PADUM NATH SINGH Vs. STATE

JUDGEMENT

(1.) Relying on the testimony of 2 eye-witnesses Babunney Singh and Gholar Singh (P. W. 3 and 4) and dying declaration Ex. Ka 6 of the deceased Ziledar Singh, resident of village Pipra Gautam, Police Station Kalwari, district Basti recorded by Sri Videshi Ram, Magistrate (P. W. 6) in the presence of Dr. R. C. Verma. Medical Officer, District Hospital, Basti (P. W. 10) the learned I Additional Sessions Judge, Basti has convicted the 4 appellants under Sections 148 and 302/149 of the Indian Penal Code. Briefly stated, the case of the prosecution was that Ziledar Singh deceased, uncle of Rajpati Singh (P. W. 1) had taken Theka to extract Tari from the trees in village Bhadesar Nath within police station Kotwali, Basti. On May 31. 1977 at 8 P. M. 'ziledar Singh was at his hut within the limits of village Bhadesar Nath. Two unknown persons having pistols, Padum Nath Singh, Mukhram Singh and Ram Badan Singh appellants having spears and Hari Ram Singh appellant reached at the hut. Two unknown persons fired their pistols to-, wards him. Ziledar Singh ran and fell into a pit. Thereupon on the exhortation of Hari Ram Singh appellant, the other three appellants assaulted him with spears. Babunney Singh, Gholar Singh and Kesri Singh informed of the occurrence to Rajpati Singh. Then Rajpati Singh got a report written by Jaswant Singh and Dodged it at police station Kotwali on June 1, 1977 at 8. 25 A. M. Nageshwar Pandev (P. W. 8) entered upon investigation. On May 31, 1977 at 11. 55 P. M. Dr. O. P. Misra (P. W. 11) examined Ziledar Singh and found following injuries on his person;, (1) Lacerated wound 2 cm. x 0. 5 cm. x skin deep over left side top of head 8 cm. above left eye-brow. (2) Lacerated wound 5 cm. x 0. 5 cm. x skin deep just over left eyebrow. (3) Lacerated wound 5 cm. x 1 cm. x muscle deep over the outer part of the left upper arm 9 cm. below left shoulder joint. (4) Multiple gun shot wound over the base of the left arm over an area of 12 cm. x 11 cm. approximately 25 in number. Smallest 0. 2 cm. x 0. 2 cm. in diameter and largest measuring 1 cm. x 0. 5 cm. in diameter. No blackening and tatooing present. (5)Lacerated wound 6 cm. x 1 cm. x muscle deep on the front of the left lower arm 5 cm. above left wrist. (6) Punctured wound 3 cm. x 1 cm. x muscle deep on the left side 2 cm below angle of left scapula. (7) Multiple gun shot wounds front of left side chest in an area of 18 cm. x 13 cm. smallest 0. 3 cm. x 0. 2 cm. and largest 2 cm. x 1. 5 cm. in diameter. No blackening, charring or tattooing seen. Approximately 25 in number. (8) Multiple gun shot wounds in an area of 17 cm. x 12 cm. x 12 cm. on the front and lateral surface of left thigh. Smallest measuring 0. 3 x 0. 3 cm. largest measuring 1 cm. x 0. 5 cm. approximately 27 in number. (9) Punctured wound 2. 5 cm. x 1 cm. muscle deep on the lower part of right side abdomen 5 cm. above the right iliac crest. Ziledar Singh died on June 2, 1977 at 7 A. M. in the hospital. On June 2, 1977 at 3. 45 P. M. Dr. B. C. Chaturvedi (P. W. 5) conducted postmortem examination on the dead body and found 21 antemortem injuries detailed below: (1) Lacerated wound 2 cm. x 0. 5 cm. x skin deep left side scalp 8 cm. above left eye brow and 10 cm. above left ear. A-4 (2) Stitched wound (3 stitches) 5 cm. long just above left eye brow outer part. On removing the stitches the wound was bone deep and margins clear cut. (3) Abrasion 1 cm. x 0. 5 cm. on the top left shoulder. (4) Abrasion 1 cm. x 1 cm. left shoulder front and outer part 3. 5. cm. apart and below injury No. 3. (5) Stitched wound 5 cm. (3 stitches) outer part left arm 6 cm. below injury No. 4 oblique. On removing the stitches the margins were clear cut and wound was 4 cm. deep directed upwards and inwards. (6) Multiple gun shot wounds in an area of 10 cm. x 6 cm. left arm outer and back part twenty five in number, Smallest 0. 2 cm. x 0. 2 cm. and largest 1 cm. x 0. 5 cm. all were skin deep. Margins were blackened. No tattooing or scorching. (7) Stitched wound 6 cm. (5 stitches) over the front of left forearm, 0. 5 cm. above wrist. On removing the stitches the margins were clean cut and wound was 2 cm. deep directed inwards placed transversely. (8) Abrasion 2 cm. x 0. 5 cm. front of right shoulder. (9) Abrasion 0. 3 cm. x 0. 2 cm. back of right elbow. (10) Linear abrasion 8 cm. x right side chest placed transversely over right side chest 1. 5 cm. lateral to nipple and 6 cm. below anterior of axillary fold. (11) Multiple gun shot wounds front and lateral part left side chest in an area of 18 cm. x 13 cm. 7 cm. lateral and below left nipple, 10 cm. below left axillary fold and 16 cm. from umblicus smallest was 0. 2 cm. x 0. 2 cm. and largest was 2 cm. x 1. 5 cm. Some were skin deep others cavity deep (chest and abdomen) numbering 35 dressed. (12) Incised wound 3 cm. x 0. 5 cm. x 4 cm. right side abdomen (in the skin) 13 cm. lateral and above umblicus and 21. 5 cm. from right nipple. (13) Three linear abrasions 4 cm. long parallel to each other transversely placed on right side abdomen 1. 