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2006 Supreme(SC) 559
2006(5) Supreme 178
SUPREME COURT OF INDIA
(From Madhya Pradesh High Court)
H.K. Sema and A.K. Mathur, JJ.
Heeralal Yadav — Appellant
versus
State of M.P. & Ors. — Respondents
Criminal Appeal No. 546 of 2000
Decided on 4-7-2006
Counsel for the Parties :
For the Appellant : Niraj Sharma, Advocate.
For the Respondents : S.K. Gambhir, Sr. Advocate, Anil K. Sharma, R.K. Maheshwari, Advocates.
For the State : Siddhartha Dave, Ms. Vibha Datta Makhija, Advocates.
For the Appellant :Niraj Sharma, Advocate.
For the Respondents:S.K. Gambhir, Sr. Advocate, Anil K. Sharma, R.K. Maheshwari, Advocates.
For the State :Siddhartha Dave, Ms. Vibha Datta Makhija, Advocates.
IMPORTANT POINT
Dying declaration if inspired confidence could be the sole basis for conviction.
Headnote:Indian Penal Code, 1860 — Section 302/34 — Respondents-accused armed with sword farsi and dhariya surrounded deceased and assaulted him — PW3 son of deceased, PW6 grand-father and PW2, uncle of deceased were witness to the incident — Dying declaration was recorded by doctor posted as Medical Officer at Primary Health Centre where deceased was brought after occurrence — Trial Court convicted respondents-accused — High Court reversed conviction on sole ground that dying declaration did not inspire confidence — Appeal by complainant — Dying declaration if inspired confidence could be the sole basis for conviction — High Court was wrong in disbelieving dying declaration for reason that deceased did not speak about presence of PW3 on that High Court found presence of PW3 as doubtful — High Court rejected dying declaration as doctor did not state that deceased was in a fit mental condition to give dying declaration and remained conscious when his statement was recorded — Doctor had stated that deceased must have gone in shock at the place of incident but recovered consciousness as he was given glucose saline and medicines — Reasoning of High Court was fallacious as doctor recorded fitness certificate on dying declaration — Dying declaration in given circumstances well corroborated inspired confidence on which conviction could be sustained — Impugned order of High Court was liable to be set aside and that if trial Court to be restored.
Held : The principle that "no man at the point of his death is presumed to lie. A man will not meet his maker with lie in his mouth" is based on sound public policy. No doubt, as the dead man would not be available for cross-examination, a duty is cast upon the Court to examine the dying declaration with care and caution as to whether the dying declaration is creditworthy for acceptance. In other words whether it inspires confidence on the basis of which alone conviction can be recorded. Similarly, it is also an accepted principle of law that the dying declaration, keeping in view the above principles in mind, if inspiring confidence could be the sole basis for conviction. (Para 6)
One of the grounds on which the High Court disbelieved the dying declaration was that Dr. Khan did not state that the deceased was in a fit mental condition to give dying declaration and throughout remained conscious when his statement was recorded. This reasoning of the High Court, in our view, is also fallacious. In the instant case, the doctor himself recorded the dying declaration (Ex.P-2). He has given the fitness certificate vide Ex.P-3 as referred to above stating that the patient was fit for recording dying declaration. Even if it is assumed that was not there, in view of the decision of the Constitution Bench of this Court in Laxman vs. State of Maharashtra (2002) 6 SCC 710, these would be no impediment to the creditworthiness of the dying declaration.(Para 16)
In the view we have taken, we are clearly of the opinion, that the dying declaration of the deceased recorded by PW-1 Dr. A.S. Khan and well corroborated with other attending circumstances inspires confidence, on the basis of which conviction could be sustained. The High Court committed grave miscarriage of justice by reversing the conviction recorded by the Trial Court. The impugned order of the High Court is set aside. The sentence and conviction recorded by the Trial Court is restored.(Para 20)
JUDGMENT
H.K. Sema, J. — This appeal by special leave filed by the complainant (PW-2) is directed against the judgment and order of the High Court dated 2.7.1999 passed in Criminal Appeal No.678 of 1995 whereby the High Court reversed the conviction and sentence passed by the Trial Court convicting the respondents for an offence under Section 302/34 IPC and sentenced them to RI for life and a fine of Rs.1000/- each and in default of payment further six months simple imprisonment.
