2002 Supreme(SC) 1220

2003(1) Supreme 39
SUPREME COURT OF INDIA
(From Punjab and Haryana High Court)
Y.K. Sabharwal & K.G. Balakrishnan, JJ.
State of Haryana -Appellant
versus
Mange Ram & Ors. -Respondents
Criminal Appeal No. 538 of 1994
Decided on 11-12-2002
Counsel for the Parties :
For the Appellant : Praveen Kumar Rai and Ranbir Yadav, Advocates.
For the Respondents : Rajiv Dutta, Sr. Advocate, Brijender Chahar, Ms. Jyoti Chahar, Vinay Garg, Advocates.

VERY IMPORTANT POINT
Under Section 32 of Indian Evidence Act, 1872 for dying declaration to be admissible in evidence, it is not necessary that the maker of the statement at the time of making the statement should be under shadow of death or should entertain the belief that his death was imminent.

Headnote:(i) Evidence Act, 1872-Section 32-Dying declaration-Assumption by High Court that dying declaration to be admissible in evidence, should have been made under shadow of death at the time of its making-Whether correct? (No)-Conclusion of High Court that dying declaration was inadequate to connect the accused with the crime-Whether legal? (No).

       Held : The basic infirmity committed by the High Court is in assuming that for a dying declaration to be admissible in evidence, it is necessary that the maker of the statement, at the time of making statement, should be under the shadow of death. That is not what Section 32 of the Indian Evidence Act says. That is not the law in India. Under Indian Law, for dying declaration to be admissible in evidence, it is not necessary that the maker of the statement at the time of making the statement should be under shadow of death and should entertain the believe that his death was imminent. The expectation of imminent death is not the requirement of law. The further infirmity committed by the High Court in reversing a well considered judgment of the Sessions Court is in assuming that there was any delay in recording of Exhibit PQ. The High Court has rightly recorded that the deceased was not under shadow of death when Exhibit PQ was recorded. Evidently, there was not a great emergency, on the facts and circumstances of the case, to record the statement. Be that as it may, it was fully established that there was no delay at all. Firstly, the High Court committed an error in holding that the statement was recorded at 12.30 p.m. on 8th June, 1984. It can neither be disputed nor has been disputed that the statement, in fact, was recorded at 10.30 a.m. on 8th June. The incident had taken place at 8.00 p.m. on 7th June. The injured reached Bahadurgarh Hospital at 11.50 p.m. He was examined by PW4 (Dr. D.S. Rana). The injuries were considered serious. He was referred to Medical College and Hospital, Rohtak. PW9 received Rukka (Exhibit PE) along with copy of medico legal report of the deceased from Civil Hospital, Bahadurgarh at about 2.00 a.m. on 8th June. He went to the Hospital but found that the injured had been removed to hospital at Rohtak. He returned to the police station and went to Hospital at Rohtak next day morning at about 9-9.30 a.m., presented an application (Exhibit PN) to the doctor to find out if the deceased was fit to make statement. Doctor (PW7) gave opinion (Exhibit PN/1) to the effect that injured was fit to make a statement. After receipt of the opinion, PW9 recorded the statement of injured which was completed at 10.30 a.m. Under these circumstances, it is not reasonable to conclude that there was any delay in recording of the statement and drawing influence therefrom that the intervening time was utilized for deliberation and false implication on account of the previous enmity. On the facts and circumstances of the case, the question of any deliberation and false implication would not arise. Undisputedly, injured was fully conscious. He watched the accused giving injuries on his person. It would be too much to imagine that despite seeing these injuries inflicted on him, he would, while making statement, implicate the respondents on account of previous enmity leaving the real person who had inflicted injuries altogether free. The injured in his statement had given a detailed account of the injuries as also the manner in which PW5 Bhim Singh witnessed the occurrence and tried to intervene in the matter and rescue and save him. There was no plausible reason whatsoever to discard Exhibit PQ and testimony of PW9. The prosecution had given up Sant Ram as he had business dealing with the accused and, according to the prosecution, had been won over The statement Exhibit PQ inspires confidence and was rightly relied upon by the Sessions Court. The High Court committed serious illegality in concluding that Exhibit PQ was inadequate to connect the accused with the crime. (Para 11)

       (ii) Evidence Act, 1872-PW 5-Eye witness-Discarded on ground of chance witness-Whether correct? (No, he was a natural witness).

