Important Point
Where death was caused due to injuries necessitating bed rest and that led to Pulmonary Embolism, the death was the natural consequence of injuries and it was not because of any negligence or external factor. The statement made by deceased would fall under Section 32 of the Evidence Act and is admissible as dying declaration.

Headnote:(i) Evidence Act, 1872-Section 32-Dying declaration-Multiple injuries by assault on deceased-Led to prolonged bed rest-Complications resulting in death-Statement given before death-Whether admissible as dying declaration? (Yes) -Rejection by High Court on ground that it was not relating to cause of death held improper.
       Held : The death was the natural consequence of the injuries caused and it was not because of any negligence or external factor. Therefore, is no substance in the contention raised by Mr. U.R. Lalit that the injuries were only indirectly responsible for causing death of Balwant Singh and as his death cannot be said to have been caused due to the injuries caused, the statement made by him would not fall within Section 32 of the Indian Evidence Act. In view of our finding on this point, the decisions in Imperatrix v. Rudra (ILR 25 Bombay 45), Abdul Gani Bandukchi & Ors. v. Emperor (AIR 1943 Calcutta 465), in Re. Mallappa Shivlingappa Chanagi (AIR 1962 Mysore 82) and Moti Singh & Anr. v. State of U.P. (AIR 1964 SC 900), relied upon by Mr. Lalit are of no help to him. In all these cases, the Court had held that there was no evidence or that the evidence led was insufficient to prove that the deceased had died as a result of injuries caused to him. As the statement of Balwant Singh related to the cause of his death it was admissible in evidence under Section 32 and the High Court was in error in holding otherwise. (Para 6)
       (ii) Evidence Act, 1872-Section 32-Dying declaration-Rejected as untrue by High Court on ground that injuries given by “Kulhari” stood contradicted by medical evidence that injuries were caused by a blunt weapon-Whether correct? (No).
       Held : Though factually correct, this contention does not deserve to be accepted. Apart from other injuries found on his legs two abrasions were also noticed by the doctor. Moreover, a blow given by an axe with its sharp side pointing towards the victim may not always result in causing an incised wound. What type of injury it will cause would depend upon various factors like the position of the assailant and the victim, angle at which it hits the body, the part of the body where it lands, the force with which it hits the body etc. To reject the evidence as untrue in such circumstances, considering it as inconsistent with medical evidence, without considering the relevant factors would mean mechanical appreciation of such evidence. The High Court considered the statement (Ex. PN) as untrue only on the ground that it stood contradicted by the medical evidence. In our opinion, such mechanical rejection of the dying declaration was not proper. The accused were five in number. All had mounted the attack simultaneously. The evidence discloses that Balwant Singh had tried to avoid and ward off some blows. If under these circumstances the two blows given with an axe did not cause incised injuries it cannot be said that in fact no blows were given with an axe. (Para 7)
       (iii) Evidence Act, 1872-Section 32 - Dying declaration-Admissibility-Dying declaration made two days after the incident-Delay of 2 days satisfactorily explained-Dying declaration can be accepted without independent corroboration. (Para 8)
       (iv) Evidence Act, 1872-Chance witness-Evidence of chance witness, a friend of deceased-Recorded by police after 7 days of incident-Chance witness not filing FIR or disclosing incident to any one else-Evidence by chance witness cannot be discarded due to peculiar circumstances of the case.
       Held : After going through the evidence of Kesar Singh, PW 4 we are of the opinion that the High Court was not right in discarding it. Though he was a chance witness in the sense that he being of a different village had no apparent reason to be near the place of incident, his evidence did not deserve to be discarded on that ground. The High Court failed to appreciate that his presence received independent corroboration from the statement of the deceased himself. The evidence discloses that Kesar Singh had not met Balwant Singh between 29.5.86 to 31.5.86 and yet we find in the statement of Balwant Singh reference to Kesar Singh as one of the persons who had taken him to the hospital. The evidence further discloses that Balwant Singh was conscious till he was taken to the hospital. Therefore, he knew who had taken him to the hospital. It seems that thereafter he was not in a fit state to make any statement because of sedative and other medicines given to him. This aspect has not been considered by the High Court. Kesar Singh had no enmity with the brothers of Balwant Singh or with the other accused. He would not have come forward to give false evidence against them if he had not really seen the incident. Though it is true that after taking Balwant Singh to the hospital he did not wait any more and did not go to the police station to lodge a complaint against the accused, what the High Court failed to consider was that the assailants of Balwant Singh were none other than the brothers and close relatives of the deceased. Balwant Singh was conscious till he was taken to the hospital. Therefore, it was quite likely that Kesar Singh had thought it fit to remain silent and return to his village. Under these circumstances his conduct cannot be regarded as so unnatural as to create a doubt regarding his having seen the incident. His statement was no doubt recorded after seven days but it cannot be said that there was any delay in recording his statement. What the High Court failed to consider was that no offence was registered till 6.6.86 as till then it was believed to be a non-cognizable case. An offence was registered only after the police received a further report that the three injuries caused to Balwant Singh had resulted into fractures. It was, therefore, not correct to say that his statement was recorded after a great delay and that the prosecution had not offered any explanation for it. The reasons given by the High Court in not accepting his evidence are thus not sustainable. No other reason could be suggested by the learned counsel for the respondents for not believing the presence of Kesar Singh at the place when the incident happened. (Para 9)
       (v) Indian Penal Code, 1860-Sections 302/149 r/w 148 or 325/149 read with 148-Nature of offence-Dying declaration and eye witness establishing multiple injuries on deceased by accused-No attempt made to cause serious injuries on any vital part of body-Death due to bed rest and complications-Trial Court convicting u/s. 302/149 r/w 148 IPC-High Court acquitting rejecting dying declaration and evidence of eye witness-Supreme Court finding dying declaration admissible in evidence as truthful and evidence of eye witness believable-But held even then accused can be convicted only under Sections 148 and 325 r/w 149 IPC with imprisonment for period already undergone and fine-Appeal allowed accordingly. (Para 10)

