http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 14  

PETITIONER: HARBANS SINGH AND ANOTHER

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT: 16/10/1961

BENCH: GUPTA, K.C. DAS BENCH: GUPTA, K.C. DAS GAJENDRAGADKAR, P.B. SARKAR, A.K. WANCHOO, K.N.

CITATION:  1962 AIR  439            1962 SCR  Supl. (1) 104  CITATOR INFO :  RF         1963 SC 200  (17)  R          1965 SC  26  (19)  R          1965 SC 257  (8)  R          1970 SC1566  (5)  F          1972 SC 622  (27,31)  R          1973 SC  55  (19)  R          1973 SC1204  (9)  R          1973 SC2195  (8)  F          1973 SC2622  (7)  R          1974 SC 606  (8,9)  R          1976 SC1994  (6)  R          1985 SC 416  (13)

ACT:      Appeal  against  acquittal  -interference  by appellate    court,     when     permissible-Dying declaration Corroboration, if necessary.

HEADNOTE:      The High  Court set  aside the  Trial Court’s order of acquittal of the appellants and convicted them on  a charge  of murder  under s.  302 of the Indian Penal  Code. On appeal by the appellants by special leave ^      Held,  that   this  Court   in  its   earlier decisions emphasised  that  interference  with  an order  of   acquittal  should  be  based  only  on "complying and  substantial reasons" and held that unless such  reasons were  present an Appeal Court should not  interface with  an order of acquittal, but this  Court did  not try to curtail the powers of the appe11ate court under s. 423 of the Code of Criminal Procedure.  Though  in  its  more  recent pronouncements this Court laid less emphasis on 105 "compelling reasons"  the principle  has  remained the same.  That  principle  is  that  in  deciding appeals against acquittal the Court of Appeal must examine the evidence with particular care and must

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 14  

also examine  the reasons  on which  the order  of acquittal was  based and should interfere with the order only  when satisfied  that the view taken by the acquitting  judge  was  clearly  unreasonable. Once the  Court came  to the  conclusion that  the view of  the lower  court  was  unreasonable  that itself was a "compelling reason" for interference.      Once it was found that the High Court applied the correct  principles in setting aside the order of  acquittal   this  Court  will  not  ordinarily interfere  with   the  High   Court’s   order   of conviction in  appeal against  acquittal  o  enter into the  evidence to  ascertain whether  the High Court was  right in its view of the evidence. Only such examination  of the evidence would ordinarily be necessary  as is  needed to  see that  the High Court approached the question properly and applied the principle correctly.      If the  judgment of  the High  Court did  not disclose a  careful examination of the evidence in coming to  the conclusion  that the  view  of  the acquitting  court   was  unreasonable   or  if  it appeared that the High Court erred on questions of law or misread the evidence or the judgment of the trial court, this Court would, unless the case was sent  back  to  the  High  Court  for  re-hearing, appraise the  evidence for  itself to  examine the reasons on  which the  lower court based its order of acquittal  and then  decide  whether  the  High Courts view that the conditions of the lower court was  unreasonable,   was  correct.   If  on   such examination it appeared to the Court that the view of  the  acquitting  court  was  unreasonable  the acquittal would  be set  aside and if on the other had it appeared that the view was not unreasonable the order of acquittal would be restored.      Suraj Pal  Singh v. State, [1952] S.C.R. 194, Ajmer Singh  v. State of Punjab [1953] S.C.R. 418, Puran v.  State of  Punjab A.I.R.  1953 S.C.  459, Chinta v. State of M. P., Cr. A. No. 178 of 59 and Ashrafkha Haibatkha Pathan v. State of Bombay, Cr. A. No. 38 of 1960, referred to.      It was  neither a rule of law nor of prudence that a dying declaration should be corroborated by other evidence  before a conviction could be ba ed thereon.      Ram Nath  v. state  of M. P. A.l.R. 1953 S.C. 420, referred to.      Khushal Ram   v.  State   of  Bombay,  [l958] S.C.R. 552, followed.      A  dying  declaration  did  not  become  less credible if  a number  of persons  were names  are culprits 106      Khurshaid  Hussain.   v.  Emperor,(1941)   43 Cr.L.J.59, held erroneous.

