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2007 Supreme(UK) 245
2007 N.C.C. 674
SUPREME COURT OF INDIA
Hon’ble Dr. Justice Arijit Pasayat, Hon’ble Mr. Justice P.K. Balasubramanyan and Hon’ble Mr. Justice D.K. Jain
SUNDER LAL – Appellant
Versus
STATE OF RAJASTHAN – Respondent
Criminal Appeal No. 690 of 2007 (Arising out of SLP (Crl.) No. 4589 of 2006)
Decided on : 07.05.2007
For the State :Mr. Milind Kumar and Mr. Aruneshwar Gupta, Advocates
Headnote:(A) Indian Penal Code, 1860 - Sec. 299, 300 — Accused/appellant convicted U/Sec. 302/34 IPC — Appeal against conviction — It is stated that the occurrence took place at night with practically no light — And therefore no identification would have been possible — The accused and deceased were well known to each other — So identification by deceased, since he was seeing him from close quarters, is possible — If persons are known to each other, from the manner of walk, talking and peculiar features of gait identification is possible — Considering the fact that the occurrence took place in the night in almost dark condition with feeble light and attack was made indiscriminately — The appropriate conviction would be U/Sec. 304 Part-I IPC — The appeal is partly allowed. (Paras 13, 26, 27)
(B) Indian Evidence Act, 1872 - Sec. 32 — Sections 32 of Indian Evidence Act deals with that case in which statement of relevant fact by person who is dead or cannot be found etc. is relevant — General rule is that all oral evidence must be direct — Clause (1) of Section 32 makes relevant what is generally described as dying declaration — It essentially means statement made by a person as to the cause of his death or as to the circumstances of the transaction resulting in his death — Once court is satisfied that declaration was true and voluntary, undoubtedly it can base its conviction without any further corroboration — It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated — The rule requiring corroboration is merely a rule of prudence. (Paras 9, 11)
¼v½ Hkkjrh; n.M lafgrk] 1860 & /kkjk 299] 300 & vfHk;qDr@vihykFkhZ dks èkkjk 302@34 Hkkjrh; n.M lafgrk esa nks"kfl) fd;k x;k & nks"kflf) ds fo#) vihy & ;g vfHkdfFkr fd;k x;k gS fd ?kVuk jkr dks O;ogkjr% va/ksjs esa ?kfVr gqbZ & vkSj ftl dkj.k f'kuk[r lEHko ugha Fkh & Hkkjrh; n.M lafgrk dh ;kstuk esa vijkf/kd ekuoo/k ,d tkfr gS vkSj gR;k ,d oxZ gS & vfHk;qDr vkSj e`rd ,d nwljs dks Hkyh Hkk¡fr tkurs Fks & vr% e`rd }kjk f'kuk[r dh mlus vfHk;qDr dks DokVZj ds ikl ns[kk lEHko gS & ;fn O;fDr ,d nwljs dks tkurs gSa] rsk mlds ?kweus ds rjhds ls mlds cksyus ds rjhds ls vkSj mlds vuks[ks y{k.kksa ls igpku lEHko gS & bl rF; dks è;ku esa j[krs gq, fd ?kVuk jkr ds le; O;ogkjr% va/ksjs esa] u ds cjkcj jks'kuh esa ?kfVr gqbZ vkSj geyk Hkh vifjgk;Z voLFkk esa gqvk & mi;qDr nks"kflf) vUrxZr /kkjk 304 Hkkx I Hkkjrh; n.M lafgrk esa gksxh & vihy va'kr% Lohdkj dh tkrh gSA ¼izLrj 13] 26] 27½
¼c½ Hkkjrh; lk{; vf/kfu;e] 1872 & /kkjk 32 & /kkjk 32 Hkjrh; lk{; vf/kfu;e mu oknksa ls lEcfU/kr gS ftuesa fd dkSu ls dFku lqlaxr rF; gS tks ,sls O;fDr }kjk dfFkr fd;s x;s gSa tks fd ej x;k gS vFkok fey ugha ldrk & lk/kkj.k fu;e ;g fd lHkh ekSf[kd lk{; izR;{k gksus pkfg;s /kkjk 32 dh mi/kkjk ¼1½ lqlaxr cukrh gSa tks fd e`R;q dkyhu ?kks"k.kk ds :i esa dh xbZ gS & bl vFkZ esa ;g vko';d gS fd dFku ,sls O;fDr }kjk fd;k x;k gks tks fd mldh e`R;q ds dkj.k ls lEcfU/kr gks ;k laO;ogkj dh mu ifjfLFkfr;ksa ls lEcfU/kr gks ftlesa mldh e`R;q dkfjr gqbZ & tc U;k;ky; ,d ckj lUrq"V gks tk;s fd dFku lR; gS vkSj LosPNk ls fn;k x;k gS] fulUnsg rks og fcuk fdlh vU; laiqf"V ds ltk dk vk/kkj gks ldrk gS & ;g fof/k dk fujis{k fu;e ugha gks ldrk fd tc rF; ,sls lk{; dh vU; rF;ksa ls lEiqf"V u gks tk;s ltk dk vk/kkj ugha gks ldrk & laiqf"V dh vko';drk dk fu;e dsoy nwjnf'kZrk dk fu;e gSA ¼izLrj 9] 11½
Dr. Arijit Pasayat, J. — Leave granted.
