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1961 Supreme(MP) 81
HIGH COURT OF MADHYA PRADESH
P.R. SHARMA, A.H. KHAN AND SHIVDAYAL, JJ.
Sumersingh
Vs.
State
Cr. A. No. 67 of 1961 (G)
Decided on: 5-9-61
J.P. Gupta (amicus curie) for appellant
S.T. Mungre Government Advocate, for State
Headnote:(1) Evidence - appreciation of - relationship of witness no ground to disbelieve him.
The evidence of a relative if it is otherwise reliable and trustworthy cannot be rejected on the ground of mere relationship. AIR 1953 SC 364 relied on. [Para 6
(2) Criminal trial - dying declaration - can be the basis of conviction - evidentiary value of - tests for relying on dying declaration - sanctity attached to a dying declaration.
It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sale basis of conviction unless it is corroborated, each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made. It cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence. A dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of the surrounding circumstances. [Para 13
The tests of reliability of a dying declaration are:
(1) the circumstances, like the opportunity of the dying man for observation;
(2) whether the capacity of the man to remember facts had not been impaired at the time of marking the dying declaration;
(3) that the dying declaration has been consistent throughout if he had several opportunities of making the dying declaration:
(4) that the statement is made at the earliest opportunity and was not the result of tutoring by interested persons. AIR 1958 SC 22 relied on. [Para 14
The dying declaration is a sanctified statement, because the sense of impending death creates a sanction equal to the sanctity of an oath. It is said that where a person is on the verge of death, the motive to falsehood is silenced and the mind is induced by the most powerful consideration to speak nothing but the truth. No doubt sometimes a dying declaration is not to be trusted but each case must be determined on its own merits. [Paras 19 & 40
(3) Criminal P.C. - S.337 - granting of pardon - basis of extent of complicity not material - tests for the evidence of the approver.
Per Khan J. - The basis of granting pardon is not the extent of complicity of the person to whom pardon is given. The principle behind this is to prevent the escape of offenders from punishment in grave cases for lack of evidence by grant of pardon to an accomplice, and all that section 337 of the Cr. P. C. under which pardon is granted, requires is that pardon may be tendered to any persons "supposed to have been directly or indirectly concerned in or privy to the offence. [Para 22
The tests for the evidence of an approver are two. The first test is whether he is reliable and that is a test which is common to all witnesses. The second test is whether the approver's evidence has received sufficient corroboration. AIR 1957 SC 637 relied on. [Para 28
(4) Criminal P.C.- S.367 - sentence in murder cases - is in the discretion of the Court - sentence of death when to be awarded - discretion should be exercised judicially.
Per Khan, J. - Regarding the sentence, the record shows that at dead night de murder has been committed by shooting a man in the abdomen. The whole thing has been done in a cruel and revolting manner. There is not a single extenuating circumstance nor has the accused proved that he is entitled to any of the general exception of the Indian Penal Code. When a man fires a gun at such a vital part of the body as the abdomen, there is no doubt that his intention was to cause death. A person who intentionally causes death with a gun is far worse and more dangerous a member of society than the one who resorts to the mere use of Lathi. On account of the mode in which the fatal injury is caused, the case calls for a deterrent sentence. Of late in his part of the State, a tendency to resort to shooting one's adversary on the slightest pretext has been detected. This tendency must be curbed and punishment must be exemplary. In this view of the matter, there is no reason to interfere with the sentence of death passed. [Para 36
Per Sharma J.-After the repeal of sub section 5 of section 367 of the Code of Criminal Procedure by Act No. XXVI of 1955 the question of sentence where a person is convicted of murder is left to the discretion of the Court. The discretion, has, however, to be exercised not in an arbitrary but a judicial manner. The reasons for which the lesser penalty is imposed must be such as can be said to be in accord with the established legal principles. The accused in the present case having gone to the deceased's field at the dead of the night armed with a gun, his act must be held to be pre determined. What passed between the deceased and the accused after the former had come down from his 'Machan' and was told by the accused that he wanted to shoot at him could in no case furnish a mitigating circumstance for the murder of a defenceless person committed in a cold blooded manner. [Para 53
Though the Court has the discretion to a ward the lesser penalty in suitable cases, the discretion must be exercised judicially and not arbitrarily or on irrelevant considerations. AIR 1960 All. 748 relied on. [Para 54
It has been observed by my learned brother, Khan J. that he has of late detected a tendency in this part of the State to resort to shooting one's adversary on the slightest pretext. I agree with my learned brother, Khan J. that this tendency must be curbed and the punishment in such cases must be exemplary in nature. [Para 55
Per Shivdayal, J.- Regarding sentence, it weighs upon my mind that a complete picture of what actually happened at the scene of occurrence is not before the Court. As already indicated, I am not prepared to believe the approver's version on its face that the deceased was just asked to come down and was shot at after being given a surprise notice. Undoubtedly something else must have happened and the approver alone was in a position to bring it to light. It may be mentioned, however, that the accused did not plead self defence nor did he state any circumstances which would have set us athinking in that direction. He simply pleaded alibi. The question of self defence does not arise. All the same because of the approver suppressing the material facts which perhaps would have been a mitigating circumstance regarding the sentence, I would not confirm the extreme penalty proposed by the trial Judge. I am of the opinion that in this particular circumstance, ends of justice would be served if the accused is awarded imprisonment for life. [Para 42
(5) Criminal Trial - material witnesses - duty of the prosecution to produce.
