CASE NO.: Appeal (crl.) 546 of 2000 PETITIONER: Heeralal Yadav RESPONDENT: State of M.P. & Ors. DATE OF JUDGMENT: 04/07/2006 BENCH: H.K.SEMA & A.K. MATHUR JUDGMENT:
J U D G M E N T
H.K.SEMA,J
This appeal by special leave filed by the
complainant (PW-2) is directed against the judgment and order
of the High Court dated 2.7.1999 passed in Criminal Appeal
No.678 of 1995 whereby the High Court reversed the
conviction and sentence passed by the Trial Court convicting
the respondents for an offence under Section 302/34 IPC and
sentenced them to RI for life and a fine of Rs.1000/- each and
in default of payment further six months simple
imprisonment.
The prosecution case in brief was that on 14.4.1993
at about 8.30 in the morning the deceased Gokul Singh son of
Nirbhay Singh, who was a practicing advocate and his son
Meharban Singh (PW-3) aged about 12 years went to their well
in village Narval, District Shajapur. When the deceased went
to answer the call of nature in the fields of Babulal Teli, all of a
sudden, the accused Gokul Singh son of Amar Singh,
Bhawarlal and Babulal armed with sword, farsi and dhariya
and co-accused Lal Singh with knife, Chander Singh, Man
Singh, Kalu Singh, Dhannalal and Lal Singh armed with lathis
came on the spot and surrounded the deceased and assaulted
him with their respective weapons. PW-3 Meharban Singh on
seeing this incident ran to his house and told his grandfather
PW-6 Nirbhay Singh at flour mill and his uncle PW-2 Heeralal
Yadav (appellant herein) that his father Gokul Singh was
being assaulted. On being told PW-2 Heeralal Yadav and
Devsingh PW-4 went to the spot. They saw the accused
persons assaulting the deceased. PW-6 Nirbhay Singh also
went there and saw the accused persons running from the
spot with their respective weapons. The deceased Gokul Singh
was badly injured. He was put in a tractor and was taken to
P.S. Agar where PW-2 Heeralal Yadav lodged F.I.R. at 9.05
a.m. which was recorded by A.S.I.
PW-1 Dr.A.S.Khan examined the deceased Gokul
Singh and found the following injuries:
1. Incised wound on the central part of
forehead, 2″ x <" x <".
2. Incised wound on the middle side of left
orbital, 3″ x =” x =”
3. Incised wound on the upper part of left eye-
lid, 1″ x <" x <".
4. Incised wound on middle part of right leg,
3″ x =” x =”.
5. Incised wound, 1″ below injury no.4, 4″ x
=” x =”
6. Incised wound, 1″ below injury no.5, 4″ x
=” x =”.
7. Incised wound on the upper 1/3rd part of
right leg, 1″ x =” x ='”.
8. Incised wound on the middle part of left leg,
2″ x =” x =”.
9. Incised wound, 2″ below injury no.8, 3″ x
=” x =”.
10. Incised wound on the lower 1/3rd part of
left leg, 3″ x =” x =”.
11. Incised wound on the lower 1/3rd part of
left leg, 3″ x 1″ x =”.
12. Incised wound on the middle part of left
forearm, 2″ x =” x =”.
13. Incised wound 1″ middle from the injury
no.12, 2″ x =” x =”.
14. Incised wound on the lower 1/3rd part of
right forearm, 3″ x 1″ x =”.
15. Incised wound on the metacarpal bones of
all fingers and thumb of right hand, 11″ x
3″ x 1 =”.
16. Bruise on the middle part of left thigh, 5″ x
=”.
17. Incised wound on right parietal bone, 2″ x
=” x =”.
18. Bruise on left parietal bone, 5″ x =” x =”.
PW-12 S.R.Parihar, then requested PW-1 Dr.A.S.Khan to
record the dying declaration of the deceased as the Executive
Magistrate was not available. PW-1 Dr.Khan recorded the
dying declaration of the deceased at 10.30 a.m. (Ex.P.2). As
the condition of the deceased was serious he was referred to
District hospital, Ujjain, where he succumbed to his injuries.
On the basis of the FIR, 9 accused faced the trial for
an offence under Section 302/34 before the Trial Court. The
Trial Court after examining the evidence on record particularly
the evidence of eyewitnesses PW-2 Heeralal Yadav, PW-3
Meharban Singh, PW-6 Nirbhay Singh along with the dying
declaration recorded by PW-1 Dr.Khan convicted three
accused respondents namely A-1 Gokul Singh son of Amar
Singh, A-2 Bhawarlal son of Ram Singh and A-9 Badulal son
of Lal Singh for an offence under Section 302/34 IPC and
acquitted six other accused by giving them benefit of doubt.
The High Court on appeal by the accused persons reversed the
conviction of the Trial Court and recorded acquittal. Hence
this appeal by special leave by the complainant, permission for
which was granted by this Court.
