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

CASE NO.: Appeal (crl.)  323 of 2003

PETITIONER: Narain Singh and Anr.                                    

RESPONDENT: State of Haryana                                                 

DATE OF JUDGMENT: 05/02/2004

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT

JUDGMENT:

J U D G M E N T

ARIJIT PASAYAT,J.

       Appellants call in question legality of the judgment  rendered by a Division Bench of the Punjab and Haryana High  Court whereby the conviction made and sentence imposed by  the Trial Court was affirmed so far as the appellants are  concerned.  Four persons faced trial for allegedly causing  homicidal death of one Kaushal Singh (hereinafter referred  to as ’the deceased’) after abducting him.  All the four  accused persons faced trial for the offences punishable  under Sections 364, 302, 323 read with Section 34 of the  Indian Penal Code, 1860 (for short ’the IPC’). They were  found guilty of the charged offences. Sentences of life  imprisonment, rigorous imprisonment for 10 years and two  months respectively were imposed for three offences, and  fine with default stipulation in case of non-payment of  fine.  The High Court in appeal held accused Mahabir Singh  and Rakesh (A-2 and A-4 respectively) to be not guilty and  directed their acquittal, but maintained the conviction and  sentence so far as appellants are concerned.   

       The prosecution version as unfolded during trial is  essentially as follows:

Deceased and appellant no.1 (Narain Singh) were  brothers. Appellant Hamir Singh is the son of appellant  Narain. There was series of litigations between them in  respect of some properties. On 4.5.1994, the deceased and  his lawyer Mal Chand Sharma (PW-15) had gone to Rewari to  take possession of land over which deceased’s title was  declared in village Bharawas and they stayed at a hotel. At  about 9.30 a.m. they went to the Tehsil office, by a hired  Jeep. Tehsildar asked them to come at 1.00 p.m.  While the  informant and the deceased were going on foot towards Jeep  which was parked across road at about 10.30 a.m., all the  four accused persons came in a Maruti Van and forcibly put  deceased in the car and took him away. Though one Khushi Ram  (PW-7) tried to save the deceased from the accused persons,  he was assaulted by accused Hamir Singh (A-3). The accused  persons took away the deceased. PW-15 immediately reported  the matter to police. On the basis of his report, first  information report was registered at about 10.50 a.m. and

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

the investigation was undertaken.  Police officials went in  search of the deceased who was found in old house in village  Bharawas. The statement of deceased was recorded under  Section 161 of the Code of Criminal Procedure, 1973 (in  short ’the Cr.P.C.’) which was treated subsequently to be  the dying declaration. He was brought to Rewari for  treatment. Dr. Vinod Kumar (PW-12) examined him at 12.00  noon. The deceased was taken to the Jeypore hospital but on  the way he breathed his last in the afternoon. On  examination, PW-12 had found 21 injuries on the body of the  deceased. Subsequently when the deceased breathed his last  post-mortem was conducted by PW-14 on 15.5.1995 and the  injuries noticed by him were more or less the same as were  noticed by PW-12. During the course of investigation,  recoveries were made of the lathi and the Khukri which were  allegedly used by the accused persons for assaulting the  deceased. On completion of investigation charge sheet was  placed.

Twenty witnesses were examined to further the  prosecution version and PWs 7 and 8 were stated to be  eyewitnesses.  Apart from PW-15, PW-8 was driver of the Jeep  in which the deceased and PW-15 had travelled. PW-7 was  claimed to be the eyewitness who tried to save the deceased  when he was forcibly taken in the car and sustained injuries  and PW-15 his advocate gave the first report to the police.   During trial none of the alleged eyewitnesses supported the  prosecution version. Therefore, prosecution relied on the  dying declaration purported to have been made by the  deceased.  The Trial Court found that the dying declaration  was acceptable to fasten the guilt of the accused and,  therefore, convicted and sentenced them as indicated above.  All the four accused persons preferred appeal before the  High Court which came to hold that the dying declaration was  not sufficient to hold the accused Mahabir and Rakesh (A-2  and A-4 respectively) to be guilty. However, since the  present appellant had a motive to murder the deceased and  the dying declaration was acceptable, so far as they are  concerned. Accordingly while acquitting accused Mahabir and  Rakesh (A-2 and A-4 respectively), present appellants were  convicted.

In support of the appeal, learned counsel for the  appellant submitted that this is a case where the informant  who was an advocate did not support the prosecution version.  According to him, the assaults were made by some persons on  the deceased near the Tehsil office and not at the place  claimed by the prosecution.  PW-7 who is supposed to have  sustained injuries while trying to save the deceased also  did not support the prosecution version.  Similar was the  position of driver PW-8. It was submitted that the medical  evidence clearly rules out the manner of assault as claimed  by the prosecution.  The logic applied for disbelieving the  involvement of Mahabir and Rakesh is equally applicable so  far as the appellants are concerned. The so-called dying  declaration itself is not believable.   

Learned counsel for the State, on the other hand,  submitted that merely because the dying declaration was  disbelieved in part, that cannot be ground to acquit present  appellants. Undisputedly, the deceased had sustained  injuries and merely because the hypothetical answers given  by the doctor (PW-19) show that the injuries were not  possible by the weapon claimed to have been used by the  appellants, that cannot be a ground to discard the evidence.  

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

The appellants had the motive to kill the deceased and that  is the distinctive feature between the acquitted A-2 and A-4  and the appellants.

