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PETITIONER: MUNNU RAJA & ANR.

       Vs.

RESPONDENT: THE STAE OF MADHYA PRADESH

DATE OF JUDGMENT20/11/1975

BENCH: CHANDRACHUD, Y.V. BENCH: CHANDRACHUD, Y.V. GUPTA, A.C.

CITATION:  1976 AIR 2199            1976 SCR  (2) 764  1976 SCC  (3) 104  CITATOR INFO :  F          1979 SC1173  (8)  F          1980 SC 559  (11)  RF         1986 SC 250  (27)  R          1988 SC2013  (23)  RF         1992 SC1817  (17)

ACT:      I.P.C. Section  302 r/w  Section 34-Dying  declaration- Whether  F.I.R.   can  be   treated  as  dying  declaration- Appreciation of dying declaration -Wehther dying declaration must cover the whole incident.      Section 32(1)  of Evidence  Act-Dying declaration  made before investigating  officer in presence of a doctor but in the  absence   of  a   Magistrate-Evidentary  value  of  the testimony of  hostile eye  witnesses-Powers of High Court in appeal against acquittal.

HEADNOTE:      The appellants  were tried by the Sessions Judge on the charge  of   committing  murder   of  Bahadur   Singh.   The prosecution relied  on the evidence of two eye witnesses and three dying  declarations made  by the deceased. The two eye witnesses supported  the prosecution  case only  partly  and were, therefor, permitted to be cross-examined by the Public Prosecutor. The  Sessions Judge thought it unsafe to rely on the testimony  of the  two eye  witnesses and  was also  not impressed by  and of the dying declarations. Consequently he acquitted the appellants.      The High  Court in  appeal did not discard the evidence of the eye witnesses but utilised it by way of corroboration to the  dying declarations.  The High  Court set  aside  the order  of  acquittal  and  convicted  the  appellants  under section 30 read with section 34 I.P.C. and sentenced each of them to imprisonment for life.      In an  appeal under  section 2(1)  of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970. ^      HELD: 1.  The  Sessions  Court  rightly  discarded  the evidence of  the hostile  eye witnesses.  They resiled  from their Police, Statements and it is evident that they have no regard  for   truth.  Their   evidence  cannot  be  used  to corroborate the dying declarations. [766-C]

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    2. In  regard to  the dying  declarations the  Sessions Court wholly overlooked the earliest dying declaration which was made by the deceased soon after the incident. The second dying declaration was the first information report lodged by the deceased  at the  Police Station. The Sessions Judge was clearly in  error in  holding  that  the  first  information report cannot  be treated  as  a  dying  declamation.  After making  the   statements  before  the  police  the  deceased succumbed to  his injuries and, therefore, the statement can be treated  as a  dying declaration, and is admissible under section  32(1)  of  the  Evidence  Act,  The  maker  of  tho statement is  dead and the statement relates to the cause of his death. [766DF]      3. It  is, well settled that though a dying declaration must be  approached with  caution for  the reason  that  the maker  of   the  statement  cannot  be  subjected  to  cross examination, there  is neither  a rule  of law nor a rule of prudence that  a dying  declaration  cannot  be  acted  upon unless it is corroborated. [766G]      4. Law  does not  require that  the maker  of the dying declaration must  cover the  whole incident  or narrate  the case history.  What is  necessary is  that the  whole of the statement made by the deceased must be laid before the court without tampering with its terms or its tenor. [767-C]      5. The  deceased did  not bear  any enmity or hostility towards the appellants nor did any other persons who were in the company  of the deceased after the assault were shown to have any animus for implicating the appellants false. [767E] 765      6. The  second dying  declaration was  not made  to the Investigating  officer.   It  was   made  by  way  of  First Information Report and it was only after the information was recorded that  the investigation  commenced. The  High Court was  right   in  relying  on  the  first  and  second  dying declarations. Considering the facts and circumstances of the case these  two dying  declarations can  be accepted without corroboration. [767F, 768C]      7. The High Court ought not to have relied on the third dying declaration  which is  said to  have been  made by the deceased in the hospital. The Investigating officer ought to have requisitioned  the services  of a  Magistrate  for  re- cording that  dying declaration,  Investigating officers are naturally integrated in the success of the investigation and the practice  of the Investigating Officer himself recording a dying declaration during the course of investigation ought not to be encouraged. [768CD]      8. The  High Court  in reversing the order of acquittal passed by  the Sessions  rt  did  not  violate  any  of  the principles governing appeals against acquittal. [768E]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 227 of 1972      From the  Judgment and  order dated  the 8th September, 1972 of the Madhya Pradesh High Court in Criminal Appeal No. 927/69.      Mohan Behari Lal for the Appellant.      Ram Panjwani,  Dy. Advocate  General for  the State  of M.P., N. S. Parihar and I. N. Shroff for the Respondent.                            ORDER      CHANDRACHUD,  J.-The   appellants,   Munnu   Raja   and Chhuttan,  were   tried  by   the  learned  Sessions  Judge, Chatarpur on  the charge  that at about 10 a.m. On April 30,