The High Court reversed the conviction recorded by
the Trial Court on the sole ground that the dying declaration
does not inspire confidence. The sole question, therefore, to
be determined in this appeal is as to whether the dying
declaration of the deceased recorded by PW-1 Dr.Khan,
inspires confidence or not?
The principle that “no man at the point of his death
is presumed to lie. A man will not meet his maker with lie in
his mouth” is based on sound public policy. No doubt, as the
dead man would not be available for cross-examination, a duty
is cast upon the Court to examine the dying declaration with
care and caution as to whether the dying declaration is
creditworthy for acceptance. In other words whether it
inspires confidence on the basis of which alone conviction can
be recorded. Similarly, it is also an accepted principle of law
that the dying declaration, keeping in view the above
principles in mind, if inspiring confidence could be the sole
basis for conviction.
The High Court rejected the dying declaration of the
deceased recorded by PW-1 Dr.Khan. Reasoning of High Court
in paragraph 8 of the judgment reads:-
“First and the foremost thing is that in the
dying-declaration Ex.P-2 of the deceased
recorded by Dr.Khan (PW-1) and police
statement Ex.P-38 recorded by sub-inspector
S.R. Parihar (PW-12) which became dying
declaration after his death the deceased did
not mention that he had gone with his son
Meharban singh to his well and
Meharbansingh was present at the time of
incident. The non-mentioning of the name of
this witness in dying declaration and police
statement which were recorded in detail
creates great suspicion about the presence of
this witness on the spot. His conduct also
appears to be abnormal. He saw his father
Gokulsingh being assaulted by the accused
persons with sword, farsi and Dhariya, he
went running to his grandfather Nirbhaysingh
and uncle Heeralal and told them that his
father was being beaten. But it is surprising
that he did not mention the names of the
assailants nor these witnesses asked their
names. Had this witness seen the occurrence,
he would have mentioned the names of the
assailants. After giving information, he did not
go to the spot as to what had happened to his
father. A normal man, in the above
circumstances, would not stay at home, but
immediately would run to see his father. We
may assume that he was panicky and in a
confused state of mind, when he came from
the spot and narrated the incident to these
witnesses, but thereafter, when he stayed at
home, he must have composed and regained
normalcy, even then he did not mention the
names of the assailants to the house ladies.”
The fallacy of the High Court, in our view, is that
the High Court has not at all considered the creditworthiness
of the dying declaration of the deceased recorded by PW-1
Dr.Khan. On the contrary, the dying declaration of the
deceased was disbelieved on the ground that the deceased did
not mention the presence of PW-3. The High Court also
doubted the presence of PW-3 at the place of occurrence on
the ground that he (PW-3) saw his father being assaulted by
the accused with sword, farsi and dhariya but did not mention
the names of the assailants nor these witnesses asked their
names from him. Had he been present at the scene of
occurrence he would have mentioned the names of the
assailants. The High Court was further of the view that he did
not accompany them to the spot to see as to what happened to
his father. According to the High Court, the conduct of PW-3
was unnatural and, therefore, the dying declaration of the
deceased recorded by PW-1 Dr.Khan was disbelieved.
From the above quoted reasoning of the High Court,
we are unable to discern the logic of the High Court’s
reasoning. Presence or non-presence of PW-3 at the scene of
occurrence or for that matter non-mentioning of the name of
PW-3 in the dying declaration has no connection with
ascertainment of the veracity and creditworthiness of the
dying declaration. In fact, the High Court did not discuss the
veracity and creditworthiness of either the dying declaration
recorded by PW-1 or the testimony of PW-1 Dr.Khan deposed
before the Court.
The other ground on the basis of which the High
Court rejected the dying declaration (Ex.P-2) as doubtful and
unreliable is that PW-1 Dr.Khan did not state that the
deceased was in a fit mental condition to give dying
declaration and throughout remained conscious when his
statement was recorded. According to the High Court as is
evident from PW.1 Dr.Khan that the deceased was in semi
conscious condition and his blood pressure had gone down to
90/60. The High Court has also referred to Dr.Pramod
Kaushik PW-10 who conducted autopsy on the dead body and
stated that due to excessive hemorrhage the deceased must
have gone in shock within half an hour after the incident. PW-
10 also stated that blood transfusion could not be given, as
the facility was not available at Agar. Accordingly, the High
Court held that in such mental condition, the recording of
dying declaration by PW-1 could not be possible.
In our view, the High Court was grossly oblivious to
the statement of Dr.Khan when he said that the deceased
must have gone in shock at the place of incident but he
recovered consciousness as he was given glucose saline and
medicines.
The main attack on the dying declaration by the
counsel for the accused is that considering the nature of the
injury suffered by the deceased there was excessive
hemorrhage and the deceased must have gone in shock within
half an hour after the incident and since blood transfusion
could not be given, the so called dying declaration recorded by
Dr.Khan (Ex.P.2) is not reliable. According to the counsel, the
High Court was justified in not relying on the said dying
declaration. We are unable to countenance such submission.