JUDGMENT:      CRIMINAL  APPELLATE   JURISDICTION:  Criminal Appeal No. 115 of 1959.      Appeal by special leave from the judgment and order dated May 23, 1958, of the Punjab High Court in Criminal Appeal No. 414 of 1957.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 14  

    N.C. Chatterjee.  I.M. Lal,  C.L. Sareen  and Mohan La1 Agarwal, for the appellant.      N.  S.  Bindra  and  P.  D.  Menon,  for  the respondent.      1961. October  16. The  Judgment of the Court was delivered by      DAS  GUPTA,   J.-Six  persons  including  the present appellants  were tried  by the  Additional Sessions Judge  Ferozpur  on  several  charges  in connection with the death by homicidal injuries of two brothers  Munshi Singh  and Hazura  Singh.  Of these six,  Bhag Singh was the father of the other five accused  persons. All the six accused persons were acquitted  by the  Additional Sessions Judge; on appeal  by the  State, the High Court of Punjab set aside  the orders  of acquittal  in respect of Harbans Singh  and Major  Singh and convicted them under section  302 of  the Indian  Penal Code. The appeal was  dissmissed in  respect  of  the  other four, viz., Bhag Singh, Gursi, Bant Singh and Gian Singh. It is against this order of conviction that Harbans Singh  and  Major  Singh  have  filed  the present appeal  after obtaining special leave from this Court.      The prosecution  case is that at about 8 or 9 P.M. on  July 23, 1956, shortly after Munshi Singh had returned  home and  complained to  his  father Hira Singh  about the conduct of Harbans Singh and Bant Singh in abusing him. Munshi Singh ran out of his house  on hearing  some  cries;  but  when  he reached the Dharamshala not far from his house 107 these two appellants, along with their father Bhag Singh and  their brothers  Bant Singh,  Gian Singh and  Gursi  fell  upon  him  and  caused  numerous injuries with  the  weapons  which  they  carried. Harbans Singh,  it is said, struck Munshi Singh on the abdomen  with  a  Sela  in  his  hand.  Munshi Singh’s brother  Hazura Singh  and his father Hira Singh also  had followed  Munshi Singh when he ran out of  the house. On seeing this attack on Munshi Singh, EIazllra  Singh tried  to intervene, but he too was  attacked and  received several  injuries. Harbans Singh,  it is said, gave him a Sela thrust in the  abdomen. Munshi  Singh died  on the  spot; Hazura  Singh  was  brought  to  the  hospital  at Gidderbha the  following morning and received some treatment but  he also  died of  his injuries  the following day, that is, the 24th July.      All  the  accused  pleaded  not  guilty,  the defence  being   that  they   had   been   falsely implicated out of enmity.      To prove  its Base  the prosecution relied on the evidence of two persons, the deceased’s father Hira Singh  and their  uncle Bhag  Singh  and  the dying declaration  alleged to  have been  made  by Hazura Singh,  once in the village before Devendra Singh, the Sub-Inspector of Police who had come to the village  that night  in connection  with  some other investigation  and for  the second  time  at Gidderbha hospital before a Magistrate.      On a  consideration of the evidence the Trial Judge came  to the conclusion that the prosecution case had  not  been  proved  against  any  of  the accused person.  Being of  opinion that  the First

