{"id":261548,"date":"2006-07-04T00:00:00","date_gmt":"2006-07-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/heeralal-yadav-vs-state-of-m-p-ors-on-4-july-2006"},"modified":"2017-12-30T00:08:15","modified_gmt":"2017-12-29T18:38:15","slug":"heeralal-yadav-vs-state-of-m-p-ors-on-4-july-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/heeralal-yadav-vs-state-of-m-p-ors-on-4-july-2006","title":{"rendered":"Heeralal Yadav vs State Of M.P. & Ors on 4 July, 2006"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Heeralal Yadav vs State Of M.P. & Ors on 4 July, 2006<\/div>\n
Author: J H.K.Sema<\/div>\n
Bench: H.K.Sema, A.K. Mathur<\/div>\n
           CASE NO.:\nAppeal (crl.)  546 of 2000\n\nPETITIONER:\nHeeralal Yadav\n\nRESPONDENT:\nState of M.P. & Ors.\n\nDATE OF JUDGMENT: 04\/07\/2006\n\nBENCH:\nH.K.SEMA & A.K. MATHUR\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
H.K.SEMA,J<\/p>\n
\t\tThis appeal by special leave filed by the
\ncomplainant (PW-2) is directed against the judgment and order
\nof the High Court dated 2.7.1999 passed in Criminal Appeal
\nNo.678 of 1995 whereby the High Court reversed the
\nconviction and sentence passed by the Trial Court convicting
\nthe respondents for an offence under Section 302<\/a>\/34<\/a> IPC and
\nsentenced them to RI for life and a fine of Rs.1000\/- each and
\nin default of payment further six months simple
\nimprisonment.\n<\/p>\n
\t\tThe prosecution case in brief was that on 14.4.1993
\nat about 8.30 in the morning the deceased Gokul Singh son of
\nNirbhay Singh, who was a practicing advocate and his son
\nMeharban Singh (PW-3) aged about 12 years went to their well
\nin village Narval, District Shajapur.   When the deceased went
\nto answer the call of nature in the fields of Babulal Teli, all of a
\nsudden, the accused Gokul Singh son of Amar Singh,
\nBhawarlal and Babulal armed with sword, farsi and dhariya
\nand co-accused Lal Singh with knife, Chander Singh, Man
\nSingh, Kalu Singh, Dhannalal and Lal Singh armed with lathis
\ncame on the spot and surrounded the deceased and assaulted
\nhim with their respective weapons.  PW-3 Meharban Singh on
\nseeing this incident ran to his house and told his grandfather
\nPW-6 Nirbhay Singh  at flour mill and his uncle PW-2 Heeralal
\nYadav  (appellant herein) that his father Gokul Singh was
\nbeing assaulted.  On being told PW-2 Heeralal Yadav  and
\nDevsingh PW-4 went to the spot.  They saw the accused
\npersons assaulting the deceased.  PW-6 Nirbhay Singh also
\nwent there and saw the accused persons running from the
\nspot with their respective weapons. The deceased Gokul Singh
\nwas badly injured.  He was put in a tractor and was taken to
\nP.S. Agar where PW-2 Heeralal Yadav lodged F.I.R. at 9.05
\na.m. which was recorded by A.S.I.\n<\/p>\n
\t\tPW-1 Dr.A.S.Khan examined the deceased Gokul
\nSingh and found the following injuries:\n<\/p>\n
1.\tIncised wound on the central part of
\nforehead, 2″ x <" x <".\n<\/p>\n
2.\tIncised wound on the middle side of left
\norbital, 3″ x =” x =”\n<\/p>\n
3.\tIncised wound on the upper part of left eye-
\nlid, 1″ x <" x <".\n<\/p>\n
4.\tIncised wound on middle part of right leg,
\n3″ x =” x =”.\n<\/p>\n
5.\tIncised wound, 1″ below injury no.4, 4″ x
\n=” x =”\n<\/p>\n
6.\tIncised wound, 1″ below injury no.5, 4″ x
\n=” x =”.\n<\/p>\n
7.\tIncised wound on the upper 1\/3rd part of
\nright leg, 1″ x =” x ='”.\n<\/p>\n
8.\tIncised wound on the middle part of left leg,
\n2″ x =” x =”.\n<\/p>\n
9.\tIncised wound, 2″ below injury no.8, 3″ x
\n=” x =”.\n<\/p>\n
10.\tIncised wound on the lower 1\/3rd part of
\nleft leg, 3″ x =” x =”.\n<\/p>\n
11.\tIncised wound on the lower 1\/3rd part of
\nleft leg, 3″ x 1″ x =”.\n<\/p>\n
12.\tIncised wound on the middle part of left
\nforearm, 2″ x =” x =”.\n<\/p>\n
13.\tIncised wound 1″ middle from the injury
\nno.12, 2″ x =” x =”.\n<\/p>\n
14.\tIncised wound on the lower 1\/3rd part of
\nright forearm, 3″ x 1″ x =”.\n<\/p>\n
15.\tIncised wound on the metacarpal bones of
\nall fingers and thumb of right hand, 11″ x
\n3″ x 1 =”.\n<\/p>\n
16.\tBruise on the middle part of left thigh, 5″ x
\n=”.\n<\/p>\n
17.\tIncised wound on right parietal bone, 2″ x
\n=” x =”.\n<\/p>\n
18.\tBruise on left parietal bone, 5″ x =” x =”.\n<\/p>\n
PW-12 S.R.Parihar, then requested PW-1 Dr.A.S.Khan to
\nrecord the dying declaration of the deceased as the Executive
\nMagistrate was not available.  PW-1 Dr.Khan recorded the
\ndying declaration of the deceased at 10.30 a.m. (Ex.P.2).  As
\nthe condition of the deceased was serious he was referred to
\nDistrict hospital, Ujjain, where he succumbed to his injuries.\n<\/p>\n
        \t\tOn the basis of the FIR, 9 accused faced the trial for