Ex.P-3 is the requisition dated 14.4.1993 sought by
the Investigating Officer regarding the condition of the
deceased Gokul Singh son of Nirbhay Singh for recording
dying declaration. There is an endorsement in Ex.P-3 by the
Medical Officer Primary Health Center by PW-1 Dr.A.S.Khan
that the deceased Gokul Singh son of Nirbhay Singh aged 35
years would be able to give the statement of dying declaration.
In the dying declaration (Ex.P-2) the deceased in an answer to
the question “who has beaten you” clearly stated that accused
Gokul Singh s/o Amar Singh, Bhawar Singh s/o Ram Singh,
Babulal son of Lal Singh and there were many others whose
names he did not remember. He further stated that he was
beaten with farsi, dhariya and lathis and badly beaten up with
weapons. He further stated that he was beaten near his well
and field itself. In an answer to a question “what were you
doing”, he stated, “I was answering call of nature there. All
the people beat me with dharia, sword and farsi etc. weapons.”
The deceased also stated that he was giving the statement in
full consciousness. He also stated that the dying declaration
was not under any pressure.
Dr.A.S.Khan was examined as PW-1. He has stated
that on 14.4.1993 he was posted as Medical Officer at Primary
Health Centre, Agar. On that day he recorded the dying
declaration (Ex.P-2). He has also admitted that he has given
the fitness certificate (Ex.P-3). In cross-examination he has
stated that after 9.30 a.m. his treatment started, glucose and
antibiotic medicines had been given, therefore, after 9.30 a.m.
he had become conscious. He denied a suggestion that the
condition of the injured further deteriorated. He has stated
that the dying declaration was recorded in the operation
theatre in the presence of staff and inspector (SI) and the
policemen. He further stated that the relatives of the patient
Gokul Singh were not inside the operation theatre. PW-1 was
confronted with the principle of Samson Wright’s Applied
Physiology, page 152. He categorically ruled out the
application of the principle.
Mr.S.K. Gambhir, learned senior counsel for the
respondents, however, brought to our notice the statement of
PW-2 Heeralal Yadav when he stated that when Dr.Khan took
the statement of my brother I was there. According to the
counsel for the respondents, this statement contradicted with
the statement of PW-1 Dr.Khan that the statement was
recorded in the operation theatre and the relatives of the
deceased were outside the theatre. We do not see any
contradiction. PW-2 only stated his presence at the hospital
at the time when the dying declaration was recorded. He
never stated that he was inside the operation theatre when the
statement of his brother was recorded.
One of the grounds on which the High Court
disbelieved the dying declaration was that Dr.Khan did not
state that the deceased was in a fit mental condition to give
dying declaration and throughout remained conscious when
his statement was recorded. This reasoning of the High Court,
in our view, is also fallacious. In the instant case, the doctor
himself recorded the dying declaration (Ex.P-2). He has given
the fitness certificate vide Ex.P-3 as referred to above stating
that the patient was fit for recording dying declaration. Even if
it is assumed that was not there, in view of the decision of the
Constitution Bench of this Court in Laxman vs. State of
Maharashtra (2002) 6 SCC 710, these would be no
impediment to the creditworthiness of the dying declaration.
Counsel for the respondents referred to the Samson
Wright’s Applied Physiology, thirteenth edition and
strenuously urged that if the same principle is applied and
considering the nature of injuries sustained by the deceased
and due to excessive hemorrhage the patient must have gone
in shock within half an hour after the incident and since no
blood transfusion could be given the patient was not conscious
and was not in a position to give the statement. As already
noted PW-1 was confronted with this principle in cross-
examination and he completely ruled out the application of the
principle in the present case.
Counsel also referred to the decision of this Court in
Balak Ram vs. State of U.P. (1975) 3 SCC 219. In that
case this Court did not rely upon the dying declaration
because the condition of the patient was critical when he
reached the hospital. Before the dying declaration was
recorded an attempt was made to give him saline but even
after making incisions on the hands and a leg, the attempt did
not succeed. In the present case saline and glucose was
administered and the deceased regained consciousness.
Counsel also referred to the case of Paparambaka
Rosamma vs. State of A.P., (1999) 7 SCC 695. This
decision has been expressly over-ruled by a Constitution
Bench in the case of Laxman vs. State of Maharashtra
(2002) 6 SCC 710.
In the view we have taken, we are clearly of the
opinion, that the dying declaration of the deceased recorded by
PW-1 Dr.A.S.Khan and well corroborated with other attending
circumstances inspires confidence, on the basis of which
conviction could be sustained. The High Court committed
grave miscarriage of justice by reversing the conviction
recorded by the Trial Court. The impugned order of the High
Court is set aside. The sentence and conviction recorded by
the Trial Court is restored. The appeal is allowed.
Respondents are directed to be taken back into custody
forthwith to serve out the remaining period of sentence.
Compliance report within one month.
