1. Murder charge under Section 302 IPC — Conviction based on dying declaration and eye-witness testimony — Appeal against reversal of trial court acquittal. (Para 1 , 2 )
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1996 Supreme(SC) 1796
1996(7) Supreme 682
SUPREME COURT OF INDIA
G.N. Ray and G.T. Nanavati, JJ.
Bhagirath -Appellant
versus
State of Haryana -Respondent
Criminal Appeal No. 258 of 1984
Decided on 30-10-1996
Counsel for the Parties :
For the Appellant : B.S. Malik, Sr. Advocate, K.K. Mohan, Advocate.
For the Respondent : Rao Ranjit, Advocate, for Prem Malhotra, Advocate.
Important Points
IMPORTANT POINT
Conviction based on the dying declaration is legally sustainable although ultimately toximia had developed because of peritonitis when all such complications are directly attributable to the injuries suffered by the deceased by the gun shot in the hands of the accused.
Conviction based on the dying declaration is legally sustainable although ultimately toximia had developed because of peritonitis when all such complications are directly attributable to the injuries suffered by the deceased by the gun shot in the hands of the accused.
Subject
Criminal Law - Murder
Act Referred
Headnote
APPEAL AGAINST CONVICTION -Indian Penal Code, 1860-Section 302-Prosecution for offence under-Dying declaration recorded by Head Constable PW25-PW25 took statement from injured for registering a case-He genuinely made an attempt to get dying declaration recorded by a Magistrate-Magistrate being not available-Doctor attested statement recorded by PW25-Doctor satisfied himself about correctness of statement by putting questions to that effect to the injured-Eye witnesses stated that accused had fired a shot from the pistol from a close range-Such deposition gets corroboration from medical evidence and also from dying declaration-High Court rightly placed reliance on dying declaration on basis of which conviction against appellant is warranted-View taken by Sessions Judge in passing order of acquittal in favour of appellant is not a reasonable view-Judgment of conviction confirmed. (Paras 14 to 16)
Legal Category Hierarchy
Table of Contents
2. Reliability and admissibility of dying declaration recorded by police — Credibility of partisan eye-witnesses — Whether medical complications negate the proximate cause of death. (Para 12 , 13 )
3. Dying declaration is reliable if genuine attempts to involve a Magistrate were made — Medical complications like toxemia are directly attributable to the original gunshot injuries. (Para 14 , 15 )
4. A dying declaration is admissible and reliable if the deceased was fit, the statement is truthful, and the cause of death is attributable to the injuries. (Para 14 , 16 )
5. Appeal dismissed — Conviction and sentence under Section 302 IPC upheld. (Para 16 )
6. Can a statement recorded by a police officer be treated as a dying declaration?
Yes, if the deceased describes the cause of injuries and the assailant. While prudence suggests corroboration, it is admissible under Section 32 of the Evidence Act, especially if genuine attempts were made to have a Magistrate record the statement. (Para 13 , 14 )
7. Is a dying declaration inadmissible if death resulted from complications like toxemia rather than the direct injury?
No. If complications such as toxemia resulting from peritonitis are directly attributable to the injuries sustained, the dying declaration remains admissible as the injuries are considered the proximate cause of death. (Para 11 , 14 )
8. Can a conviction be based solely on a dying declaration without corroboration?
Yes, if the court finds the dying declaration to be genuine, reliable, and truthful, a conviction can be based on it without requiring further corroboration from other evidence. (Para 8 , 11 , 16 )
9. Should eye-witness testimony be discarded due to minor contradictions or the partisan nature of the witnesses?
Not necessarily. If the core testimony is corroborated by medical evidence and a dying declaration, minor contradictions or the partisan nature of witnesses do not justify discarding their evidence. (Para 15 )
JUDGMENT
G.N. Ray, J.-This appeal is directed against judgment dated 21.2.1984 passed by the Punjab and Haryana High Court in Criminal Appeal No. 691-DB of 1981. By the impugned judgment, the High Court has set aside the order of acquittal dated 27.5.1981 passed in favour of the appellant by the learned Additional Sessions Judge, Sirsa in Sessions Trial No. 59 of 1980 and has convicted the appellant Bhagirath, accused No. 1 in the Sessions Trial under Section 302 IPC and sentenced him to suffer imprisonment for life and also to pay a fine of Rs. 20,000/- with a direction that if the fine was realised, it would be paid to the next heirs of the deceased as compensation.