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 14  

Information Report had been recorded as late as 4- 30 P.M.  On the  24th July  he thought  that  "the complainant party  was not  able to  day  who  the assailants were  and the police was making time to find out  the culprits after investigation and the First  Information  Report  was  delayed  on  that account." He  was doubtful also about the truth of the Sub-Inspector’s 108 story that  he actually  reached  the  village  of occurrence on  that very  night  and  consequently doubtful about  any statement  having been made by Hazura Singh to him on that night. In any case, he thought  Hazura   Singh’s  dying  declaration  had little probative  value because  as  many  as  six persons had  been named  and that  it could not be relied upon  without  corroboration.  The  learned Judge was  also  not  satisfied  that  Bhag  Singh (Prosecution Witness)  "was present in the village or at  his house  at the  time of  the occurrence" since "his  statement  was  not  recorded  in  the Inquest  Report   prepared  by   the   police   at midnight".  The  learned  Judge  also  thought  it unsatisfactory that  nobody other  than these  two near relatives,  that is,  the father and uncle of the  deceased   persons  had   been  examined   as witnesses of  the occurrence.  These were the main reasons for  which he  came to the conclusion that the case  had not  been proved  against any of the accused beyond  reasonable doubt  and  accordingly acquitted the accused      The  High  Court  was  of  opinion  that  the learned Judge  was wholly  "wrong in  holding that Bhag  Singh  was  not  mentioned  in  the  Inquest Report"; that he had misread the time of the first Information Report  as 4-30  P. M.  for 4-30 A. M. and that  he was again in error in concluding that "the statement  made by Hazura Singh to the police on their  arrival at  1-15 A.M. was inadmissible". After pointing out these "errors" in the reasoning of the learned Trial Judge the High Court said:-           "We have  no  hesitation  in  concluding      that for the said reasons the judgment of the      learned Additional  Sessions Judge  is wholly      erroneous resulting  in complete  miscarriage      of justice.           After having  gone through the testimony      of both  of the  eye-witnesses and  examining      the  other  material,  particularly  the  two      dying 109      declarations, we  are of  the view  that  the      projection case  was substantially  true  and      have been proved.           As regards  complicity of  Harbans Singh      and Major  Singh,  there  appears  to  be  no      doubt.  Both   of  them   had  been  assigned      participation and  were responsible  for  the      fatal blow  on each  of the deceased. In this      respect  the   testimony  of   both  of   the      witnesses  and  the  dying  declarations  are      consistent. They were accordingly held guilty      under section 302, Indian Penal code."      The main  contention raised by Mr. Chatterjee on behalf of the appellants is that the High Court

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 14  

had no sufficient reasons for interfering with the order of acquittal made by the Additional Sessions Judge and  that the  High Court  itself  had  been guilty of  "errors", especially  as the High Court has misread the judgment of the learned Additional Sessions  Judge   and  had   attributed   to   him statements which  are  not  to  be  found  in  his judgment.      The   question   as   regards   the   correct principles to  be applied  by a  Court hearing  an appeal against  acquittal of  a person has engaged the  attention   of  this   Court  from  the  very beginning. In  many cases,  especially the earlier ones, the Court has in laying down such principles emphasised the  necessity of  interference with an order of acquittal being based only on "compelling and substantial  reasons" and  has  expressed  the view that  unless  such  reasons  are  present  an Appeal court should not interfere with an order of acquittal. (Vide Suraj Pal Singh v. The State (1); Ajmer Singh v. State of Punjab (2); Puran v. State of Punjab  (3). The  use of  the words "compelling reasons" embarrassed  some of  the High  Courts in exercising their  jurisdiction in  appeals against acquittals and  difficulties occasionally arose as to what this Court had meant by the      (1) [1952] S. C. R. 194.  (2) [1953] S. C. R.                                               418.             3)A.l.R. (1953) S. C. 459. 110 words "compelling  reasons". In  later  years  the Court has  often avoided  emphasis on  "compelling reasons"  but  nonetheless  adhered  to  the  view expressed  earlier   that  before  interfering  in appeal with  an order  of acquittal  a Court  must examine not  only questions of law and fact in all their aspects  but must also closely and carefully examine  the  reasons  which  impelled  the  lower courts to  acquit the accused and should interfere only if  satisfied after such examination that the conclusion reached  by the  lower court  that  the guilt  of  the  person  has  not  been  proved  is unreasonable. (Vide  Chinta v. The State of Madhya Pradesh (1);  Ashrafkha Haibatkha  Pathan  v.  The State of Bombay (2),      It is clear that in emphasising in many cases the necessity  of "compelling  reasons" to justify an interference  with an  order of  acquittal  the Court did  not in any way try to curtail the power bestowed on  appellate courts  under s  423 of the Code of  Criminal Procedure  when hearing  appeals against acquittal;  but conscious  of the  intense dislike in  our jurisprudence of the conviction of innocent persons  and of  the facts  that in  many systems of  jurisprudence the law does not provide at  all   for  any  appeal  against  an  order  of acquittal the Court was anxious to impress can the appellate  courts   the  importance  of  bestowing special care  in the sifting of evidence in appeal against acquittals.  As has  already been  pointed out less  emphasis is  being  given  in  the  more recent pronouncements of this Court on "compelling reasons". But, on close analysis, it iq clear that the principles  laid down  by the  court ill  this matter have  remained the same. What may be called