5 cm. lateral to umblicus. (14) Abrasion 1 cm. x 0. 5 cm. right thigh outer part 15 cm. from anterior, superior iliac spine. (15) Linear abrasion 6 cm. long outer part right thigh 8 cm. below injury No. (14 ). (16) Punctured wound 1 cm. x 0. 2 cm. x 1. 5 cm. just above right knee directed upwards and inwards placed transversely. Margins were clean cut. (17) Multiple gun shot wounds in an area of 12 cm. x 8 cm. front of left thigh 11. 5 cm. above left knee 2 number smallest 0. 2 cm. x 0. 2 cm. and largest 2 cm. x 1. 5 cm. Some were skin deep, few were muscle deep. Margins were blackened. No tattooing. (18) Stitched wound (2 stitches) 2. 5 cm. left side back of chest 4 cm. below angle of scapula. On removing stitches margins were clean cut. Wound was chest cavity deep. Dressed with leucoplast. (19) Linear abrasion 1. 5 cm. x 0. 2 cm. back and base of the neck transversely placed. (20) Abrasion 2. 5 cm. x 0. 5 cm. right side back of the shoulder. (21) Stitched wound (two stitches) 2. 5 cm. right side back of the chest. 12 cm. below the scapula, 17. 5 cm. from injury No. (18) obliquely placed. On removing the sititches the margins were clean cut and wound was 2. 5 cm. deep in the muscle directed upwards. Internal examination showed that left pleura and left lung were punctured, that 5th and 6th ribs under injury No. 11 were fractured, that peritoneum was punctured and there were shots on the omentum. On June 1, 1977 at 1. 30 p. m. Sri Videshi Ram Magistrate recorded dving declaration of Ziledar Singh in the hospital Ex. Ka 6. The prosecution examined Babunney Singh and Grolar Singh (P. Ws. 3 and 4) as eye-witnesses of the occurrence. We have heard the learned counsel for the parties and carefully gone through the record. The appellants counsel contended that the learned trial Judge was not justified in placig reliance on the evidence of Babunney Singh and Gholar Singh and the dying declaration of deceased Ex. Ka 6. The learned counsel for the State and the complainant did not place reliance on the testimony of Babunney Singh and Gholar Singh. They, however, contended that the dying declaration of the deceased alone was sufficient to record the conviction of the appellants. We shall first indicate the reasons for not placing reliance on the evidence of Babunney Singh and Gholar Singh. Both these witnesses belong to the same family. They are residents of Pipra Gautam and not of the village of the occurrence. They stated that they were returning from Basti to their village and, therefore they happened to pass through the village of the occurrence. In this way they are chance witnesses. It is further to be noted that none of them went to the police station to lodge report. They are said to have informed Rajpati Singh in the village shortly after having seen the occurrence. Rajpati Singh then reached the hospital and verified the facts told to him by these witnesses for the injured. Even then he did not lodge report immediately. He got first information report written out in the morning on the next day and lodged it as said above at 8. 35 A. M. Delay in lodging the report is indicative of the fact that these two witnesses did not give out facts to Raipat; Singh shortly after having seen the occurrence. We further find that none of these witnesses dared to accompany the injured to the hospital. The injured was taken to Basti Hospital by one Munner Singh s/o Rajai Singh. Lastly, Ziledar Singh deceased did not disclose in his dying declaration that these 2 witnesses had come up at the time of occurrence. The deceased clearly stated in the dying declaration that the occurrence was seen by Munner Singh. In all these circumstances no reliance can be placed on the testimony of the two eye-witnesses. The next question is whether the dying declaration can be made basis of conviction of the appellants. Since the decision of the Supreme Court in the case of Khushal Rao v. State of Bombay (A. I. R. 1958 S. C. 22.) it is well established that there was no legal impediment in founding conviction on a dying declaration alone if the Court was satisfied that it was true. In the case of Khushal Rao the Supreme Court made the following observations:- " On a review of the relevant provisions of the Evidence Act and of the decided cases in the different High Courts in India and in this Court we have come to the conclusion, in agreement with the opinion of the full Bench of the Madras High Court, aforesaid, (A. I. R. 1958 S. C. 22.) that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated, (A. I. R. 1980 S. C. 559.) that each case must be determined on its own facts keeping in view the circumstances in, which the dying declaration was made; (A. I. R. 1979 S. C. 1347.) