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CASE NO.: Appeal (crl.)  546 of 2000

PETITIONER: Heeralal Yadav

RESPONDENT: State of M.P. & Ors.

DATE OF JUDGMENT: 04/07/2006

BENCH: H.K.SEMA & A.K. MATHUR

JUDGMENT: J U D G M E N T

H.K.SEMA,J

               This appeal by special leave filed by the  complainant (PW-2) is directed against the judgment and order  of the High Court dated 2.7.1999 passed in Criminal Appeal  No.678 of 1995 whereby the High Court reversed the  conviction and sentence passed by the Trial Court convicting  the respondents for an offence under Section 302/34 IPC and  sentenced them to RI for life and a fine of Rs.1000/- each and  in default of payment further six months simple  imprisonment.                   The prosecution case in brief was that on 14.4.1993  at about 8.30 in the morning the deceased Gokul Singh son of  Nirbhay Singh, who was a practicing advocate and his son  Meharban Singh (PW-3) aged about 12 years went to their well  in village Narval, District Shajapur.   When the deceased went  to answer the call of nature in the fields of Babulal Teli, all of a  sudden, the accused Gokul Singh son of Amar Singh,  Bhawarlal and Babulal armed with sword, farsi and dhariya  and co-accused Lal Singh with knife, Chander Singh, Man  Singh, Kalu Singh, Dhannalal and Lal Singh armed with lathis  came on the spot and surrounded the deceased and assaulted  him with their respective weapons.  PW-3 Meharban Singh on  seeing this incident ran to his house and told his grandfather   PW-6 Nirbhay Singh  at flour mill and his uncle PW-2 Heeralal  Yadav  (appellant herein) that his father Gokul Singh was  being assaulted.  On being told PW-2 Heeralal Yadav  and  Devsingh PW-4 went to the spot.  They saw the accused  persons assaulting the deceased.  PW-6 Nirbhay Singh also  went there and saw the accused persons running from the  spot with their respective weapons. The deceased Gokul Singh  was badly injured.  He was put in a tractor and was taken to  P.S. Agar where PW-2 Heeralal Yadav lodged F.I.R. at 9.05  a.m. which was recorded by A.S.I.                   PW-1 Dr.A.S.Khan examined the deceased Gokul  Singh and found the following injuries: 1.      Incised wound on the central part of  forehead, 2" x <" x <". 2.      Incised wound on the middle side of left  orbital, 3" x =" x =" 3.      Incised wound on the upper part of left eye- lid, 1" x <" x <". 4.      Incised wound on middle part of right leg,  3" x =" x =".

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5.      Incised wound, 1" below injury no.4, 4" x  =" x =" 6.      Incised wound, 1" below injury no.5, 4" x  =" x =". 7.      Incised wound on the upper 1/3rd part of  right leg, 1" x =" x =’". 8.      Incised wound on the middle part of left leg,  2" x =" x =". 9.      Incised wound, 2" below injury no.8, 3" x  =" x =". 10.     Incised wound on the lower 1/3rd part of  left leg, 3" x =" x =". 11.     Incised wound on the lower 1/3rd part of  left leg, 3" x 1" x =". 12.     Incised wound on the middle part of left  forearm, 2" x =" x =". 13.     Incised wound 1" middle from the injury  no.12, 2" x =" x =". 14.     Incised wound on the lower 1/3rd part of  right forearm, 3" x 1" x =". 15.     Incised wound on the metacarpal bones of  all fingers and thumb of right hand, 11" x  3" x 1 =". 16.     Bruise on the middle part of left thigh, 5" x  =". 17.     Incised wound on right parietal bone, 2" x  =" x =". 18.     Bruise on left parietal bone, 5" x =" x =".

PW-12 S.R.Parihar, then requested PW-1 Dr.A.S.Khan to  record the dying declaration of the deceased as the Executive  Magistrate was not available.  PW-1 Dr.Khan recorded the  dying declaration of the deceased at 10.30 a.m. (Ex.P.2).  As  the condition of the deceased was serious he was referred to  District hospital, Ujjain, where he succumbed to his injuries.                              On the basis of the FIR, 9 accused faced the trial for  an offence under Section 302/34 before the Trial Court.  The  Trial Court after examining the evidence on record particularly  the evidence of eyewitnesses PW-2 Heeralal Yadav, PW-3  Meharban Singh, PW-6 Nirbhay Singh along with the dying  declaration recorded by PW-1 Dr.Khan convicted three  accused respondents namely A-1 Gokul Singh son of Amar  Singh, A-2 Bhawarlal son of Ram Singh and A-9 Badulal son  of Lal Singh for an offence under Section 302/34 IPC and  acquitted six other accused by giving them benefit of doubt.   The High Court on appeal by the accused persons reversed the  conviction of the Trial Court and recorded acquittal.  Hence  this appeal by special leave by the complainant, permission for  which was granted by this Court.                 The High Court reversed the conviction recorded by  the Trial Court on the sole ground that the dying declaration  does not inspire confidence.  The sole question, therefore, to  be determined in this appeal is as to whether the dying  declaration of the deceased recorded by PW-1 Dr.Khan,  inspires confidence or not?              