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 14  

the  golden   thread  running  through  all  these decisions is  the rule  that in  deciding  appeals against acquittal the Court of Appeal must examine      (1) Criminal  Appeal No.  178 of 1959 decided on l8-11-60.      (2) Criminal Appeal No. 38 of 1960 decided on 14-12-60. 111 the evidence  with particular  care, must  examine also the  reasons on  which the order of acquittal was based and should interfere with the order only when  satisfied   that  the   view  taken  by  the acquitting Judge is clearly unreasonable. Once the appellate court  comes to  the conclusion that the view taken  by  the  lower  court  is  clearly  an unreasonable one  that  itself  is  a  "compelling reason" for  interference. For,  it is  a  court’s duty to  convict a guilty person when the guilt is established beyond  reasonable doubt, no less than it is  its duty  to acquit  the accused  when such guilt is not so established.      When the  High Court’s judgment shows clearly that the  matter has been approached in the proper manner  and   the  correct  principles  have  been applied, there is very little scope for this Court to interfere  with an order made by the High Court convicting an  accused person in an appeal against acquittal. Once  it is  found that  the principles laid  down  by  this  Court  have  been  correctly applied this Court will not ordinarily embark upon a reappraisal of the evidence to ascertain whether the High  Court was  right  in  its  view  of  the evidence. The  only examination  of  the  evidence that this  Court may  find itself  called upon  to undertake will  ordinarily be  just so  much as is necessary  to  see  whether  the  High  Court  has approached the  question properly  and applied the principles correctly.      The position  may however be different if the judgment of  the High  Court while  indicating its conclusion that  in its  opinion the view taken by the lower  court is unreasonable does not disclose a careful  examination of  the evidence for coming to such conclusion. Or it may appear from the High Court’s judgment  that the High Court has erred on questions of  law or  has  obviously  misread  the evidence on  the record  or the  judgment  of  the Trial Court.  What is  this Court  to do  in  such cases ? We are unable to agree 112 with Mr.  Chatterjee that  the only  proper course for this  court to  take is to set aside the order made by  the High  Court and  restore the order of acquittal.  For,   even  where  the  High  Court’s judgment suffers  from any of these defects it may very well be that the High Court’s conclusion that the view  of the  lower court  is unreasonable  is correct. So,  unless this Court thinks fit to send the case  back to the High Court for re-hearing of the appeal  and its  disposal in  accordance  with law, it  becomes the  duty of  this Court in cases like these  which fortunately are likely to be few in number-to  appraise the evidence for itself, to examine the reasons on which the lower court based the order of acquittal and then decide whether the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 14  

High Court’s conclusion that the view taken by the lower Court  on the  question of  the guilt of the accused is  clearly unreasonable,  is correct.  If satisfied that  the view was clearly unreasonable, this Court  is bound  to dismiss the appeal and to maintain the  order of conviction made by the High Court; if  on the  contrary,  this  Court  is  not satisfied on  such examination that the conclusion reached by  the lower  court that the guilt of the accused  has   not   been   proved   was   clearly unreasonable, the  order  of  acquittal  would  be restored.      The judjment of the High Court in the present case does  not  contain  much  discussion  of  the evidence in  the case.  All the  discussion of the eviddnce is confined to the few sentences which we have quoted  earlier in  this  judgment.  We  also notice that  the learned  judges of the High Court were under  some misapprehension  in thinking that the Additional  Sessions Judge  had held that Bhag Singh was  not  mentioned  as  a  witness  in  the Inquest Report. What the Additional Sessions Judge had pointed  out was  that Bhag  Singh’s statement had not  been recorded  in the Inquest Report. The Additional Sessions  Judge was  certainly right in this. While the High Court might have well thought that no doubt against 113 the credibility  of Bhag  Singh should be based on this fact that his statement was not recorded, the High Court was not justified in attributing to the Trial Judge something which he did not say.      It is  also not  quite clear  how the learned Judge said about the appellant Major Singh that he had   been    assigned   participation   and   was responsible for  the fatal  blow on  each  of  the deceased. In fact, neither of the two who claim to be the  eye-witnesses of  the occurrence  has said that Major  Singh dealt  a fatal  blow  on  either Hazura Singh  or Munshi  Singh. While  it is  true that a  general statement  is  made  by  both  the witnesses as  regards all  the six  accused having attacked  both   Munshi  Singh  and  Hazura  Singh neither of  them  has  spoken  of  any  particular injury having  been caused  by Major Singh. Hazura Singh himself  in his  dying declaration  did  say that Major  Singh gave him a Sela blow on his left wrist but  does not  speak  of  any  other  injury having been caused by Major Singh either to him or to Munshi Singh except that he also said generally that all  the accused  gave blows on the person of Munshi Singh. The High Court has therefore clearly misdirected itself  in thinking  that Major  Singh was responsible for any of the fatal injuries.      In view  of all this we consider it necessary to examine  the judgment  of the  Trial Court  and also the evidence on record ourselves for a proper decision of this appeal.      Turning to the judgment of the Trial Court we find that the main circumstance which weighed with him for  doubting the  truth  of  the  prosecution story is what he considered the considerable delay in recording  the First  Information Report.  From the printed record before us we find that Narendar Nath Moharrir Head Constable, who actually entered

