http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5  

PETITIONER: RATTAN SINGH

       Vs.

RESPONDENT: THE STATE OF HIMACHAL PRADESH

DATE OF JUDGMENT:       11/12/1996

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

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T THOMAS, J      A young housewife (Kanta Devi) enceinte by four months, was shot  at with  double barrel  gun by  an  assailant  who gatecrashed into  her courtyard  during the odd hours of the night when she was sleeping. The shoal of pellets spewed out of the mouth of the gun had pierced into her lungs and heart and she  died instantaneously.  Appellant -  an ex-armyman - was challaned  by   the police for the said murder. Sessions Court acquitted  him but  a Division Bench of the High Court of Himanchal  Pradesh, on appeal by the State, convicted him under section  302. I.P.C. and sentenced him to imprisonment for life.  He has  filed this  appeal under section 2 of the Supreme   Court    (Enlargement   of    Criminal   Appellate Jurisdiction) Act  1970 and  also under  section 379  of the Code of Criminal Procedure.      The  following  is  the  story  which  prosecution  has unfurled in the trial court:      Kanta Devi (aged 21) was married to Puran Chand and she was living  with her in-laws in her husband‘s house at Bhali village.  Her  husband  was  working  in  the  Public  Works Department and  most-often  he  was  living  away  from  his family. Her  sister-in-law Sheela Devi (PW10) though married was also  residing  in  the  same  house.  Appellant,  after superannuation from  military armies has settled down in his home village.  He obtained a licence for possession of Ex.P1 -  gun.   Appellant,  in   course  of  time  developed  some infatuation for Kanta Devi and he started doting on her with libidinous designs,  but she  was not willing to reciprocate his oglings.  This negative  response had burgeoned the seed of ranccur in his mind towards Kanta Devi and thenceforth he started harrassing  her. When she found him incorrigible she complained to the police about his lewd conduct. This led to initiation of  security proceedings against him during which his gun  was seized  by the  authorities, but  he secured it back by  making an  application  through  advocate  Prahalad Chand Sharma  (PW2). Nonetheless his bitterness towards her, instead of  abating, was  only brimming  up.  He  made  some unsuccessful  attempts  to  retaliate  though  in  one  such attempts he  could shoot  down one  of the  pet dogs  of her

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5  

household.      On the  night of  6.7.1982, all  the inmates  of  Kanta Devi‘s house  were sleeping  on the  courtyard of the house. Her husband  was, as  usual absent  from the house. At about 11.00 p.m.  Kanta Devi‘s  mother-in-law woke up sensing that somebody would  have intruded  into their  privacy and asked others whether  anyone was  there. Suddenly,  deceased Kanta Devi cried out that appellant was standing there with a gun. This was  followed by  the sound  of a  gun shot and pellets have delved  into  her  body.  Kanta  Devi‘s  brother-in-law Prakram Chand  (PW3)  and  his  sister  Sheela  Devi  (PW10) pounced upon the deceased and in about Sheela Devi succeeded in wresting  the gun  from him  but the  assailant made  his escape good  leaving his  torch-light and  chappals  at  the place of  incident. Kanta  Devi slumped  down to the cot and slouched her head.      Prakram Chand (PW3) accompanied by two neighbours, PW-4 Piar Singh  and PW-5 Sahib Singh (who rushed to the scene on hearing the  hue and  cry  from  the  place  of  occurrence) proceeded to  the police  station, but  on the way they came across the  police party  to whom  Prakram Chand  gave First Information Statement  (Ex.PD). Sub-Inspector of police (PW- 23) visited  the scene  on the morning and held the inquest, seized the  gun and  other  articles.  Appellant  was  later arrested and  after completion  of the investigation charge- sheeted him for the murder of Kanta Devi.      Appellant has  denied his  involvement in  the incident which led  to the death of Kanta Devi. However, he owned the gun produced  in this  case (Ex.P1)  but he said that police had seized that gun from his house. He denied the allegation that he  was  ogling  on  Kanta  Devi  and  later  developed acerbity towards her.      Sessions  Court   made  a  scathing  criticism  on  the investigating officer  for his  failure to  trace out finger impression on  the torchlight. Learned Sessions Judge took a serious view  of  the  omission  in  the  First  information Statement that  Sheela Devi (PW10) snatched the gun form the appellant. On  that score learned Sessions Judge disbelieved the entire  testimony of  Sheela  Devi  (PW10)  as  well  as Prakram Chand  (PW3) .  He sidestepped all the incriminating circumstances against  appellant and  gave him  a clean chit and permitted him to be armed with the gun again.      The Division  Bench  of  the  High  Court  has  totally differed from the Sessions Court and relied on the testimony of Sheela  Devi  (PW10)  as  well  as  her  brother  Prakram Chand(PW3). The  High Court did not take the omission in the First Information  Statement (regarding  wresting  the  gun) seriously as  it did  not cause  any dent  on the  otherwise sturdy prosecution  nutshell. The  High  Court  treated  the reasoning of  the Sessions Judge for sidelining the evidence of two important witnesses as exceedingly unreasonable.      Learned counsel  for the  appellant did not dispute the fact that  Kanta Devi was shot dead on the night of 6.7.1982 at her  house. So  the only  question is  whether it was the appellant who did it.      Learned counsel  for the appellant made an endeavour to persuade us  to concur  with the  Sessions Judge‘s view that the omission  (in the First Information Statement) regarding wresting of  the gun  from appellant  is enough  to conclude that the  said part  of the  story is  a later  improvement. Ommission  of  the  said  part  of  the  story  is  a  later improvement. Omission  of the  said detail  is there  in the First Information  Statement, no  doubt. But Criminal Courts should not  be  fastidious  with  mere  omissions  in  First Information  Statement,  since  such  Statements  cannot  be