               The principle that "no man at the point of his death  is presumed to lie.  A man will not meet his maker with lie in  his mouth" is based on sound public policy.  No doubt, as the  dead man would not be available for cross-examination, a duty  is cast upon the Court to examine the dying declaration with  care and caution as to whether the dying declaration is  creditworthy for acceptance.  In other words whether it  inspires confidence on the basis of which alone conviction can  be recorded.  Similarly, it is also an accepted principle of law

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that the dying declaration, keeping in view the above  principles in mind, if inspiring confidence could be the sole  basis for conviction.                  The High Court rejected the dying declaration of the  deceased recorded by PW-1 Dr.Khan. Reasoning of High Court  in  paragraph 8 of the judgment reads:- "First and the foremost thing is that in the  dying-declaration Ex.P-2 of the deceased  recorded by Dr.Khan (PW-1) and police  statement Ex.P-38 recorded by sub-inspector  S.R. Parihar (PW-12) which became dying  declaration after his death the deceased did  not mention that he had gone with his son  Meharban singh to his well and  Meharbansingh was present at the time of  incident.  The non-mentioning of the name of  this witness in dying declaration and police  statement which were recorded in detail  creates great suspicion about the presence of  this witness on the spot.  His conduct also  appears to be abnormal.  He saw his father  Gokulsingh being assaulted by the accused  persons with sword, farsi and Dhariya, he  went running to his grandfather Nirbhaysingh  and uncle Heeralal and told them that his  father was being beaten.  But it is surprising  that he did not mention the names of the  assailants nor these witnesses asked their  names.  Had this witness seen the occurrence,  he would have mentioned the names of the  assailants.  After giving information, he did not  go to the spot as to what had happened to his  father.  A normal man, in the above  circumstances, would not stay at home, but  immediately would run to see his father.  We  may assume that he was panicky and in a  confused state of mind, when he came from  the spot and narrated the incident to these  witnesses, but thereafter, when he stayed at  home, he must have composed and regained  normalcy, even then he did not mention the  names of the assailants to the house ladies."     

               The fallacy of the High Court, in our view, is that  the High Court has not at all considered the creditworthiness  of the dying declaration of the deceased recorded by PW-1  Dr.Khan.   On the contrary, the dying declaration of the  deceased was disbelieved on the ground that the deceased did  not mention the presence of PW-3.  The High Court also  doubted the presence of PW-3 at the place of occurrence on  the ground that he (PW-3) saw his father being assaulted by  the accused with sword, farsi and dhariya but did not mention  the names of the assailants nor these witnesses asked their  names from him.  Had he been present at the scene of  occurrence he would have mentioned the names of the  assailants.  The High Court was further of the view that he did  not accompany them to the spot to see as to what happened to  his father.  According to the High Court, the conduct of PW-3  was unnatural and, therefore, the dying declaration of the  deceased recorded by PW-1 Dr.Khan was disbelieved.                       From the above quoted reasoning of the High Court,  we are unable to discern the logic of the High Court’s  reasoning.  Presence or non-presence of PW-3 at the scene of  occurrence or for that matter non-mentioning of the name of

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PW-3 in the dying declaration has no connection with  ascertainment of the veracity and creditworthiness of the  dying declaration.  In fact, the High Court did not discuss the  veracity and creditworthiness of either the dying declaration  recorded by PW-1 or the testimony of PW-1 Dr.Khan deposed  before the Court.         The other ground on the basis of which the High  Court rejected the dying declaration (Ex.P-2) as doubtful and  unreliable is that PW-1 Dr.Khan did not state that the  deceased was in a fit mental condition to give dying  declaration and throughout remained conscious when his  statement was recorded. According to the High Court as is  evident from PW.1 Dr.Khan that the deceased was in semi  conscious condition and his blood pressure had gone down to  90/60.   The High Court has also referred to Dr.Pramod  Kaushik PW-10 who conducted autopsy on the dead body and  stated that due to excessive hemorrhage the deceased must  have gone in shock within half an hour after the incident.  PW- 10 also stated that blood transfusion could not be given, as  the facility was not available at Agar.   Accordingly, the High  Court held that in such mental condition, the recording of  dying declaration by PW-1 could not be possible.                  In our view, the High Court was grossly oblivious to  the statement of Dr.Khan when he said that the deceased  must have gone in shock at the place of incident but he  recovered consciousness as he was given glucose saline and  medicines.                      The main attack on the dying declaration by the  counsel for the accused is that considering the nature of the  injury suffered by the deceased there was excessive  hemorrhage and the deceased must have gone in shock within  half an hour after the incident and since blood transfusion  could not be given, the so called dying declaration recorded by  Dr.Khan (Ex.P.2) is not reliable.  According to the counsel, the  High Court was justified in not relying on the said dying  declaration. We are unable to countenance such submission.                  Ex.P-3 is the requisition dated 14.4.1993 sought by  the Investigating Officer regarding the condition of the  deceased Gokul Singh son of Nirbhay Singh for recording  dying declaration.  There is an endorsement in Ex.P-3 by the  Medical Officer Primary Health Center by PW-1 Dr.A.S.Khan  that the deceased Gokul Singh son of Nirbhay Singh aged 35  years would be able to give the statement of dying declaration.    In the dying declaration (Ex.P-2) the deceased in an answer to  the question "who has beaten you" clearly stated that accused  Gokul Singh s/o Amar Singh, Bhawar Singh s/o Ram Singh,  Babulal son of Lal Singh and there were many others whose  names he did not remember.  He further stated that he was  beaten with farsi, dhariya and lathis and badly beaten up with  weapons.  He further stated that he was beaten near his well  and field itself.  In an answer to a question "what were you  doing", he stated, "I was answering call of nature there.  All  the people beat me with dharia, sword and farsi etc. weapons."   The deceased also stated that he was giving the statement in  full consciousness.  He also stated that the dying declaration  was not under any pressure.                 Dr.A.S.Khan was examined as PW-1.  He has stated  that on 14.4.1993 he was posted as Medical Officer at Primary  Health Centre, Agar.  On that day he recorded the dying  declaration (Ex.P-2).  He has also admitted that he has given  the fitness certificate (Ex.P-3).  In cross-examination he has  stated that after 9.30 a.m. his treatment started, glucose and  antibiotic medicines had been given, therefore, after 9.30 a.m.  he had become conscious.  He denied a suggestion that the  condition of the injured further deteriorated.  He has stated