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 14  

the formal First Information Report, stated in his evidence that  he made the entry at "4.30 P.M." on the 24th July 1956. It is apparently this 114 fact taken  with the  fact that the report did not reach the  Magistrate Shri  Pasricha  before  8.45 P.M. on  the 24th July that made the learned Judge think that  the First  Information was made at the Police Station  at 4.30  P.M. He has unfortunately not  noticed   that  the   record  of   the  First Information Report  Ex.  PP1  shows  the  time  of record   as   4.30   A.M.   He   also   overlooked Narendranath’s own  evidence in  cross-examination in these  words: "I  have  perused  the  Roznamcha entries and  find that  this  special  report  was despatched  by   me  through   Chanan  Singh  Foot Constable at 5.15 A.M. I cannot say why he did not deliver it to the Magistrate till 8.45 P.M." It is quite clear  that 5.15  A.M. as  recorded  in  the printed   record   in   Narender   Nath’s   cross- examination is not a mistake for 5.15 P.M. If that had been  so there would have been no point in his saying that he could not say why the Constable did not deliver  it to  the Magistrate  till 8.45 P.M. when  this   statement  in   cross-examination  is considered along with the recording of the time in Ex.  PP1  itself  there  is  no  escape  from  the conclusion that  4.30 P.M.  as stated  in Narender Nath’s Examination-in-Chief  was a  slip of tongue and the  correct time  of the record was 4.30 A.M. and that  the fact  that it reached the Magistrate at 8.45  P.M. that day may well be due to the fact that the  Constable was negligent and took his own time about  going to  the Magistrate  or  to  some other  reason  not  clear  from  the  record.  The reasoning of  the Trial  Judge based  on his wrong view about  the time  of recording  of the  formal First  Information  Report  that  the  complainant party was  not able to say who the assailants were and so  delay was  made, therefore  falls  to  the ground.      The  learned   Judge  has   also  misdirected himself in thinking that the dying declaration had very little probative value because as many as six accused  persons   had  been  named  and  that  no conviction could  in law  be based  on such  dying declaration without  corroboration. The  law  does not make any 115 distinction between  a dying  declaration in which one person  is named  and a  dying declaration  in which several  persons are  named as  culprits.  A dying declaration  implicating one person may well be false  while a  dying  declaration  implicating several persons may be true. Just as when a number of persons  are mentioned  as culprits by a person claiming to  be an  eye-witness in his evidence in court the  court has  to  take  care  in  deciding whether he has lied or made a mistake about any of them, so  also when  a number of persons appear to have  been   mentioned  as  culprits  in  a  dying declaration  that  court  has  to  scrutinise  the evidence in respect of each of the accused. But it is wrong to think that a dying declaration becomes less credible  if a number of persons are named as