2. The appellant and four other accused were committed to Sessions Trial No. 59 of 1980 for offences under Section 302 read with Section 34 IPC and section 120B IPC. The prosecution case in short was that on 29.5.1980 the accused Chhotu and Bhagirath hatched a conspiracy to murder one Nihal Singh and pursuant to such conspiracy, the accused had murdered Nihal Singh in 29.5.1980 in Mandi Dabwali. The accused Bhagirath was individually charged for offence under Section 302 IPC for causing the murder of Nihal Singh in the area Mandi Dabwali. According to prosecution case, at about 2.50 P.M. on 29.5.1980 PW 25,. Head Constable Dharambir of police station Dabwali received a telephone message from Dr. S. Gulati (PW 17) of Civil Hospital, Dabwali that Nihal Singh was admitted in the said hospital with gunshot injuries. Such message was entered in Daily Diary Roznamcha being Entry No. 19 (Ex. PJJ). Dharam Singh, H.C. of P.S. Dabwali (PW25) with constable Vijay Kumar (PW 10) came to the Civil Hospital at 3.10 P.M. and moved an application (Ex. PZ) for obtaining fitness certificates of the said injured and the doctor gave certificate that the injured was in a position to make statement (Ext. PA/1). The said Dharam Singh also requisitioned the service of S.D.J.M. Dabwali and S.D.M. (C) for recording dying declaration of the injured Nihal Singh. Dharam Singh recorded the statement of Nihal Singh (Ex. PAA). Nihal Singh in his statement stated that there was enmity between him and Chhotu. Chhotu and the accused Bhagirath were on a look out for Nihal Singh to get him murdered. On the date of incident at about 2 P.M., Nihal Singh was going to Dabwali Mandi after being free from Court and Sohan Lal (PW 19) and Manswarup were ahead of him and PW 20 Kishan Lal was following him. When Nihal Singh reached in front of the shop of Lekh Ram, tobacco dealer then the accused Bhagirath being accompanied by another person, whose description was given by Nihal Singh in his statement, was standing there. When Nihal Singh crossed Bhagirath, he fired a shot from a country made pistol at his back which hit him and when Nihal Singh turned around and raised a lalkara, Bhagirath and the person accompanying him had run away. Kishan Lal (PW 20) Sohan Lal (PW 19) and Man Swarup came running and Man Swarup and Kishan Lal brought Nihal Single to the civil hospital. After the statement was recorded by Dharambir, the same was read over to Nihal Singh and having admitted that the Statement was correctly recorded, Nihal Singh signed the said statement in presence of Dr. Gulati (PW 17). The said doctor also attested the said statement. Such statement was sent to the police station with the endorsement of the said Dharambir and on the basis of such statement, FIR (Ex. PAA/2) was recorded by PW 9 Gulzari Lal, a head constable. Prior to recording of the said statement by Dharam Singh, Dr. Gulati had prepared a ruqa (Ex. PY) at 3.10 P.M. and medico-legal report (Ext. PX) was also prepared at 4.00 P.M. However, the constable Vijay Kumar returned to the hospital at 4.45 P.M. with a report (Ex. PKK/1) that both S.D.J.M. and S.D.M.(C). were away.
3. The investigating officer took into possession of the shirt Ex. P5, and vest Ext. P6 of the injured from the said doctor and the sealed parcel of such shirt and vest is Ext
