http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 12  

PETITIONER: BHAGIRATH

       Vs.

RESPONDENT: STATE OF HARYANA

DATE OF JUDGMENT:       30/10/1996

BENCH: G.N. RAY, G.T. NANAVATI

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T      G.N. RAY, J.      This  appeal   is  directed   against  judgment   dated 21.2.1984 passed  by the  Punjab and  Haryana High  Court in Criminal  Appeal   No.  691-DB  of  1981.  By  the  impugned judgment, the   High  Court  has  set  aside  the  order  of acquittal dated 27.05.1981 passed in favour of the appellant by the  learned Additional Sessions Judge, Sirsa in Sessions Trial No.  59  of  1980  and  has  convicted  the  appellant Bhagirath, accused No. 1 in the Sessions Trial under Section 302 IPC  and sentenced  him to  suffer imprisonment for life and also to pay a fine of Rs. 20,000/- with a direction that if the fine was realised, it would be paid to the next heirs of the deceased as compensation.      The appellant  and four other accused were committed to Sessions trial  No. 59 of 1980 for offence under Section 302 read with  Section  34  IPC  and  section  120  B  IPC.  The prosecution case  in short  was that  on 29.05.1980 in Mandi Dabwai. The  accused Bhagirath  was individually charged for offence under  Section 302  IPC for  causing the  murder  of Nihal  Singh   in  the  area  Mandi  Dabwali.  According  to prosecution case,  at about  2.50 P.M.  on 29.05.1980 PW 25, Head Constable  Dharambir of police station Dabwali received a telephone  message for  Dr. S.  Gulati (PW  17)  of  Civil Hospital. Dabwali  that Nihal Singh was admitted in the said hospital with  gunshot injuries. Such message was entered in Daily Diary  Roznamacha being Entry No. 19 (Ex. PJJ). Dharam Singh, H.C.  of P.S.  Dabwali (PW25)  with  constable  Vijay Kumar (PW10)  came to  the Civil  Hospital at  3.10 P.M. and moved  an   application  (Ex.PZ)   for   obtaining   fitness certificate  of   the  said  injured  and  the  doctor  gave certificate that  the injured  was in  a  position  to  make statement  (Ext.   PA/1).  The   said  Dharam   Singh   also requisitioned the service of S.D.J.M. Dabwali and S.D.M. (C) for recording  dying declaration of the injured Nihal Singh, Dharam Singh recorded the statement of Nihal Singh (Ex PAA). Nihal Singh  in his  statement stated  that there was enmity between him  and Chhotu.  Chhotu and  the accused  Bhagirath were on  a look  out for Nihal Singh to get him murdered. On the  date of incident at about 2 P.M., Nihal Singh was going

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 12  

to Dabwali  Mandi after  being free form Court and Sohan Lal (PW19) and  Manswarup were ahead of him and PW 20 Kishan Lal was following  him  When Nihal Singh reached in front of the shop of Lekh Ram,  Tobacco dealer then the accused Bhagirath being   accompanied by another person, whose description was given by  Nihal Singh  in his statement, was standing there. When Nihal  Singh crossed  Bhagirath, he fired a shot from a country made pistol at his back which hit him and when Nihal Singh turned around and raised a lalkara, Bhagirath and  the person accompanying  him had  run away.  Kisnan Lal  (PW 20) Sohan Lal (PW 19) and man Swarup came running and Man Swarup and Kishnan  Lal brought  Nihal Singh to the civil hospital. After the  statement was recorded by Dharambir, the same was read over  to Nihal  Singh  and  having  admitted  that  the Statement was  correctly recorded,  Nihal Singh  signed  the said statement  in presence  of Dr. Gulati (PW 17). The said doctor also  attested the said statement. Such statement was sent to the police station with  the endorsement of the said Dharmbir and on the basis of such statement, FIR (Ex. PAA/2) was recorded by PW 9 Gulzari Lal, a head constable. Prior to recording of  the said statement by Dharam Singh, Dr. Gulati had prepared  a ruga  (Ex. Py) AT 3.10 P.M. and medico-legal report (Ext.  PX) was  also prepared  at 4.00  P.M. However, the constable  Vijay Kumar  returned to the hospital at 4.45 P.M. with a report (Ex. PKK/1) that both S.D.J.M. and S.D.M. (C) were away.      The investigating  officer took  into possession of the shirt Ex. P5, and vest Ext. P-6 of the injured from the said doctor and  the sealed  parcel of such shirt and vet in Ext. PD. The  investigating officer took Man Swarup and Sohan Lal (PW 19)  and reached  the place  of occurrence and recovered one empty  cartridge (Ext. P-7) from the said place and such cartridge was  sealed and  the recovery  memo (Ext. PEE) was attested by  Sohan lal and Man Swarup. The statements of Man Swarup and  Sohanlal and  Kishnan lal  were also recorded by the investigation   officer.  The investigating officer went to the  house of  Chhotu on  the next  day and  recorded the statement of  Pokkar (PW  22). In  view of  such statements, offence under  Section  120B  IPC  was  added.  The  accused Bhagirath was arrested from his house.      Further investigation  in the case was undertaken by PW 24. SI  Ram Singh  on 30.5.1980.  The accused Om Prakash and Balwant were  arrested at  Bus Stand  in village Goriwala at 1.30 P.M.  on 9.6.1980  and on search, a country made pistol of .12  bore was recovered from Om Parkash (Ext. P-8) with a cartridge inside  (Ext. P-9). Such pistol and cartridge were sealed after  preparing rough  sketch map  of the  pistol. A separate case  under  Arms  Act  was  initiated  against  Om Prakash because  he had  no license  for possessing the said pistol. The injured Nihal Singh was taken to Civil Hospital, Sirsa where  he was  examined  in  O.P.D.  by  Dr  Garg  and referred to  bigger hospital  at  Rohtak.  The  injured  was admitted and  underwent operation  by Dr.  Verma, Registrar, Surgery (PW 1). The doctor had removed bullets (Ext. P1/1 to 3) from  the body of the injured after performing operation. The injured  Nihal Singh, however, succumbed to his injuries in the  hospital  on  30.5.1980  at  3.45  P.M.  PW  3,  Dr. Bhupinder Singh  held post-mortem  examination  vide  report Ext. PC. It was noted by PW 3. Dr. Singh, that there were 10 punctured wounds on the back of right side of abdomen.      It appears  that  learned  Sessions  Judge  entertained doubt about  the correctness  of the statements contained in the dying declaration recorded by PW 25 Dharambir, Dharambir has deposed  that he had recorded the statement not as dying declaration but  for recording the statement for registering