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 14  

culprits. The  contrary view  taken in  the Lahore High Court  in Khurshaid Hussain v. Emperor (1) on which apparently  the Trial  Judge has  relied  is clearly erroneous.      The learned Judge appears to have relied also on what  was said  by this  Court in  Ram Nath  v. State  of   Madhya  Pradesh(2)   on  the  need  of corroboration for  a dying  declaration.  Speaking for the Court Mahajan J. (as he then was) observed in that case:-           "It is  settled law  that it is not safe      to convict  an accused  person merely  on the      evidence furnished  by  a  dying  declaration      without further  corroboration because such a      statement is  not made  on oath  and  is  not      subject to  cross-examination and because the      maker of  it might be mentally and physically      in a  state of  confusion and  might well  be      drawing upon  his imagination  while  he  was      making the declaration." The question  was however considered again by this Court in  Khushl Rao  v. State of Bombay(3). After pointing out that in Ram Nath’s Case (Supra) the 116 Court after  a careful examination of the facts of that case  distinctly came  to the conclusion that the dying  declaration was  not true and could not be relied upon this Court stated in the later case that the  observations of  the Court in Ram Nath’s case were in the nature of obiter dicta. The Court then proceeded  to review  the relevant provisions of the  Evidence Act  and of  the decided cases in the different  High Courts  in India  and in  this Court and stated the law in these words:-           "that it  cannot  be  laid  down  as  an      absolute rule of law that a dying declaration      cannot form  the  sole  basis  of  conviction      unless it is corroborated; (2) that each case      must be  determined on  its own facts keeping      in view  the circumstances in which the dying      declaration was  made; (3)  that it cannot be      laid down  as a general position that a dying      declaration is a weaker kind of evidence than      other pieces  of evidence;  (4) that  a dying      declaration stands  on the  same  footing  as      anotherpiece of evidence and has to be judged      in the light of surrounding circumstances and      with reference  to the  principles  governing      the weighing  of evidence;  (5) that  a dying      declaration which  has  been  recorded  by  a      competent magistrate  in the  proper  manner,      that is  to say, in the form of questions and      answers, and,  as far  as practicable, in the      words of the maker of the declaration, stands      on  a   much  higher  footing  than  a  dying      declaration which depends upon oral testimony      which may  suffer from all the infirmities of      human memory  and human  character,  and  (6)      that in  order to  test the  reliability of a      dying declaration,  the Court  has to keep in      view the  circumstances like  the opportunity      of  the   dying  man   for  observation,  for      example, whether  there was  sufficient light      if the  crime was committed at night; whether      the capacity of the man to remember the facts

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 14  

    stated had not been impaired at the time he 117      was making  the  statement  by  circumstances      beyond his  control that  the  statement  has      been consistent  throughout if he had several      opportunities of  making a  dying declaration      apart from  the official  record of  it;  and      that the  statement  had  been  made  at  the      earliest opportunity  and was  not the result      of tutoring by interested parties.           "Hence, in  order to  pass the  test  of      reliability a  dying declaration  has  to  be      subjected to  a very  close scrutiny, keeping      in view  the fact that the statement has been      made in the absence of the accused who had no      opportunity of  testing the  veracity of  the      statement by  cross-examination. But once the      court has  come to  the conclusion  that  the      dying declaration was the truthful version as      to the  circumstances of  the death  and  the      assailants  of   the  victim,   there  is  no      question of further corroboration. If, on the      other hand,  the Court,  after examining  the      dying declaration  in  all  its  aspects  and      testing  its   veracity,  has   come  to  the      conclusion that it is not reliable by itself,      and that  it suffers from an infirmity, then,      without  corroboration  it  cannot  form  the      basis of  a conviction.  Thus, the  necessity      for  corroboration   arises  not   from   any      inherent weakness of a dying declaration as a      piece of  evidence, as  held in  some of  the      reported cases,  but from  the fact  that the      court, in  a  given  case  has  come  to  the      conclusion   that   that   particular   dying      declaration was not free from the infirmities      referred to  above or  from other infirmities      as may  be  disclosed  in  evidence  in  that      case."      In view  of this latest pronouncement of this Court-which it should be stated in fairness to the Trial Judge  was  made  long  after  he  gave  his judgment-it must be held that it is neither a rule of law  nor of  prudence that  a dying declaration requires to  be  corroborated  by  other  evidence before a  conviction can  be  based  thereon.  The evidence furnished  by the  dying declaration must be considered  by the  Judge, just as the evidence of any 118 witness,   though    undoubtedly   some    special considerations arise  in the  assessment of  dying declarations which  do not  arise in  the case  of assessing the  value of  a statement made in Court by  a   person  claiming  to  be  witness  of  the occurrence. In  the first  place, the Court has to make sure as to what the statement of the dead man actually was.  This itself  is often  a  difficult task, specially  where the  statement had not been put into  writing. In  the second place, the court has to  be  certain  about  the  identity  of  the persons   named   in   the   dying   declaration-a difficulty which  does not  arise where  a  person gives his  depositions is Court and identifies the person who  is present in court as the person whom