Learned counsel for the informant who has filed/applied  for impleadment adopted stand of the State.     

Though in law there is no bar in acting on a part of  the dying declaration, it has to pass the test of  reliability.  Section 32(1) of the Indian Evidence Act, 1872  (in short ’the Evidence Act’) is an exception to the general  rule that hearsay evidence is not admissible evidence and  unless evidence is tested by cross-examination it is not  creditworthy.  A dying declaration made by a person on the  verge of his death has a special sanctity as at that solemn  moment a person is most unlikely to make any untrue  statement.  The shadow of impending death is by itself  guarantee of the truth of the statement of the deceased  regarding circumstances leading to his death.  But at the  same time the dying declaration like any other evidence has  to be tested on the touchstone of credibility to be  acceptable. It is more so, as the accused does not get an  opportunity of questioning veracity of the statement by  cross-examination.  The dying declaration if found reliable  can form the base of conviction.   

It is, however, seen that there are some circumstances  which assume importance in view of the fact that the  informant (PW-15) who was advocate of the deceased has  departed from the statement supposed to have given during  investigation, and in the first information report.  Similar  is the position of the witness who is supposed to have  received injuries.  In the dying declaration, specific roles  were attributed to all the accused persons.  The High Court  found the roles attributed to the accused Rakesh to be  unacceptable, as he was not found present when the police  arrived at the house from where the deceased was supposedly  recovered.  Similar is the situation so far as accused- appellant Hamir is concerned.  In the dying declaration the  deceased had said that it was Mahabir and appellant Narain  who were trying to kill him.  The High Court found that  since Mahabir would not have benefited from the death; he  cannot be convicted. The reasoning is fallacious. A definite  role was attributed to Mahabir and it was stated that he  wanted to kill the deceased.  On mere surmise that there was  no motive, a different approach was adopted. Added to this,  there are other suspicious circumstances. Firstly, the  incident is supposed to have taken place at 10.30 a.m. and  the report was lodged with the police at 10.50 a.m.  The  distance of police station from the house from where the  deceased was allegedly recovered, is about 8 kms.  It would  have certainly taken some time to reach that place.   According to the prosecution, the statements of two  witnesses were immediately recorded at the spot by the  police.  This is unusual because the first effort should  have been in the normal course to send the deceased to the  nearest hospital for treatment.  Doctor (PW-12) examined the  deceased at about 12.00 noon after the deceased was brought  there after covering at least ten kilometers. The dying  declaration is supposed to have been taken after recording  the evidence of the witnesses.  It is more baffling, that  the investigating officer did not accompany the deceased to  the hospital and claimed to have sent him along with the  constable who was not examined. The High Court has  erroneously observed that the first effort of the police was

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

to save the life of the deceased and, therefore, the  statements were not recorded immediately.  This is contrary  to what the investigating officer (PW-16) himself stated.   Strangely, the original statement stated to be dying  declaration has not been brought on record and what was  purported to be exhibited document was a carbon copy. Doctor  (PW-19) in his evidence also stated that the injuries found  on the deceased were of such nature that he would not be in  a position to give any statement without getting medical aid  from a specialist and that too after two to three hours.  Doctors (PWs 12 and 19) have also stated that the deceased  would not have been in a position to give a detailed  statement like the one produced by the prosecution as a  dying declaration.  The time period between the recording of  F.I.R., examination of the witnesses and recording statement  of deceased, that too after traveling 8 kms. and again  bringing deceased to hospital to be examined by PW-12 has to  much more than one hour and ten minutes as stated by the  prosecution.  The alleged dying declaration runs to several  pages being a very detailed and elaborate one, and the  recording of which itself would take considerable time.        

Significantly, in his cross-examination (PW-16) says  that he does not remember recording the statement of the  deceased.  Doctor (PW-19) has also stated as to the injuries  found on the body of the deceased by PW-12 and as indicated  in the injury report and in the post-mortem report were not  such as could be possible by the Khukri which was shown to  him in Court and purported to have been recovered on the  basis of information given by accused Hamir. Adding to that,  the number of the car which was supposed to have been used  for taking away the deceased from the road near the Tehsil  office was differently described during trial. In the  circumstances of the case, merely because the accused and  the deceased were claimed to be inimical towards each other,  that would not be sufficient to adopt a different method of  analyzing or appreciating the evidence which was common for  all the four persons without any distinct or reasonably  distinguishable features. The Trial Court and the High Court  having accepted this position, on the hypothetical  distinction of a supposed motive could not have adopted  different yardstick.  When the so-called dying declaration  was itself not proved, as noted above, the question of  acting on it did not arise.  There is no evidence to  establish kidnapping and/or murder to attract Section 364  IPC and Section 302 IPC. PW-7 allegedly suffered injuries at  the hands of the appellants for which they were convicted in  terms of Section 323/34 IPC. PW-7 himself did not support  prosecution version in this regard.   

Judged in the aforesaid background, the only inevitable  conclusion permissible on the nebulous and suspect nature of  the evidence let in would be that the prosecution has not  established accusations so far as appellants are concerned.  Their conviction is set aside and the appeal is allowed. The  prayer for impleadment is disposed of. Accused-appellant  Hamir be set at liberty forthwith unless required in any  other case. The bail bonds of accused Narain Singh who is on  bail shall stand cancelled.                                                                                                                                                                                            

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