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1969 they  committed the  murder of  one Bahadur  Singh.  In support  of  its  case,  the  prosecution  relied  upon  the evidence of  Santosh Singh (P.W. 1 ) and Mst. Gumni (P.W. 4) who  claimed   to  be  eye  witnesses  and  on  three  dying declarations alleged  to have been made by the deceased. The two eye witnesses were permitted to be cross-examined by the Public  Prosecutor   as  they  supported  the  case  of  the prosecution only  partly. Santosh  Singh stated  that he saw Chhuttan assaulting  Bahadur Singh  with a spear but that he did not see Munnu Raja at all. On the other hand, Mst. Gumni stated that it was Munnu Raja and not Chhuttan who assaulted the deceased.  Since  the  two  principal  witnesses  turned hostile, the  learned Sessions  Judge thought  it unsafe  to rely on  their testimony  and, in  our opinion, rightly. The learned Judge  was also  not impressed  by any  of the dying declarations with  the result that he came to the conclusion that the prosecution had failed to establish its case beyond a  reasonable  doubt.  In  that  view  of  the  matter,  the appellants were acquitted by the learned Judge.      Being aggrieved  by the  order of  acquittal, the State Government filed  an appeal  in the  High  Court  of  Madhya Pradesh, which was allowed by a Division Bench of that Court by its  judgment dated September 8, 1972. The High Court did not discard the evidence of 766 the eye witnesses but utilised it by way of corroboration to the dying  declarations alleged  to have  been made  by  the deceased. Setting  aside the  order of  acquittal, the  High Court has convicted the appellants under s: 302 read with s. 34 of  the Penal  Code and  has sentenced  each of  them  to imprisonment for life. The appellants have filed this appeal under s.  2(1) of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970.      We have  heard Mr.  Mohan Behari  Lal on  behalf of the appellants at some length and we have considered each of his submissions care fully. It is however unnecessary to discuss every one  of the points made by him because, basically, the scope of this appeal-not for getting that the appellants had a right  to file  this appeal  in this  Court-lies within  a narrow compass.  As we  have indicated earlier, no exception can be taken to the view taken by the learned Sessions Judge that it  is not  safe to  place reliance on the testimony of Santosh Singh and Mst. Gumni. They resiled from their police statements and  it is  evident that  they have no regard for truth. Their  evidence cannot  be  used  to  corroborate-the dying declarations either.      We are thus left with the three dying declarations made by Bahadur  Singh and since the prosecution has placed great reliance on  them, we  thought  it  necessary  to  hear  the learned counsel fully on the facts and circumstances leading to the dying declarations.      In regard  to these dying declarations, the judgment of the Sessions  Court suffers  from a patent infirmity in that it  wholly   overlooks   the   earliest   of   these   dying declarations, which  was made by the deceased soon after the incident in  the house  of  one  Barjor  Singh.  The  second statement which  has been  treated by  the High  Court as  a dying declaration  is Ex.  P-14, being the first information report which  was lodged  by  the  deceased  at  the  police station. The  learned Sessions  Judge probably  assumed that since the  statement was  recorded as  a  first  information report, it  could not  be treated as a dying declaration. In this assumption, he was clearly in error. After making  the statement before the police, Bahadur Singh succumbed to his injuries and therefore the statement can be treated as a

