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SUPREME COURT OF INDIA
17th September 1957.
B.P. SINHA, GOVINDA MENON AND KAPUR, JJ.
Bakhshish Singh, Appellant
Versus
The State of Punjab, Respondent.
Criminal Appeal No. 205 of 1956
Advocates appeared
Mr. R.L. Anand, Sr. Advocate, Mr. S. N. Anand Advocate, with him for Appellant.
Mr. Kartar Singh Chawla, Asst. Advocate-General for the State of Punjab, Mr. T.M. Sen, Advocate, with him, for Respondent. 905
A person was mentioned in the dying declaration as to have witnessed the occurrence. He was not produced by the prosecution as a witness. This -fact was commented upon by counsel of the accused as a very serious omission it was stated by the Public Prosecutor at the trial that he was giving up the witness as he had been won over.
Held: There was no obligation on the part of the prosecution to -examine this witness. This witness, if produced would have been no better than a suborned witness. He was not a witness" essential to the unfolding of the narrative on which the prosecution was based" and if examined the result would have been confusion, because the prosecution would have automatically proceeded to discredit him by cross-examination. No oblique reason for his non-production was alleged, last of all proved. In the circumstances the court would not interfere with the discretion of the prosecution as to what witnesses should be called for the prosecution and no adverse inference under S, 11 of the Evidence Act could be drawn against the State. - Section 32 (I)-Dying declaration-What form it should take -Rules in this matter should be framed in the Punjab.
Held: The dying declaration is .the statement made by a person as to the cause of his death or a to any of the circumstances, of the transaction which resulted in his death and such details which fall outside the ambit of this are not strictly within the permissible limits laid down by S. 32 (1) of the Evidence Act and unless absolutely necessary to make a statement coherent or complete should not be included in the statement. In the Punjab, no rules have been made in regard to the recording of dying. declaration which has been done in several other states, It should be desirable if some such rules was framed and included in the Rules and Orders made by the High Court for the guidance of persons recording dying declarations. Of course the authenticity of the dying declaration has to be judged in accordance with the circumstances of each case depending upon many factors which would vary with each case but those recording such statements would be well advised to keep in view the fact that the object of a dying declaration is to get from the person making the statement the cause of death or the circumstances of the transaction which resulted in death.
Where the dying declaration is a long document and is a narrative of a large number of incidents which happened before the actual assault. such long statement being more in the nature of First Information Report than recital of the cause of death or circum stances resulting in it, are likely to give the impression of their being not genuine or not having been made unaided and without prompting.
The dying declaration, though in the form of F.I.R. was held in this case unprompted and voluntary. - Section 32 (I)-Dying declaration in the Punjab but recorded in Urdu-Authenticity-Practice in the Punjab.
Held: In the Punjab the dying declarations are taken down in Urdu, though the deceased gave the narrative in the Punjabi and that has been so ever since the Courts were established and judicial authority has never held that to be an infirmity in dying declarations making them inefficacious. As a matter of fact in the Punjabi language used in the subordinate Courts and that employed by the police for recording of statements has always been Urdu and recording of the dying declaration in Urdu cannot be a ground for saying that the statement does not correctly reproduce what was stated by the declarant. This is a wholly inadequate reason for rejecting the dying declaration. - Section 33-Evidence of doctor-Doctor not available at Sessions trial-Applicability of section 33.
The statement of a doctor made before committing magistrate was brought on record before the Sessions Judge under S. 33. At the trial the prosecution produced a Foot Constable who deposed that he to k the summons for this witness to the hospital where he was previously employed and the Superintendent of the hospital made a report that he was no longer in service and it was not known where he was. This witness also stated that "from the inquiries made by me, I learnt that his where abouts are not known." In cross-examination he again stated that he made enquiries but he could not discover the where abouts of this witness. Doctor’s this statement the Public Prosecutor made a statement that the Doctors whereabouts were not known and prayed that his statement be transferred under S. 33 of the Evidence Act on the ground that there was no likelihood of the witness being available without un-reasonable delay and expense and no objection was shown to have been taken by the defence at that stage. Thereupon the trial Judge ordered the statement to be transferred under S. 33 of the Evidence Act.
