07 May 1996
Supreme Court


Case number: Appeal Criminal 151 of 1984






DATE OF JUDGMENT:       07/05/1996


CITATION:  JT 1996 (5)    30        1996 SCALE  (4)385



JUDGMENT:                       J U D G M E N T PATTANAIK, J.      This appeal  by special  leave is  directed against the judgment and  order dated 9.10.1983 passed by the High Court of Madhya  Pradesh at  Gwalior in Criminal Appeal No. 450 of 198;3 arising out of Sessions Trial No. 96 of 1980.      The respondents  were charged under Sections 302/149 as well as  under Section  449 I.P.C. The respondents Mohan Lal and Chhagan  Lal were  further  charged  under  Section  148 I.P.C. and  rest of  the  respondents  stood  charged  under Section 147  I.P.C.  They  were  convicted  under  different counts by  the Learned  Additional Sessions  Judge, Mandsaur for having  killed the deceased Mangi Lal after dragging him out of his hut and thereafter assaulting him mercilessly and throwing acid on him. On appeal the High Court acquitted all the respondents and hence the present appeal.      The  prosecution   case  briefly  stated  is  that,  on 18.9.1980 during  night all  the accused  respondents  being armed with  gun, sticks and acid entered into the hut inside the field  of  Mangi  Lal  where  Mangi  Lal  was  sleeping. Respondents then dragged him out of the hut and some of them assaulted him  by sticks  and respondent Chhagan Lal who was carrying a  gun assaulted  him with  the butt  of  the  gun. Respondent -  Mohan Lal  threw acid on him. Deceased - Mangi Lal shouted for help. Having heard the noise, Abdul Rehulan, PW. 1  who was  staying at  a distance of 100 yards, woke up and ran  towards the  place from where Mohan Lal’s voice was coming. Reaching  at the  place of  occurrence, when  PW.  1 asked Mangi Lal about the incident, he told the names of the accused and  told him  that they have killed him by throwing acid. Said  PW. 1  then informed  Mangi Lal’s family members and soon  Mangi Lal’s  son Ram  Gopal, PW.  4 arrived at the place of  occurrence. Mangi  Lal was  then  brought  to  the village in  the injured  condition  and  was  carried  on  a tractor to  Manasa Police  Station. Mangi Lal himself lodged the report, which was treated as F.I.R. Exhibit P-32. It was



recorded by  the Head  Constable, PW.  14. After registering the case the police sent Mangi Lal to the hospital at Manasa where he  was treated  by doctor PW. 9. As the doctor was of the opinion that the condition of Mangi Lal was serious, the sub-inspector of  Police, PW.  15 requisitioned the services of the  Judicial Magistrate,  Ist Class,  Manasa, PW. 10 and requested him  to record the dying declaration of said Mangi Lal. The  said Magistrate  immediately came  to the hospital and on being satisfied  by questioning the doctor that Mangi Lal was  in a  fit condition to make his statement, enquired from Mangi  Lal  about  b  the  incident  and  recorded  his statement which  was exhibited  in the case as Exhibit P 15. The said  statement was  read out to Mangi Lal and hereafter Mangi Lal  gave his  thumb impression.  Doctor  PW.  9  then advised that  Mangi  Lal  should  the  shifted  to  Mandsaur hospital. In  accordance with  the said  advice, while Mangi Lal was  carried to  Mandsaur hospital  he died  on the way. Postmortem  examination  on  his  dead  body  was,  however, conducted by  the doctor  PW. 2  and Postmortem  report  was exhibited as  Exhibit P-3.  The Investigating Officer in the meantime proceeded  to the  place of  occurrence, made  some seizure  at   the  spot   and  finally   on  completion   of investigation,  submitted   the  charge   sheet.  On   being committed, the  accused persons  were tried  by the  Learned Additional Sessions  Judge. The prosecution examined as many as is witnesses of whom the most important witnesses are PW. 1, Abdul  Rehman, who  was the first person to arrive at the place of  occurrence on  hearing the  shout of Mangi Lal and before whom  Mangi Lal narrated the names of all the accused persons; PW.  14, the  Head Constable  at the Police Station who recorded  the F.I.R.;  report having been given by Mangi Lal himself  PW.  15,  the  Investigating  Officer  who  had visited the  place of  occurrence and  made several seizure; the doctor  PW. 9  who had  first examined the injured Mangi Lal at  the hospital  at Manasa;  the Magistrate  PW. 10 who recorded the  dying declaration of the deceased at 5.00 A.M. on  19.9.1990  and  the  doctor  PW.  2  who  conducted  the Postmortem examination on the dead body of the deceased. The prosecution also  examined PWs.  12, 13  and 14 to establish the animosity  between deceased and Mohan Lal over the field for  which  police  had  taken  action  against  them  under Sections 107  and 116(3)  of Code of Criminal Procedure. The plea of  the accused  persons was one of denial. The Learned Additional  Sessions  Judge  on  thorough  scrutiny  of  the evidence  on  record  and  relying  upon  dying  declaration recorded by  the Magistrate,  which was exhibited as Exhibit P-15 and  finding out  corroboration thereto  from the  oral declaration made  by the  deceased to PW. 1 as deposed to by PW. 1,  as  well  as  the  medical  evidence,  came  to  the conclusion that  the prosecution  has been able to establish the charge  against the  accused persons  beyond  reasonable doubt and  accordingly convicted  them  and  sentenced  them differently. All  the accused  persons were  convicted under Sections 302/149  I.P.C. and  were sentenced to imprisonment for life.  Accused Mohan  Lal and  Chhagan Lal  were further convicted under  Section 148  and were  sentenced to undergo rigorous imprisonment for two years. The rest of the accused persons were  convicted under Section 147 and were sentenced to undergo  rigorous imprisonment  for  one  year.  All  the accused persons were further convicted under Section 449 and were sentenced  to undergo  rigorous imprisonment  for seven years and  it was  directed that  the  sentences  shall  run concurrently  Being   aggrieved  by   their  conviction  and sentence the  accused person moved the High Court in appeal. The High Court though accepted the prosecution case that the



