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IN THE HIGH COURT OF ALLAHABAD
Raghubar Dayal and Desai, JJ.
RAM BALI - Appellant
Versus
STATE - Respondents
Criminal Appeal 1036 Of 1949
Decided On : 10/10/1950
CRIMINAL LAW - Murder - Dying declaration - Admissibility - Evidence Act (1 of 1872), Section 32 - Criminal Procedure Code (5 of 1898), Section 342 - Dying declaration made by the deceased before the Magistrate is admissible in evidence even if the accused was not questioned about it during the examination under Section 342, Cr.P.C. - Failure to question the accused about the dying declaration does not render the evidence inadmissible - However, the omission to question the accused may create a reasonable doubt about the truth of the oral evidence if the dying declaration is inconsistent with the oral evidence.
Fact of the Case:
The deceased, Nanku Singh, was stabbed to death by Ram Bali Singh at the instigation of Harbans Singh and Param Sukh Lal. The prosecution relied on the evidence of eyewitnesses, the dying declaration of Nanku Singh, and the report lodged by Lal Dhari Singh. The accused pleaded not guilty and alibi.
Finding of the Court:
The court found that the evidence of the eyewitnesses and the dying declaration of Nanku Singh were reliable and proved the guilt of Ram Bali Singh beyond reasonable doubt. However, the court found that the evidence against Harbans Singh and Param Sukh Lal was not sufficient to prove their guilt beyond reasonable doubt, as Nanku Singh did not mention their names in his dying declaration before the Magistrate.
Issues: 1. Whether the dying declaration of Nanku Singh is admissible in evidence even if the accused was not questioned about it during the examination under Section 342, Cr.P.C.? 2. Whether the failure to question the accused about the dying declaration renders the evidence inadmissible? 3. Whether the omission to question the accused may create a reasonable doubt about the truth of the oral evidence if the dying declaration is inconsistent with the oral evidence?
Ratio Decidendi: 1. Yes, the dying declaration of Nanku Singh is admissible in evidence even if the accused was not questioned about it during the examination under Section 342, Cr.P.C. 2. No, the failure to question the accused about the dying declaration does not render the evidence inadmissible. 3. Yes, the omission to question the accused may create a reasonable doubt about the truth of the oral evidence if the dying declaration is inconsistent with the oral evidence.
Final Decision: The court maintained the conviction and sentence of Ram Bali Singh and dismissed his appeal. The court allowed the appeal of Harbans Singh and Param Sukh Lal, set aside their conviction and sentence, and acquitted them.
DESAI, J.
( 1 ) RAM Bali Singh, Harbans Singh and Param Sukh Lal appeal from a judgment of a Civil and sessions Judge of Banaras convicting them under Section 302, Penal Code, and sentencing the first to death and the others to transportation for life. The appellants live in village Thana and are said to be friends. The first two are Thakurs but no relationship exists between them, and the third is a Kayastha. Achaibar Singh, mukhia of the village, is a collateral of Harbans Singh and has disputes with him over joint land. The disputes were referred for arbitration of a Panchayat consisting of five men. Harbans Singh claimed the right to nominate all the five panches himself but was made to agree that one Panch at least should be nominated by Achaibar Singh. Accordingly Harbans Singh nominated four Panches one of whom was Uma Shankar while achaibar Singh nominated Nankoo Singh deceased. There is a Gram Sudhar and Panchayat in the village of which Param Sukh Lal was the Vice-President and P. W. Mohammad Akil the secretary. Nankoo Singh had previougly been a member of the Panchayat but was not a member at the time when the occurrence took place. He was, however, a very peace-loving educated man who would try to settle all differences between the villagers. He was respected for this by the whole village. The five Panchas met on 26-11-1948, to settle the disputes between Harbans singh and Achaibar Singh but did not succeed; on the other hand, there is evidence that some hot words were exchanged between Nankoo Singh and two of the nominees of Harbans Singh. On the next day Harbans Singh and others cut away Achaibar Singhs paddy crop after beating him. Achaibar Singh lodged a complaint against them on 1-12-1948 citing Batuk Singh, Tilak Singh, laldhari Singh and Mohammad Akil and four others as his witnesses. Out of those only Tilak singh and three of the others were actually examined as prosecution witnesses. (The complaint was dismissed after the murder of Nankoo Singh.)
( 2 ) PARAM Sukh Lal was an autocrat in the Gram Sudhar Panchayat and liked to do everything according to his desire. The public was dissatisfied with him on account of his method of working. Thus Nankoo Singh was an eye sore to Harbans Singh and Param Sukh Lal. The third appellant Ram Bali Singh had no direct enmity with Nankoo Singh but since he was a friend of harbans Singh he also did not like Nankoo Singh.
( 3 ) ON 5-12-1948, at about 7 P. M. when there was moon in the sky, Harbans Singh and Uma shankar went to the house of Nankoo Singh and asked him to go to the house of Harbans Singh to settle the dispute between him and Achaibar Singh about the cutting of the paddy crop. Nankoo Singh was disinclined at first but was persuaded by Uma Shankar to go and so he accompanied them to the house of Harbans Singh which is at a distance of about seven houses from his own. On the way they passed by the house of P. W. Katwaroo who accompanied them. Arriving at the door of Harbans Singhs house they found Ram Bali Singh and Param Sukh Lal sitting on the Chabutra of a Nim tree just in front of Harbans Singhs house. Below the Chabutra was a fire. Nankoo Singh, Harbans Singh, Uma Shankar and Katwaroo sat round the fire. Marjadi, mother of Harbans Singh, was at her door. Harbans Singh told Nankoo Singh that he had brought him to have the matter about the cutting of the paddy crop compromised. Nankoo singh replied that he should return the paddy and the expenses of the complaint to Achaibar singh and then live peacefully with him. Harbana Singh did not give any reply to this suggestion. Ram Bali Singh went inside the house of Harbans Singh and came out after short time and sat down on the Chabutra again covering himself with a black cloth, described by two witnesses as a blanket and another as a cotton Chaddar. When Nankoo Singh did not receive any reply from Harbans Singh he got up saying that it was no use waiting there. Others also got up ail the same time and Param Sukh Lal
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