07 May 1970
Supreme Court


Case number: Appeal (crl.) 244 of 1969






DATE OF JUDGMENT: 07/05/1970


CITATION:  1970 AIR 1566            1971 SCR  (1) 599  1970 SCC  (2) 113  CITATOR INFO :  R          1972 SC1766  (9)  R          1976 SC1994  (6)  R          1984 SC1523  (10)

ACT: Code  of  Criminal Procedure,  1898.  154-First  Information Report what is-s. 162(1) of Code whether bars admission  off dying declaration into evidence. Evidence Act, 1872-Dying declaration is admissible under  s. 32(1)  and bar of s. 162(1) Cr.  P. C. does not  apply-Value of dying declaration. Ballistic  expert-if  eye-witnesses are  believed  the  non- examination of ballistic expert loses all importance.

HEADNOTE: The  appellant was tried for murder, on the allegation  that he  caused the death of B by firing five shots at  him  from his pistol.  The testimony against him consisted of a  dying declaration made by B, the statements of three  eyewitnesses and some circumstantial  evidence.   The trial  court  convicted the appellant and sentenced  him  to death.   The  conviction and sentence were affirmed  by  the High  Court.  In appeal by special leave before  this  Court the appellant contended : (i) that the information  relating to the occurrence given to the police by telephone regarding which, an entry was made in the daily dairy must be  treated as  the  first  information  report;  (ii)  that  the  dying declaration of deceased was inadmissible because it was  hit by s. 162 of the code of Criminal Procedure; (iii) that  the dying declaration was unreliable; (iv) that the evidence  in the case was not sufficient to justify the conviction of the appellant;  (v)  that,  among  other  omissions,  the   non- examination of the ballistic expert created a lacuna in  the prosecution  case;  and (vi) that in view  of  the  alleged, motive-the  appellant’s  suspicion  that  the  deceased  had illicit  relations  with  his wife-the  sentence  should  be reduced. HELD  :  (i) The telephonic message recorded  in  the  daily diary of the police station was a cryptic and anonymous oral message which did not in terms clearly specify a  cognizable offence  and  could  not, therefore,  be  treated  as  first



information report.  The mere fact that this information was the  first  in point of time could not by itself  clothe  it with  the  character  of  first  information  report.    The question whether or not a particular document constitutes  a first  information  report,  has to  be  determined  on  the relevant facts and circumstances of each case. [605 B-C] (ii)Section  162  Criminal Procedure Code in  express  terms excludes  from  its purview statements ’falling  within  the provisions   of  s.  32(1)  of  the  Indian  Evidence   Act. indisputably, the dying declaration in the present case fell within s. 3(1) of the Indian Evidence Act and as such it was both  relevant  and  outside the  prohibition  contained  in s.162(1) Cr.  P. C. [605 D-E] (iii)(a) In view of the evidence of the Judicial  Magistrate who  recorded the dying declaration the mere fact  that  the original  dying declaration had been stolen from  the  file, could  not destroy its value.  Nor could the fact  that  the investigating officer was allowed to make a copy 6 00 of  the  dying declaration be interpreted to mean  that  the Magistrate   was  subservient  to  the  police.    A   dying declaration   is  not  a  confidential  document   and   can legitimately serve as a guide in further investigation. [606 D-G] (b) A dying declaration is not a deposition in Courtand it is neither  made  on  oath  nor in the  presence  of  the accused.          Itis  therefore not tested in  cross- examination on behalf of the accused.But     a      dying declaration is admitted in evidence by way of an exceptionto the  general  rule  against  the  admissibility  of  hearsay evidence on the principle of necessity.  The weak points  of the  dying declaration merely serve to put the court on  its guard  while  testing its reliability by imposing on  it  an obligation    to    closely   scrutinise    all    attendant circumstances.  So scrutinised. the dying declaration in the present case must be accepted as true. [607 D-E] (iv)If  the  dying declaration is acceptable as  true  then even in the absence of other corroborative evidence it would be  open to the court to act upon the dying declaration  and convict the appellant stated therein to be the offender.  An accusation in a dying declaration comes from the victim  and if it is accepted then in view-of its sources the court  can safely  act on it.  In the present case not only  the  dying declaration  but the other evidence including that of  three eye-witnesses  justified  the conviction of  the  appellant. [609 E-F] (v)When the eye witnesses have been believed minor  points such  as  non-production of the ballistic  expert  lose  all importance. [610 E-F] (vi)In view of the manner in which five shots were fired at the deceased,the murder was deliberate and pre-planned and the plea for reductionof   the  sentence  could  not   be accepted. [611 E] Sarup  Singh  v. State of Punjab, A.I.R.  1964  Punjab  508, Brahmin  Ishwarlal Manilal v. State of Gujarat, Cr.  A.  No. 120/63 dt. 10-8-1965. Kushal Rao v. State of Bombay,  [1958] S.C.R.  152  at pp. 568-569 and Harbans Singh  v.  State  of Punjab, [1962] Sup.  1 S.C.R. 104, referred to.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 244  cf 1969. Appeal  by special leave from the judgment and  order  dated