\nan offence under Section 302<\/a>\/34<\/a> before the Trial Court.  The
\nTrial Court after examining the evidence on record particularly
\nthe evidence of eyewitnesses PW-2 Heeralal Yadav, PW-3
\nMeharban Singh, PW-6 Nirbhay Singh along with the dying
\ndeclaration recorded by PW-1 Dr.Khan convicted three
\naccused respondents namely A-1 Gokul Singh son of Amar
\nSingh, A-2 Bhawarlal son of Ram Singh and A-9 Badulal son
\nof Lal Singh for an offence under Section 302<\/a>\/34<\/a> IPC and
\nacquitted six other accused by giving them benefit of doubt.
\nThe High Court on appeal by the accused persons reversed the
\nconviction of the Trial Court and recorded acquittal.  Hence
\nthis appeal by special leave by the complainant, permission for
\nwhich was granted by this Court.\n<\/p>\n
\t\tThe High Court reversed the conviction recorded by
\nthe Trial Court on the sole ground that the dying declaration
\ndoes not inspire confidence.  The sole question, therefore, to
\nbe determined in this appeal is as to whether the dying
\ndeclaration of the deceased recorded by PW-1 Dr.Khan,
\ninspires confidence or not?\n<\/p>\n
\t\tThe principle that “no man at the point of his death
\nis presumed to lie.  A man will not meet his maker with lie in
\nhis mouth” is based on sound public policy.  No doubt, as the
\ndead man would not be available for cross-examination, a duty
\nis cast upon the Court to examine the dying declaration with
\ncare and caution as to whether the dying declaration is
\ncreditworthy for acceptance.  In other words whether it
\ninspires confidence on the basis of which alone conviction can
\nbe recorded.  Similarly, it is also an accepted principle of law
\nthat the dying declaration, keeping in view the above
\nprinciples in mind, if inspiring confidence could be the sole
\nbasis for conviction.\n<\/p>\n
\t\tThe High Court rejected the dying declaration of the
\ndeceased recorded by PW-1 Dr.Khan. Reasoning of High Court
\nin  paragraph 8 of the judgment reads:-\n<\/p>\n
“First and the foremost thing is that in the
\ndying-declaration Ex.P-2 of the deceased
\nrecorded by Dr.Khan (PW-1) and police
\nstatement Ex.P-38 recorded by sub-inspector
\nS.R. Parihar (PW-12) which became dying
\ndeclaration after his death the deceased did
\nnot mention that he had gone with his son
\nMeharban singh to his well and
\nMeharbansingh was present at the time of
\nincident.  The non-mentioning of the name of
\nthis witness in dying declaration and police
\nstatement which were recorded in detail
\ncreates great suspicion about the presence of
\nthis witness on the spot.  His conduct also
\nappears to be abnormal.  He saw his father
\nGokulsingh being assaulted by the accused
\npersons with sword, farsi and Dhariya, he
\nwent running to his grandfather Nirbhaysingh
\nand uncle Heeralal and told them that his
\nfather was being beaten.  But it is surprising
\nthat he did not mention the names of the
\nassailants nor these witnesses asked their
\nnames.  Had this witness seen the occurrence,
\nhe would have mentioned the names of the
\nassailants.  After giving information, he did not
\ngo to the spot as to what had happened to his
\nfather.  A normal man, in the above
\ncircumstances, would not stay at home, but
\nimmediately would run to see his father.  We
\nmay assume that he was panicky and in a
\nconfused state of mind, when he came from
\nthe spot and narrated the incident to these
\nwitnesses, but thereafter, when he stayed at
\nhome, he must have composed and regained
\nnormalcy, even then he did not mention the
\nnames of the assailants to the house ladies.”\n<\/p>\n
\t\tThe fallacy of the High Court, in our view, is that
\nthe High Court has not at all considered the creditworthiness
\nof the dying declaration of the deceased recorded by PW-1
\nDr.Khan.   On the contrary, the dying declaration of the
\ndeceased was disbelieved on the ground that the deceased did
\nnot mention the presence of PW-3.  The High Court also
\ndoubted the presence of PW-3 at the place of occurrence on
\nthe ground that he (PW-3) saw his father being assaulted by
\nthe accused with sword, farsi and dhariya but did not mention
\nthe names of the assailants nor these witnesses asked their
\nnames from him.  Had he been present at the scene of
\noccurrence he would have mentioned the names of the
\nassailants.  The High Court was further of the view that he did
\nnot accompany them to the spot to see as to what happened to
\nhis father.  According to the High Court, the conduct of PW-3
\nwas unnatural and, therefore, the dying declaration of the
\ndeceased recorded by PW-1 Dr.Khan was disbelieved.
