2010 Supreme(SC) 405

2010 (4) Supreme 1
SUPREME COURT OF INDIA
H.S. Bedi and J.M. Panchal, JJ.
Munnawar & Ors. — Appellants
versus
State of U.P. etc. — Respondents
Criminal Appeal Nos. 1680-1682 of 2007
Decided on : 5-05-2010

IMPORTANT POINTS
1. Fact as to whether a dying declaration is reliable or not would depend upon the facts of the case and the evidence produced by the prosecution and no hard and fast rule by way of precedent can ever be adopted.
2. Save for very good reasons a dying declaration recorded by a Magistrate duly endorsed by a Doctor should not be discarded.

Headnote:Indian Penal Code,1860-Sections 302,149-Prosecution of accused persons for causing death of deceased by firing at him with country made pistols- Trial court convicted accused for an offence under Section 307 of IPC each but acquitted them of offence under Section 302 of IPC- Appeals thereagainst-High Court dismissed the appeal filed by accused but allowed the State appeal and convicted accused-appellants for offence punishable under Section 302/149 of IPC-Appeals-Plea of appellants that first dying declaration did not bear the signature of the deceased or the endorsement of a Doctor as to the fitness of the injured and no credence could thus be attached to it and that second dying declaration recorded in the hospital had not been properly endorsed by the Magistrate and did not satisfy the tests or instructions laid down relating to the recording of dying declaration and as the endorsement of Doctor did not reveal the medical condition of the injured, this too was unreliable and could not be relied upon- Even though it was true that first dying declaration had not been recorded in the manner provided by the Police Regulations with regard to the recording of dying declarations by Police Officers-But a second dying declaration had also been recorded by the Executive Magistrate - The second dying declaration gave full details as to identity of assailants, weapons they were using, the site of the injury and the fact that he had been brought to hospital by a neighbour and his elder brother who were accompanying him at the time of incident- Apart from that Doctor PW 6 who was looking after deceased when the dying declaration was recorded gave a certificate that he had been fully conscious and lucid at time of its recording- Again deceased had remained alive for a long period of time after incident and died several days later of septicemia brought about by gunshot injury clearly showed that his condition was not overly critical or precarious when the dying declaration had been recorded-Conviction on the basis of second dying declaration held sustainable -Appeals having no merit dismissed. (Paras 4, 5)

       Criminal Trial –Evidence of eye witnesses-Appeals against conviction on plea that two eye witnesses were not present and the story that they had admitted deceased to hospital was incorrect, and that the duo had been brought to the place of incident after the incident had taken place and had been put up as eye witnesses- Held promptness of the FIR was a clear reflection of the fact that the two eye witnesses were present at time of incident- As per the evidence,deceased and family were involved in several criminal and civil litigations with other persons- No dispute that deceased and party were on their way to attend a court hearing when they had been attacked- Those who are involved in serious criminal litigation seldom go alone to attend court hearings, and are invariably accompanied by other persons as per the dictates of tradition and prudence in rural North India- Hence prosecution story of presence of two eye witnesses at the time of incident held justified. (Para 7)

       Indian Penal Code,1860-Sections 302,149-Prosecution of accused persons for causing death of deceased by firing at him with country made pistols- Trial court convicted accused for an offence under Section 307 of IPC each but acquitted them of offence under Section 302 of IPC- Appeals thereagainst-High Court dismissed the appeal filed by accused but allowed the State appeal and convicted accused-appellants for offence punishable under Section 302/149 of IPC-Appeals – Plea that from medical and other evidence it was clear that appellants were, if at all, guilty for offence under Section 307 of the IPC, as held by trial court and not under Section 302 of the IPC, as held by High Court-Held injury Nos.1, 3, 6 and 7 were grievous and were fatal to life and all the injuries were sufficient to cause death as they were on sensitive parts of the body and that the injured was under severe shock, and had been given three units of blood at the time of his admission to hospital- In the light of this evidence, held incomprehensible as to how trial court could have concluded that it was the negligence on the part of Doctor which had led to septicemia and finally to the death of patient-Appeals having no merit dismissed. (Paras 9)

       Facts of the Case :

       Accused persons were prosecuted herein in the instant case for causing death of deceased by firing at him with country made pistols. Trial court convicted accused for an offence under Section 307 of IPC each but acquitted them of offence under Section 302 of IPC. High Court dismissed the appeal filed by accused but allowed the State appeal and convicted accused-appellants for offence punishable under Section 302/149 of IPC.

       2.Present Appeals have been filed against said order of High Court.Plea of appellants that first dying declaration did not bear the signature of the deceased or the endorsement of a Doctor as to the fitness of the injured and no credence could thus be attached to it and that second dying declaration recorded in the hospital had not been properly endorsed by the Magistrate and did not satisfy the tests or instructions laid down relating to the recording of dying declaration and as the endorsement of Doctor did not reveal the medical condition of the injured, this too was unreliable and could not be relied upon.

       Findings of the Court :

       Even though it was true that first dying declaration had not been recorded in the manner provided by the Police Regulations with regard to the recording of dying declarations by Police Officers. But a second dying declaration had also been recorded by the Executive Magistrate .The second dying declaration gave full details as to identity of assailants, weapons they were using, the site of the injury and the fact that he had been brought to hospital by a neighbour and his elder brother who were accompanying him at the time of incident.Apart from that Doctor PW 6 who was looking after deceased when the dying declaration was recorded gave a certificate that he had been fully conscious and lucid at time of its recording. Conviction on the basis of second dying declaration was held sustainable .Appeals having no merit were dismissed.