Held: Though the judge might have been well advised to give fuller reasons for making the order transferring the statement, it was clear that he transferred it on the ground of unreasonable delay and expense and that ,there was no infirmity in this order to transfer.
Judgement
KAPUR, J.- This is an appeal against the judgment and order of the Punjab High Court reversing an order of acquittal by the Additional Sessions Judge, Amritsar. The appellant Bakshish Singh and his brother Gurbagshi Singh were tried for an offence under Ss. 302/34, Penal Code but were acquitted. Against this judgment the State took an appeal to the High Court. As Gurbaksh Singh was said to be absconding the appeal against the appellant alone was heard aid decided by the High Court.
2. On 1-8-1954, sometime between 7 and 8 p.m. Bachhinder Singh son of Bhagwan Singh of village Kairon was shot in the lane in front of their house and as a result of bullet injuries he died the next day in the hospital at Amritsar. He was at the time of shooting accompanied by his younger brother Narvel Singh, a boy of 13 and after getting injured Bachhinder Singh and his brother returned to the house.
Bhagwan Singh states that he was informed of the identity of the assailants by Bachhinder Singh who was, at his own request, carried from the house to the hospital at Kairon but as the injuries were serious, the doctor at Kairon rendered "first aid" and advised the father to take his son to V.J. Hospital at Amritsar. Bhagwan Singh then took Bachhinder Singh to the Railway Station but before the arrival of the train he went to the Police Post at Kairon which is at a distance of about 100 yds. from the Railway Station in order to make a report.
As the Assistant Sub-Inspector was away at Sarhali, he returned to the Railway Station and took his son to the Amritsar hospital by the train leaving Kairon at 9- 47 p.m. Bhagwan Singh was accompained at that time by his younger son, Narvel Singh P.W. 12, and by Shamir Singh, Inder Singh and Narinjan Singh. Soon after their arrival at the Amritsar hospital Bachhinder Singh was examined by Dr. Kanwal Kishore P.W. 2 at 11-45 p.m. and finding the injury to be of a serious nature the doctor sent information to the police as a result of which Head Constable Maya Ram Sharma. P.W. 4 arrived at the hospital sometime after midnight and, in the presence of Dr. Mahavir Sud, P.W.17 recorded the dying declaration of Bachhinder Singh Ex. P-H, after getting a certificate from the doctor that the injured person was in a fit state to make a statement.
This statement is the basis of the First Information Report Ex. P-H 1 which is a copy of Ex. P-H. This report was recorded on 2-8-1954, at 7-50 a.m. at Police Station Sarhali which we were told, is about 20 miles or so away from Amritsar. In the early hours of the morning Dr. K. C. Saronwala P.W. performed an operation on Bachhinder Singh and extracted the bullet from the left abdominal wall which was handed over to the Police. But Bachhinder Singh died at 1-35 p.m. on 2-8-1954. An inquest report Ex. P-K was prepared at 2-30 p.m. by Head Constable Maya Ram P.W.
3. The case for the prosecution rests on the dying declaration of Bachhinder Singh Ex. P.H and on the statement of Narvel Singh P.W. 12 who was as an eye witness to the occurrence and on the statement made by the deceased to his father as to his assailant as soon as he (Bachhinder Singh) was brought to the house after receiving the injuries. The prosecution also relied on an extra-judicial confession made to Teja Singh P.W. 13 but both the courts below have rejected this piece of evidence and it is unnecessary to consider it any further.
4. The learned Additional Sessions Judge rejected the dying declaration made by Bachhinder Singh on two grounds; that at the time of recording the dying declaration not only Bachhinder Singh, the father and Narvel Singh, the brother of Bachhinder Singh were
"present but the police officer had actually made enquiries from them about the occurrence before he proceeded to record the dying declaration of Bachhinder Singh deceased. Head Constable Maya Ram, P.W. 4 has admitted in cross-examination that Bachhinder Singh gave his statement in Punjabi but the form and the detailed account giv
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