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5  

expected  to  be  a  choronicle  of  every  detail  of  what happened, nor  to contain  an exhaustive  catalogue  of  the events which  took place.  The person  who  furnishes  first information to authorities might be fresh with the facts but he need  not  necessarily  have  the  skill  or  ability  to reproduce details  of  the  entire  story  without  anything missing therefrom. Some may miss even important details in a narration. Quite  often the  Police Officer,  who takes down the first  information,  would  record  what  the  informant conveys  to   him  without   resorting  to  any  elicitatory exercise. It  is the  voluntary narrative  of the  informant without  interrogation   which  usually   goes   into   such statement. So  any omission  therein has  to  be  considered along with  the other evidence to determine whether the fact so omitted  never happened  at all.  (Vide Podda  Narayana & Ors. vs. State of Andhra Pradesh: AIR 1975 SC 1252: Sone Lal & Ors.  vs. The  State of Uttar Pradesh : AIR 1978 SC 1142 : Gurnam Kaur vs. Bakhsish Singh & Others :AIR 1981 SC 631.)      In this  case, there  is overwhelming evidence that the gun was  lying  near  the  deadbody,  even  apart  from  the evidence of P.W. 3 and P.W.5. The two neighbours who reached the spot  on hearing the cry were Piar Singh (PW4) and Sahib Singh (PW5).  Both of  them said  that when they reached the place they saw Kanta Devi lying dead and a gun, a torchlight and a  pair of  slippers  were  lying  dead  and  a  gun,  a torchlight and  a pair  of slippers  were lying  on the same site. Nothing  has been elicited from these witnesses during cross-examination to  doubt the  truth of  their  testimony. That apart,  PW6, PW7 and PW8 who were present when the Sub- Inspector (PW23)  prepared the  inquest  have  unequivocally said that  the gun was lying on the courtyard where the dead body  of   Kanta  Devi  remained.  We  have,  therefore,  no difficulty in believing that the gun would have been wrested from the assailant at the spot itself.      One of  the most  important items  of evidence  in this case is what the deceased had uttered immediately before she was fired  at. when  her mother-in-law  sensed that somebody had intruded  in the  courtyard during  the odd  hours,  the deceased (near  whom the  intruder was  standing then) spoke out that  appellant was  standing nearby  with a  gun. In  a split second  the sound  of firearm  shot was heard and in a trice the life of Kanta Devi was snuffed off.      If the  said statement  had been made when the deceased was under  expectation of death it becomes dying declaration in evidence  after his  death. Nonetheless,  even if she was nowhere near expectation of death, still the statement would become admissible  under Section  32(1) of the Evidence Act, though  not  as  dying  declaration  as  such,  provided  it satisfies one  of the  two conditions  set forth in the sub- section.  This  is  probably  the  one  distinction  between English law  and the  law in  India on dying declaration. In English law,  unless the  declarant is  under expectation of death his  (Shared Birdhichand Ser vs. State of Maharashtra: AIR 1984  SC 1622:  Tehal Singh  and ors vs. State of Punjab AIR 1979 SC 1347).      Section 32(1)  of the  Evidence Act renders a statement relevant which  was made by a person who is dead in cases in which cause  of his  death  comes  into  question,  but  its admissibility depends upon one of the two conditions: Either such statement should relate to the cause of his death or it should relate  to any  of the  circumstances of  transaction which resulted in his death.      Three aspects  have to  be considered pertaining to the above item  of evidence. First is whether the said statement of the  deceased would  fall within  Section  32(1)  of  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5  