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 12  

a case and such recording was made in the presence of doctor Gualti (PW  17) and  after recording  the statement,  he had read over  the statement  twice to  Nihal Singh. The learned Sessions Judge  was of  the view that there was no necessity of reading the said recorded statement twice to Nihal Singh. That apart,  Dharambir did not give any endorsement that the statement was read over by him to Nihal Singh. Doctor Gulati only endorsed the recorded statement out he was not asked by Dharambir to  write that  the statement was read over to the injured Nihal  Singh. The  learned Sessions  Judge has  also indicated that  although Dharambir has deposed that when the statements made  by Nihal  Singh were  not clear to him, the injured again   made  statement and  he  had  recorded  such statement out  he did  not remember  at the  time of  giving deposition, on  what points,  he had  asked the  injured  to again make  the statement.  The learned  Sessions Judge  has also  indicated   that  Dr.  Gulati  has  deposed  that  the statement was  not recorded within his hearing as he was not attentive when  the statements  were recorded  by  Dharambir because he  was busy with preparing Medico legal Report. The learned Sessions  Judge has  also indicated that after about three  months   from  the  date  of  the  incident  i.e.  on 22.08.1980 on  police query,  Dr. Gulati  stated that he had signed the  statement recorded  by Dharambir after enquiring from Nihal  Singh whether he had given the Statement and the reply of  Nihal Singh  was in  the affirmative.  The learned Sessions Judge  has observed  that such   statement  of  Dr. Gulati only  indicates that  the statement was not read over to Nihal  Singh in  his presence  otherwise such  enquiry by Dr. Gulati  was not  necessary. In  view  of  the  aforesaid facts, the  learned Sessions  Judge has  held that the dying declaration was not a convincing document.      It may  be stated  that the  learned Sessions Judge has also entertained  doubt about  the genuineness  of the  said dying  declaration   because  such   dying  declaration  was recorded at  4 P.M.  at Dabwali  Civil Hospital at 5 P.M. by Dr. Gulati  but PW.  4 Dr.  Garg,  the  Medical  Officer  of Rohtak, Civil  Hospital Sirsa  has  deposed  that  the  said injured came  to the  hospital at  2.15 P.M. to 3 P.M. which was 35  miles away  from Dabwali  Civil Hospital,  the dying declaration could  not have  been  recorded  at  4  P.M.  at Dabwali Hospital.      The learned  Sessions Judge  has also entertained doubt about the MLR Ext. PX of the injured recorded by Dr. Gulati. The learned  Sessions Judge has observed that the first part of the report containing the name of the injured was written in thick lead marking but the contents were recorded in thin lead marking out at the bottom of the report the  doctor had again signed  in thick  lead marking. Dr. Gulati has deposed that he first recorded the name position at the top and then sharpened the  lead of the pencil and had written the middle portion containing  his signature at the bottom. The learned Judge has  observed that  if the  pencil was sharpened,  the signature of the doctor should also have been with sharpened lead with   thin impression. The learned Sessions  Judge has also doubted  the genuineness  of the  MLR because addresses and other  particulars of  the persons  who accompanied  the injured Nihal  Singh were  correctly mentioned out  in other MLRs  prepared  by  Dr.  Gulati,  such  particulars  of  the accompanying persons were not mentioned.      The learned  Sessions Judge has also held that the said dying   declaration was not admissible because death was not due to  injuries sustained  by Nihal Singh but on account of toxemia resulting  from peritonitis  as  deposed by PW 3 Dr. Bhupinder Singh  of Rohtak  Hospital. As  the death  was not

