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1997(1) Supreme 405
SUPREME COURT OF INDIA
Dr. A.S. Anand and K.T. Thomas, JJ.
State of Rajasthan -Appellant
versus
Bhup Ram -Respondent
Criminal Appeal No. 377 of 1996
Decided on 13-1-1997
Counsel for the Parties :
For the Appellant : Ms. Alka Agrawal, Advocate for Aruneshwar Gupta, Advocate.
For the Respondent : Doonger Singh, V.J. Francis and P.I. Jose, Advocates.
Held : It is axiomatic that what matter is the substance and not the form. Questions put to the dying man would have been formal and hence the answers given are material. Criminal courts may evince interest in knowing the contents of what the dying person said and the questions put to him are not very important normally. That part of the statement which relates to the circumstances of the transaction which resulted in his death gets the sanction of admissibility. Here it is improper to throw such statement overboard on a pediantic premise that it was not recorded in the form of questions and answers. (Para 11)
(ii) Evidence Act, 1872-Sections 25, 26 and 27-Discovery of fact-Admissibility u/s 27-Part of information given by accused which led to discovery of fact-Admissible in evidence-It is immaterial whether information supplied in connection with same crime or a different crime-Statement to police that he had buried pistol in ground near his house-Admissible u/s 27-Discovery of fact became complete only when pistol recovered by police-Pulukuri Kottaya s case, AIR 1947 PC 67 : Relied on. (Paras 14 & 15)
(iii) APPEAL AGAINST ACQUITTAL-Respondent s wife was shot dead while she was sleeping in her house-Respondent alleged to be killer-Dying declaration recorded by judicial magistrate implicating respondent-Recovery of pistol by police on information of accused-Ballistic expert affirmed possibility of bullet having been fired from said pistol-High Court sidestepped relevant evidence-Order of acquittal not sustainable-Conviction restored. (Paras 13, 17 & 18)
JUDGMENT
Thomas J.-Respondent s wife (Mst. Chawli) was shot dead on 20.7.1985 while she was sleeping in her house. Respondent Bhup Singh was alleged to be the killer. Police, after investigation, upheld the allegation and challanned him. Though the Sessions Court convicted him of murder, the High Court of Rajasthan acquitted him. This appeal has been filed by special leave by the State of Rajasthan in challenge of the aforesaid acquittal.
2. Prosecution case is a very short story: Chawli was first married to respondent s brother who died after a brief marital life. Thereafter, Chawli was given in marriage to the respondent, but the new alliance was married by frequent skirmishes and bickerings between the spouses. Chawli was residing in the house of her parents. The estrangement between the couple reached a point of no return and the respondent wished to get rid of her. So he went to her house on the night of occurrence and shot at her with a pistol. When he tried to use the firearm again, Chawli s father who heard the sound of the first shot rushed towards him and caught him but the killer escaped with the pistol.
3. Chawli told everybody present in the house that she was shot at by her husband Bhup Singh. She was taken to the hospital and the doctor who attended on her thought it necessary to inform a judicial magistrate that her dying declaration could be recorded. Pursuant to it PW5 - Bhagwan Singh who was judicial magistrate of first class, Alwar, went to the hospital and recorded her dying declaration. At 2.30 P.M. she breathed her last. Police registered the case on the basis of a statement recorded from Bhajan Lal, a neighbour. On 22.7.1985, respondent was arrested in connection with another criminal case and on the strength of the information elicited from him the police recovered Article 4 - pistol.
4. The bullet recovered from the body of Chawli as well as Article 4 - pistol were sent to the ballistic expert. In his report, the said expert affirmed the possibility of the bullet having been fired from the said pistol.
5. During trial Chawli s father (Ram Ratan - PW1) her sister (Rameshwari - PW2) and Bhajan Lal - PW3 who gave the first information statement have been declared hostile as they all supported the respondent. His version was that somebody else had shot her dead and respondent was falsely implicated. Chawli s mother Smt. Mangli was examined by the respondent as defence witness No. 2 to support his plea. However, the trial court, after rejecting the evidence of PW1, PW2 and PW3 and also DW2, placed full reliance on the dying declaration proved by PW5 - judicial magistrate and also on the evidence pertaining to the recovery of Article 4 - pistol and convicted the respondent and sentenced him to imprisonment for life.
6. The Division Bench of the High Court of Rajasthan, which heard the appeal filed by the respondent, declined to act on the dying declaration. The High Court held that the evidence relating to recovery of pistol was outside the scope of Section 27 of the Evidence Act inasmuch as the recovery was effected during investigation of another case. As nothing else remained for the prosecution to embark upon, the Division Bench acquitted the respondent.
7. If the dying declaration recorded by PW5 judicial magistrate is reliable, there is no legal hurdle in basing a conviction on it even without supporting material.
8. The statement in Ex. P-8 dying declaration is unmistakably clear that her husband Bhup Singh shot her with a pistol. But learned Judges of the High Court highlighted two features in Ex. P-8 dying declaration as infirmities, vitiating its evidentiary value. First is, deceased answered the questions put to her by the magistrate in Bagri language whereas PW5 recorded it in Hindi in a narrative form. According to the Division Bench the magistrate should have recorded the dying declaration in the form of questions and answers. Second is, PW5 magistrate had not ascertained from the doctor whether decea
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