July  23,  1969  of the Punjab and  Haryana  High  Court  in Criminal Appeal No. 302 of 1969 and Murder Reference No.  25 of 1969. Nur-ud-din Ahmad and R. L. Kohli, for the appellant. R. N. Sachthev, for respondent No. 1. Frank  Anthony,  S.  R.  Agarwal and  E.  C.  Agarwala,  for respondent No. 2. The Judgment of the Court was delivered by Dua,  J.  In  this appeal by  special  leave  the  appellant challenges his conviction and sentence under s. 302,  I.P.C. for the; murder of his brother-in-law (husband of his wife’s sister).   The occurrence is stated to have taken  place  on Sunday  October  8, 1968 at about 4.45 p.m. near  the  clock tower in Ludhiana’ City. 601 It  is  not disputed that on August 13, 1968  the  appellant Tapinder Singh, a business man and a Municipal Commissioner, had  lodged  a first information report (Ex.  PR)  with  the police  station,  Sadar,  Ludhiana  against  Kulwant  Singh, deceased  whom  he  described as.  his  Sandhu  (his  wife’s sister’s  husband) and one Ajit Singh, alleging that on  the pretext of consulting him they had taken him in their car to the  canal  near the Agricultural College an  after  getting down  from the car, when they had walked about 150 paces  on the  banks of the canal, the deceased Kulwant Singh,  saying that he would teach the appellant a lesson, whipped out  a-- clasp-knife and attacked him.  Ajit Singh also shouted  that the  appellant  should  not  be  allowed  to  escape.    The appellant  raised  alarm  and tried  to  run  away."-  While endeavoring  to ward off with his right hand the knife  blow by Kulwant Singh the appellant’s right hand palm got wounded and  started  bleeding, Just at that  moment  Gurmel  Singh, Sarpanch  and  Shamsher Singh, Lambardar, happened  to  pass that  way in a car.  They stopped the car.  In the  meantime Kulwant  Singh and Ajit, Singh got into, their car and  went away.   Pursuant to this report admittedly a  criminal  case was  pending  against the deceased when  the  occurrence  in question took place.  Kulwant Singh, deceased, who had  been arrested  pursuant to that report, in a case under  s.  307/ 324,  I.P.C.,  was  actually  on bail on  the  date  of  the occurrence.   According  to the  prosecution  Gurdial  Singh (P.W. 7), father of the deceased Kulwant Singh is  employed, as  Works Manager in the, Ludhiana Transport Company,  which is  a  private concern and which plies  buses  on  different routes in Ludhiana District.  Gurdial Singh is also a share- holder  of this Company.  The workshop, the office  and  the taxi  stand of this Company are located in  Sarai  Bansidhar which  faces the clock tower.  Gurdial Singh,  in  addition, owns  two  taxis which he runs on hire.  He  also  owns  two private  cars which are used both for personal  requirements and  as taxis.  The deceased used to look after  these  four vehicles.   The father and the son used to live together  in Model Town.  The two taxis used to remain at the Taxi  Stand about 100 yards away from the clock tower whereas the  other two  cars  used  to be parked at  Gurdial  Singh’s  business premises.  On August 8, 1968 at about 4.45 p.m. the deceased was sitting on a Takhat posh at the Taxi Stand.  It being  a Sunday  the  shops in the neighborhood  were  closed.   Sher Singh  (P.W.  9)  was standing close  to  the  Takhat  posh. Harnek  Singh,  the driver of one of the taxis  and  Gurdial Singh  were  also present.  At the taxi stand there  was  at that  time  only-one taxi belonging to Gurdial  Singh.   The appellant  came  from the side of the  railway  station  and fired  at  the deceased five shots from his  pistol.   After receiving  three  shots the deceased dropped  down  and  the