Judicial Magistrate,  PW. 10  recorded the dying-declaration of deceased  Mangi Lal,  when said  Mangi Lal  was in  a fit state of  mind but  since it had not been stated in the said dying declaration that the accused persons dragged Mangi Lal out of  his house and assaulted. came to the conclusion that the occurrence  having been  taken place in mid-night inside the hut  of the  deceased,  it  was  not  possible  for  the deceased to  identify the  assailants  and,  therefore,  the dying declaration  does not  inspire  confidence.  The  High Court also  lightly brushed  aside the  statement of  PW. 1, Abdul Rehman  to whom  the deceased  had not only stated the names of all the accused persons but had also stated that he was dragged  out of  the hut  and was  beaten and  acid  was thrown on  him. With  these conclusions  the light Court set aside the  conviction and  sentences passed  by the  learned Additional Sessions  Judge and  acquitted  all  the  accused persons.      Mr. Shukla  learned senior  counsel appearing  for  the State -  appellant contended  that the High Court set in law in discarding the dying declaration recorded by the Judicial Magistrate, PW. 10, on very flimsy grounds and thereby erred in law  in  acquitting  the  accused  persons.  Mr.  Shukla, further contended  that the  deceased having  given out  the names of  all the  accused persons  to PW. 1 who reached the place of  occurrence while  deceased was crying for help and further the  deceased himself  having  gone  to  the  Police Station and  lodged the  report giving  a brief narration of the incident and the medical evidence being corroborative of the  same,   the  conclusion   is  irresistible   that   the prosecution has  been able  to establish  the charge  beyond reasonable doubt  and therefore  the order  of acquittal  is wholly illegal.  Mr. Sushil  Kumar, learned  senior  counsel appearing for  the respondents  on the  other hand contented that  the   dying  declaration   being  the  sole  basis  of conviction and for justifiable reasons the High Court having discarded the same and having acquitted the accused persons, said order  of acquittal  should not  be interfered  with by this Court.  In support  of the conclusion of the High Court that the  dying declaration,  Exhibit P-15,  recorded by the Magistrate does  not inspire  confidence, Mr.  Sushil  Kumar submitted that  the very  fact that  the  deceased  has  not stated that  he was  brought outside  being dragged  and was assaulted and acid was thrown on him, could lead to the only conclusion that the assault was committed inside the hut and therefore under  such circumstances,  the occurrence  having taken place  in the  mid-night, it will be wholly impossible to identify  the assailants  and consequently the said dying declaration has rightly been discarded by the High Court.      In view  of the  rival submissions  at the bar the sole question that  arises for consideration is whether the dying declaration  made  by  the  deceased  and  recorded  by  the Magistrate can  be accepted and form the basis of conviction of the accused respondents? There cannot be any dispute with the proposition  that a  dying declaration can form the sole basis of  conviction, though  court look  for  corroboration from different circumstances since the same cannot be tested by cross-examination.  Such declaration  being made  under a solemn sense of impending death, the deceased is usually not likely to commit any mistake and therefore the same is given great weight.  But at the same time a court has the. duty to scrutinize the  same since  the  accused  has  no  right  of getting the  statement tested  by cross-examination.  In the case of  Kundula Bala Subrahmaniyam and another vs. State of Andhra Pradesh,  (1993) 2 SCC 684, it has been field by this Court:



    ’Section 32(1)  of 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.  Under   Section  32,      when  a  statement  is  made  by  a      person, as to the cause of death or      as  to  any  of  the  circumstances      which result in his death, in cases      in which the cause of that person’s      death comes  into question,  such a      statement, oral or in writing, made      by the deceased to the witness is a      relevant fact  and is admissible in      evidence. The statement made by the      deceased,    called    the    dying      declaration,    falls    in    that      category- provided it has been made      by the  deceased  while  in  a  fit      mental    condition.     A    dying      declaration made  by person  on the      verge of  his death  has a  special      sanctity as  at that solemn moment,      a person  is most  unlikely to make      all, untrue  statement. The  shadow      of impending death is by itself the      guarantee  of   the  truth  of  the      statement  made   by  the  deceased      regarding     the     causes     or      circumstances leading to his death.      A  dying   declaration,  therefore,      enjoys almost  a sacrosanct status,      as a  piece of  evidence, coming as      it  does  from  the  mouth  of  the      deceased victim.  Once a  statement      of  the   dying  person   and   the      evidence    of     the    witnesses      testifying to  the same  passes the      test of  careful  scrutiny  of  the      courts, it becomes a very important      and a  reliable piece  of  evidence      and if  the court is satisfied that      the dying  declaration is  true and      free from  any embellishment such a      dying declaration, by itself can be      sufficient for recording conviction      even  without   looking   for   any      corroboration." If the  dying declaration is found to the true and voluntary and was  made by  a person  concerned while  he was in a fit condition to  make the  same then  the same  can  be  easily relied upon  by the courts in convicting the accused persons even without  any corroboration  as has  been held  by  this Court in  K. Ramachandra  Reddy and  another vs.  The Public Prosecutor, (1976) 3 SCC 618.      Bearing in  mind the  aforesaid legal principles let us now  examine   the  dying   declaration  recorded   by   the Magistrate. Exhibit  p-15, in  the case  in hand. But before focussing our attention on the  same it would be appropriate to notice  the injuries found on the deceased by the doctor, PW. 9,  who treated’  deceased Mangi  Lal at the hospital at Marsasa as  well as  the injuries found by the doctor PW. 2, who had  conducted the  autopsy over  the dead  body of  the



