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PETITIONER: MOTI SINGH AND ANOTHER

       Vs.

RESPONDENT: STATE OF UTTAR PRADESH

DATE OF JUDGMENT: 23/01/1963

BENCH: DAYAL, RAGHUBAR BENCH: DAYAL, RAGHUBAR IMAM, SYED JAFFER SUBBARAO, K. MUDHOLKAR, J.R.

CITATION:  1964 AIR  900            1964 SCR  (1) 688  CITATOR INFO :  R          1984 SC1622  (201)

ACT: Criminal  Trial-Dying Declaration-Admissibility  ofCause  of death of declarant not established-Indian Evidence Act, 1872 (1 of 1872), s. 32 (1).

HEADNOTE: Seven  persons including the appellants were  convicted  for murder.   Relying upon the dying declaration ’of one G,  the High  Court acquitted five of the accused but convicted  the appellants.   G had been injured during the  occurrence  and had  been taken to the hospital where his dying  declaration was recorded.  He left the hospital and died 20 days  later. Before  any postmortem examination could be held,  his  body was  cremated.   The  appellants contended  that  the  dying declaration was inadmissible and that they were entitled  to an acquittal. Held,  that  the  dying  declaration  was  inadmissible   in evidence.   There was no evidence on the record as  to  what caused the death of G. The mere fact that G had received two gun shot injuries during the occurrence which in the opinion of the doctor were dangerous to life was not sufficient  for holding that G must have died on account of these  injuries. Under  s.  32  (1) of the Evidence Act the  Statement  of  a person who has died is relevant only when it relates to  the cause  of  his death or to any of the circumstances  of  the transaction  which resulted in his death.  When it  was  not established  that  G had died as a result  of  the  injuries received  at the incident, his statement did not  relate  to the  cause  of  his death or to  the  circumstances  of  the transaction  which  resulted in his death and did  not  fall within s. 32 (1).

JUDGMENT: CRIMINAL  APPFLLATE JURISDICTION: Criminal Appeals Nos.  146 and 147 of 1962. Appeals  by special leave from the judgment and order  dated

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February  2, 1962, of the Allahabad High Court  in  Criminal Appeals  Nos. 157 and 158 of 1961 and Criminal Revision  No. 384 of 1961.  689 A.   S.  R. Chari, Ravinder Narain, J. B. Daduchanji and  0. C. Mathur, for the appellants. G. C. Mathur and C. P. Lal, for the respondent. 1963.  January 23.  The judgment of the Court was  delivered by RAGHUBAR   DAYAL,   J.-Moti  Singh  and   jagdamba   Prasad, appellants, together with five other persons, were convicted by the Sessions judge of Unnao of offences under s. 148, 302 read  with 149 and 307 read with 149 I. P. C. Each  of  them was sentenced to life imprisonment under s. 302 read with s. 149 1. P. C. On  appeal, the High Court acquitted the other five  persons of the various offences.  The conviction of the  ’appellants under  s.  148  1.  P. C., was also  set  aside,  but  their conviction for the offences under ss. 302 and 307 read  with s. 149 were altered to conviction for offences under ss. 302 and  307  read  with s. 34 1. P. C. On  the  application  of Krishna  Kumar, brother of one of the persons who  had  been murdered,  the  High  Court enhanced  the  sentence  of  the appellants  for the offence of murder to death.  Moti  Singh and   jagdamba   Prasad   have   preferred   these   appeals respectively, after obtaining special leave from this Court. It  is not necessary to detail the facts of the incident  in which several persons lost their lives and for participation in  which incident the appellants were convicted, as we  are of- opinion that the conviction cannot be maintained on  the basis  of the evidence on record as appreciated by the  High Court. All the eye witnesses of the incident deposed in practically identical terms about the progress of the incident in  which it was alleged that the members of 690 the  accused  party fired with guns and  pistols  both  from inside  and outside the room on one side of the passage  and also  from the seori (cattle shed) on the other side of  the passage when the victim party passed along the passage.  The High Court felt doubtful about the firing of the shots  from the  cattle shed, and consequently acquitted  Sheo  Shankar, jagjiwan  and Shankar Dayal who were said to be  mainly  the persons who had fired from that place. The High Court, however, believed the prosecution version of the  firing from the room and later from the’ platform.   It appears  that the, High Court believed this version  because the   prosecution  witnesses  stated  so  and  because   the statements exhibits Kha 5, Kha 8 and Kha 75 mentioned  about the shots being fired from those places.  Statement ex.  Kha 75 does not say so.  It says that firing took place from the front   and  that  these  people  fired  shots  with   guns. Statements-  exs.  Kha 5 and Kha 8 were made by Ram  Shankar and jageshwar, who were examined as Court-witnesses 1 and  2 respectively.    Ram   Shankar  and  jageshwar   have   been disbelieved  by the Sessions judge and it appears  that  the High  Court did not take any more favourable view  of  their deposition  in  Court.  It however seems to have  relied  on their  statements  exs.   Kha  5  and  Kha  8  respectively, recorded by a Magistrate at the hospital.  In this it was in error.  Those statements could have been used only in either corroborating  or  contradicting  the  statements  of  these Witnesses  in  Court.   If those witnesses were  not  to  be believed,  their  previous statements could not be  used  as independent  evidence  in support of the  other  prosecution