It is true that the prosecution has the choice to produce such witnesses as it likes, but it must never be forgotten that the ultimate aim of the prosecution must be to give its hest assistance to the Court in ascertaining the truth and for that purpose to place before it all materials available. [Para 43
(6) Criminal trial – motive - not always easy to find – many actions are inexplicable.
Per Sharma J. - Persons who are about to commit a heinous offence like murder do not always act in a strictly rational manner In their excited state of mind they often do things which a normal man would on cool analysis find to be logically inexplicable. [Para 49
Only those motives could be brought to light which appear in the conscious portion of the individual's psychic apparatus. In the words of Franz Alexander, M.D., The unconscious motives which not infrequently exert a greater dynamic influence on our act ons remain unknown. That is why it is even impossible for the offender to give a really valid, casual explanation of his acts". (Para 50
It is difficult to expect an average person to give a clear picture of the forces which worked on his mind to produce the admitted result. [Para 51
Khan J. - 1. Sumersingh son of Jahan Smgh, resident of Tharkheda has been convicted by the Additional Sessions Judge, Shivpuri. under Sec. 302 IPC for the murder of Koksingh and sentenced to death. The accused has filed Appeal No. 67 of 1961, and, the learned Additional Sessions Judge has also submitted the record of the case under Sec. 374 Cr. P. C. for the confirmation of the death sentence which is numbered as Criminal Death Reference No.2 of 1961. Both the appeal and the Reference are being disposed of by a single judgment.
2. The prosecution story is that Koksingh deceased owned a field which was adjacent to the field of Sumersingh, the present appellant. A few days before this incident, they had had an altercation, because the deceased Koksingh demolished the "Bhanwar" constructed by the accused at his well. The accused complained about this behaviour of Koksingh to Bhagirath, P.W. 11, who tried to pacify the accused by saying that he would get the Bhanwar "repaired". But it seems that the accused was not satisfied with the assurance given by Bhagirath. It is said that on account of this grudge, which the accused here to the deceased, in between the night of 12th and 13th September 1960, near about midnight when deceased Koksingh was sleeping on a Machan in his field (it is usual for the villagers to go to their fields in the night in order to guard their crops), the appellant and one Sarnamsingh who later on became an approver and who has been examined as P. W. 9, went to the field of Koksingh, and asked him to come down from the Machan. On Koksingh's alighting from the Machan, Sumer Singh the present appellant is said to have told Koksingh that he waned to shoot him because he had damaged his Bhanwar of the' well. Sarna singh, the approver who "as with the appellant, is alleged to have also told Sumer Singh to shoot Koksingh. Thereupon Sumersingh shot Koksingh in the abdomen and as a result of the injury he sustained, Koksingh fell down. Accused Sumar Singh then threw down his gun, and, he and the approver both disappeared from the scene of the incident. They both remained absconded and it was after about a month, that Sub Inspector Police arrested them on 6-10-60, from their hideout in the forest of Tharkheda. During the course of investigation Sarnamsingh became an approver and a challan was put up only against the appellant for shooting deceased Koksingh with a gun. It is on these facts that the appellant has been convicted for the murder of Koksingh as stated above.
3. The conviction in this case really rests upon (1) the dying declaration which was made by the deceased to the persons who came to see him after he had been shot and (2) the testimony of the approver Sarnamsingh P.W. 9. I shall first deal with the evidence of dying declaration.
4. The most important witness in this connection is Bhagirath (P.W. 11). His field was near the field of the deceased. He has stated that he heard a gun-report which was followed by a shout from the deceased to the effect “Dada daurio Sumersingh ne mere Bandook Mardai”. Hearing this, he rushed to the filed of the deceased Koksingh whom he found lying in a pool of blood. He enquired of Koksingh as to what had happened and Koksingh told him that Sumersingh, the accused had fired a gun at him and that Sarnamsingh (approver) had told Sumersingh to shoot him.
5. Another person named Sundra (P.W. 10) attracted by the loud report of a gun had also come there and when he enquired of the deceased as to what had happened" Koksingh in substance told him what he had earlier said to Bhagirath, P.W. 11. Thereafter this witness went to the village and informed Kosabai, P.W. 6, the mother of the deceased Koksingh and several others of what had happened. Sundra had also gone in another direction to inform the villagers as to what had happened and the villagers on hearing this collected to the spot. I shall deal with the evidence of Sundra later on.
This witness, continued and said that Koks