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 12  

directly on  account  of  injuries,  the  statement  of  the injured was not admissible as dying declaration. The learned Sessions Judge  has also  held by relying on the observation of this  Court at  page 852  paragraph 53 in the decision in Chidambaran Singh  Vs. State  (1974 SCC (Crl.) Page 837 also reported in  1971  Cr.  L.J.  14),  that  the  investigating officer is  keenly interested in the fruition of his efforts and though  this Court  did not  suggest that any assumption would be  made against veracity of investigating officer, it was observed that it was not prudent to base conviction on a dying declaration made to an investigating officer.      The learned Sessions Judge has also not placed reliance on the  depositions of  eye-witnesses PW 19 Sohan Lal and PW 20 Krishan  La. It  has been  pointed  out  by  the  learned Sessions Judge  that both the said dye-witnesses had deposed that Nihal  Singh was on foot when he was shot at but Munshi Ram a  panch witness  to stated  in the hospital that he was sitting on  rickshaw when he was fired at the back side. The other witness  to the  inquest report  sohan Ram  has   also supported Munshi  Ram, who  is stated  to be  brother of the deceased  Nihal   Singh.  The  learned  Sessions  Judge  has indicated that although  the incident had taken place in the main bazar  at 2  P.M. but  no shopkeeper  or  disinterested witness has  been examined.  Sohan Lal (PW 19) is a relation of the  deceased and  is inimical  to the  accused and he is resident of  a place  which is  about 14 miles away from the place of  occurrence. The  other witness (PW 20) Krishan Lal is also not trustworthy and he nails from a village which is 100 kms. away from the  place of occurrence.      The learned  Sessions Judge  has indicated  that PW  22 Pokkar who  has deposed  about  the  conspiracy  hatched  by Chhotu and the accused Bhagirath  for murdering  Nihal Singh has deposed  that   in the village there were tow groups one led by the deceased Nihal and the other led by Chhotu. PW 22 has  also  deposed  that  Rawat  Takki  ad  Saheb  Ram  were relations of  Nihal Singh  and PW  19 Sohan Lal has admitted that Rawat  and other  were murdered  long back  and in that case,  Kalu,  brother  of  Chhotu  and  husband  of  accused Kalawati was challenged.      The learned  Sessions judge  has also  held that  PW 22 Pokkar deposed  falsely  when  he  denied  that  Chhotu  was involved in  the case  for  causing gun shot injuries on his brother Ram  Rattan. The learned Judge has held that Ext. D5 which is  the copy of the judgment dated 22.2.1986 passed by Addl. Sessions  judge,  Hisar  shows  that  the  brother  of Pokkar (PW  22) was  injured by  the firearm at the hands of Chhotu and others.      The learned  Sessions Judge has further held that PW 19 Sohan Lal is illiterate and he cannot say what was inscribed on the  seal in  which the spent up cartridge recovered from the spot  in his  presence was  seized and  kept in a sealed packet with inscription ’D’ S.R. PW 19 has state that at the time of  recovery of cartridge, Krishan Lal was also present but PW  20 Krishan Lal does not state that he was present at the  time  of  recovery  of  empty  cartridge.  The  learned Sessions   Judge  has  not  placed  any  reliance  on    the deposition of  the eye-witness  Sohan Lal  because he  was a resident of place about 14 miles away from Dabwali. Sohanlal has deposed  that he  had come  to purchase some articles of use in  Dabwali but he could not name the shop from where he had purchased  such articles.  He even  could not state what articles and   of  what quantity were purchased by him. Even to the  police, he  did not tell that he had gone to Dabwali for some purchase.      According to  learned Sessions   Judge. PW 20 also does

