Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1960 Supreme(SC) 17

SUPREME COURT OF INDIA
23rd January, 1963
S.J. IMAM, K. SUBBA RAO, RAGHUBAR DAYAL AND J.R MUDHOLKAR, JJ.
Moti Singh and another, Appellants
Versus
The State of U.P., Respondent.
Criminal Appeals Nos. 146 and 147 of 1962
Advocates appeared
Mr. A. S. R. Chari, Senior Advocate (M/s. Ravinder Narain, J. B. Dadachanji and O. C. Mathur, Advocates of M/s. J. B. Dadachanji and Co. with him ), for Appellants; M/s. G. C. Mathur and C. P. Lal Advocates, for Respondent.

Advocates:
A.S.R.CHARI, C.P.LAL, G.C.MATHUR, J.B.DADACHAN, O.C.MATHUR, Ravindra Narayan

A statement of a person who has died is relevant only when that statement is made by as person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question.

Headnote:
CRIMINAL LAW - EVIDENCE - DYING DECLARATION - ADMISSIBILITY - CONDITIONS - STATEMENT OF DECEASED NOT PROVED TO HAVE DIED AS A RESULT OF INJURIES RECEIVED IN INCIDENT - STATEMENT INADMISSIBLE - EVIDENCE ACT, 1872, S. 32(1).
Fact of the Case:

Appellants Moti Singh and Jagdamba Prasad were convicted of offences under Ss. 148, 302 read with 149 and 307 read with 149 I. P. C. for their alleged participation in an incident that resulted in the deaths of Lallan and Matrumal and injuries to several others. The High Court upheld the convictions, relying heavily on the alleged dying declaration of Gaya Charan, who was one of the victims who died later. However, the appellants challenged the admissibility of the dying declaration, arguing that there was no evidence to prove that Gaya Charan died as a result of the injuries sustained in the incident.
Finding of the Court:

The Supreme Court held that the alleged dying declaration of Gaya Charan was inadmissible in evidence because there was no evidence to prove that he died as a result of the injuries sustained in the incident. The Court noted that Gaya Charan's injuries were considered dangerous to life, but there was no evidence to show that he actually died from those injuries. The Court also noted that Gaya Charan left the hospital before his injuries had fully healed, and there was no information about the circumstances of his death.
Issues: Whether the alleged dying declaration of Gaya Charan was admissible in evidence.
Ratio Decidendi: The Court held that the alleged dying declaration of Gaya Charan was inadmissible in evidence under Section 32(1) of the Evidence Act, 1872, which makes a statement of a person who has died relevant only when that statement is made by as person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. Since Gaya Charan was not proved to have died as a result of the injuries received in the incident, his statement could not be said to be a statement as to the cause of his death or as any of the circumstances of the transaction which resulted in his death.
Final Decision: The Supreme Court allowed the appeals, set aside the order of the High Court, and acquitted Moti Singh and Jagdamba Prasad of the offences they were convicted of.

Judgment

RAGHUBAR DAYAL, J.: Moti Singh and Jagdamba Prasad, appellants, together with five other persons, were convicted by the Sessions Judge of Unnao of offences under Ss. 148, 302 read with 149 and 307 read with 149 I. P. C. Each of them was sentenced to life imprisonment under S. 302 read with S. 149 I. P. C.

2. On appeal the High Court acquitted the other five persons of the various offences. The conviction of the appellants under S. 148 I. P. C. was also set aside, but their conviction for the offences under Ss. 302 and 307 read with S. 149 were altered to conviction for offences under Ss. 302 and 307 read with S. 34 I. P. C. On the application of Krishna Kumar, brother of one of the persons who had been murdered, the High Court enhanced the sentence of the appellants for the offence of murder, to death. Moti Singh and Jagdamaba Prasad have preferred these appeals respectively, after obtaining special leave from this Court.

3. It is not necessary to detail the facts of the incident in which several persons lost their lives and for participation in which incident the appellants were convicted, as we are of opinion that the conviction cannot be maintained on the basis of the evidence on record as appreciated by the High Court.

4. All the eye-witnesses of the incident deposed in practically identical terms about the progress of the incident in which it was alleged that the members of the accused party fired with guns and pistols both from inside and outside the room on one side of the passage and also from the seori (cattle shed) on the other side of the passage when the victim party passed along the passage. The High Court felt doubtful about the firing of the shots, from the cattle shed, and consequently acquitted Sheo Shankar Jagjiwan and Shankar Dayal who were said to be mainly the persons who had fired from that place.

5. The High Court, however, believed the prosecution version of the firing from the room and later from the platform. It appears that the High Court believed this version because the prosecution witnesses stated so and because the statements exhibits Kha 5, Kha 8 and Kha 75 mentioned about the shots being fired from those places. Statement Ex. Kha 75 does not say so. It says that firing took place from the front and that these people fired shots with guns. Statements Exs. Kha 5 and Kha 8 were made by Ram Shankar and Jageshwar, who were examined as Court-witnesses 1 and 2 respectively. Ram Shankar and Jageshwar have been disbelieved by the Sessions Judge and it appears that the High Court did not take any more favourable view of their deposition in Court. It however seems to have relied on their statement, Exs. Kha 5 and Kha 8 respectively, recorded by a Magistrate at the hospital. In this it was in error. Those statements could have been used only in either corroborating or contradicting the statements of these witnesses in Court. If those witnesses were not to be believed their previous statements could not be used as independent evidence in support of the other prosecution evidence.

6. In considering the complicity of individual accused in the firing from the room and later from the chabutra, the High Court said that Raj Kumar, P. W. 11 and Chandra Kumar, P. W. 15, were partisan witnesses whose evidence had to be examined with caution, that Shaym Lal. P. W. 12 and Gopi Singh, P. W. 14, were not quite independent witnesses, and that there was nothing particular against Lal Singh, P. W. 17, and Sardar (P. W. 16) who had received gun shot injuries. It further said:

"While considering the evidence of the prosecution witnesses we have to bear in mind the rule that the evidence has to be examined with caution."

It also considered it necessary to refer to the statements, Exs. Kha 5 and Kha 8 which, as already stated, could not be used as substantive evidence, and the statement Ex. Kha 75 of Gaya Charan, deceased.

7. The High Court fully relied on the alleged dying declaration, Ex. Kha 75 of Gaya Charan and considered

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