2. The prosecution case in brief was that on 14.4.1993 at about 8.30 in the morning the deceased Gokul Singh son of Nirbhay Singh, who was a practicing advocate and his son Meharban Singh (PW-3) aged about 12 years went to their well in village Narval, District Shajapur. When the deceased went to answer the call of nature in the fields of Babulal Teli, all of a sudden, the accused Gokul Singh son of Amar Singh, Bhawarlal and Babulal armed with sword, farsi and dhariya and co-accused Lal Singh with knife, Chander Singh, Man Singh, Kalu Singh, Dhannalal and Lal Singh armed with lathis came on the spot and surrounded the deceased and assaulted him with their respective weapons. PW-3 Meharban Singh on seeing this incident ran to his house and told his grandfather PW-6 Nirbhay Singh at flour mill and his uncle PW-2 Heeralal Yadav (appellant herein) that his father Gokul Singh was being assaulted. On being told PW-2 Heeralal Yadav and Devsingh PW-4 went to the spot. They saw the accused persons assaulting the deceased. PW-6 Nirbhay Singh also went there and saw the accused persons running from the spot with their respective weapons. The deceased Gokul Singh was badly injured. He was put in a tractor and was taken to P.S. Agar where PW-2 Heeralal Yadav lodged F.I.R. at 9.05 a.m. which was recorded by A.S.I.
3. PW-1 Dr. A.S. Khan examined the deceased Gokul Singh and found the following injuries:
1.Incised wound on the central part of forehead, 2" x ¼ " x ¼ ".
2.Incised wound on the middle side of left orbital, 3" x ½ " x ½ "
3.Incised wound on the upper part of left eye-lid, 1" x ¼ " x ¼ ".
4.Incised wound on middle part of right leg, 3" x ½ " x ½ ".
5.Incised wound, 1" below injury no. 4, 4" x ½ " x ½ "
6.Incised wound, 1" below injury no. 5, 4" x ½ " x ½ ".
7.Incised wound on the upper 1/3rd part of right leg, 1" x ½ " x ½ ".
8.Incised wound on the middle part of left leg, 2" x ½ " x ½ ".
9.Incised wound, 2" below injury no.8, 3" x ½ " x ½ ".
10.Incised wound on the lower 1/3rd part of left leg, 3" x ½ " x ½ ".
11.Incised wound on the lower 1/3rd part of left leg, 3" x 1" x ½ ".
12.Incised wound on the middle part of left forearm, 2" x ½ " x ½ ".
13.Incised wound 1" middle from the injury no.12, 2" x ½ " x ½ ".
14.Incised wound on the lower 1/3rd part of right forearm, 3" x 1" x ½ ".
15.Incised wound on the metacarpal bones of all fingers and thumb of right hand, 11" x 3" x 1½ ".
16.Bruise on the middle part of left thigh, 5" x ½ ".
17.Incised wound on right parietal bone, 2" x ½ " x ½ ".
18.Bruise on left parietal bone, 5" x ½ " x ½ ".
PW-12 S.R. Parihar, then requested PW-1 Dr.A.S.Khan to record the dying declaration of the deceased as the Executive Magistrate was not available. PW-1 Dr. Khan recorded the dying declaration of the deceased at 10.30 a.m. (Ex.P.2). As the condition of the deceased was serious he was referred to District hospital, Ujjain, where he succumbed to his injuries.
4. On the basis of the FIR, 9 accused faced the trial for an offence under Section 302/34 before the Trial Court. The Trial Court after examining the evidence on record particularly the evidence of eyewitnesses PW-2 Heeralal Yadav, PW-3 Meharban Singh, PW-6 Nirbhay Singh along with the dying declaration recorded by PW-1 Dr. Khan convicted three accused respondents namely A-1 Gokul Singh son of Amar Singh, A-2 Bhawarlal son of Ram Singh and A-9 Badulal son of Lal Singh for an offence under Section 302/34 IPC and acquitted six other accused by giving