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 12  

not inspire  confidence. Apart  from the  discrepancy as the presence of  PW 20 at the time f recovery of empty cartridge in the  depositions of  PW 19  and PW  20, PW 20 stated that after firing  a shot  on  the  deceased,  accused  Bhagirath reloaded that  pistol but  in  his  statement to the police, such fact  of reloading was not mentioned. Though he deposed that he  knew   both Bhagirath  and Om  Prakash and  he  had stated such  fact to police, in his statement to the police, there was no such statement. PW 20 Krishan Lal is a resident of a place 100 km. away from Dabwali but he has deposed that in those days he was living in a rented house at Dabwali and was on  a long  leave because  of his  illness. This witness however did  not pay  any rent  to the  landlord. He had not chit of  any medical practitioner for the medicine which was stated to  have been  purchased by  him on  that day Dabwali Bazar. Even  he could  not give  the name  of the  shop form where such  medicine  was  purchased  by  him.  The  learned Sessions Judge  has also  indicated that  PW 20  has deposed that in   the hospital on their query the deceased Nohal had stated to  him and  Man Swarup  that accused  Bhagirath  had fired on the deceased. The learned Judge has expressed doubt about the  presence of  PW 20 Krishan Lal by indicating that if he  was present  at the place of occurrence, there was no occasion for  such enquiry  as   to   who had  fired on  the deceased.      As the  learned Sessions  Judge could  not  accept  the dying declaration  as genuine  or convincing  and as he also could not  place any reliance on the eye-witnesses PW 19 and PW 20  for the aforesaid reasons, the learned Sessions Judge acquitted all the accused by giving them benefit of doubt.      The State  of Haryana preferred Criminal Appeal No. 691 DB of  1981 in the Punjab and Haryana High Court against the order of  acquittal. The High Court by the impugned judgment has upheld  the   order of  acquittal in  favour of  all the accused excepting the accused Bhagirath by holding that  the reasoning given  by the learned Sessions Judge in discarding dying declaration  and also  the depositions of PW 19 and PW 20 were  wholly  unsound  and  as  such,  reappreciation  of evidences by  the Court  of Appeal  is  warranted.  On  such reappreciation of evidences, the High Court has held that it has been  clearly established  that  the  accused  Bhagirath caused fatal  in  injuries on the deceased by firing  from a pistol  and   the  deceased  despite  operation,  ultimately succumbed to such injuries caused by Bhagirath. In that view of the  matter, the  High Court  has set  aside the order of acquittal in  favour of  Bhagirath and has convicted him for offence under  Section 302  IPC and  has  sentenced  him  to imprisonment for life and also a fine of Rs. 20,000/-.      The High  Court has  accepted the dying declaration  as genuine and  reliable and  has also  indicated that  if  the dying declaration  can be  safely accepted to be genuine and if the  statement in  such dying  declaration rings truth in it, a  conviction can  be based  on  the  dying  declaration itself without requiring corroboration from other evidences. The   High Court has observed that although there was enmity between the  deceased and accused, the deceased in his dying declaration did  not make  any attempt  to rope in Chhotu or other accused  persons   by naming them. On the contrary, he had named  only Bhagirath  as his assailant being present in the  company  of  an  unidentified  person.  Such  statement according   to High  Court only  indicates that the deceased was not  tutored to  give  a  false  statement  nor  he  was impelled by  any motive to make false accusation against his enemies.      The  High   Court  has   held  that  the  deceased  was

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 12  

physically fit  to make  statement to  Dharambir. Apart from the deposition  of Dharambir  to that effect, Dr. Gulati has given a  certificate the deceased was fit to make statement. He has  the prosecution  case supported  that  the  physical condition of  the deceased  was good  enough to  enable  the deceased to  make statement.  The High  Court has  held that although there  was no  bar for  Dharambir to  record  dying declaration but  he has  deposed that  he requisitioned  the service of  SDJM and SDM (C) recording dying declaration and he recorded  the statement of the injured for the purpose of sending such  statement to  the police station for drawing a FIR.  That   Dharambir  was  not  keen  in  recording  dying declaration is  evident from  the fact  that service of SDJM and SDM (C) was requisitioned but unfortunately none of them was available  at their  respective residence. Such fact has also come out in the evidence of PW 10.      About the  time of reporting of the injured Nihal Singh at Sirsa  Hospital, the  High Court has pointed out that Dr. Garg of  Sirsa  hospital  just  superficially  examined  the injured Nihal  Singh at  O.P.D without  admitting   him  and referred him  to Rohtak  Hospital. The  time of reporting at Sirsa hospital  mentioned by Dr. Garg not with reference  to any record  but on  the basis  of his memory when he deposed after a  long lapse  appears to be wrong. But Dr. Gulati has mentioned  the  time  of  referring  Nihal  Singh  to  Sirsa Hospital. The  distance of  Rohtak hospital  was  about  102 miles from  Sirsa, Nihal  Sihgh reached  Rohtak Hospital  at 11.45 PM.  Such  timing  of  reporting  at  Rohtak  Hospital tallies with  the timing  of reporting  at  Rohtak  Hospital tallies with  the time   recorded  by Dr.  Gulati at Dabwali hospital. If  the injured  had left for Rohtak at about 2.30 P.M. from  Sirsa, he would have reached Rohtak Hospital long before 11.45  P.M. The  High Court has held that the time of coming at  Sirsa Hospital as stated by Dr. Garg is erroneous because of his money failing after lapse of time.      The High  Court has  also indicated  that Dharmbir made requisition for  SDJM and  SDM(C) at  3.10 P.M.  at Dabwali. Such fact  also indicates  that the  injured in  the Dabwali Hospital was  present at  that time. The High Court has also held that it cannot be accepted that Dr. Gulati and the Head Constable Dharambir conspired to fabricate dying declaration by manipulating  records. The  High Court has also held that no adverse  inference against  genuineness  of  Medico-legal Report concerning the injured as prepared Dr. Gulati need be drawn simply  because names  and particulars  of the  person bringing the injured to the hospital were recorded. The High Court has  observed that  there  is  a  special  column  for recording   such particulars and if the requirement has been complied with,  no exception should be taken. With regard to non-mention of  such particulars  in other  M.L.Rs the  High Court has  observed that there is no record to indicate what was nature  of injuries  were simple  the persons might have come on their own accord to the hospital for treatment.      The High  Court has  also held that the learned Session Judge erred in holding the dying declaration as inadmissible on the  finding  that  as  the  death  was  due  to  toxemia resulting   from peritonitis,  the death  had  not  happened directly due  to injuries suffered by the deceased. The High Court has pointed out that the facts in the said decision in Chidambaran Singh’s  case (supra)  since   relied on  by the trial court  are quite  different. In that case, the injured had received two gun shot wounds on  the abdomen but he left hospital either  because the  wounds had healed up that time or was healing up and two weeks thereafter, the injured died in such circumstances, it was  held that the proximate cause

