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PETITIONER: BAKHSHISH SINGH

       Vs.

RESPONDENT: THE STATE OF PUNJAB

DATE OF JUDGMENT: 17/09/1957

BENCH: KAPUR, J.L. BENCH: KAPUR, J.L. SINHA, BHUVNESHWAR P. MENON, P. GOVINDA

CITATION:  1957 AIR  904            1958 SCR  409

ACT:        Criminal law-Dying declaration-Scope of -Recording statement        in Urdu, while deceased spoke in Punjabi-Reliability Discre-        tion of the prosecutor in calling witnesses-Indian  Evidence        Act, 1872 (1 Of 1872), S. 22 (1).

HEADNOTE:        The  appellant was convicted for murder on the  basis  inter        alia of the dying declaration of the deceased.  The Sessions        Court  rejected  it on the ground that though  the  deceased        gave  the narrative of events in Punjabi the  statement  was        taken down in Urdu.        Held,  that in view of the fact that in the Punjab the  lan-        guage  used in the subordinate courts and by the Police  for        recording statements has always been Urdu, the recording  of        dying  declarations  in Urdu cannot be a ground  for  saying        that  the  statement does not correctly reproduce  what  was        stated by the declarant.  Accordingly, the dying declaration        should not have been rejected.        The  dying declaration in the instant case was a long  docu-        ment  containing a narrative of a large number of  incidents        which happened before the actual assault, which was more  in        the nature of the First Information Report :-        Held,  that the object of a dying declaration being  to  get        from the person making the statement the cause of his  death        or  the circumstances of the transaction which  resulted  in        his  death, persons who record such declaration  should  not        include  in  that statement details which are  not  relevant        under S. 32(1) of the Indian Evidence Act, 1872, unless they        are necessary to make the statement coherent or complete.        It is desirable that rules should be framed for the guidance        of persons recording dying declarations, and included in the        Rules and Orders made by the High Court.        Where  a person who was stated in the dying  declaration  to        have witnessed the occurrence was not examined by the prose-        cution at the trial on the ground that he had been won  over        and it was contended that this was a serious omission and an        adverse inference should be drawn:-        Held, that there was no obligation on the part of the prose-        cution to examine this witness and that the court would  not        interfere with the discretion of the prosecutor,

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      410        Abdul  Mohammad  v. Attorney General  of  Palestine,  A.I.R.        1945 P.   C.  42, Stephen Servaraine v. The King, A.  1.  R.        1936  P. C. 298,and Habeeb Mohammed v. The State of  Hydera-        bad, 1954 S.C.R. 475, referred to.

JUDGMENT:        CRIMINAL APPFLLATE JURISDICTION: Criminal Appeal No. 205  of        1956.        Appeal  by special leave from the judgment and  order  dated        the 30th November, 1955, of the Punjab High Court in  Crimi-        nal Appeal No. 282 of 1955, arising out of the judgment  and        order  dated  the 15th February, 1955, of the Court  of  the        Additional  Sessions Judge at Amritsar in Sessions Case  No.        64 of Trial No. 6 of 1955.        R. L. Anand, and S. N. Anand, for the appellant.        Kartar  Singh  Chawla, Assistant Advocate-General,  for  the        State of Punjab and T. M. Sen, for the respondent.        1957.   September 17.  The following Judgment of  the  Court        was delivered by        KAPUR J.-This is an appeal against the judgment and order of        the Punjab High Court reversing an order of acquittal by the        Additional Sessions Judge, Amritsar.  The appellant Bakshish        Singh  and  his brother Gurbakshi Singh were  tried  for  an        offence  under ss. 302/34 of the Indian Penal Code but  were        acquitted.   Against this judgment the State took an  appeal        to  the  High Court.  As Gurbaksh Singh was said to  be  ab-        sconding  the appeal against the appellant alone  was  heard        and decided by the High Court.        On  August 1, 1954, sometime between 7 and 8 p.m  Bachhinder        Singh son of Bhagwan Singh of village Kairon was shot in the        lane  in  front  of their house and as a  result  of  bullet        injuries  be died the next day in the hospital at  Amritsar.        He  was at the time of shooting accompanied by  his  younger        brother Narvel Singh, a boy of 13, and after getting injured        Bachhinder  Singh  and his brother returned  to  the  house.        Bhagwan Singh states that he was informed of the identity of        the  assailants  by  Bachhinder Singh who was,  at  his  own        request,  carried from the house to the hospital  at  Kairon        but as the injuries were serious        411        the doctor at Kairon rendered " first aid " and advised  the        father  to  take  his son to V.  J.  Hospital  at  Amritsar.        Bhagwan  Singh  then took Bachhinder Singh  to  the  Railway        Station  but before the arrival of the train he went to  the        Police  Post at Kairon which is at a distance of  about  100        yds. from the Railway Station in order to make a report.  As        the Assistant Sub Inspector was away at Sarhali, he returned        to  the  Railway Station and took his son  to  the  Amritsar        hospital  by the train leaving Kairon at 9-47  p.m.  Bhagwan        Singh  was  accompanied  at that time by  his  younger  son,        Narvel Singh, P.W. 12, and by Shamir Singh, Inder Singh  and        Narinjan  Singh.  Soon after their arrival at  the  Amritsar        hospital  Bachhinder  Singh was examined by Dr.  Kanwal  Ki-        shore, P.W. 2, at 11-45 p.m. and finding the injury to be of        a  serious nature the doctor sent information to the  Police        as a result of which Head Constable Maya Ram Sharma, P.W. 4,        arrived at the hospital sometime after midnight and, in  the        presence  of  Dr. Mahavir Sud, P.W. 17, recorded  the  dying        declaration of Bachhinder Singh, Exhibit P-H, after  getting        a certificate from the doctor that the injured person was in        a  fit  state to make a statement.  This  statement  is  the        basis of the First Information Report, Exhibit P-H. 1, which