Judgment

Nanavati, J.-G.S. Walia, a close relative of deceased Balwant Singh has filed this appeal after obtaining leave of this Court. It is directed against acquittal of the respondent Nos. 2 to 6 (hereinafter referred to as ‘accused’) by the High Court. The trial Court had convicted them under Section 148 and Section 302 read with Section 149 IPC.

2. The trial Court accepted the prosecution case that Gurbachan Singh, Harbans Singh, Harjeet Singh, Balwinder Singh, and Avtar Singh had assaulted Balwant Singh on 29.5.1986 at 7.30 p.m. with iron rods, a tyre lever and an axe and that Balwant Singh subsequently died on 16.6.1986 as a result of those injuries. The conviction by the trial Court was based mainly upon the evidence of Kesar Singh, PW 4 and the statement of Balwant Singh himself to the police on the basis of which an offence was registered against the accused.

3. The High Court disbelieved the evidence of Kesar Singh on the grounds that he was a chance witness, that he was closely connected with the deceased, that his statement was recorded after 6-7 days and that his subsequent conduct was so unnatural as to create a doubt regarding his presence at the time of the incident. He was regarded as a chance witness because he had failed to explain his presence at the place of offence which was 10 kms. away from the place of his residence. he was not considered an independent witness because he was friendly and on visiting terms with the deceased. He was also a co-accused with the deceased in a case which was filed against them 3 to 4 years before the date of the incident. His conduct was considered unnatural because after taking the deceased to the hospital he had not remained there to help him nor he had gone to the nearby police station to lodge a complaint nor he had talked about the incident to anyone till his police statement was recorded. The High Court discarded the dying declaration (Ex. PN) on the ground that not being a statement relating to cause of death it was not admissible under Section 32 of the Indian Evidence Act. The High Court held that the injuries inflicted were not the cause of death as Balwant Singh died because of Pulmonary Embolism which was the result of prolonged bed rest and the complications arising therefrom. It also held that statement was untrue because it stood contradicted by the medical evidence which ruled out the possiblity of any blow having been given by ‘Kulhari’.

4. The learned counsel for the appellant contended that the High Court has committed a grave error of law in holding the statement of Balwant Singh inadmissible under Section 32 of the Indian Evidence Act and that it has committed a further error in holding that it was not true. Learned counsel also submitted that the High Court has rejected the evidence of witness Kesar Singh, PW 4 on grounds which are not tenable. It was submitted that the erroneous view taken by the High Court has led to failure of justice.

5. Before dealing with these contentions, certain undisputed facts emerging from the evidence may be stated. Respondents Gurbachan Singh and Harbans Singh are the brothers of the deceased. Respondent Harjit Singh is the nephew of the deceased. The remaining two respondents, namely, Balwinder Singh and Avtar Singh were closely related to him. Though the deceased was serving as a driver he was also having his own car. On the date of the incident he had returned to Khanna after completing his work and when he was about to sit in his car which was parked near the hotel of one Hari Singh situated at Samrala Chowk, he was assaulted. He was thereafter taken to the Civil Hospital at Khanna. He was conscious till he was admitted in the hospital. The hospital authorities informed the police but by the time they came his condition became worse and, therefore, his statement could not be recorded either on that day or on the next day. The doctors attending the deceased had told the police that the deceased was not in a fit con

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1998 Supreme(SC) 362

Cases Referred (1)