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence; (4) that a dying declaration stands on the same footing as another piece of evidence and has. to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; (5) that a dying declaration which has been recorded by a competent Magistrate in the proper manner, that is to say, in the form of questions and answersand, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human characterand (6) that in order to test the reliability of a dying declaration, the Court has to keep in view the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man, to remember the facts stated, had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties. Hence, in order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination. But once, the court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration. If, on the other hand, the Court, after examining the dying declaration in all its aspectsand testing its veracity, has come to the conclusion that it is not reliable by itselfand that it suffers from an infirmity, then, without corroboration it cannot form the basis of a conviction. Thus, the necessity for corroboration arises no from any inherent weakness of a dying declaration as a piece of evidence as held in some of the reported cases, but from the fact that the Court, in a given case, has come to the conclusion that that particular dying declaration was not free from the infirmities, referred to above or from such other infirmities as may be disclosed in evidence in that case. " In a recently reported case of Kusa and others v. State of Orissa (A. I. R. 1980 S. C. 559.), the principles laid down in the case of Khushal Rao were repeated. In the case before us Sri Videshi Ram Magistrate recorded the dying declaration of Ziledar Singh deceased in the presence of Dr. R. C. Verma in the form of questions and answers. Dr. R. C. Verma appended certificate that Ziledar Singh was in a fit mental condition to give statement. The Magistrate put first question that he as Sub-Divisional Magistrate, Basti had come to record his statement. Ziledar Singh replied 'mujhe Maloom Ho Gaya. ' Then he put next question about the time of occurrence. Ziledar Singh replied that the occurrence took place on May 31, 1977 at 8 P. M. The Magistrate then put the third question if he was assaulted and who had assaulted. In reply to this question Ziledar Singh gave a detailed statement. This statement is in consonance with the case of the prosecution. It implicates the appellants. In reply to the fourth question he stated that the assailants having pistols were not recognised by any body although they were seen by several persons. The Magistrate then asked him if the assault by the appellants was seen by anybody else. Ziledar Singh replied that it was seen by Munnar Singh who used to work with him in bringing down Tari. Then he further stated that Munnar Singh had no enmity with the appellants, that he had also no old enmity with the appellants and that it was not correct to say that the assailants having pistols assaulted him with spears. In view of the principles No. 5 laid down in the case of Khushal Rao value has to be attached to the dying declaration in question because it has been recorded in the form of questions and answers. It may be indicated here that the dying declaration in question has not been recorded in the language of the deceased. But it has been written by the Magistrate in his own language as is evident from the statement of the Magistrate. This, however, does not create any infirmity in the dying declaration. In the case of Tahal Singh v. State of Punjab (A. I. R. 1979 S. C. 1347.), it was held that if the dying declaration was written in the words of the writer no infirmity was attached to the dying declaration. The night of occurrence was a moon lit one. Therefore, the deceased could have seen the faces of his assailants and recognised them. The learned counsel for the appellants has pointed out two infirmities in the dying declaration: (i) it was inconsistent with the medical evidence (ii) it was a result of tutoring by Babunney Singh and Gholar Singh through Rajpati Singh, author of the first information report. With regard to the first infirmity, it is evident that the deceased gave out that he was assaulted with pistols and spears that he did not give out that he was assaulted by any blunt weapon, that Dr. O. P. Misra found 4 lacerated wounds. Dr. Misra examined him on very date of occurrence within 4 hours of the occurrence. These lacerated wounds are injuries No. 1 to 3 and 5 of the injury report Ex. Ka. 33. The learned counsel for the complainant pointed out that at the time of postmortem examination only one lacerated wound was found and that the other three wounds were in fact incised wounds. Injury No. (1) of the postmortem report corresponds to injury No. (1) of the report recorded by Dr. Misra. This is a lacerated wound on the left of scalp. Injury No. (2) of the postmortem report corresponds in injury No. (2) of the injury report. In the injury report it has been described as lacerated wound lust above left eye-brow. In the postmortem report it has been mentioned as stitched wound. On removing the stitches the margins of the wound were found clean cut. Injury No. (5) of the postmortem report corresponds to injury No. (3) of the injury report. In the injury report it has been