remaining two shots hit him when he was lying.  The  persons present there raised art 602 ,alarm,  shouting ’Don’t kill; dont kill’.   The  appellant, after  firing  the shots, briskly walked  back  towards  the railway  station.  The ,deceased who was bleeding  profusely was taken in the taxi by Gurdial Singh, his father and Hamek Singh,  the  driver, to Dayanand Hospital  where  they  were advised to take the injured to Brown’s Hospital because  his condition  was serious.  It is in evidence that some  person had  telephoned to the City Kotwali, Ludhiana on the day  of the  occurrence  at  about 5-30 p.m.  informing  the  police authorities  that  firing  had  taken  place  at  ax  Stand, Ludhiana.  The person, giving the information on  telephone, did  not disclose-his identity; nor did he give any  further particulars.    When  the  police  officer   receiving   the telephone  message  made  further  enquiries  from  him   he disconnected the telephone.  This report was entered in  the daily  diary at 5.35 p.m. The Assistant Sub-Inspector,  Hari Singh,  along  with_ Assistant Sub-Inspectors  Amrik  Singh, Jagat  Singh  and Brahm Dev and constables  Prakash  ,Singh, Harbhajan Singh and Harbans Lal, left the police station  in a government jeep for the Taxi Stand, Ludhiana near  Jagraon Bus  Stand  on the Grand Trunk Road, about a furlong  and  a half away from the City Kotwali Police Station.  From  there Hari  Singh learnt that the injured man had been removed  by some persons to Dayanand Hospital.  As it was rumored at the place  of the occurrence that the appellant  Tapinder  Singh had shot at the deceased, Hari Singh deputed Amrik Singh and Brahm  Dev  to search for him.  Hari  Singh  himself,  along with.sub-Inspector  Jagat  Singh and the  police  constables left  for  Dayanand Hospital.  From there they went  to  the Civil Hospital and then they proceeded to C.M.C. Hospital at about  6-30 p.m. On enquiry they were informed that  Kulwant Singh  had been admitted there as an indoor  patient.   Hari Singh  went upstairs in the Surgical Ward and  obtained  the report  (Ex.  PH/ 13) prepared by Dr. E. Pothan who  was  in the  Surgical  Ward  where Kulwant  Singh  was  lying.   The statement  of Kulwant Singh (Ex.  PM) was also  recorded  by him at about 6.50 p.m. in that ward and the same after being read  out by him was thumb marked by Kulwant Singh as  token of  its  correctness.  That statement was forwarded  to  the police  station, City Kotwali for registration of  the  case under  s.  307, I.P.C. Exhibit PM was also attested  by  Dr. Sandhu,  House Surgeon.  Hari Singh deputed  Assistant  Sub- Inspector,  Jagat  Singh  to arrange for  a  Magistrate  for recording Kulwant Singh’s dying declaration in the hospital. The  statement of Gurdial Singh, father of the deceased  was also  recorded there at about 7.20 p.m. Jagat Singh,  A.S.I. brought  Shri  Sukhdev Singh, P.C.S.,  Judicial  Magistrate, First  Class,  to the Hospital at about 7.30 p.m  The  dying declaration was, however, recorded at about 8.30  P.m. because Kulwant Singh was not found to be in a fit ’state of health to make the statement earlier.  Kulwant Singh died 603 at the operation theatre the same midnight.  Pursuant to Ex. PH/  13  first  information report was  registered  and  the appellant committed to stand his trial for an offence  under S. 302, I.P.C. The  learned  Additional Sessions Judge,  believing  Gurdial Singh (P.W. 7), Sukhdev Singh, Judicial Magistrate (p.W. 10) and  Mukhtiar Singh, H. C. (P.W. 6) held proved  the  motive for  the  crime viz., that the appellant  suspected  illicit intimacy  between his wife and the deceased who was  married to  her  elder  sister.  According to the  trial  Judge  the



