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CASE NO.: Appeal (crl.)  727-729 of 1998

PETITIONER: State of U.P.

RESPONDENT: Veer Singh and Ors.

DATE OF JUDGMENT: 28/04/2004

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J.

       The State of Uttar Pradesh questions legality of  the judgment rendered by a Division Bench of the  Allahabad High Court directing acquittal of the  respondents (hereinafter referred to as ’the accused’).  13 persons were claimed to be responsible for the death  of large number of persons including small children. Of  them, one namely, Mahendra died during trial. After  commitment, they faced trial in the Court of Third   Additional Sessions Judge, Muzaffarnagar.  While the  trial was in progress, 4 of them absconded and 8 persons  have been tried.  Three of them namely, Hardeep, Sinder  Singh and Nishan Singh were acquitted by the Trial  Court, while the rest five who are respondents herein  were convicted for the offences punishable under Section  302 read with Section 149 of the Indian Penal Code 1860  (in short ’IPC). They were also found guilty under  Section 307 read with Section 149 IPC, and under Section  452 IPC.  For the offence relatable to Section 307 read  with Section 149 IPC they were sentenced five years RI  and for the offence relatable to Section 452 they were  sentenced four years RI.  Respondent Veer Singh, Tahal  Singh, Balkar Singh were also found guilty of offences  punishable under Section 148 IPC and sentenced to three  years RI while Kameer Singh and Amreek Singh were found  guilty of offence punishable under Section 147 IPC and  were sentenced to one year RI.  In appeal by the  convicted accused persons, the conviction has been set  aside by the impugned judgment.

Prosecution version in essential is as follows:

Information was lodged by Sardar Gurdip Singh at  about 4.00 a.m. on 14.7.1984 at P.S. Chhinjhava,  District Muzzaffarnagar stating that he heard shots and  cries coming from the deras of Sardar and Mohan Singh in  village Dompura near village Barnan.  He took his  licensed gun and came secretly with Jassa Singh S/o  Harbans Singh and Huzoor Singh (PW-5) towards the dera  of Gopa Singh. They saw in the moonlight and torch light  that Kartar Singh, standing on his roof and was loudly  calling out his son Sinder Singh, Ginder Singh, Mahendra  and Lakkha loudly and asking them to wipe out the whole  family and Mohar Singh, leaving none of them alive, and  that the account is to be settled that day. When the  complainant and his companion challenged them, many

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shots were fired immediately. The complainant retreated  out of fear.  At the same time Harbhajan Kaur (PW-4)  wife of Sheesa Singh came towards near him and told him  that Kartar Singh and his four sons and 10-12 more men                                                                   with them, including Amrik Singh, Tahal Singh, Kamir  Singh, Veer Singh sons of Sampurna Singh Balkar Singh of  Usarpur have killed all the members of her family and  all the members of Mahar Singh’s family. The complainant  said that he came to give this information to the police  station after hiding Harbhajan Kaur, and requested the  police to go immediately to the site to help her because  shots were being fired when he left the site.  His above  statement was recorded and chic report was prepared and  he signed the report to confirm that it was read over to  him and was written correctly as dictated by him. A case  was registered on the basis of said report and Mod.  Akhtar, who was present at the police station when  report was written, took up the case immediately and  went immediately to the site with the complainant.   After reaching the site, he sent injured Harbans Kaur  and her child Bachu by jeep with a constable to Shanti  for medical examination.  Thereafter, the investigating  officer started investigation. On completion of  investigation, charge sheet was placed.  The Trial Court  placed reliance on the evidence of PW-4 and the  statement purported to be the dying declaration.  As  noted above, the Trial Court acquitted some and  convicted the present respondents.  The High Court was  of the view that though in the FIR names of present  respondents were indicated, in the dying declaration  they were not named and, therefore, they were to be  acquitted.  That is how the present judgment of  acquittal is recorded.   

Mr. N.S. Gahlot, learned counsel appearing for the  appellant-State submitted that the approach of the High  Court is clearly erroneous. The so-called dying  declaration which was recorded with the belief that  there was no chance of survival of PW-4 is in essence a   statement recorded under Section 164 of the Code of  Criminal Procedure, 1973 (in short ’the Code’) having  been recorded by the Executive Magistrate, since she has  survived. It related to a part of the incident so far as  the assailants on her are concerned and did not in any  way related to the rest of the occurrence. Therefore,  the High Court was not justified in directing acquittal  of respondents.   

Learned counsel for the respondents-accused  submitted that there are four sets of accused persons.   The first set comprises of accused Kartar and his four  sons who had absconded during trial. The second consists  of the present respondents, the third consists of  Hardeep and Sinder and the last Nishan and Balbir. So  far as the first three sets of accused are concerned,  they have some relations with each other, while they are  not related to each other.  But Nishan and Balbir are  not related to each other. As in the FIR the names of  Hardeep, Sinder and Nishan were not mentioned they have  been acquitted.  They were also not named in the dying  declaration which was treated as the statement under  Section 164 of the Code. It was urged that informant  Gurdeep was not examined at the time of trial as he died  during trial. An FIR was registered on the basis of PW-

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4’s version in the presence of PW-5, who made departure  from the statement given during investigation.  Similarly, PW-7 who was stated to have significant role  for the prosecution did not support the prosecution  version. The evidence of PW-4 is also not reliable as  lot of material improvements were introduced. No motive  for the alleged crime was attributed so far as present  respondents are concerned.  Dying declaration is not  reliable as it only stated that she was conscious when  the statement was recorded.  Since the High Court  considered the relevant material on record and the view  taken by the High Court is a possible view, no  interference is called for.  We find that the High Court  has not really applied its mind to the evidence on  record objectively.

It is trite law that when maker of purported dying  declaration survives the same is not statement under  Section 32 of the Indian Evidence Act, 1872 (for short  the ’Evidence Act’) but is a statement in terms of  Section 164 of the Code. It can be used under Section  157 of the Evidence Act for the purpose of corroboration  and under Section 155 for the purpose of contradiction.  This position was highlighted in Ramprasad v. State of  Maharashtra (1999 (5) SCC 30), Sunil Kumar & Ors. v.  State of Madhya Pradesh (JT 1997 (2) SC 1), and Gentela  Vijayavardhan Rao v. State of A.P. (1996 (6) Supreme  356).

A bare reading of the statement of PW-4 shows that  the same did not relate to the entire incident. Only one  question was asked about who had caused injury to the  maker of the statement i.e. PW-4.  There was no occasion  for the High Court to hold that because respondents were  not named in the so-called dying declaration, accusation  against them has not been established.  PW-4 in her  evidence in Court has clearly stated as to why she had  given a limited answer. The High Court has not even  considered the effect thereof. It has disposed of the  appeals so far as present respondents are concerned only  on that ground, which as noticed above was not a correct  analysis of the evidence and was rendered on misreading  of the evidence. The conclusion is, therefore,  indefensible. Since the High Court has disposed of the  appeal only on the basis of the aforesaid erroneous  conclusion and has not considered other evidence on  record, we consider it appropriate to direct re-hearing  by the High Court.  We, therefore, remit the matter back  to the High Court to hear the matter afresh and decide  in accordance with law. Any observation made by us,  except to the extent it relates to the erroneous  conclusion of the High Court regarding purported dying  declaration which has to be treated under Section 164 of  the Code, shall not be considered to be expression of  opinion on the merits of the case.   

The appeals are allowed to the aforesaid  observations.