67):      "The their  Lordships’ view  it  is      fallacious  to   treat  the   ’fact      discovered’ within  the section  as      equivalent to  the object produced;      the fact  discovered  embraces  the      place  from  which  the  object  is      produced and  the knowledge  of the      accused  as   to   this   and   the      information   given   must   relate      distinctly   to    this    fact....

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    Information supplied by a person in      custody  that  "I  will  produce  a      knife concealed  in the  roof of my      house"  does   not  lead   to   the      discovery of  a knife;  Knives were      discovered many years ago. It leads      to the discovery of the fact that a      knife is  concealed in the house of      the informant to his knowledge, and      if the knife is proved to have been      used  in   the  commission  of  the      offence,  the  fact  discovered  is      very relevant."      (emphasis supplied)      The ratio  therein has  become locus classicus and even the lapse  of half a century after its pronouncement has not eroded its  forensic worth. We may point out that this court has approvingly  referred to  the said  ratio in a number of decisions, [e.g.  Jaffer Husain  Dastagir vs.  The State  of Maharashtra, AIR  1970 SC  1934; K.  Chinnaswamy  Reddy  vs. State  of   Andhra  Pradesh   &  anr.,  AIR  1962  SC  1788; Earabhadrappa alias Krishnappa vs. State of Karnataka, 1983, (2) SCC  330; Ranbir  Yadev vs. State of Bihar, 1995 (4) SCC 392; Shamshul Kanwar vs. State of U.P., 1995 (4) SSC 430)      Ext. P-14  is the report dated 8.4.86, submitted by Dr. P.S. Manocha,  (Assistant Director of State Forensic Science Laborarory, Rajasthan).  The said  report which  is evidence under Section  293 of  the code of Criminal Procedure proves that the  bullet and  pistol (involved  in this  case)  were microscopically  examined   and  the  expert  expressed  the opinion that  the bullet could have been fired from the said pistol.  This  is  yet  another  circumstance  which  though overlocked  by  the  High  Court,  we  bear  in  mind  while considering the  legal implication  of the evidence relating to the recovery of Article 4 - pistol.      For the  aforesaid reasons we are of the firm view that the High  Court  was  clearly  wrong  in  marginalising  the evidence of PW 12 that respondent told him about concealment of Article  4 -  pistol which  is clearly  admissible  under section 27 of the Evidence Act.      As  the   High  Court  committed    in  discarding  the aforesaid two  very  valuable  items  of  evidence,  we  are constrained to  interfere with  the order  of acquittal. We, therefore, upset  the  impugned  judgment  and  restore  the conviction and  sentence passed  on the  respondent  by  the trial court.  We direct  the Sessions  Judge, Alwar, to take immediate steps to put the respondent in jail for undergoing the sentence.