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SUPREME COURT OF INDIA
30th January 1953.
MAHAJAN, S.R. DAS AND GHULAM HASAN JJ.
Ram Nath Madhoprasad and others, Appellants
Versus
State of M.P.
Criminal Appeals Nos 69, 70 and 71 of 1951.
Advocates appeared
Dr. Bakshi Tek Chand, Senior Advocate (Shri S. L. Chibber, Advocate with him), Instructed by Shri Rajinder Narain, Agent, for Appellants Shri P. A. Metha, Advocate, Instructed by Shri G. H Rajadhyaksha, Agent, for the State.
Held: "Even if it is held proved that all the appellants were seen at that spot at the time of firing this fact by itself could not be held enough to prove a common intention of the appellant to murder Sunder. It can well be that these four persons were standing together and one of them suddenly seeing Sunder fired at him. This possibility has not been eliminated by any evidence on the record. In such a situation when it would not be known who fired the fatal shot, none of such persons could be convicted of murder under S. 302 I.P.C. It seems to us that in this case the High Court failed to appreciate the true effect of the decision of the Privy Council Mahbub Shah v. Emperor of A.I.R. 1945 P.C. 118 and its judgment in regard to the applicability of S. 35, I.P.C. has to be reserved.
"We are also of the opinion that the evidence as to conspiracy under S.120.B, I.P.C. having been rejected, the same evidence could not be used for, finding a common intention proved under section; 34 I.P.C:" (per Mahajan J.) - Section 32-General principles-Evidentiary value of statements as to death.
Held: (1) In the case of dying declaration where the exact words stated by a deceased matter and are of importance, a suggestion of the kind that the, deceased might have said something by a mistake cannot be entertained.
(2) It is settled law that it is not safe to convict an accused person merely on the evidence furnished by a dying declaration without further corroboration because such a statement is not made on oath and is not subject to cross-examination and because the maker of it might be mentally and physically in a state of confusion and might well be drawing upon his imagination while he was making the declaration.
(3) Unless one is certain about the exact words uttered by a deceased no reliance can be placed on verbal statements of witnesses and such oral declarations made by a deceased.
Judgement
MAHAJAN, J. : These are appeals by Ramnath, Pratap and Purshotham under Art. 134 (1) (c) of the Constitution of India from the Judgment and Order of the High Court of Judicature at Nagpur dated 22-8-1952 in Criminal Appeal No. 74 of 1951.
2. Sunder, a goldsmith by profession and leader of one of the two rival factions in the town of Gadarwara (Madhya Pradesh) was shot while returning from a meeting at the ganj (grain market) and walking on the main cement road of the town at a spot in front of one Narayandas s house, where Phullu Mithya s lane meets that road, at about 11 or 11.30 P.M. on 6-4-1950. The night was dark and cloudy and the road had no street lights. He was taken in a tonga to the hospital and after enquiry from him, Mulchand (P. W. 20), his muneem lodged the first information report about this incident at the police station Gadarwara at about 11-40 P. M. Half an hour, later, G. D. Mukherji (P. W. 5), first class magistrate, recorded Sunder s dying declaration, Ex. P-17, which runs as follows:
"Q : Who assaulted you?
A: Purshotham, Pratap, Mamaji and Hanna Ahir shot me by means of a pistol.
Q: Where were you going?
A: Pratap had called and had taken me to Nakalganj, and struck me on bringing me, in front of the chudiwara.
Q: Who were there?
A: I flashed the torch. All the four individuals were standing.
Q: Had you hostility with these individuals?
A: Yes, sir. I had hostility with all
Q: Whoever else was with you?
A: I was alone."
After his wounds had been dressed, Shri S. S. Naidu (P. W. 49), Assistant Medical Officer, took him by passenger train to Jubbulpore for admission into the Victoria Hospital. Sunder was operated upon by Shri Chari (P. W. 52). Civil Surgeon, on 7-4-1950 and died on the same day. The autopsy showed that there were two punctured wounds on the left side of the mid-auxiliary line which had been caused by shots from a firearm.
3. The three appellants along with two others, viz., Hari Shankar and Chiddi were tried by the Additional Sessions Judge, Narsimhapur (Madhya Pradesh) as persons responsible for this murder. Ramnath, Pratap, Purshotham, Harishankar and Chiddi were charged under S. 120-B, I. P. C., for having entered into a criminal conspiracy at Gadarwara to murder Sunder. Ramnath was also charged under S. 302, I.P.C. for having in furtherance of the above conspiracy murdered Sunder by shooting him with a pistol. Pratap and Purshotham were further charged under S. 302 read with S. 34 I. P. C. for having acted in concert with Ramnath in the murder of Sunder. An alternative charge under S. 302 read with Ss. 109 and 114, I.P.C. for abetment of the murder by Ramnath was also framed against them. Harnarain alias Harnna was given a pardon and he appeared as the first witness for the prosecution.
4. The learned Additional Sessions Judge reached the conclusion that the charge of criminal conspiracy under S. 120-B, was not proved. All the appellants were therefore acquitted of this charge. Ramnath was found guilty for the murder of Sunder and was convicted under S. 302, I. P. C. and sentenced to death. Pratap and Purshotham were convicted under S. 392 read with S. 34, I. P. C, and each of them was sentenced to transportation for life. Harishankar and Chiddi were acquitted. Against their convictions and sentences the appellants preferred appeals to the High Court of Judicature at Nagpur.
The State of Madhya Pradesh presented a petition for enhancement of sentence passed against Pratap from transportation for life to death. The High Court by its judgment under appeal altered the conviction of Ramnath under S. 302, I. P. C., to one under S. 302 read with S. 34, I. P. C. and sentenced him to the transportation for life. It confirmed the conviction of Pratap and Purshotham under S. 302 read with S. 34, I. P. C, and maintained the sentence of transportation for life passed against them. The petition of the state for enhancement of Pratap s sentence was dismissed.
5. The prosecution case which was based merel
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