STATE OF GUJARAT Vs. RABARI PANCHA PUNJA

JUDGEMENT

(1.) One Popat Savji a 35 year old villager from village MekhaTimbadi which is at a distance of about two kilometres from Upleta Town left on a motor cycle with milk cans in order to supply milk at Upleta. It is th Prosecution case that after he had proceeded on the Highway and had covered some distance five persons assaulted him. Four of them were armed with iron shod sticks and one of them was armed with an axe. As many as 23 injuries were inflicted on Popat. One injury was inflicted on his head two on his right upper arm two on his left upper arm one on the chest one on the back six on the right leg and eight on the left leg. A number of multiple fractures were caused and there was profuse bleeding. It is the prosecution case that P. W. 2 Thakarshi and P. W. 3 Bavanji who also belonged to the same village happened to reach the spot where Popat was being attacked and had witnessed the incident and had identified the assailants They stopped a State Transport Bus which was going on the Highway and removed Popat to the Cottage Hospital at Upleta. It is alleged that P. W. 13 Head Constable Isa Musa who had gone to the hospital on being informed about the incident had recorded the statement of Popat Savji in the Emergency Room where be was under treatment. P. W. 4 Dr. Bhartiben Doshi was of the opinion that it was necessary to administer blood transfusion to Popat. As the requisite facilities were not available at the Hospital she advised the removal of the patient to Jamnagar. Popat was being removed in a Mini Municipal Bus from Upleta to Jamnagar Hospital. On the way to Jamnagar Popat succumbed to the injuries in the bus at about 12-30 noon. His dead body was brought back to Upleta. In connection with this incident respondents accused Nos. 1 to 5 were tried by the learned Additional Sessions Judge Rajkot at Gondal in Sessions Case No. 11 of 1977. The learned trial Judge by his judgment and order dated 14/12/1977 acquitted the accused of the offences with which they were charged namely offences under secs. 147. 148 302 read with sec. 149 of the Indian Penal Code. There were individual charges against accused No. 1. for an offence under sec. 302 of the Indian Penal Code against accused No. 2 for an offence under sec. 326 of the Indian Penal Code and against accused Nos. 3 4 and 5 for an offence under sec. 325 of the Indian Penal Code. The accused were acquitted of these individual charges as well. The aforesaid order of acquittal rendered by the learned trial Judge has been called into question by the State of Gujarat by way of the present appeal.

(2.) In regard to a dying declaration as usual the two questions which are required to be resolved are: (1) Whether it is genuine and (2) whether it is true. In so far as the first aspect is concerned if the evidence of P. W. 4 Dr. Bhartiben is considered to be trustworthy there is no escape from the conclusion that the dying declaration as per Exh. M/s was made by Popat Savji in the emergency room of the hospital in the presence of Dr. Bhartiben and was recorded by P. W. 13 Head Constable Isa Musa. The evidence of P. W. 4 Dr. Bhartiben must therefore be closely and carefully scrutinised from this perspective.

(3.) Before travelling to the question as to whether the said dying declaration is true we must deal with certain points made by the learned Defence Counsel in regard to the dying declaration. The first point made by him was that it was not recorded in the form of question and answer. Be it realised that the dying declaration was not being recorded by the Executive Magistrate. It was being recorded by the Head Constable who had rushed to the hospital on being informed about the medico legal case and about the fact that a seriously injured person was under treatment at the hospital and it had become necessary to record his statement. It is not necessary that dying declaration must be always recorded in the form of question and answer. It would be desirable to do so but if that is not done by itself it is not a circumstance which would justify throwing the dying declaration in the dustbin. An argument was also advanced by the learned defence counsel that the dying declaration should not be accepted in view of the fact that the relatives of the deceased had come to the hospital and were near about the cot of the deceased. So far as the evidence goes the evidence of P. W. 4 Dr. Bhartiben clearly establishes that at the point of time when the dying declaration of Popatbhai was recorded no relatives were present in the emergency room wherein Popat was lying when his statement was recorded. In fact her evidence shows that till the point of time the statement was recorded no relative was contacted but assuming that some relatives had arrived at the hospital and were near the cot of the injured person at the time when the dying declaration was recorded that can by itself scarcely be considered as a good or a valid ground for discarding the dying declaration. It is difficult to conceive of a case where relatives would not rush to the hospital and go near the injured person if they are in the same town and come to know of the injuries caused to their near and dear ones. In almost every case relatives are bound to rush to his bedside. Unless the Court is prepared to virtually hold that a dying declaration is practically speaking not a relevant piece of evidence at all and no dying declaration can form the basis of a finding of guilt the Court cannot countenance the argument that merely because the relatives are there the dying declaration should be disbelieved. To do so would tantamount to saying that a dying declaration is practically speaking a worthless piece of evidence. No doubt the presence of relatives in the context of the possibility of tutoring is a relevant consideration. It is one thing to say that it is a relevant consideration and if the Court has reason to believe that the dying declaration owes its origin to tutoring it may be disregarded. It is another to say that merely because the relatives are present and there is such a remote possibility it should be disbelieved. There are two conceivable situations (the test is not meant to be exhaustive) in which the presence of relatives may give rise to a reasonable belief that tutoring may have taken place and the dying declaration may not be true. (1) Such an argument can be advanced in a given case when the conditions of visibility at the time of the occurrence were such that the victim could not have identified the assailants. In such a case the victim may not know the identity of the assailants. And then he would be faced with a temptation to implicate those against whom he has enmity or those against whom he entertains suspicion by reason such enmity at the instance of his relatives. (2) Another conceivable case is where the relatives lodge a FIR naming the culprits on the mere basis of suspicion while the victim is unconscious and the victim comes to be questioned after the names of the alleged assailants are disclosed in the FIR. In that case the victim may be faced with the situation where the names of suspects have already been disclosed and if he does not know the identity of the assailants by reason of the fact that he was not able to identify them on account of darkness or on account of lack of opportunity he may fall in line and implicate the persons already named. In such cases it would be permissible to make an approach of suspicion in order to doubt the dying declaration with scepticism on the ground that the relatives had come near the victim or had an opportunity to tutor the injured person. Merely because the relatives were in the hospital near about the injured person it would not be reasonable to draw the inference that the injured person did not know the names of the culprits or had not been able to identify the culprits and was implicating the persons named in the dying declaration only on account of suspicion or tutoring. We are therefore unable to accept this argument. We may mention that such an argument was advanced in the case of Habib Usman Appellant v. The State of Gujarat Respondent reported in A.I.R. 1979 Supreme Court 1181 and the Supreme Court had an occasion to observe that merely because some friends and relatives happened to be with the deceased before the statement was recorded the statement cannot be thrown out as tutored. So also the argument that the dying declaration should be thrown overboard on the ground that it is recorded by a Police Constable because he happened to arrive there immediately in obedience to the duty cast on him by law cannot be accepted. The Police Constable had no personal animosity against the accused. He would not have even known the names of the accused so as to enable him to fabricate the dying declaration. A similar argument was advanced in the Supreme Court in the case of Tehal Singh and Others Appellants v. State of Punjab Respondents reported in A.I.R. 1979 Supreme Court 1347 wherein a dying declaration was recorded by the Head Constable who had recorded the answers given by the injured victim in his own language. Even in such a situation the challenge thrown to the genuineness of the dying declaration was repelled by the Supreme Court.