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 12  

of death was not the gun shot injury.      The High  Court has also was not approved the reasoning of the  learned Sessions Judge in discarding the evidence of PW 19  Sohan Lal.  The High Court has held that only because this witness who is illiterate had mentioned on one occasion Ram Swarup  in place of Man Swarup and could not explain why some   english word as D’SR was given in the seal containing empty cartridge recovered from the place of occurrence,  his deposition was  required to  be discarded  by  doubting  his presence. In  the Medico-Legal Report of Dr. Gulati the name of Sohan  Lal was  mentioned  as  the  person  bringing  the injured Nihal  Singh. Such recording suggests that Sohan Lal was likely  to be  present  when  Nihal  suffered  gun  shot injuries. The High Court has also disapproved discarding the testimony of  PW 20. It has been indicated by the High Court that it  was not  unusual in not remembering the name of the shop from  which some   articles  were purchased by a person and on such account the testimony should not be disbelieved.      As the  High Court  was of  the  view  that  the  dying declaration   was recorded  by Dharambir  for the purpose of recording the  statements of  the injured  so that  the case could be registered and as the injured was physically fit to make  such  statement  and  as  there  was  no  occasion  to disbelieve both  Dr.  Gulati  and  Dharambir  without  being influenced or tutored that the injured made the statement to Dharambir and  as it  approved that  the  deceased  was  not impelled by  any motive  to falsely implicate his enemies in the dying  declaration which  was demonstrable from the fact that the name of Chottu or the accused  was not mentioned by the injured  Nihal in  his statement to Dharambir, the dying declaration has  been  held  by  the  High  Court  as  fully reliable. The  High Court has also held that on the basis of such reliable dying declaration alone, the accused Bhagirath can be  convicted for the offence of murder without the need of any other evidence. In that view of the matter,  the High Court has  allowed the  State’s appeal  only in  respect  of Bhagirath and  after setting  aside, his  order of acquittal passed by  the trial  court, Bhagirath  has been  convincing under Section 302 IPC.      Mr. B.S.  Malik, learned  Senior Counsel  appearing for the appellant, has submitted that the trial court has passed an order  of acquittal  after considering  the materials  on record and the evidences adduced in the case great detail by giving very  cogent reasons for his finding. The law is well settled that  if on appreciation  of evidence the view taken by the  trial court  is not  a perverse  one, but  is also a possible view,  then no interference by the appeal  Court is called for  by  reappreciating    the  evidence  and  taking another view, even if the other view intended to be taken by the appeal  court is  also a  possible view.  Mr. Malik  has submitted that  the view taken by the learned Sessions Judge is not  at  all  perverse  but  quite  consistent  with  the evidence adduced in the case. Therefore, in any event, there was no  occasion for  the High  Court to  interfere with the well-reasoned order  of the  acquittal passed  by the  trial court. Mr.  Malik has  also submitted  that on  the basis of dying declaration,  a conviction  can be  based provided the Court  can   come  to   a  clear  finding  that  such  dying declaration was  made honestly without any motive to falsely implicate any  accused and  the dying  declaration has  been correctly recorded. In the instant case, the trial court has given cogent  reasons why the dying cannot be accepted to be free from doubt and a genuine one. The dying declaration was recorded by  the Head  Constable Dharamvir.  The  said  Head Constable deposed  that on  some occasions  the injured  was