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 14  

he has  named. Other  special considerations which arise in assessing the value of dying declarations have been  mentioned by  this Court in Khushal Rao v. State  of Bombay(1)  and need  not be  repeated here.      In view  of this latest pronouncement of this Court on  the question of need of corroboration of a dying  declaration by other evidence, it must be held that  the Trial  Judge was  wrong in thinking that he  could not act on the dying declaration of Hazura Singh  unless it  was corroborated by other evidence.      In  view   of  the  several  defects  in  the reasoning of  the Trial Judge, it is necessary for us to  examine the  evidence on  the record to see whether the  High Court was right in thinking that the view  taken by  the learned  Judge was clearly unreasonable. The  most important  evidence in the case is furnished by the dying declaration made by Hazura Singh.  The Investigating Officer, Devender Singh has  said that  on July 22, 1956 he had gone to the  village Rikala  on an excise raid and from there he  went to  Mallan at  about 2 P.M. on July 23, to investigate a case under section 392 of the Indian Penal Code. His further evidence is that it was on  the same  night at  about midnight that he started for Dhurkot from Mallan. We see 119 no reason to doubt the truth of his statement that he did reach Dhurkot shortly after midnight of the 23rd July  and that  when on hearing that a murder had taken  place near  the Dharamshala  he came to the  Dharamshala.   Hazura  Singh  who  was  lying injured on a cot there made a statement to him, he recorded the  statement correctly.  That statement has been  marked Ex.  PP. The  substance  of  this statement is  that at about 9 P.M. on the night of the occurrence  his brother  Munshi Singh came and complained  about   the  conduct  of  Bant  Singh, Harbans Singh  and other  sons of  Bhag Singh  and that shortly  after this on hearing shouts of Bant Singh and  others  near  the  Lharamshala,  Munshi Singh went  towards that  place followed by Hazura Singh and his father Hira Singh and that when they reached the place they found Harbans Singh and the other  accused  persons  all  armed  with  weapons raising uproar  and when  Munshi Singh reached the place and  returned the  abuse Harbans  Singh gave the first  blow to Munshi Singh with a Sela in his hand hitting  him on  the front of the chest after which others of the party also gave blows and when Hazura  Singh   stepped  forward   to  rescue  his brother, Harbans Singh gave him a blow with a Sela in his  hand which  hit him on the abdomen and the other accused  also gave him blows. The blow given by Major Singh hit him on his left wrist.      It is  clear that  this statement was made by Hazura Singh  shortly after  midnight i.e., within about four  hours after  the occurrence. It has to be remembered  that Hazura  Singh had  one  single serious injury  viz., the penetrating wound on his abdomen. We are satisfied from the evidence of the witnesses that there was sufficient moonlight that to enable  Hazura Singh  to recognize  clearly the assailant who  struck the  blow which  caused this

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 14  

injury. He  could have  therefore made  no mistake about the  indentity of  his assailant.  Nor is it likely that he 120 would within a few hours of the occurrence ascribe this fatal  blow on him to somebody other than the real assailant.  The several  injuries  on  Hazura Singh and  the numerous  injuries on  Munshi Singh justify the  conclusion that  there was  more than one assailant  in the  attacking party. Whether or not Hazura  Singh could  have made a mistake about the identity of the other assailants or could have implicated some  of them at least falsely, it will be unreasonable  to think that he would substitute another person  for the one assailant who gave him the  fatal  blow.  On  a  consideration  of  these circumstances we  are therefore  satisfied that it would be  unreasonable to  doubt or disbelieve the truth of  Hazura Singh’s  statement when  he  said that Harbans Singh struck him with the Sela in his hand which  hit him  on the abdomen. Even if there was no  other evidence  on the  records as regards the part taken by the appellant Harbans Singh this dying declaration  of Hazura  Singh is  so clearly true that  the only reasonable view for a judge of facts to  take is  that Harbans  Singh caused  the death of Hazura Singh by striking him with a Sela.      As has  already been  noticed Hazura Singh in this statement  mentioned  Harbans  Singh  as  the person who  gave the  first blow  to Munshi Singh, the blow  which caused  one of the injuries on his chest. We  can think  of no  reason why  this main part should  be ascribed falsely to Harbans Singh; we think,  considering the  circumstances in which the statement  was made,  that this part of Hazura Singh’s statement  is also  clearly the  truth and could reasonably  be  accepted  even  without  any corroboration.      A  second   statement  of  Hazura  Singh  was recorded at  the Hospital  where he  was  removed. This statement  appears to  have been  recorded at about midnight of the 24th July. In this statement also he  mentioned Harbans  Singh  and  the  other accused  persons  as  having  taken  part  in  the attack. It  appears that  when this  statement was made 121 Hazura Singh’s  condition was  very  bad.  Indeed, after he  had made  a part  of the  statement  the Magistrate recorded  that he  had  started  giving indifferent answers  and asked  the Doctor to give him the  necessary treatment.  After the treatment was given  the statement  was concluded.  We would not attach  much weight  to this  statement on the 24th July.  But, it  will be noticed that there is nothing in  this latter  statement which  detracts from the  truth  of  the  earlier  statement  made shortly after  the occurrence  to the  police sub- Inspector.      There is  apart from  this the  testimony  in Court of Hira Singh the father of the two deceased persons and  his uncle Bhag Singh. As regards Bhag Singh the learned Trial Judge has pointed out that Bhag Singh’s  statement was  not recorded  by  the sub-Inspector in  the Inquest  Report. While there