\n\t\tFrom the above quoted reasoning of the High Court,
\nwe are unable to discern the logic of the High Court’s
\nreasoning.  Presence or non-presence of PW-3 at the scene of
\noccurrence or for that matter non-mentioning of the name of
\nPW-3 in the dying declaration has no connection with
\nascertainment of the veracity and creditworthiness of the
\ndying declaration.  In fact, the High Court did not discuss the
\nveracity and creditworthiness of either the dying declaration
\nrecorded by PW-1 or the testimony of PW-1 Dr.Khan deposed
\nbefore the Court.\n<\/p>\n
      The other ground on the basis of which the High
\nCourt rejected the dying declaration (Ex.P-2) as doubtful and
\nunreliable is that PW-1 Dr.Khan did not state that the
\ndeceased was in a fit mental condition to give dying
\ndeclaration and throughout remained conscious when his
\nstatement was recorded. According to the High Court as is
\nevident from PW.1 Dr.Khan that the deceased was in semi
\nconscious condition and his blood pressure had gone down to
\n90\/60.   The High Court has also referred to Dr.Pramod
\nKaushik PW-10 who conducted autopsy on the dead body and
\nstated that due to excessive hemorrhage the deceased must
\nhave gone in shock within half an hour after the incident.  PW-
\n10 also stated that blood transfusion could not be given, as
\nthe facility was not available at Agar.   Accordingly, the High
\nCourt held that in such mental condition, the recording of
\ndying declaration by PW-1 could not be possible.
\n\t\tIn our view, the High Court was grossly oblivious to
\nthe statement of Dr.Khan when he said that the deceased
\nmust have gone in shock at the place of incident but he
\nrecovered consciousness as he was given glucose saline and
\nmedicines.\n<\/p>\n
\t\tThe main attack on the dying declaration by the
\ncounsel for the accused is that considering the nature of the
\ninjury suffered by the deceased there was excessive
\nhemorrhage and the deceased must have gone in shock within
\nhalf an hour after the incident and since blood transfusion
\ncould not be given, the so called dying declaration recorded by
\nDr.Khan (Ex.P.2) is not reliable.  According to the counsel, the
\nHigh Court was justified in not relying on the said dying
\ndeclaration. We are unable to countenance such submission.
\n\t\tEx.P-3 is the requisition dated 14.4.1993 sought by
\nthe Investigating Officer regarding the condition of the
\ndeceased Gokul Singh son of Nirbhay Singh for recording
\ndying declaration.  There is an endorsement in Ex.P-3 by the
\nMedical Officer Primary Health Center by PW-1 Dr.A.S.Khan
\nthat the deceased Gokul Singh son of Nirbhay Singh aged 35
\nyears would be able to give the statement of dying declaration.
\nIn the dying declaration (Ex.P-2) the deceased in an answer to
\nthe question “who has beaten you” clearly stated that accused
\nGokul Singh s\/o Amar Singh, Bhawar Singh s\/o Ram Singh,
\nBabulal son of Lal Singh and there were many others whose
\nnames he did not remember.  He further stated that he was
\nbeaten with farsi, dhariya and lathis and badly beaten up with
\nweapons.  He further stated that he was beaten near his well
\nand field itself.  In an answer to a question “what were you
\ndoing”, he stated, “I was answering call of nature there.  All
\nthe people beat me with dharia, sword and farsi etc. weapons.”
\nThe deceased also stated that he was giving the statement in
\nfull consciousness.  He also stated that the dying declaration
\nwas not under any pressure.\n<\/p>\n
\t\tDr.A.S.Khan was examined as PW-1.  He has stated
\nthat on 14.4.1993 he was posted as Medical Officer at Primary
\nHealth Centre, Agar.  On that day he recorded the dying
\ndeclaration (Ex.P-2).  He has also admitted that he has given
\nthe fitness certificate (Ex.P-3).  In cross-examination he has
\nstated that after 9.30 a.m. his treatment started, glucose and
\nantibiotic medicines had been given, therefore, after 9.30 a.m.