       Held : The reasons for not believing PW5 are also wholly unsustainable. Main reason for disbelieving him was that he was a chance witness. The High Court lost sight of the fact that PW5 was a resident of the same village as the accused and the deceased. The fact that PW8 in his police statement failed to mention about the presence of PW5 at the place of occurrence, in the facts of the case, was an irrelevant circumstance for disbelieving PW5. PW5 had given details of all the injuries inflicted by the accused. Nothing worthwhile could be extracted in his cross-examination. He was a natural witness. He tried to intervene and save the deceased. He went to the house of the deceased to inform his family members about the incident. PW5 was an independent witness. Despite the fact that he did not go to the hospital but independently the injured in his statement Exhibit PQ stated about the presence of PW5 at the time of occurrence and his efforts to save the deceased. We are of the view that PW5 is a natural, truthful and creditable witness and his testimony was rightly relied upon by the Sessions Judge in convicting the respondents. On irrelevant considerations, his testimony was discarded by the High Court. (Para 12)

       (iii) Indian Penal Code, 1860-Sections 302/34, 325/34, 326/34-The father, his two sons and a brother-in-law, respondents herein charged for causing grievous injuries to the deceased on 7.6.1984 at 8.00 p.m.-Trial Court convicted under Sections 326/34 and 325/34, sentenced to 7 years and 5 years R.I.-In appeal to High Court, they were acquitted, not relying dying declaration and evidence of PW 5-Appeal to Supreme Court-Whether High Court was right? (No)-What is nature of offence? (under Sections 326 and 325 r/w 34 IPC)-Whether sentence requires modification? (Yes, 7 years RI reduced to 4 years)-Appeal allowed accordingly.

       Held : The High Court discarded the testimony of eye-witness PW5 as also the dying declaration (Exhibit PQ) and consequently the conviction and sentence of the respondents was set aside. We have gone through the evidence on record, in particular, the testimony of the doctors, that of Bhim Singh and the head constable (PW5 and PW9) and the dying declaration (Exhibit PQ). In our opinion, the view of the High Court is not a reasonable view of the evidence and the reasons for discarding PW5 and the dying declaration (Exhibit PQ) are wholly untenable. (Para 10)

       Held (as to nature of offence) : The next question is the nature of offence the respondents had committed. As already noticed, the Sessions Court acquitted them of charge under Section 302/34 IPC. The High Court did not go into the nature of offence in view of acquittal of the respondents. The Sessions Judge, for coming to the conclusion that the respondents could not be convicted for offence under Section 302, had relied upon the medical evidence of PW4. PW4 was the first doctor who had examined the deceased in Bahadurgarh Hospital. He had deposed in cross-examination that none of the injuries, either individually or collectively, appeared to be dangerous to life. The injured was last attended by Dr. A.N. Gupta (PW7) in the Medical College and Hospital, Rohtak. According to him, the injured was initially given blood of A group but subsequently blood of that group went out of stock and, therefore, he was given blood of O+ group. The witness further deposed that he could not say if the patient died because of blood reaction or because of injuries suffered by him but he did depose that there was fear in his mind about blood reaction and, therefore, he gave medicines to prevent it. Under these circumstances, the Sessions Judge concluded that the possibility of the injured having died because of blood reaction cannot be ruled out though doctor conducting post mortem had deposed the cause or death as rupture of liver on account of injuries. The view taken by the Sessions Judge is a plausible view and, therefore, we are unable to accept the contention of the learned counsel for the State that the respondents deserved to be convicted for offence under Section 302/34 IPC. In our view, they were rightly convicted for offence under Sections 325 and 326 read with Section 34 IPC by the Sessions Judge, Rohtak. The impugned judgment of the High Court is set aside and the conviction, as directed by the Sessions Judge, Rohtak is restored. (Paras 13 and 14)

       Held (as to sentence) : The sentences awarded by the Sessions Judge on the respondents have been noticed in the earlier part of the judgment. Having regard to the facts of the case, in our view, the ends of justice would be met if each of the respondents are sentenced for rigorous imprisonment for a period of four years instead of seven years and five years as directed by the Sessions Court. We order accordingly. (Para 15)