2. In this appeal judgment of a Division Bench of the Rajasthan High Court is the subject matter of challenge. The appellant was found guilty of offence punishable under Section 302 of the Indian Penal Code, 1860 (in short the ‘IPC’), while the co-accused Laxmi Narain was found guilty of offence punishable under Section 302 read with Section 34 IPC. Each of the accused was sentenced to undergo imprisonment for life and to pay a fine of Rs. 1,000/- each with default stipulation. The trial Court’s judgment of conviction & sentence was maintained.
3. Background facts in a nutshell are as under :
4. On 22.8.1998 a ‘Parcha Bayan’ (Ex. P20) of injured Heeralal (hereinafter referred to as the ‘deceased’) was recorded by the SHO, Police Station, Chechat, Distt. Kota, wherein it was stated that accused appellant Sunderlal told him as to why he has been abused. He told him that he should remove the stones. Subsequently in the night at about 2 a.m. when he was sleeping in his house, accused Sunderlal inflicted a blow on his head by ‘Gandasi’ with the intention to kill him and also inflicted injuries on his hand. He also stated that accused Laxmi Narain also inflicted injuries on his legs. When he cried Chaturbhuj, Deva, Rameshwar came but both the accused appellants ran away. On the basis of this ‘Parcha Bayan’ Police registered a case for offences under Sections 448, 307, 323 and 34 IPC. Subsequently, FIR No. 125/1998 (Ex. P. 22) was registered on 22.8.1998 itself. The injured was examined in the night itself at about 3 a.m. at Primary Health Centre, Chechat by Dr. Girish Chand (PW-1). The injured succumbed to the injuries at about 7 a.m. His post-mortem was conducted on 22.8.1998 itself by Dr. Ashok Mundara (P.W. 22). The I.O. prepared the site plan and recorded the statements of the prosecution witnesses under Section 161 of the Code of Criminal Procedure, 1973 (in short the ‘Code’). The accused persons were arrested and on the basis of their information, the weapons i.e. gandasi and lathi were recovered. After death of Heera Lal the case was converted for offence punishable under Section 302 IPC. After completion of the investigation, the police filed a challan against both the accused appellants. The case was committed and the trial Court framed the charges against the accused appellant Sunderlal for offence under Section 302 IPC and appellant Laxmi Narain for offence under Section 302 read with Section 34 IPC. Both the accused denied the charges and claimed to be tried.
5. The trial Court found the evidence to be cogent and credible. The dying declaration was found to be reliable. The High Court found the judgment of the trial Court to be in order and dismissed the appeal.
6. In support of the appeal, learned counsel for the appellants submitted that the High Court should not have placed reliance on the so called dying declaration. The same was not worthy of acceptance. Additionally, when the recovery has been disbelieved, the conviction solely on the highly improbable dying declaration should not have been made. Alternatively, it was submitted that offence under Section 302 IPC has not been made out.
7. In response, learned counsel for the respondent-State supported the order of the courts below.
8. The dying declaration was recorded at 3.45 a.m. on 22.8.1998. It was categorically stated that he was sleeping in the night. The appellant came and assaulted him on his head with the gandasi with the intention of killing him and the co-accused Laxmi Narain inflicted injuries on his legs. The dying declaration was treated as the first FIR when the investigation was taken.
9. At this juncture, it is relevant to take note of Section 32 of the Indian Evidence Act, 1872 (in short ‘Evidence Act’) which deals with cases in which statement of relevant fact by person who is dead or cannot be found, etc. is relevant. The general rule is that all oral evidence must be direct viz., if it refers to a