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evidence. In  considering the complicity of individual accused in  the firing  from the room and later from the chabutra, the  High Court  said that Raj Kumar, P. W. 1 1 and Chandra Kumar,  P. W.  15,  were partisan witnesses whose evidence  had  to  be examined  691 with caution, that Shyam Lal, P. W. 12 and Gopi Singh, P. W. 14, were not quite independent witnesses, and that there was nothing  particular against Lal Singh, P. W. 17, and  Sardar (P.  W. 16) who had received gun shot injuries.  It  further said :               "While   considering  the  evidence   of   the               prosecution witnesses we have to bear in  mind               the rule that the evidence has to be  examined               with caution". It  also considered it necessary to refer to the  statements exs.  Kha 5 and Kha 8 which, as already stated, could not be used as substantive evidence, and the statement ex.  Kha  75 of Gaya Charan, deceased. The High Court fully relied on the alleged dying declaration ex.   Kha  75  of  Gaya Charan and considered  it  to  be  a complete  account  of the occurrence and the  assailants  as seen  by  him.   The  view of  the  High  Court  about  this statement of Gaya Charan may be quoted :               "The dying declaration Ex.  Ka-75 (Kha 75)  of               Gaya  Charan appears to be a complete  account               of  the occurrence and the assailants as  seen               by  him, for he stated : ’Lallan, Chandu,  Raj               Narain, Sardar, Sri Prakash were going to  the               bazar.  Shots were fired from front, jagdamba,               Phunnar, Moti and one man whom I know by  face               fired gunshots on us’.  The statement does not               show  that  Gaya Charan did not  see  all  the               assailants   who  fired  gunshots.    It   -is               therefore  not  possible  to  hold  that   any               accused not mentioned in the dying declaration               of  Gaya Charan had also fired shots.  At  the               same  time we see no reason to hold  that  the               dying declaration of Gaya Charan is not  true.               jageshwar identified the accused Jagdamba               692               among  the  assailants.  The evidence  of  the               eye-witnesses  has therefore to be  judged  in               the  light of the statements Exs.  Kha  5  and               Kha-8  of  Ram Shankar and jageshwar  and  the               dying declaration Ex.  Kha 75 of Gaya Charan." Now,  the  evidence  relied on by the  High  Court  for  the conviction of Jagdamba Prasad consists of the statements  of the prosecution -witnesses, the statement of jageshwar I, K. Kha  8 and the alleged dying declaration of Gaya Charan  Ex. Kha  75.  It also took into consideration the fact  that  he remained  absconding till his arrest on September 30,  1960, the incident having taken place on February 9, 1960. The  evidence  relied on for the conviction  of  Moti  Singh consists of the dying declaration Ex.  Kha 75 of Gaya Charan and, presumably, also of the statements of the I prosecution witnesses, as the High Court has not specifically stated so. It has said               "We have also no doubt about the participation               of  the  accused Moti in the firing  of  shots               from the east of the galiara.  He is named  in               the  dying declaration Ex.  Kha. 75,  of  Gaya               Charan." With  regard  to  the criticism for the  accused  about  the

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indefiniteness  of  the  description of Moti  in  the  dying declaration of Gaya Charan when there were three persons  by the name of Moti in the village, the High Court said :               "We have no doubt that he is mentioned in  the               dying declaration." How  they arrived at that conclusion is not clear  from  the judgment.  The three persons with the name of Moti  belonged to different castes.  The case. of Moti is not mentioned  in the dying declaration  693 of Gaya Charan.  It is therefore not possible to state  with any  confidence that Gaya Charan must have referred to  Moti Singh, ’the appellant, by the name Moti. in  acquitting Sheo Darshan Singh, the High Court said  that though  there were strong circumstances against him, he  was not  mentioned in the dying declaration of Gaya  Charan  and that  therefore  his presence among  the  assailants  became doubtful.  In acquitting Avadh Behari it again said that his name  was  not mentioned in the dying  declaration  of  Gaya Charan. Again, in fixing the number of persons who had taken part in the  firing from the room and the platform, the  High  Court relied  on Exhibit Kha 75, the alleged dying declaration  of Gaya Charan as the deciding factor.  It said               "The  number  of assailants mentioned  in  the               dying declaration Ex.  Kha. 75 is only  four.,               It  is  doubtful if the assailants  were  more               than four in number.  No offence under section               148  was therefore committed and  section  149               I.P.C. is not applicable." It is clear from the above that the High Court mainly relied on  the  alleged  dying  declaration  of  Gaya  Charan   for determining that Moti Singh and jagdamba Prasad, appellants, ’fired  from  the room and the platform and  that  if  their names  had  not  been mentioned in this  statement  of  Gaya Charan, they too would have got the benefit of doubt just as Sheo  Darshan Singh and Avadh Behari have got.  There is  no other  factor for making a distinction between the cases  of these  two  appellants  and those two  accused  as  all  the prosecution   witnesses  had  named  all  the   accused   as assailants of the victim 694 party.  It follows that if this alleged dying declaration of Gaya  Charan be inadmissible in evidence as urged  for.  the appellants,   the  appeals  have  to  be  allowed  and   the conviction of the appellants set aside. The incident took place on February 9, 1960.  Gaya  Charan’s injuries  were examined by Dr. Bhatnagar the same  day.   He found  two  gun shot wounds of entry 1/4 x 1/4"  up  to  the depth of abdomen and considered those injuries to be  caused by  gun shot and to be dangerous to life.  Gaya Charan  left the  hospital.   He was either discharged  on  the  injuries healding  up or he left the hospital before they healed  up. There is nothing on record to show in what circumstances  he left the hospital.  He died on March 1. 1960. Sub-Inspector  Puttu Lal, P.W. 24, has deposed that  it  was known  on March 1, 1960 that Gaya Charan had died in  Kanpur and that when he reached the Bhairon Ghat he learnt that the dead  body of Gaya Charan had been burnt a couple  of  hours before.   There is no evidence on record as to  what  caused Gaya Charan’s death.  In this state of evidence the  finding of  the  Sessions judge that Gaya Charan must have  died  on account  of the injuries received in the incident cannot  be held to be a good finding.  What he says in this  connection is:

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             "Gaya  Charan had a gunshot wound of entry  on               the left hypochondrium region and one  gunshot               wound  of  entry on the right  lumbar  region.               Both  the  injuries were  dangerous  to  life,               according  to  the Doctor.  Gaya  Charan  must               have died of these injuries and the mere fact,               that no post mortem could be conducted on  his               dead body before his cremation, does not  show               that we cannot rely on his dying declaration." The mere fact that the two gun-shot injuries  695 were  dangerous to life is not sufficient for  holding  that Gaya Charan’s death which took place about three weeks after the incident must have been on account of those injuries. In this connection our attention was drawn to the fact  that Ram  Shankar  who  was also injured  in  that  incident  had received  one gun shot wound -I’ x 1/4" up to the  depth  of his  abdomen  above  the  right  end  of  upper  border   of Syihphysis  Pubes, and that injury was ’also  considered  by the  Doctor  to be dangerous to life,  but  fortunately  Ram Shankar  did not succumb to the injury.  The High Court  did not  refer to this question as it appears the  admissibility of  the  alleged dying declaration of Gaya  Charan  was  not raised  before  it.  That however does not mean  that  ’  we cannot  look  into  the finding of fact  about  Gava  Charan having  died  on  account of the injuries  received  in  the incident.  It is necessary for proving the charge of  murder of  Gaya Charan that he had died on account of the  injuries received, and any finding to that effect, in the absence, of evidence  can be looked into by this Court even  though  the Courts  below  have confirmed that finding.   We  find  that there  is no evidence to support that finding and hold  that Gaya  Charan is not proved to have died due to the  injuries received in the incident. The  effect  of  this  finding is  that  the  alleged  dying declaration  of  Gaya  Charan,,  Ex.   Kha  75,  cannot   be admissible in evidence.  Clause (d) of s. 32 of the evidence Act makes a statement of a person who has died relevant only when  that statement is made by a person as to the cause  of his  death  or  as  to  any  of  the  circumstances  of  the transaction  which resulted in his death, in cases in  which the cause of that person’s death comes into question.   When Gaya  Charan is not proved to have died as a result  of  the injuries received in the incident, his statement 696 cannot  be said to be the statement as to the cause  of  his death  or as to any of the circumstances of the  transaction which  resulted  in his death.  This is obvious and  is  not disputed for the respondent State. The  result  then is that the statement of Gaya  Charan  Ex. Kha 75 is inadmissible in evidence.  It was the mainstay  of the judgement of the High Court upholding    the finding  of the Sessions.judge that Moti Singh and   jagdamba    Prasad, appellants,were among the     persons who had fired from the room and the   platform.   When  this  evidence  is  to   be ignored as     inadmissible,  the remaining evidence on  the record  according  to  the  view  of  the  High  Court,  was insufficient to establish beyond reasonable doubt that these two  persons  were  among the  assailants.   The  appellants deserve  the benefit of that doubt.  They would have got  it if  the  High  Court  had  not  erroneously  relied  on  the statement Ex.  Kha 75. We  therefore hold that Moti Singh and jagdamba Prasad  have not  been  proved  to have taken art  in  that  incident  on February  9,  1960, which part to the deaths of  Lallan  and

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Matrumal  and the causing of hurt to several other  persons. We accordingly allow the appeals, set a de the order of the High Court and acquit Moti Singh and jagdamba Prasad of  the offences  they  were convicted of.  We direct that  they  be released forthwith, if not required to be detained under any other process of law.                               Appeal allowed.  697