appellant  for  this  reason  bore  a  grudge  against   the deceased.  The three eye witnesses Gurdial Singh, (P.W.  7), Hamek  Singh (P.W. 8) and Sher Singh (P.W. 9) were  held  to have given a true and correct account of the occurrence  and being  witnesses whose presence at the place  of  occurrence was  natural  their evidence,  was  considered  trustworthy, which fully proved the case against the accused.  The  dying declaration  was  also found to be free from  infirmity  and being  categorical  and  natural  the  court  considered  it sufficient  by  itself  to  sustain  the  conviction.    The circumstantial  evidence, including that of the recovery  of blood  stained  earth  from the  place  of  occurrence,  the recovery of blood stained clothes of the deceased, the  fact of  the  accused having absconded and the  recovery  of  the pistol  and  cartridges were also held  to  corroborate  the prosecution story.  Omission on the part of the  prosecution to   produce  a  ballistic  export  was  considered  to   be immaterial and it was held not to weaken or cast a doubt  on the  prosecution  case  because the  oral  evidence  of  eye witnesses  to  the commission of the offence  impressed  the court  to  be trustworthy and acceptable.  The  trial  court also took into consideration the allegations con-the  course of  the  committal  proceedings in the court  of  Shri  Mewa Singh, Magistrate, on November 20, 1968 to the effect, inter alia,   tained in an application presented by Gurdial  Singh (P.W. 7) in that an attempt was being made on behalf -of the accused to tamper with the prosecution witnesses.  The trial court convicted the accused under s. 302, I.P.C. and imposed capital sentence. On appeal the High Court rejected the criticism on behalf of the  accused that the occurrence had nottaken place  at  the spot  and   in the manner deposed to by the  eye  witnesses. On  a  detailed and exhaustive discussion of  the  arguments urged before the High Court it came to this conclusion :               "........ that there was motive on the part of               the  appellant to commit this crime, that  the               three eyewitneses produced by the  prosecution               are reliable, they were present at the time of               the  occurrence  and  have  given  a   correct               version of the incident and that the medical 604               evidence  fully supports the  prosecution  and               -no suspicion is attached to it.  The deceased               made more than one dying declaration and we are               satisfied that they were not induced and  that               the  deceased  gave a correct version  of  the               incident.   The suggestion made that  Tapinder               Singh  has been roped in on suspicion  in  not               correct  because implicit in such an  argument               is the suggestion that the crime was committed               by somebody else.  It was broad day light, the               assailant   must  have  been  identified   and               consequently we are satisfied that the offence               has been fully brought home to the  appellant.               The place of the occurrence does not admit  of               any  doubt  because  there  is  good  deal  of               evidence   on  the  record  that   blood   was               recovered from where the Takhat posh was  kept               by  GurJial Singh and there is  no  suggestion               that the blood was found from anywhere else.               The  learned counsel has then urged  that  the               offence  does  not  fall  under  section  302,               Indian  Penal Code, but no reasons  have  been               given  as  to  why  this  is  not  an  offence               punishable  under  section 302,  Indian  Penal