described as a lacerated wound. In the postmortem report it has been mentioned as a stitched wound. On removing the stitches the margins were found clean out. Injury No. 7) of the postmortem, report corresponds to injury No. (5) of the injury report which is a lacerated wound. In the postmortem report it has been mentioned as a stitched wound. On removing the stitches the margins were found clean cut. Dr. S. C. Chaturvedi, who conducted the postmortem examination stated that at the time of stitching, the margins of the lacerated wounds can be cut with a scissors and in that case the lace rated wounds would appear incised t wounds at the time of postmortem, examination. The prosecution has not examined the doctor, who stitched the wounds. Therefore, the) possibility of the cutting of the margins of the wounds at the time of stitching cannot be ruled out. We have to observe that Dr. O. P. Misra was examined in the last and Dr. S. C. Chaturvedi had been examined, much earlier. Therefore, the prosecution should have got clarified by Dr. O. P. Misra whether he had stitched the wounds and whether he had cut the margins of the wounds or not. It is evident that Dr. O. P. Misra was the best person to form an opinion about the nature of the wounds. We further find that Dr. Misra found 2 punctured wounds on the person of Ziledar Singh (injuries Nos. (6) and (9) ). Injuries No. (18) and (12) of the postmortem report corresponds to these injuries. Injury No. (18) was found stitched. On removing the stitches the margins were found clean cut. Injury No. (12) was mentioned as incised wound. Taking into account injuries (6) and (9) recorded by Dr. Misra and injuries No. (18) arid (12) recorded by Dr. Chaturvedi it cannot be said that Dr. Misra committed a mistake in mentioning the nature of the injuries. We have further to observe that if Ziledar Singh was not assaulted with a blunt weapon and was assaulted with spears only, there should have been punctured wounds instead of lacerated wounds. On the basis of the margins being clean cut. it can only be said that the stitched wounds found at the time of postmortem examination were incised wounds. Giving careful consideration to all what has been discussed above, we are of the opinion that it cannot be doubted that at the time of examination by Dr. Misra there were 4 lacerated wounds on the person of Ziledar Singh. Trese wounds do not get explained by the dying declaration. With regard to the second infirmity, it may be recalled that, Babunney Singh and Gholar Singh were not present at time of occurrence. Gholar Singh is related to the deceased. They are inimical to Padum Nath Singh appellant. Padum Nath Singh filed a complaint Ex. Kha 6 against them for the theft of his jack fruits. Hari Ram Singh appellant was cited as a witness by Padum Nath Singh. It is thus evident that both these witnesses were inimical to Padum Nath Singh and Hari Ram Singh. Mukhram Singh appellant is real brother of Hari Ram Singh, According to the prosecution both these witnesses told Rajpati Singh (P. W. 1) about the occurrence. Rajpati Singh then met Ziledar Singh injured in the hospital. Ziledar Singh asked him as to what was told to him by Kesri Singh, Babunney Singh and Gholar Singh. In reply Rajpati Singh told him of the entire occurrence. Thereupon Ziledar Singh said to have said that Kesri Singh. Babunney and Gholar Singh had given a correct account of the occurrence. The dying declaration was recorded on the next day. It is thus evident that the facts given out by Babunney Singh and Gholar Singh were told to the deceased well before the recording of the dying declaration. It is pertinent to bear in mind that according to the dying declaration Babunney Singh, Gholar Singh and Kesri Singh had not seen the occurrence. It is further evident from the statement of Rajpati Singh that Ziledar Singh himself did not initially tell of the occurrence to him. On the other hand he questioned. Rajpati Singh as to what was told to him by Kesri Singh, Babunney Singh and Gholar Singh. These facts clearly indicate that Babunney Singh and Gholar Singh were implicating the appellantsand therefore it appears that the deceased gave out their names among the assailants at the time of dying declaration. In other words the dying declaration can be said to be result of tutoring. Taking into consideration the two infirmities discussed above, we are of the opinion that reliance cannot safely be placed on the dying declaration alone. It is not corroborated by any piece of evidence. In the result there is force in the appeals and as such the conviction of the appellants cannot be sustained. All 3 appeals are allowed and the order dated August 8, 1978 passed by I Additional Sessions Judge, Basti convicting arid sentencing the four appellants under Sections 148 and 302/149, I. P. C. is set aside. The appellants are acquitted of the charges levelled against them. Hari Ram Singh appellant is on bail. The other three appellants are on parole. The appellants need not surrender. Their bail bonds are discharged. .