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SUPREME COURT OF INDIA
19th August, 1963
A.K. SARKAR, M. HIDAYATULLAH AND J.C. SHAH, JJ.
Noor Khan, Appellant
Versus
State of Rajasthan, Respondent.
Criminal Appeal No. 9 of 1963.
Advocates Appeared
Mr. Purshottam Trikamdas, Senior Advocate, (M/s.C. L. Sareen and R. L. Kohli, Advocates, with him), for Appellant; M/s. S. K. Kapur and R. N. Sachthey, Advocates, for Respondent.
CRIMINAL LAW - Murder - Evidence - Dying declaration - Admissibility - Deceased making statement to police officer - Statement not recorded in writing - Whether admissible - Indian Evidence Act (1 of 1872), Ss. 32(1), 157.
Fact of the Case:
The deceased made a statement to a police officer, but the statement was not recorded in writing. The question before the court was whether the statement was admissible in evidence.
Finding of the Court:
The court held that the statement was not admissible in evidence. The court held that S. 32(1) of the Indian Evidence Act requires that a dying declaration be recorded in writing, and that S. 157 of the Act does not apply to dying declarations.
Issues: Whether a statement made by a deceased person to a police officer, but not recorded in writing, is admissible in evidence.
Ratio Decidendi: The court held that S. 32(1) of the Indian Evidence Act requires that a dying declaration be recorded in writing, and that S. 157 of the Act does not apply to dying declarations. The court held that the statement was not admissible in evidence.
Final Decision: The appeal was dismissed.
Judgment
SHAH, J.- Noor Khan, resident of Kuchaman in the State of Rajasthan, and nine others were tried before the Additional Sessions Judge, Sirohi in the State of Rajasthan for offences of rioting and being members of an unlawful assembly and causing in furtherance of their common object death of one Pratap, at about 2-30 p. m. on September 29, 1960 and serious injuries to four others on the same occasion. Noor Khan was also charged for the substantive offence of causing the death of Pratap by gunshot injuries. The Sessions Judge acquitted all the persons accused at the trial. In appeal by the State, the High Court of Rajasthan set aside the order of acquittal in favour of Noor Khan and confirmed the order in respect of the rest.
2. There were disputes between Noor Khan on the one hand and Pratap and his brothers on the other about a well in village Mundara. Noor Khan claimed to have purchased a half share in the well whereas Pratap and his brothers claimed the well to be their exclusive property, and there were several court proceedings about this dispute. It was the case for the prosecution that on September 29, 1960 at about 2-00 p.m. Noor Khan accompanied by his father Samdu Khan and eight others went to Pratap s field (in which there was a farm, a house, a stable and the disputed well) and called upon Pratap to deliver possession of the well and on the latter declining to do so, Samdu Khan fired a muzzle-loading gun at Ganesh-brother of Pratap-but missed him. Noor Khan then fired at Pratap and killed him instantaneously. The other members of the party of Noor Khan at the instigation of Samdu Khan thereafter beat Ganesh, Prabhu, Mohan and Gulab-brothers of Pratap -- with sticks and other weapons and caused them injuries. After the assailants retired, Ganesh lodged a complaint against 15 persons including Noor Khan and Samdu Khan at the police station, Bali. 10 out of those who were named in the complaint were arrested and tried before the Court of Session, Sirohi. The Sessions Judge acquitted all the accused holding that the story that there was an unlawful assembly of ten or more persons who went to the well and caused the death of Pratap was not reliable, for in his view the prosecution had failed to lead evidence of independent witnesses and alterations were made in the story of the prosecution from time to time and certain persons were falsely involved. He observed that there was enmity between the two sides and the testimony of witnesses who claimed to be present at the scene of assault was not corroborated by independent evidence and was on that account unworthy of credit, especially because the complainant Ganesh had named several persons who were proved not to have taken part in the assault.
3. In appeal by the State, the High Court of Rajasthan convicted Noor Khan for causing the death of Pratap by firing a muzzle-loading gun and causing him fatal injury and thereby committing an offence punishable under S. 302, Indian Penal Code and sentenced him to suffer imprisonment for life. With special leave, Noor Khan has appealed to this Court.
4. Pratap died on September 29, 1960 as a result of a gun-shot injury. The testimony of Dr. Mehta who performed the post-mortem examination on the dead body of Pratap disclosed beside the wound of entry that the left lung of the victim was lacerated with pieces of metal. Dr. Mehta found on the body of witness Prabhu two contusions and an incised injury, on the body of Ganesh three contusions, on Mohan one contusion and on Gulab a swelling, and in the view of Dr. Mehta the injuries were, at the time when he examined the injured persons on October 1, 1960, about 48 hours old. Prabhu, Ganesh, Mohan and Gulab were examined as witnesses for the prosecution, and they deposed that Noor Khan had caused the fatal injury to Pratap by firing a muzzle-loading gun at him, and that they were injured in the same incident by the members of Noor Khan s party. The injuries on these four persons stro
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