             Code.               Learned counsel urged that something must have               happened  which  induced  Tapinder  Singh   to               commit  this crime.  There is nothing  on  the               record,  not even a suggestion, that  anything               happened.   Tapinder Singh came armed  with  a               pistol  and  fired as many as  five  shots  at               Kulwant  Singh, two of which he fired  on  his               back  when  Kulwant Singh had  falled  on  the               ground.   The appellant, therefore,  does  not               deserve  the  lesser penalty  contemplated  by               law.   Consequently, we uphold the  conviction               and sentence imposed upon Tapinder Singh.  The               appeal is dismissed and the sentence of  death               is confirmed." On appeal in this Court under Art. 136 of the  Constitution, Mr. Nuruddin Ahmed, learned advocate for the appellant.  ad- dressed  elaborate arguments challenging the conclusions  of the   courts  below  on  which  they  have   sustained   the appellant’s  conviction.  He started with an attack  on  the F.I.R.  based  on the dying declaration.  According  to  the counsel,  the  information  in regard  to  the  offence  had already been conveyed to the police by means of a  telephone message  and the police had actually statrted  investigation on  the  basis  of that  information.   This  argument  was, however, not seriously persisted in and was countered by the respondents on the authority of the decision in Sarup  Singh v. 605 State  of Punjab(").  The telephone message was received  by Hari  Singh,  A.S.I., Police Station, City Kotwali  at  5-35 p.m.  on  September  8, 1969.   The  person  conveying  the’ information  did not disclose his identity, nor did he  give any  other particulars and - all that is said to  have  been conveyed  was that firing had taken place at the taxi  stand Ludhiana.  This was, of course, recorded in the daily  diary of  the police station by the police officer  responding  to the  telephone  call.   But prima  facie  this  cryptic  and annoymous  oral  message  which did  not  in  terms  clearly specify  a  cognizable offence cannot be  treated  as  first information report.  The mere fact that this information was the first in point of time does not by itself clothe it with the  character  of first information report.   The  question whether  or  not a particular document constitutes  a  first information  report has, broadly speaking, to be  determined on  the relevant facts and circumstances of each case.   The appellant’s submission is that since the police  authorities had  actually  proceeded  to  the  spot  pursuant  to   this information,  however exiguous it may appear to the  court-, the  dying  declaration  is hit by s. 162,  Cr.   P.C.  This submission  is  unacceptable  on the short  ground  that  s. 162(2), Cr.  P.C. in express terms excludes from its purview statements falling within the provisions of s.32 (1), Indian Evidence Act.  Indisputably the dying declaration before  us falls within s. 32(1), Indian Evidence Act and as such it is both  relevant and outside the prohibition contained  in  s. 162 (1), Cr.  P.C. The counsel next contended that the dying declaration  does  not contain a truthful  version  of  the- circumstances in which Kulwant Singh bad met with his  death and, therefore, it should not be acted upon.  This  argument is founded on the submission that the deceased did not  meet with  his  death  at  the  spot  sworn  by  the  prosecution witnesses and that none of these witnesses actually saw  the occurrence  ’because they were not present at the place  and time  where and when the deceased was shot at.  We  are  far



from impressed by this contention.  The trial court and  the High  Court have both believed the three eye  witnesses  and have  also relied on the dying declaration.  Normally,  when the  High  Court  believes the evidence  given  by  the  eye witnesses  this Court accepts the appraisal of the  evidence by  that Court and does not examine the evidence afresh  for itself unless, as observed by this Court in Brahmin Isharlal Manilal v. The State of Gujarat. (1)               "It is made to appear that justice has  failed               for reason of some misapprehension or  mistake               in  the  reading of the evidence by  the  High               Court." (1)  A.I.R. 1964 Punjab 508. (1)  Crl.  A. No. 120 of 1963 decided on August 10, 1965. 606 It was added in that judgment :               "There must ordinarily be a substantial  error               of  law  or procedure or a  gross  failure  of               justice   by  reason  of  misapprehension   or               mistake in reading the evidence or the  appeal               must  involve  a  question  of  principle   of               general  importance  before  this  Court  will               allow the oral evidence to be discussed." In  the  present  case it was contended  that  the  original document embodying the dying declaration is missing from the judicial  record  and it is suggested  that  the  mysterious disappearance   of  this  important  document   during   the committal proceedings was intended to remove from the record the  evidence  which  would  have  shown  that  this   dying declaration  could not legally constitute the basis  of  the F.I.R.  and thereby frustrate the plea, of the accused  that S.  162, Cr.  P.C. operated as a ’bar to its  admissibility. The bar created by s. 162(1), Cr.  P.C., as already noticed, is,inapplicable to dying declarations.  But, as the original dying declaration has somehow disappeared from the  Judicial record and the case is of a serious nature, we undertook  to examine  the evidence in respect of the  dying  declaration. The evidence of Shri Sukhdev Singh, Judicial Magistrate,  as P.W. 10, is clear on the point.  The witness has repeated in court  the statement made to him by Kulwant Singh which  was recorded  by  the witness in Punjabi in his  own  hand.   An attempt was made by Mr. Nuruddin to persuade us to hold that Shri  Sukhdev Singh’s statement is not trustworthy.  It  was argued that there was no cogent reason for the Magistrate to permit  the  police  officers to make a copy  of  the  dying declaration.  This, according to the counsel, shows that the Magistrate  acted in a manner subservient to the demands  of the  police officers and, therefore, his,  statement  should not  be  taken  on its face value.  We do  not  agree.   The Magistrate, as observed by the High Court, is quite clear as to what the deceased had told him.  He has repeated the same in  his statement in court.  Exhibit PJ has been  proved  by him  as a correct account of the dying declaration  recorded by.  him.   It  is  not understood how  the  fact  that  the Investigating  Officer  was allowed to make a  copy  of  the dying  declaration  could go against  the  Magistrate.   The dying  declaration  could legitimately serve as a  guide  in further  investigation.   It was not argued that  the  dying declaration  being  a confidential document had to  be  kept secret  from the Investigating Officer.  Our  attention  was drawn  by the respondents to the application dated  November 20, 1968(Ex. PZ) filed by Gurdial Singh in the court Of Shri Mewa  Singh,  Magistrate, for expeditious  disposal  of  the commitment   proceedings.   In  that  application   it   was suggested  that  the  defence had  got  removed’  the  dying