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 12  

required to  speak again  for recording his statement but he did not  remember on  what points such request for restating was made.  P.W.17 Dr.  Gulati has  also deposed  that though dying declaration  was recorded  by P.W.25 Dharamvir, he had not listened  to the  statement as  he was busy in preparing his medical  report. There  is also  no endorsement  on  the statement recorded by Dharamvir that such statement was read over to  the deponent in the presence of the said Dr. Gulati and  the  deceased  after  accepting  the  statement  to  be correct, signed  it. Mr.  Malik has also submitted that even in  respect   of  the  timing  of  the  said  alleged  dying declaration, there  is enough  scope to doubt ad the learned Sessions Judge  has indicated  that the dying declaration is alleged to have been recorded at 4.00 P.M.  at Dabwali Civil Hospital when  in fact  the injured  was  not  in  the  said hospital at  that time, because Dr. Garg has deposed that by 2.00 to  2.15 P.M. he had occasion to examine the injured at Sirsa Civil  Hospital which  is about  35  miles  away  from Dabwali, Mr.  malik has  also submitted  that both  the  eye witnesses, namely,  Sohanlal P.W.19  and Krishanlal  P.W.20, could not  be accepted  as reliable witnesses for the reason indicated  by  the  learned  Sessions  Judge.  Hence,  their depositions cannot  be accepted to be reliable. As a result, the statement  contained in  the dying declaration also does not get  corroboration from  the  depositions  of  the  said witnesses. Mr.  Malik has  further submitted  that though  a rule it  cannot be  held that the dying declaration recorded by an  Investigating Officer should be scrapped but rules of prudence dictate  that no  reliance shall  be placed on such dying declaration  unless the  same is corroborated by other reliable evidences  as indicated  in the  decision  of  this Court in Dalip Singh Vs. State of Punjab (1979 (4) SCC 332).      Mr. Malik  has further  contended that  both PW  19 and P.W. 20  and partisan witnesses. It has also come out in the evidence that  there are  two factions  in the  village  one being led  by the  deceased Nihal  Singh and the other being led by  the accused  Chhotu. PWs.  19 and 20 were admittedly not the  residents of Dabwali and normally their presence at the place  of occurrence  s not  excepted. Although  PW.  20 Krishanlal tried  to explain  his  presence  at  Dabwali  by stating that  he was  on long leave and at the relevant time was living in a rented house at Dabwali but the said witness miserably failed  to satisfy  the Court as to whether he was really a  tenant by making payment of rents to the landlord, So far  as P.W.19  Sohanlal is  concerned, although the said Sohanlal deposed that came to Dabwali bazaar for making some purchases but  the said  witness also  failed to  state what articles were  purchased and  of what  quantity. Considering the fact that the said witnesses were partisan witnesses and they  were  inimical  to  the  accused  party,  the  learned Sessions Judge  has not  rightly placed  any reliance on the depositions of PWs. 19 and 20.      Mr. Malik  has submitted  that unfortunately  the  High Court has  not considered the reasoning given by the learned Sessions Judge in discarding the depositions of the said two witnesses and   by  referring one  or  two  aspects  of  the finding of  the learned  Sessions Judge,  the High Court has practically glossed over  the infirmities in the depositions of the said witnesses which were cogently pointed out by the learned Sessions  Judge. Mr.  Malik has  submitted that  the incident had  taken place in a broad day light in the bazaar area but  no independent  witness or any shopkeeper has been examined by  the prosecution in  support of this case. If on the  aforesaid   facts  the   learned  Sessions   Judge  had entertained a  reasonable doubt  about the complicity of the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 12  