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 14  

is nothing  in law which requires the statement of witnesses to be recorded in the Inquest Report, it appears to  be a  common practice  in  Punjab  for police officers  to record statements of witnesses in Inquest  Reports. In  the present case the Sub- Inspector appears  to have  recorded a fairly full statement of  Hira Singh  as also short statements of Arjan Singh, Matha Singh and Lakal Singh in the Inquest Report  itself.  It  is  somewhat  curious therefore that  the Sub-Inspector  did not  record the statement  of Bhag  Singh also  in this report even though  it is found that Bhag Singh was named as a  witness of  the occurrence in Hazura Singh’s dying declaration  itself. It is also difficult to understand Bhag Singh’s statement that he left the place as soon as some neighbours came up after the occurrence and did not go back to the spot till he was called  by  the  police.  He  has  offered  no explanation for  this rather  unusual conduct.  In view of  all this, we are not prepared to say that tho Trial Judge acted unreasonably in doubting his testimony.      We are  unable however  to discover any valid reason for doubting the presence of Hira Singh at 122 the place  of occurrence.  It seems to us that the main reason for the Trial Judge to doubt the truth of Hira  Singh’s evidence  was what  he considered the  great  delay  in  lodging  the  formal  First Information  Report.   That  reason,  as  we  have already pointed out, does not exist.      On an  examination,  it  seems  to  us  quite likely that  Hira Singh  also  accompanied  Hazura Singh  when   the  latter  followed  Munshi  Singh towards the  Dharmashala and  it also  seems to us improbable that he would give the main part in the assault falsely  to Harbans Singh if somebody else was responsible  for the  blow which caused Hazura Singh’s death. In our view the learned Trial Judge acted unreasonably  in doubting  the truth of Hira Singh’s evidence against Harbans Singh.      On a  consideration of  the evidence  we  are therefore satisfied that the conclusion reached by the High  Court that  the view  taken by the Trial Court as regards Harbans Singh’s guilt Was clearly unreasonable  is   correct  and   that  the   only reasonable  view  on  the  evidence  can  be  that Harbans Singh  committed  murder  by  causing  the death of Hazura Singh and also committed murder by causing the death of Munshi Singh.      The position  is however different as regards Major Singh.  As has  already been pointed out the High Court  is wrong in thinking that the evidence Shows that  Major Singh  gave  any  of  the  fatal blows. Hazura Singh in his first dying declaration mentioned Major  Singh as  having given a below on him on  his left wrist. Apart from Bhag Singh only Hira Singh has ascribed any specific part to Major Singh in addition to saying generally that he took part in  the attack. The evidence therefore leaves scope for  thinking that  Hazura Singh  has made a mistake  about   Major  Singh   or   has   wrongly implicated him.  We are  not therefore prepared to say that  the view  taken by  the Trial  Judge  as regards Major Singh is clearly unreasonable.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 14  

123      We therefore  allow the appeal of Major Singh set aside  the order  of conviction  and  sentence made against him by the High Court and restore the order of  acquittal made  by the  Trial Court. The appeal of  Harbans Singh is dismissed. Major Singh should be set at liberty at once.                     Appeal of appellant 2 allowed.                   Appeal of appellant 1 dismissed.                        ----