declaration and statements under s. 164, Cr.  P.C. which 607 had   presumably   been   destroyed.    According   to   the respondent’s   suggestion  it  was  the  accused   who   was interested  in  the  disappearance  of  the  original  dying declaration  from  the record.  In this  connection  we  may point  out  that  on  October’ 27,  1968  Shri  Mewa  Singh, Magistrate,  had lodged a report with the police  under  ss. 379/400/201,  I.P.C.,  alleging theft of  the  F.I.R.,  the, dying declaration and statements Of witnesses recorded under s.164     Cr. P.C. in the case State v. Tapinder Singh.  For the  disposal  of this appeal it is unnecessary  for  us  to express  any  opinion  as  to who  is  responsible  for  the disappearance  of the dying declaration.  That question  was the subject matter of a criminal proceeding and we have  not been informed about its fate. The  dying declaration is a statement 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  and  it  becomes relevant  under.. s. 32(1) of the Indian Evidence Act  in  a case  in which the cause of that person’s death  comes  into question.   It  is true that a dying declaration  is  not  a deposition  in court and it is neither made on oath  nor  in the  presence of the accused.  It is, therefore, not  tested by cross-examination on behalf of the accused.  But a  dying declaration  is admitted in evidence by way of an  exception to  the  general rule against the admissibility  of  hearsay evidence, on the principle of necessity.  The weak points of a  dying declaration just mentioned merely serve to put  the court  on  its  guard  while  testing  its  reliability,  by imposing  on it an obligation to closely scrutinise all  the relevant attendant circumstances.  This Court in Kushal  Rao v. The State of Bombay(’) laid down the test of  reliability of a dying declaration as follows :               "On a review of the relevant provisions of the               Evidence  Act and of the decided cases in  the               different  High  Courts in India and  in  this               Court,  we  have come to  the  conclusion,  in               agreement with the -opinion of the Full  Bench               of the Madras High Court, aforesaid, (1)  that               it cannot be laid down as an absolute rule  of               law  that a dying declaration cannot form  the               sole   basis  of  conviction  unless   it   is               corroborated;  (2)  that  each  case  must  be               determined  on its own facts keeping  in  view               the   circumstances   in   which   the   dying               declaration  was made; (3) that it  cannot  be               laid  down  as a general  proposition  that  a               dying declaration is a weaker kind of evidence               than  other  pieces of evidence;  (4)  that  a               dying  declaration stands on the same  footing               as  another  piece of evidence and has  to  be               judged    in   the   light   of    surrounding               circumstances   and  with  reference  to   the               principles    governing   the   weighing    of               evidence-. (5) that a dying (1) [1953] S.C.R. 552 at pp. 568-569. 608               declaration  which  has  been  recorded  by  a               competent  magistrate  in the  proper  manner,               that  is to say, in the form of questions  and               answers,  and, as far as practicable,  in  the               words of the maker of the declaration,  stands               on a much higher footing than a dying declara-               tion  which depends upon oral testimony  which