appellant in  committing the  murder, there  was no occasion to take any exception to the finding of the learned Sessions Judge. He  has, therefore,  submitted that the appeal should be allowed  by setting  aside the conviction  passed against the  appellant   and  the   order  of  acquittal  should  be maintained.      Mr. Rao  Ranjit,  learned  counsel  appearing  for  the respondent, has,  however, disputed  the submissions made by Mr.  Malik.   He  has  contended  that  the  Head  Constable Dharamvir recorded  the statement  not for  the  purpose  of treating it as dying declaration because at that time it was not apprehended  that the  injured would  die shortly.  Such statement recorded  by the police  officer can be treated as dying  declaration  if  such  declaration  is  made  by  the deceased about  the causes for the injuries sustained by him and also  about the  person causing  such  injuries  on  the person of  the deceased.  In support  of this contention the learned counsel  has relied on the decision of this Court in Munnu Raja and another vs. State of Madhya Pradesh (1976 (3) SCC 104).  Mr. Ranjit  has  also  submitted  that  the  Head Constable Dharamvir  made genuine  attempts to get the dying declaration recorded  by a Magistrate. For the said purpose, he requisitioned the services of both S.D.J.M and S.D.M. (C) but both of them were not available in the respective house. Such attempt getting the statement recorded by Magistrate is amply corroborated by the requisition in writing made by the Head Constable  and also  by the  deposition of  the  police constable PW.10  who went  with such  requisition  but could not meet  the  learned  Magistrates.  Mr.  Ranjit  has  also submitted that  even in  the decision of Dalip Singh (supra) it has  been indicated  by this  Court that  it is better to leave dying  declaration recorded  by police  officer during the course  of  investigation    even  though  the  same  is admissible under Section 32 of the Indian Evidence Act until and unless the prosecution  satisfies the Court as to why it was not  recorded by the Magistrate or by doctor. Mr. Ranjit has submitted  that in the instant case, it has been clearly established as  to why  the dying  declaration could  not be recorded by  a Magistrate  despite genuine attempts made for recording by  a Magistrate.  Mr. Ranjit  has also  submitted that the  injured was in a fit condition  to make the  dying declaration which  is evident from the certificate issued by Dr. Gulati.  The contents of the dying declaration were read over to  the injured who accepted such recorded statement to be correct. The endorsement to that effect has been attested by Dr.  Gulati. It  has also  come out  in the evidence that shortly after  the incident when an enquiry was made  to Dr. Gulati as  to whether  he was satisfied that the injured had made statement  to the  said Head  Constable Dharamvir,  the doctor gave note to the effect that he had asked the injured by putting question to him and the said injured told that he had made  the statement  which was recorded by the said Head Constable.      Mr. Ranjit  has submitted that there  is no evidence to suggest that  Dr. Gulati had any reason to depose falsely or to be  party to a false dying declaration concocted by PW.25 Dharamvir. Similarly,  there is no evidence to indicate that PW 25  was inclined  to fabricate a false dying declaration. There was,  therefore, no occasion to discard the deposition of PW.17  Dr. Gulati  and PW  25 Dharamvir,  Mr. Ranjit  has submitted that   from  the records  of the  Civil  Hospital, Dabwali, it  has been  clearly demonstrated that the injured was in  the said  Hospital upto  5.00 P.M. After that he was taken to  Sirsa Civil  Hospital where he was examined in the O.P.D. Department  without admitting  him and  no record has

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 12  

been maintained  in the said hospital at Sirsa. Since he was referred to  the Civil  Hospital at  Rohtak, the injured was immediately  rushed  to  the  said  hospital  where  he  was admitted at  11.45 P.M.  Such timing  of admission at Rohtak hospital appears  from the  records maintained  in the civil hospital at  Rohtak. The  High Court in the aforesaid facts, has very  rightly said  that as  Dr. Garg  who had hurriedly examined the injured at Sirsa Hospital without admitting him in the said hospital, must have been confused about the time of deposing after a long lapse of time. On the contrary, the time of  admission in  the Rohtak  Hospital clearly supports the prosecution   case  that the  patient was in the Dabwali Civil Hospital  upto 5.00 P.M. and after undertaken  journey via Sirsa,  the injured  was admitted in the Civil  Hospital at Rohtak at 11.45 P.M.      Mr. Ranjit has also submitted that the learned Sessions Judge has  also erred  in holding that the dying declaration was not  admissible in  evidence because  the death  was not attributable to  the injuries  caused on  Nihal Singh but he died of  toxemia resulting  from peritonitis. Mr. Ranjit has submitted that it has come out from the medical evidence and also from  the post  mortem  report  that  Nihal  Singh  had suffered 10  punctured wounds  for which  he was  ultimately referred to  a bigger  hospital at Rohtak where the deceased had undergone an  operation but within two days he succumbed to such injuries.  It is quite apparent from the post-mortem report and  also  from the deposition of the doctor that the injuries suffered  by the  deceased were  serious  and  were likely to cause death in the ordinary course. Simply because attempt to  save his  life   had been  taken   by performing operation on  the injured but such attempt ultimately failed because he  developed toxemia  resulting from peritonitis on account of  the injuries  suffered by him, it cannot be held that   the death is not due to the injuries sustained by the deceased. The dying declaration is, therefore, admissible in evidence and the rejection of the same on the score of being not admissible  is illegal.  Mr. Ranjit  has also  submitted that if  the view  taken by  the trial  court in passing the order of  acquittal is  not in  conformity with the evidence adduced in  the case  and such  view does  not appear  to be reasonable view which can be taken in the facts of the case, interference with  the order of acquittal after appreciating evidence on  record is  fully justified.  The High Court has analysed in  detail as to how the learned Sessions Judge had gone wrong  and has taken the view against the weight of the evidence. Hence,  interference by the High Court in exercise of the power of the court of appeal should not be interfered and this appeal should be dismissed.      After giving our careful consideration to the facts and circumstances of  the case  and the  judgments passed by the learned Sessions  Judge and  also by  the High  Court and on consideration of  the  materials  on  record  and  evidences through which  we have been taken by the learned counsel for the parties,  it appears  to us  that the  dying declaration which was  recorded by the Head Constable PW 25 Dharamvir is fully convincing  and can  be safely  relied upon.  The Head Constable, on  getting message from Dr. Gulati that a person with gun  shot injuries  had  been  admitted  in  the  Civil Hospital at  Dabwali, immediately  rushed to  the said place and after  making entry  in the  police register  and  after obtaining certificate form Dr. Gulati about the condition of the injured, took statement from the injured Nihal Singh for the purpose  of registering a case. At the time of recording such statement,  the said Head Constable had no intention to record  the statement as dying declaration. On the contrary,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 12  