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      is  a  copy  of Exhibit P-H.  This report  was  recorded  on        August  2,  1954,  at 7-50 a.m. at  Police  Station  Sarhali        which,  we  were  told, is about 20 miles or  so  away  from        Amritsar.   In  the  early hours of the morning  Dr.  K.  C.        Saronwala P.W. I performed an operation on Bachhinder  Singh        and  extracted a bullet from the left abdominal  wall  which        was handed over to the Police.  But Bachhinder Singh died at        1-35 p.m. on August 2, 1954.  An inquest report Exhibit  P-K        was  prepared at 2-30 p.m. by Head Constable Maya Ram,  P.W.        4.        The case for the prosecution rests on the dying  declaration        of  Bachhinder  Singh,  Ex.  P-H, and on  the  statement  of        Narvel Singh, P.W. 12, who was an eye witness to the  occur-        rence  and  on  the statement made by the  deceased  to  his        father as to his assailant as soon as he (Bachhinder  Singh)        was brought to the house after receiving the injuries.   The        prosecution        53        412        also  relied  on an extra-judicial confession made  to  Teja        Singh, P.W. 13, but both the courts below have rejected this        piece  of evidence and it is unnecessary to consider it  any        further.        The  learned  Additional Sessions Judge rejected  the  dying        declaration made by Bachhinder Singh on two grounds; that at        the time of recording the dying declaration not only Bhagwan        Singh, the father, and Narvel Singh, the brother of Bachhin-        der Singh, were             "    present but the police officer had  actually  made        enquiries from them about the occurrence before he proceeded        to  record  the dying declaration of  Bachhinder  Singh  de-        ceased.   Head Constable Maya Ram, P.W. 4, has  admitted  in        cross-examination  that Bachhinder Singh gave his  statement        in  Punjabi but the form and the detailed account  given  in        the  statement, Exhibit P-H, would show that it was not  the        product  of Bachhinder Singh’s creation alone but it  was  a        touched up’ declaration of the deceased.  It is laid down in        1954  Lahore 805 that a dying declaration which records  the        very words of the dying man unassisted by interested persons        is most valuable evidence but the value of a dying  declara-        tion  altogether disappears when parts of it  had  obviously        been  supplied  to  the dead man by  other  persons  whether        interested  or  Police Officer.  As the  dying  declaration,        Exhibit P-H, in this case cannot be regarded as the creation        of Bachhinder Singh deceased, no reliance whatsoever can  be        placed on it and it could not form the basis for the convic-        tion of any of the accused."        The learned Judges of the High Court did not agree with this        criticism.   Birhan Narain J., who delivered the main  judg-        ment, said:        " This criticism appears to me to be without any  substance.        The  statement was recorded by Head Constable Maya  Ram  who        was posted in Amritsar and was not posted in village  Kairon        and  therefore had no knowledge of the parties nor  had  any        interest  in  them Thus there was no reason  why  he  should        record the statement falsely or irregularly.  Throughout the        time that the statement was recorded Dr. Mahavir Sud of  the        Amritsar hospital was present.  He has appeared                                    413        as  P.W.  17 in the present case.  He is a  respectable  and        disinterested  person and he ’is positive in  his  testimony        before the court that the statement was made by the deceased        voluntarily and that there was nobody present to prompt him.        He has further stated that he did not allow any person to be        present  at  that time.  There is absolutely no  reason  for