             may  suffer from all the infirmities of  human               memory  and human character, and (6)  that  in               order  to  test  the reliability  of  a  dying               declaration, the Court has to keep in view the               circumstances  like  the  opportunity  of  the               dying   man  for  observation,  for   example,               whether  there  was sufficient  light  if  the               crime  was  committed at  night;  whether  the               capacity  of  the man to remember  the  ’facts               stated  had not been impaired at the  time  he               was  making  the statement,  by  Circumstances               beyond  his  control; that the  statement  has               been  consistent throughout if he had  several               opportunities  of making a  dying  declaration               apart from the official record of it; and that               the  statement had been made at  the  earliest               opportunity and was not the result of tutoring               by interested parties.               Hence   in   order  to  pass   the   test   of               reliability,  a  dying declaration has  to  be               subjected to a very close scrutiny, keeping in               view the fact that the statement has been made               in  the  absence  of the accused  who  had  no               opportunity  of  testing the veracity  of  the               statement by cross-examination.  But once  the               court  has  come to the  conclusion  that  the               dying declaration was the truthful version  as               to  the  circumstances of the  death  and  the               assailants of the victim, there is no question               of  further corroboration.  If, on  the  other               hand,  the  court, after examining  the  dying               declaration  in all its aspects,  and  testing               its veracity, has come to the conclusion  that               it  is  not  reliable by itself  and  that  it               suffers  from  an  infirmity,  then,   without               corroboration  it cannot form the basis  of  a               conviction.  Thus, the necessity for  corrobo-               ration  arises not from any inherent  weakness               of a dying declaration as a piece of evidence,               as  held in some of the. reported  cases,  but               from the fact that the court, in a given case,               has  come to the conclusion that  that  parti-               cular dying declaration was not free from  the               infirmities  referred  to above or  from  such               other  infirmities  as  may  be  disclosed  in               evidence in that case." This view was approved by a Bench of five Judges in Harbans Singh v. State of Punjab.(’) Examining the evidence in this (1)  [1962] Supp. 1 S.C.R. 104. 609 case  in the light of the legal position as settled by  this Court we find that the dying declaration was recorded by the Magistrate within four hours of the occurrence.  It is clear and concise and sounds convincing.  It records :               "Today at 4.45 p.m. my Sandhu (wife’s sister’s               husband)  Tapinder Singh fired shots with  his               pistol at me in the, presence of Harnek Singh,               Sher  Singh  and  Gurdial Singh  at  the  taxi               stand.   He  suspected  that  I  had   illicit               relations  with  his  wife.   Tapinder   Singh               injured me with these fire shots." Considering  the nature and the-number of injuries  suffered by  the deceased and the natural anxiety of his  father  and others  present  at the spot to focus.  their  attention  on efforts  to save his life we are unable to hold that he  had



within the short span of time between the occurrence and the making of the dying declaration been tutored to falsely name the, appellant as his assailant in place of the real culprit and also to concoct a non-existent motive for the crime.  It is  unnecessary for us to refer to the earlier  declarations contained  in Ex.  PM, Ex.  DC and Ex.  PH/ 13  because  the one recorded and proved by the Magistrate seems to us to  be acceptable  and  free from infirmity.  If the  dying  decla- ration is acceptable as truthful then even in the absence of other  corroborative evidence it would be open to the  court to act upon the dying declaration and convict the  appellant stated therein to be the offender.  An accusation in a dying declaration  comes  from  the victim himself and  if  it  is worthy  of acceptance then in view of its source  the  court can  safely  act upon it.  In this case, -however,  we  have also the evidence of eye witnesses Gurdial Singh, (P.W.  7), Hamek  Singh  (P.W.  8)  and Sher Singh  (P.   W.  9)  whose testimony appears to us to be trustworthy and unshaken.   No convincing reason has been urged on behalf of the  appellant why these three witnesses and particularly the father of the deceased should falsely implicate the appellant substituting him  for  the real assailant.  It is not a  case  in  which, along  with  the real culprit, someone else, with  whom  the complainant  has some scores to settle, has been added as  a co-accused.   The  only argument advanced on behalf  of  the appellant  was that the deceased was shot at somewhere  else and not at the place where the prosecution witnesses  allege he  was  shot  at.   It  was  emphasised  that  these  three witnesses were not present at the _place and time where  the occurrence actually took place.  This submission is, in  our view,  wholly unfounded,and there is absolutely no  material in  support of it on the existing record.  The  probabilites are  clearly against it.  The fact that Hari  Singh,  A.S.I. (P.W.  2) went to the place of occurrence and from there  he learnt from someone, 13Sup.  Cl/70-10 610 that the injured person bad been taken to Dayanand  Hospital clearly negatives the appellant’s suggestion.  The fact that the A.S.I. did not remember the name of the person who  gave this  information would not detract from its truth.  On  the contrary  it appears to us-to be perfectly natural  for  the A.S.I. in those circumstances not to attach much  importance to the person who gave him this information.  And then,  the short  duration within which the injured person reached  the hospital  also  shows  that those who  carried  him  to  the hospital were closeby at the time of the occurrence and  the suggestion that Gurdial Singh (P.W. 7), Hamek Singh (P.W. 8) and  Sher Singh (P.W. 9) must have been informed by  someone after the occurrence does not seem to us to fit in with  the rest  of the picture.  We are, therefore, unable  to  accept the  appellant’s  suggestion that the deceased was  shot  at somewhere  else  away from the place of  the  occurrence  as deposed by the eye witnesses. Some  minor  points  were also sought to be  raised  by  Mr. Nuruddin.   He said that the pair of shoes belonging to  the deceased  were  left  at the spot but  they  have  not  been traced.   The takhat posh on which the deceased was  sitting has also not been proved to bear the marks, of blood nor  a* the blood marks proved ,on the seats of the car in which the deceased was taken to the hospital.  The counsel also  tried to make a -point out of the omission by the prosecution  to’ prove blood stains on the clothes of Gurdial Singh (P.W.  7) and Harmek Singh (P.W. 8) who had carried Kulwant Singh from the  place of the occurrence to the hospital.   Omission  to