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that the dying declaration was recorded in the operation  theatre in the presence of staff and inspector (SI) and the  policemen.  He further stated that the relatives of the patient  Gokul Singh were not inside the operation theatre.  PW-1 was  confronted with the principle of Samson Wright’s Applied  Physiology, page 152.  He categorically ruled out the  application of the principle.                   Mr.S.K. Gambhir, learned senior counsel for the  respondents, however, brought to our notice the statement of  PW-2 Heeralal Yadav when he stated that when Dr.Khan took  the statement of my brother I was there.   According to the  counsel for the respondents, this statement contradicted with  the statement of PW-1 Dr.Khan that the statement was  recorded in the operation theatre and the relatives of the  deceased were outside the theatre.   We do not see any  contradiction.  PW-2 only stated his presence at the hospital  at the time when the dying declaration was recorded.  He  never stated that he was inside the operation theatre when the  statement of his brother was recorded.                 One of the grounds on which the High Court  disbelieved the dying declaration was that Dr.Khan did not  state that the deceased was in a fit mental condition to give  dying declaration and throughout remained conscious when  his statement was recorded.  This reasoning of the High Court,  in our view, is also fallacious.  In the instant case, the doctor  himself recorded the dying declaration (Ex.P-2).  He has given  the fitness certificate vide Ex.P-3 as referred to above stating  that the patient was fit for recording dying declaration.  Even if  it is assumed that was not there, in view of the decision of the  Constitution Bench of this Court in Laxman    vs.  State of  Maharashtra (2002) 6 SCC 710, these would be no  impediment to the creditworthiness of the dying declaration.                               Counsel for the respondents referred to the Samson  Wright’s Applied Physiology, thirteenth edition and  strenuously urged that if the same principle is applied and  considering the nature of injuries sustained by the deceased  and due to excessive hemorrhage the patient must have gone  in shock within half an hour after the incident and since no  blood transfusion could be given the patient was not conscious  and was not in a position to give the statement.   As already  noted PW-1 was confronted with this principle in cross- examination and he completely ruled out the application of the  principle in the present case.  

               Counsel also referred to the decision of this Court in  Balak Ram    vs.  State of U.P. (1975) 3 SCC 219.  In that  case this Court did not rely upon the dying declaration  because the condition of the patient was critical when he  reached the hospital.   Before the dying declaration was  recorded an attempt was made to give him saline but even  after making incisions on the hands and a leg, the attempt did  not succeed.  In the present case saline and glucose was  administered and the deceased regained consciousness.                     Counsel also referred to the case of  Paparambaka  Rosamma    vs.  State of A.P., (1999) 7 SCC 695.  This  decision has been expressly over-ruled by a Constitution  Bench in the case of Laxman   vs.  State of Maharashtra  (2002) 6 SCC 710.                        In the view we have taken, we are clearly of the  opinion, that the dying declaration of the deceased recorded by   PW-1 Dr.A.S.Khan and well corroborated with other attending  circumstances inspires confidence, on the basis of which  conviction could be sustained.  The High Court committed  grave miscarriage of justice by reversing the conviction  recorded by the Trial Court.  The impugned order of the High

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Court is set aside.  The sentence and conviction recorded by  the Trial Court is restored.  The appeal is allowed.   Respondents are directed to be taken back into custody  forthwith to serve out the remaining period of sentence.    Compliance report within one month.