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      doubting the correctness of this statement.................         ...........................................................        Coming  to  the other objection of the  Additional  Sessions        Judge,  it is difficult to understand the  significance  at-        tached by him to the fact that the deceased spoke in Punjabi        while  the statement was recorded by Maya Ram in Urdu.   The        court  language  is Urdu and the  Police  generally  records        statements  in  Urdu even if they are made  in  the  Punjabi        language.  I have no doubt in my mind that the dying  decla-        ration  recorded in the present case is a voluntary one  and        was made without any prompting from anybody.        The  High  Court in our opinion  correctly  appreciated  the        evidence and was right in accepting the authenticity of  the        dying declaration.  The statement of Maya Ram, P. W. 4, does        not  support the criticism of the learned trial judge.   And        he had read more in the statement of Narvel Singh, P. W. 12,        made  before the Committing Magistrate, than it really  con-        tains.   It is unfortunate that the criticism has  proceeded        on  the English record of the Magistrate’s Court which  does        not  appear  to  have been correctly recorded  as  the  Urdu        record is in many parts materially different.  The fact that        the statement contained in Exhibit P-H was made without  any        prompting  is  also supported by the testimony of  a  wholly        disinterested witness, Dr. Mahavir Sud, whose statement made        before  the  Committing Magistrate was  transferred  at  the        trial stage under s. 33 of the Evidence Act.  He stated:        " The statement of Bachhinder Singh was voluntary and  there        was  none  to prompt it.  I did not allow any  attendant  on        Bachhinder Singh then.  "        In  cross-examination he made it clearer that there  was  no        relation or friend of the deceased person when        414        the  statement  was recorded.  Some criticism  was  levelled        against  the  dying declaration based on a sentence  in  the        statement of Dr. Mahavir Sud P. W. 17 that the Head  Consta-        ble  put  certain questions to clarify the  ambiguities  and        these questions and answers do not find place in Exhibit  P-        H,  the record of the dying declaration.  No  such  question        was  put to the Head Constable who recorded  the  statement.        The  Head  Constable stated that the dying  declaration  was        written  at the declarant’s own dictation without any  addi-        tion  or omission.  In/ cross-examination nothing was  asked        as to any questions having been put to the deceased by  this        witness.  Therein the witness also stated :        "  It is not correct that I first made the inquiry from  the        father of the deceased and other persons before I  proceeded        to record his statement ".        He  also made it clear that before he allowed the  statement        to be made he satisfied himself that Bachhinder Singh was in        a  fit state to make the statement.  We are of  the  opinion        that the High Court rightly held the dying declaration to be        a  statement  made by the deceased unaided  by  any  outside        agency and without prompting by anybody.  The declarant  was        free from any outside influence in making his statement.        Another  reason given by the Additional Sessions  Judge  for        rejecting  the dying declaration was that the deceased  gave        the  narrative  of events in Punjabi and the  statement  was        taken  down  in urdu.  In the Punjab that is how  the  dying        declarations are taken down and that has been so ever  since        the courts were established and judicial authority has never        held  that to be an infirmity in dying  declarations  making        them  inefficacious.  As a matter of fact in the Punjab  the        language used in the subordinate courts and that employed by        the Police for recording of statements has always been  Urdu        and the recording of the dying declaration in Urdu cannot be

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      a  ground for saying that the statement does  not  correctly        reproduce  what was stated by the declarant.  This,  in  our        opinion, was a wholly in. adequate reason for-rejecting  the        dying declaration.        415        Exhibit  P-H, the dying declaration, is a long document  and        is a narrative of a large number of incidents which happened        before  the actual assault.  Such long statements which  are        more in the nature of First Information Reports than recital        of  the cause of death or circumstances resulting in it  are        likely to give the impression of their being not genuine  or        not  having  been made unaided and without  prompting.   The        dying  declaration is the statement made by a person  as  to        the cause of his death or as to any of the circumstances  of        the transaction which resulted in his death and such details        which fall outside the ambit of this are not strictly within        the  permissible limits laid down by s. 32 (1) of  the  Evi-        dence  Act and unless absolutely necessary to make a  state-        ment  coherent  or complete should not be  included  in  the        statement.   We are informed that, in the Punjab,  no  rules        have been made in regard to the recording of dying  declara-        tions  which,  we are told, has been done in  several  other        States.   We think it would be desirable if some such  rules        were framed and included in the Rules and Orders made by the        High  Court  for  the guidance of  persons  recording  dying        declarations.   Of  course  the authenticity  of  the  dying        declaration has to be judged in accordance with the  circum-        stances of each case depending upon many factors which would        vary  with  each case but those  recording  such  statements        would  be  well advised to keep in view the  fact  that  the        object  of  a dying declaration is to get  from  the  person        making the statement the cause of death or the circumstances        of the transaction which resulted in death.        The  admissibility of the statement of Dr. Mahavir  Sud  was        assailed by counsel for the appellant on the ground that the        conditions  laid  down for the admissibility  of  statements        under  s. 33 had not been complied with and several  decided        cases were relied upon.  This question does not seem to have        been  raised at any previous stage of the proceedings,  nei-        ther  before  the Additional Sessions Judge nor  before  the        High  Court,  and this criticism seems to  be  without  much        substance.   At  the  trial the  prosecution  produced  Foot        Constable  Kartar Singh, P. W. 14, who deposed that he  took        the        416        summons for this witness to the hospital where he was previ-        ously employed and the Superintendent of the hospital made a        report that he was no longer in service and it was not known        where  he  was.  This witness also stated that  "  from  the        inquiries made by me, I learnt that his whereabouts are  not        known.  " In cross-examination he again stated that he  made        inquiries but he could not discover the whereabouts of  this        witness.  After the statement of Kartar Singh, P. W. 14, the        Public  Prosecutor made a statement that Dr.  Mahavir  Sud’s        whereabouts were not known’ and prayed that his statement be        transferred  under s. 33 of the Evidence Act on  the  ground        that there was no likelihood of the witness being  available        without  unreasonable delay and expense and no objection  is        shown  to  have  been taken by the defence  at  that  stage.        Thereupon  the learned trial judge ordered the statement  to        be  transferred under s. 33 of the Evidence Act.   He  might        have been well advised to give fuller reasons for making the        order transferring the statement.  It appears to us that the        learned  judge transferred it on the ground of  unreasonable        delay  and expense and we do not find any infirmity in  this