produce  a. ballistic expert was also adversely  criticised. These, according to the counsel, are serious infirmities and these omissions militate against the prosecution story.   In our opinion, the criticism of the counsel -assuming it to be legitimate,  which we do not hold, relates to matters  which are  both  insignificant  and immaterial on  the  facts  and circumstances  of this case.  They do not in any way  affect the  truth of the main ,elements of the  prosecution  story. On appeal under Art. 136 of the Constitution we do not think it  is open to this Court to allow such minor points  to  be raised  for the purpose of showing ,defects in appraisal  of the  evidence  by  the High Court and  for  ,evaluating  the evidence  for  ourselves  so as  to  arrive  at  conclusions different  from those of the High Court.  The eye  witnesses having  been believed, these points lose all importance  and cannot be pressed in this Court. Considerable  stress was laid on behalf of the appellant  on the  submission  that according to the folder  Ex.   DC  one Trilochan  Singh was present in the hospital as a friend  or relation of the injured person.  From this it was sought  to be inferred that Gurdial Singh, father of Kulwant Singh, had not accompanied his 611 son  to the hospital and that this would show that  the  eye witnesses are not telling the truth.  The argument seems  to us  to  be without any basis and is  misconceived.   In  the first instance the name of Trilochan Singh on the folder has not  been proved.  It is the contents of Ex.  DC which  have been  proved by Dr. E. Pothan (P.W. I at the trial) who  had appeared  as  P.W.  10  in  the  court  of  the   Committing Magistrate.  Secondly in this document, as we have  verified from the original record Gurdial Singh is actually mentioned as the father of the injured person.  We are, therefore, not impressed  by  the submission that Ex’ DC goes  against  the testimony of the eye witnesses.  Incidentally, Ex.  DC  also contains  the  precise  information which  was  the  subject matter  of the dying declaration.  It appears that in  order to  discredit Ex.  DC with respect to the information  about the appellant being the assailant, the name of one Trilochan Singh  (whose  identity still remains unknown)  was  somehow made to appear on the folder but as it has not been  legally proved  and  not  referred to by any  witness  we  need  say nothing more about it.  This argument thus also fails.   The submission that the medical evidence contradicts the version given  by eye witnesess also remains unsubstantiated on  the record. As a last resort it was contended that if the motive alleged by  the  prosecution is accepted then the  sentence  imposed would  appear to be excessive.  In our view, the  manner  in which  the  five shots were fired at  the  deceased  clearly shows  that  the offence committed was deliberate  and  pre- planned.   We  are  unable to find  any  cogent  ground  for interference  with  the sentence.   The  appeal  accordingly fails and is dismissed. G.C.                     Appeal dismissed. 612