deceased. PW. 9 found the following 12 injuries:      "(1) On  the left side of the skull 2" above the ear-on      the parietal-region one open wound 1-1/2 long l/8" wide      and bone   deep. There was slight scrapping on the bone      in this  wound. He  had recommended  X-Raying for  this      injury.      (2) On the left arm, 2" above the elbow on the outside,      one lacerated  wound, in  which there  was fracture  of      lower part  of the humerus bone. Open wound was 1" long      1/4" wide  and 1/2"   deep. For this injury also he had      recommended X-Ray examination.      (3) One  more lacerated  wound, about  3/4"  above  the      injury No. 2 on the left arm, which was l/2" long, 1/8"      wide and 1/8" deep.      (4) On the back side of the left shoulder one contusion      4" x 1".      (5) One  contusion 4"  x 1"  on left  side of  the back      about 3" below the shoulder injury No. (4).      (6) 3"  below the  injury No.  5, one more contusion on      the back  4" x  3/4", the  inner part  of  this  injury      reaching upto the back bone.      (7) About  3" below  the shoulder bone on the left side      of the back, one more contusion 6" x 1/2".      (8) On the left hip, one oblique contusion 6" x 1’.      (9) On  the left  thigh, outwards,  about 12" above the      knee, one contusion 3" x 2".      (10) On  the left thigh also, 1" above injury No. 9, in      the side, one more contusion 4" x 3", in which a number      of injuries appear to have been caused by stick blows.      "1. Compound  fracture lower  1/3rd      of left humerus.      2.  Stitched   wound  2",  slightly      oblique   on left parietal region.      3. Lacertated wound 1" x 1/6", bone      deep, on center of frontal region.      4. Lacerated  wound 1/4"  x 1/8"  x      1/10" middle  phalanx  left  middle      finger.      5. Contusion  4 x  1" oblique  left      scapular region.      6. Contusion  3-1/2" X  1" oblique,      left infra-scapular region.      7.  Contusion  10"  x  1’  slightly      oblique, left Thoracolumbar region.      8.  Contusion   5"  x  l"  oblique,      center of lower back.      9. Contusion  12" x  l/2"  oblique,      right  scapular  an  infra-scapular      region.      10. Contusion  7" x  1-1/" on  left      lower back.      11.  Contusion  3-1/2"  x  1"  left      deltoid region.      12. Contusions  3" x 1" and 3" x 1"      cross, middle of left upper arm.      13. Contusion  3-1/2" x 1-1/2" left      elbow region.      14.  Contusion  3"  x  1"  oblique,      middle  of   left   leg   posterior      aspect.      15. Contusion 3-1/2" x 1-1/2" upper      third of left leg posterior aspect.      16. Contusions  2" x 1" and 2" x 1"      oblique, lower 1/3rd of Right thigh      posterior later aspect."



    The said doctor had opinined that the injuries had been inflicted before  death and  the death  was caused  by shock resulting from the various injuries and acid burns inflicted on the  body. He  also further  opined that the death of the deceased could not possibly be caused by any single specific injury  but   the  death  could  possibly  result  from  the cumulative effect of all the injuries. Coming now to Exhibit P-15, the  dying declaration recorded by the Magistrate, PW. 10, it  is crystal  clear from the prosecution evidence that when the  injured reached the hospital at Manasa, the doctor PW. 9  noticed the  condition of Mangi Lal to be serious. To the querry  of Balwant  Singh Yadav, PW. 15, the doctor also stated that  Mangi Lal  was in a fit state of mind and fully capable of  making any  statement. PW.  15, therefore,  took immediate steps,  requisitioned the services of the Judicial Magistrate, Ist  Class and  the said  Magistrate came to the hospital soon thereafter. The evidence of Magistrate, PW. 10 further indicates  that he  enquired from the deceased about his name, father,s name, residential address and his age and then enquired  from him  about the  incident and whatever he stated he  recorded the same as per Exhibit P-15. The doctor who  was  present  during  recording  of  the  statement  of deceased by  the Magistrate, gave the certificate that Mangi Lal  was   fully  conscious  and  was  in  his  sense  after completing his  declaration. The  prosecution evidence  also clearly establishes the fact that Mangi Lal was taken to the Police Station where he gave his statement immediately after the occurrence,  which was  treated as  F.I.R. and  was then taken  to  the  hospital  and  shortly  after  reaching  the hospital his  statement was  recorded by  the Magistrate  as stated earlier.  In  the  aforesaid  state  of  affairs  the conclusion becomes  irresistible that  the deceased was in a fit state  of mind  to make  the statement and he was making that statement  without any  influence or rancour. There was neither any  possibility of  tutoring or  prompting  by  any other  person.  In  this  connection  we  will  examine  the contention of Mr. Sushil Kumar appearing for the respondents about the  non-mentioning of  the accused  being dragged and assaulted outside  which according  to him  would  logically lead to  the conclusion  that the  assault took place inside the hut  and therefore  the  deceased  could  not  have  the opportunity of  observing and identifying his assailants. It is no  doubt true that in Exhibit P-15, the deceased has not stated about the accused persons dragging him out of hut and assaulting. But  if the  evidence of  PW. 1. Abdul Rehman is examined  it  would  appear  that  while  the  deceased  was shouting for  help after  being  assaulted  by  the  accused persons when  PW. 1  reached him, deceased had told him that Mohan Lal  threw acid on him and along with Mohan Lal his so Ghanshyam, Bhanwar  Singh  Banjara,  Chaggan  Telli,  Sambhu Pattedar, Shambhu  Bachera, Sanjay  Bachera  and  Ramchander Bachera assaulted  him and thereafter assailants threw acid. Though said  PW. 1  has been  cross-examined at great length but nothing  has been elicited from him so as to impeach his testimony. He appears to us to be a truthful witness who has narrated whatever he heard from the deceased and whatever he saw at  the place  of occurrence. His evidence unequivocally indicates that  place of  assault was not inside the hut but was outside,  after the  deceased had  been dragged from the hut. He  has also  stated in  his evidence  that  it  was  a moonlit night.  That apart  the  evidence  of  Investigating Officer, PW.  15 gives  sufficient  corroboration  that  the place of  assault was  not inside the hut but outside, after the accused  dragged the  deceased from his hut. When PW. 15 reached the  place of  occurrence he found marks of a person