he genuinely  made  an  attempt  to  get  dying  declaration recorded by  a  Magistrate  and  for  the  said  purpose  he requisitioned the  services of both S.D.J.M. and S.D.M. (C). Unfortunately, both  the said Magistrates were not available in   their respective  house. Such  facts have  been clearly proved with  reference to  the records  and  also  from  the depositions   given by  PW 10  an P.W.25. Simply because Dr. Gulati did  not listen  to the statement made by the injured Nihal Singh  to  Dharamvir,  it  cannot  be  held  that  the statement recorded  by  Dharamvir  was  unfounded  and    no reliance should  be placed  on  the  same.  Dr.  Gulati  has attested the  statement recorded by Dharamvir wherein it was specifically stated  that the statement was read over to the patient   who had  admitted that  same to be correct. It has been rightly indicated by the High Court that even in answer to query  made to  Dr. Gulati as to whether he was satisfied about the  correctness of the statement recorded by the Head Constable Dharamvir,  the said  Dr. Gulati had recorded that he had  satisfied  himself  about  the  correctness  of  the statement recorded by Dharamvir by putting questions to that effect to  the injured Nihal Singh. It may also be indicated here that  although there  was inimical relation between the accused Chhotu  and his  followers and  the  deceased  Nihal Singh, Nihal  Singh did  not implicate  Chhotu or  the other accused Kalawati  but he  had only  implicated the appellant Bhagirath in  his dying   declaration  by indicating that it was Bhagirath  who was  then accompanied  by an unidentified person, had  fired a shot on him from a pistol. In our view, the High  Court has  rightly held   that  Dr.  Garg  had  no occasion  to examine the injured Nihal Singh at 2.00 to 2.15 P.M.   on the said date because Nihal Singh was in the Civil Hospital at  Dabwali upto 5.00 P.M. The statement as to time of examination of Nihal Singh was made  by Dr. Garg from his memory after a long lapse of time because no record had been kept in   the  Sirsa about  the time  of examination  by Dr. Garg. The  prosecution case  that Nihal Singh made statement to Dharamvir at Dabwali Civil Hospital and the injured Nihal Singh was  in the  said hospital  upto 5.00  P.M.  has  been clearly established  from the   deposition of Dr. Gulati and of the  said Dharamvir  and also from the records of Dabwali Civil Hospital.   In  our view,  that trial  court has  also gone wrong in proceeding on an erroneous view that the dying declaration was not admissible in evidence because the death was not  due to  injuries sustained  by the  injured in  the hands of  the accused Bhagirath. Although ultimately toxemia had  developed   because     of     peritonitis,  all   such complications are  directly  attributable  to  the  injuries suffered by  the deceased Nihal Singh by the gun shot in the hands of the accused Bhagirath.      So far  as the  two eye  witnesses PW.19  and PW.20 are concerned, it  has however transpired from the evidence that both of  them had  occasions   to be  partisan witnesses for being inimical  against   the accused  Chhotu and  the other accused person.  The learned Sessions Judge has also rightly indicated  that    there  are  some  contradictions  in  the depositions of  PW19 and  PW20  but  in  our    view    such contradictions  are   not  very  material  for  which  their depositions are   to  be discarded.  Both the said witnesses have clearly  stated that the accused Bhagirath had  fired a shot from  the   pistol from  a close range. Such deposition gets corroboration  from the  medical  evidence  as  to  the nature of  the injuries  suffered by  the deceased and  also from the  dying declaration  given  by  the  deceased  Nihal Singh.      As it appears to us that the view taken  by the learned

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 12  

Sessions Judge  in  passing the order of acquittal in favour of the accused Bhagirath is not consistent with the evidence adduced in  the case, it cannot be held that the trial court has taken  a view which is also a reasonable view for basing the order  of acquittal  in favour of the accused Bhagirath. In our  view, the  High Court  has rightly place reliance on the dying  declaration on  the basis of which warranted. The statements contained in the said dying declaration also  get corroboration form  other evidences  adduced  in  the  case. Hence, the  order of  conviction and sentence passed against the  accused Bhagirath by the High Court are just and proper and the  same need  not be  interfered  with.  This  appeal, therefore, fails  and is  dismissed. The  appellant has been released on bail. His bail bonds will stand cancelled and he would be taken into custody to serve out the sentence.