\nhe had become conscious.  He denied a suggestion that the
\ncondition of the injured further deteriorated.  He has stated
\nthat the dying declaration was recorded in the operation
\ntheatre in the presence of staff and inspector (SI) and the
\npolicemen.  He further stated that the relatives of the patient
\nGokul Singh were not inside the operation theatre.  PW-1 was
\nconfronted with the principle of Samson Wright’s Applied
\nPhysiology, page 152.  He categorically ruled out the
\napplication of the principle.\n<\/p>\n
\t\tMr.S.K. Gambhir, learned senior counsel for the
\nrespondents, however, brought to our notice the statement of
\nPW-2 Heeralal Yadav when he stated that when Dr.Khan took
\nthe statement of my brother I was there.   According to the
\ncounsel for the respondents, this statement contradicted with
\nthe statement of PW-1 Dr.Khan that the statement was
\nrecorded in the operation theatre and the relatives of the
\ndeceased were outside the theatre.   We do not see any
\ncontradiction.  PW-2 only stated his presence at the hospital
\nat the time when the dying declaration was recorded.  He
\nnever stated that he was inside the operation theatre when the
\nstatement of his brother was recorded.\n<\/p>\n
\t\tOne of the grounds on which the High Court
\ndisbelieved the dying declaration was that Dr.Khan did not
\nstate that the deceased was in a fit mental condition to give
\ndying declaration and throughout remained conscious when
\nhis statement was recorded.  This reasoning of the High Court,
\nin our view, is also fallacious.  In the instant case, the doctor
\nhimself recorded the dying declaration (Ex.P-2).  He has given
\nthe fitness certificate vide Ex.P-3 as referred to above stating
\nthat the patient was fit for recording dying declaration.  Even if
\nit is assumed that was not there, in view of the decision of the
\nConstitution Bench of this Court in Laxman    vs.  State of
\nMaharashtra<\/a> (2002) 6 SCC 710, these would be no
\nimpediment to the creditworthiness of the dying declaration.\n<\/p>\n
        \t\tCounsel for the respondents referred to the Samson
\nWright’s Applied Physiology, thirteenth edition and
\nstrenuously urged that if the same principle is applied and
\nconsidering the nature of injuries sustained by the deceased
\nand due to excessive hemorrhage the patient must have gone
\nin shock within half an hour after the incident and since no
\nblood transfusion could be given the patient was not conscious
\nand was not in a position to give the statement.   As already
\nnoted PW-1 was confronted with this principle in cross-
\nexamination and he completely ruled out the application of the
\nprinciple in the present case.\n<\/p>\n
\t\tCounsel also referred to the decision of this Court in
\nBalak Ram    vs.  State of U.P<\/a>. (1975) 3 SCC 219.  In that
\ncase this Court did not rely upon the dying declaration
\nbecause the condition of the patient was critical when he
\nreached the hospital.   Before the dying declaration was
\nrecorded an attempt was made to give him saline but even
\nafter making incisions on the hands and a leg, the attempt did
\nnot succeed.  In the present case saline and glucose was
\nadministered and the deceased regained consciousness.
\n\t\tCounsel also referred to the case of  Paparambaka
\nRosamma    vs.  State of A.P<\/a>., (1999) 7 SCC 695.  This
\ndecision has been expressly over-ruled by a Constitution
\nBench in the case of Laxman   vs.  State of Maharashtra<\/a>
\n(2002) 6 SCC 710.\n<\/p>\n
\t\tIn the view we have taken, we are clearly of the
\nopinion, that the dying declaration of the deceased recorded by
\nPW-1 Dr.A.S.Khan and well corroborated with other attending
\ncircumstances inspires confidence, on the basis of which
\nconviction could be sustained.  The High Court committed
\ngrave miscarriage of justice by reversing the conviction
\nrecorded by the Trial Court.  The impugned order of the High
\nCourt is set aside.  The sentence and conviction recorded by
\nthe Trial Court is restored.  The appeal is allowed.
\nRespondents are directed to be taken back into custody
\nforthwith to serve out the remaining period of sentence.
\nCompliance report within one month.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Heeralal Yadav vs State Of M.P. & Ors on 4 July, 2006 Author: J H.K.Sema Bench: H.K.Sema, A.K. Mathur 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-261548","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nHeeralal Yadav vs State Of M.P. & Ors on 4 July, 2006 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/heeralal-yadav-vs-state-of-m-p-ors-on-4-july-2006\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Heeralal Yadav vs State Of M.P. & Ors on 4 July, 2006 - 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