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      order of transfer.        Counsel  then contended that for the efficacy of  the  dying        declaration,  corroboration was essential.  In  the  present        case  there is the statement of Narvel Singh, P. W. 12,  who        is an eye witness to the occurrence which is relied upon  by        the  prosecution as corroboration of the dying  declaration.        The learned Additional Sessions Judge rejected the testimony        of this witness on the ground that there were  discrepancies        between his statement made in the commitment proceedings and        at  the trial.  We have already pointed out that the  cross-        examination of this witness was based on somewhat inaccurate        English record of his statement in the Committing Court, the        statement in Urdu record puts a different complexion on  it.        But even if this were not so the High Court, in our opinion,        has  taken a correct view of the testimony of  this  witness        and  has  accepted it for cogent  reasons.   Besides  Narvel        Singh  there is the statement of Bhagwan Singh, the  father,        who stated that as soon as Bachhinder Singh                                    417        came into the house he mentioned the names of his assailants        to  him.  The incident took place just outside the house  of        Bhagwan Singh and it was never disputed that he was  present        in  the  house  when the incident took place.   It  is  only        natural that as soon as the injured son came into the  house        he would be asked as to who had injured him or would himself        state  who had caused him the injury.  He was in his  senses        at  that time and no reason has been suggested why  the  son        would  not disclose to his father the names of  his  assail-        ants.   There is no adequate reason for rejecting this  por-        tion  of the testimony of Bhagwan Singh and  merely  because        the  dying  declaration  does not mention it,  is  hardly  a        reason for not accepting it.        The non-production of Sucha Singh who is stated in the dying        declaration  and in the statement of Narvel Singh, P.W.  12,        to  have  witnessed  the occurrence was  commented  upon  by        counsel  as a very serious omission.  The Public  Prosecutor        stated at the trial that he was giving up Sucha Singh as  he        had  been  won over.  Therefore, if  produced,  Sucha  Singh        would have been no better than a suborned. witnesss.  He was        not  a witness "essential to the unfolding of the  narrative        on  which  the prosecution was based" and  if  examined  the        result  would have been confusion, because  the  prosecution        would  have  automatically  proceeded to  discredit  him  by        cross-examination.  No oblique reason for his non-production        was alleged, least of all proved.  There was, therefore,  no        obligation  on the part of the prosecution to  examine  this        witness: See Abdul Moham. mad v. Attorney General of  Pales-        tine (1) ; Stephen Servaratne v. The King (1); Habeeb Moham-        mad  v. The State, of Hyderabad (3).  In  the  circumstances        the  court  would not interfere with the discretion  of  the        prosecutor  as  to what witnesses should be called  for  the        prosecution  and  no adverse inference under s. 114  of  the        Evidence Act can be drawn against the State.        The  High Court, in our opinion, have kept in  view  correct        principles  governing  appeals against acquittals  and  have        rightly applied them to the circumstances        (i)  A.I.R. 1945 P.C. 42        (2)  A.I.R. 1936 P.C. 289.        (3) [1954] S.C.R. 475.        418        of this case.  The erroneous view that the learned  Sessions        Judge took of the dying declaration and of the oral evidence        were  compelling  enough reasons for the  reversal  of  that        judgment.                      We therefore dismiss this appeal.

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                           Appeal dismissed.