Evidence Act  so as to become admissible in evidence. Second is whether  what  the  witnesses  have  testified  in  Court regarding the  utterance of  the deceased can be believed to the  true.  If  the  above  two  aspect  are  found  in  the affirmative, the  third aspect  to be  considered is whether the deceased would have correctly identified the assailant?      When Kanta  Devi (deceased)  made  the  statement  that appellant was  standing with  a gun  she might  or might not have been  under the expectation of death. But that does not matter. The  fact spoken  by the  deceased has  subsequently turned out  to be a circumstance which intimately related to the transaction which resulted in her death. The collocation of the  words  in  Section  32(1)  "  Circumstances  of  the transaction which  resulted in  his death"  is apparently of wider amplitude  than saying "circumstances which caused his death". There need not necessarily be a direct nexus between "circumstances" and  death. It is enough if the words spoken by the deceased have reference to any circumstance which has connection with  any of  the transactions  which ended up in the death  of the  deceased. Such  statement would also fall within the  purview of Section 32(1) of the Evidence Act. In other words.  it is  not necessary  that  such  circumstance should be  proximate, for,  even distant  circumstances  can also become  admissibile under  the sub-section, provided it has nexus  with the transaction which resulted in the death. In Sharad Birdhi Chand Sarda‘s case (cited supra) this Court has stated the above principle in the following words :      "The test  of proximity  cannot  be      too   literally    construed    and      practically reduced  to a  cut  and      dried    formula    of    universal      application so as to be confined in      a strait-jacket.  Distance of  time      would  depend   or  vary  with  the      circumstances  of  each  case.  For      instance, where  death is a logical      culmination of  a continuous  drama      long in process and is, as it were.      a  finale   of   the   story,   the      statement  regarding   each    step      directly connected  with the end of      the  drama   would  be   admissible      because the  entire statement would      have to be read as an organic whole      and  not  torn  from  the  context.      Sometimes statements relevant to or      furnishing an  immediate motive may      also be  admissible as being a part      of the transaction of death."      Even apart  from section 32(1) of the Evidence Act, the aforesaid statement  of kanta  Devi can  be  admitted  under section 6 of the Evidence Act on account of its proximity of time to  the act  of murder.  Illustration ‘A’  to section 6 makes it clear. It reads thus:-      "A is accused of the murder of B by      beating him.  Whatever was  said or      done by  A or  B or the by standers      at the beating or so shortly before      or after  as to  from part  of  the      transaction is a relevant fact."                     (emphasis supplied)      Here the  act  of  the  assailant  intruding  into  the courtyard during  dead of the night, victim‘s identification of the  assailant,  her  pronouncement  that  appellant  was standing with  a gun  and his firing the gun at her, are all

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

circumstances so intertwined with each other by proximity of time and  space that  the statement  of the  deceased became part of  the same  transaction. Hence it is admissible under Section 6 of the Evidence Act.      In either  case, whether it is admissible under section 32(1) or  under  section  6  of  the  Evidence  Act,  it  is substantive evidence which can be acted upon with or without corroboration in finding guilt of the accused.      But then the court must be assured of the remaining two aspects i.e. reliability of the evidence and accuracy of the contents of  the pronouncement.  We have  no  difficulty  in believing that  Kanta Devi would have said so. Both PW 3 and PW 10  have spoken about this in their evidence. Further PW3 has mentioned about it even at the earliest opportunity when he gave  first Information  Statement. As  to  the  question whether  Kanta   Devi  would   have   correctly   identified appellant, it  was contended that it was then dark and there was shadow  of a  mango tree  and hence  she could  not have identified him  correctly. The  evidence shows that it was a moonlit night  and it  happened on  the open  courtyard. The gunning down  was followed by about between the assailant on the one  side and  pW3 and  PW 10  on the other during which these witnesses  also had occasion to identify the assailant at very  close range.  Further again  Ex.P1 gun  which  PW10 Sheela Devi  succeeded in  wresting from  the  appellant  is admittedly the gun of the appellant.      From the above circumstances we can unhesitatingly come to the  conclusion that  Kanta Devi had correctly identified the appellant  when she  said that  it was the appellant who was standing with a gun.      Learned counsel  for the  appellant tried  to make  out much from  the fact that no finger impression of Sheela Devi was found  on the  gun. We  do not  find any  consequence on account of  it in  this case.  In fact,  appellant  did  not seriously dispute  when the  trial judge put the question to him regarding that circumstance during his examination under Section 313  of the code of Criminal Procedure (question no. 25 related  to the  evidence that gun was produced by Sheela Devi and was taken into possession by the police. The answer given by  the appellant  to that  question  was  "I  do  not know"). Examination  of the accused under Section 313 of the Code is  not a  mere formality. Answers given by the accused to the  questions put  to him during such examination have a practical  utility   for   criminal   courts.   Apart   from incriminating circumstances against him, they would help the court in  appreciating the  entire evidence  adduced in  the Curt during  trial. Ex.P1  - gun - admittedly belongs to the assailant. Therefore,  when PW10  said  in  court  that  she succeeded  in  snatching  it  from  the  assailant  and  she surrendered it to the police, we see no reason to disbelieve her, particularly in view of the evasive answer given by the appellant to the question concerned.      We have  no doubt  that the  Division Bench of the High Court  has   salvaged  criminal  justice  in  this  case  by interferring with  the unmeritted  acquittal emerged  from a perverse approach made by the Sessions Court. We, therefore, confirm the  conviction and sentence passed on the appellant and dismiss the appeal.