being dragged  on the  ground from  the hut  upto the  Mirch filed. He  also found  some scoreped  plants which seemed to have been  scorched by  some acidic  article and  further he found burnt  papers including a half burnt two rupee note. A glass bottle  was also  seen floating in the well containing some fluid.      The aforesaid  evidence of  PW. 15  clinches the matter that the  assault as  well as  throwing of acid on Mangi Lal had taken  place outside the hut in the Mirch filed of Mangi Lal after  he was dragged from his hut. The F.I.R. which had been lodged by the deceased himself also indicates the state of affairs.  Therefore, non-mentioning  of being dragged and assaulted  outside   in  Exhibit   P-15  had   rightly  been appreciated by  the Learned  Additional Sessions  Judge that due to  the deteriorating  condition  of  the  deceased  the omission might have taken place and the said omission is not fatal. In  our opinion the High Court was wholly in error in discarding the  voluntary statement of the deceased recorded by  the   Magistrate  on  flimsy  grounds  which  cannot  be sustained. Having examined the dying declaration made by the deceased and  recorded by  the Magistrate  PW. 10 as well as the F.I.R.  which had  been lodged  by the deceased prior to his death  and the  evidence of PW. 1, Abdul Rehman. to whom the deceased had narrated the incident immediately after the occurrence, we  have no  doubt in our mind that Exhibit P-15 is true  and voluntary  and had  been made  by the  deceased while he  was in  a fit  state of  mind  and  there  was  no opportunity of  either tutoring or prompting and as such the same can  be easily  pressed into service by the prosecution in proving  the charges  against the  accused persons.  That apart, the  number of injuries found on the deceased as well as the  acid injury  on  him  corroborates  the  said  dying declaration.      Mr. Sushil  Kumar in  course  of  his  submissions  had raised a  contention that  three  of  the.  accused  persons Namely Ramchandra, Chhagan alias Sajan and Shambhu belong to a different  village and  there can be no justifiable reason for them to assault the deceased. But this submission in our considered opinion is devoid of any force, inasmuch as while discussing  the   evidence  about  the  motive  the  Learned Additional Sessions  Judge in  paragraphs 59  to 62  of  his judgment has  clearly found out that all the accused persons belong to  the rival  group and  had strained relations with the deceased  on account of land cultivation and in the case that had  been filed  in the  Court in  Manasa,  Ramchandra, Chhagan alias Sajan and Shambhu have been arrayed as accused along with  Mohan Lal.  It is  no doubt  true that  the High Court has recorded the order of acquittal of the respondents but it  would be travesty of justice, if this court does not interfere with  such order  of acquittal,  where a  gruesome murder has taken place and the High Court rejects a true and voluntary  dying   declaration  recorded   by   a   Judicial Magistrate by  entering into  realm of  conjectures. We have gone through  the evidence  on record  and for  the  reasons already stated  we unhesitatingly  come  to  the  conclusion that the  order of  acquittal recorded by the High  Court is wholly unwarranted  and  unjustified.  The  prosecution  has proved the  case against  the accused  - respondents  beyond reasonable doubt.  We accordingly  set  aside  the  judgment passed by  the High  Court and  confirm the  conviction  and sentences recorded by the Learned Additional Sessions Judge. The accused  - respondents  who are  on bail are directed to surrender to  receive the  balance period of sentence and if they fail to surrender. appropriate steps be taken for their arrest. This appeal is accordingly allowed.