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dying declaration  and is  admissible under section 32(1) of the Evidence Act. The maker of the statement is dead and the statement relates to the cause of his death.      The High  Court has  held  that  these  statements  are essentially true and do not suffer from any infirmity. It is well  settled  that  though  a  dying  declaration  must  be approached with caution for the reason that the maker of the statement cannot  be subject  to cross-examination, there is neither a  rule of  law nor  a rule  of prudence  which  has hardened into  a rule of law that a dying declaration cannot be acted upon unless it is corroborated: [see Khushal Rao v. State of  Bombay]. The High Court, it is true, has held that the evidence of the two eye witnesses corroborated the dying declarations but  it did not come to the conclusion that the dying declarations suffered from 767 any infirmity  by reason  of which  it was necessary to look out for corroboration.      It  was  contended  by  the  learned  counsel  for  the appellants that  the oral statement which Bahadur Singh made cannot, in  the eye  of law,  constitute a dying declaration because he did not give a full account of the incident or of the transaction  which resulted  in his  death There  is  no substance in this contention because in order that the Court may be  in a  position to  assess the evidentiary value of a dying declaration,  what is  necessary is  that the whole of the statement  made by  the deceased must be laid before the Court, without  tampering with  its terms  or its tenor. Law does not  require that  the maker  of the  dying declaration must cover  the whole  incident or narrate the case history. Indeed, quite  often, all that the victim may be able to say is that  he was  beaten by a certain person or persons. That may either  be due  to the  suddenness of  the attack or the conditions of  visibility or  because the victim is not in a physical condition to recapitulate the entire incident or to narrate  it   at  length.   In  fact,  many  a  time,  dying declarations which are copiously worded or neatly structured excite suspicion  for the  reason that  they bear  traces of tutoring.      It was  urged by  the learned  counsel that  after  the attack, the  deceased was  all along  accompanied by a large number of  persons and  one  cannot  therefore  exclude  the possibility  that   he  was   tutored  into   involving  the appellants falsely.  We see  no basis  for  this  submission because not  even a  suggestion  was  made  to  any  of  the witnesses that  the deceased  was tutored  into  making  the statement. The deceased, on his own, did not bear any enmity or hostility  to the  appellants and had therefore no reason to implicate  them falsely.  Indeed, none of the persons who were in  the company of the deceased after he was assaulted, is shown  to have  any particular animus for implicating the appellants falsely.      In regard  to the  second dying  declaration, Ex. P-14, the main  objection of  the learned  counsel is  that it was made  to   the  investigating   officer  himself  and  ought therefore  be   treated  as  suspect.  In  support  of  this submission, reliance  was placed on a Judgment of this Court in Balak  Ram v.  State of  U.P. The  error of this argument consists in  the assumption  that the  dying declaration was made to  an investigating  officer. The statement, Ex. P.14, was made  by Bahadur Singh at the police station by way of a first information  report. It  is after  the information was recorded, and  indeed because  of its that the investigation commenced  and  therefore  it  is  wrong  to  say  that  the statement was  made to an investigating officer. The Station

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House officer who recorded the statement did not possess the capacity of  an investigating  officer at  the time  when he recorded the  statement. The  judgment on  which the counsel relies has therefore no application. 768      We are  in full agreement with the High Court that both of these  dying declarations are true. We are further of the opinion that  considering the facts and circumstances of the case,  these   two  statements   can  be   accepted  without corroboration. Bahadur  Singh was  assaulted  in  broad  day light and he knew the appellants. He did not bear any grudge towards them  and had  therefore no reason to implicate them falsely. Those  who were  in the constant company of Bahadur Singh after the assault, had also no reason to implicate the appellants falsely.  They bore no ill-will or malice towards the appellants.  We see  no infirmity  attaching to  the two dying declarations which would make it necessary to look out for corroboration.      We might,  however, mention  before we  close that  the High Court  ought not  to have  placed any  reliance on  the third dying declaration. Ex. P-2, which is said to have been made by  the deceased  in the  hospital.  The  investigating officer who  recorded that  statement had  undoubtedly taken the precaution  of keeping  a doctor  present and it appears that some  of the friends and relations of the deceased were also present  at the  time when  the statement was recorded. But, if the investigating officer thought that Bahadur Singh was  in   a  precarious   condition,  he   ought   to   have requisitioned the services of a Magistrate for recording the dying  declaration.  Investigating  officers  are  naturally interested in  the success  of  the  investigation  and  the practice of  the investigating  officer himself  recording a dying declaration  during the  course of investigation ought not to  be encouraged.  We have  therefore excluded from our consideration the  dying declaration,  Ex. P-2,  recorded in the hospital.      The High  Court was,  therefore, justified in reversing the order  of acquittal  passed by the Sessions Court and in convicting the  appellants of the offence of which they were charged. In  so doing, the High Court did not violate any of the principles governing appeals against acquittal, to which our attention was drawn by the appellants’ counsel from time to time      In the  result, we  confirm the  judgment of  the  High Court and dismiss the appeal. P.H.P.                                     Appeal dismissed. 769