MUNNU RAJA & ANR. versus THE STATE OF MADHYA PRADESH

MUNNU RAJA & ANR.

THE STATE OF MADHYA PRADESH Norember 20, 1975 CY. v. CnANDRAcnun AND A. .. GuPTA, JJ.J

1.P.C. Section 302 rlw Section 34-Dying cleclaratio11-whether F.l.R. can be treated as dying declaration-Appreciation of dying declarotion-Whc1her dying declaration n1ust corer the whole incident.,

Section 32( l) o/ Evidence Act-Vying declaration 111ade before ini·estigating dffice.r in presence of o doctor but in the absence of Magistrate-Ei•identary l:alue of. the testimony of hostile eye witnesses-Powers of lligh Court in_appeal against acquittal. · ·

The appellants were tried by the Sessions Judge on the charge of committing murder of Bahadur Sinsh. _ The prosecution relied on the evidence of two ele witnesses and three dying ckclarations mad.e. by the deceased. The two eye witnesses supported the prosecution case only partly and were; therefor, p;;or-mitted to be cross-examined hy the Public Prosecu.tor. The Session'i Judge thought it unsafe to rely on the testimony of the two eye witnesses and was also not impressed by any of the dying declarations. Consequently he acquitted the appellants.

The High Court in appeal did not discard the evidence of the eye witnesses but utilised it by way of corroboration to the dying declarations. The High Court set aside the order of asquittal and convicted the appellants under section 301 read with section 34 I.P.C. and sentenced each of them to imprisonment for Jife.

In an appeal under ~ection 2( J) of the Supreme Court (Enlargement of .criminal Appellate Jurisdiction) Act, 1970, ·

HELD: J. The Sessions Court rightly discarded the evidence of the.hostile c;e witnesS"Cs. They resiled from their Police Statements and it is evident that, they have no re2ard for truth. Their evidence cannot be used to corrobon"tte the dying declarations. [766-C]

2. In regard tQ the dyirig declarations the Session., Court ·wboUy ov-erlookcd the earliest dying declaration which was made by the deceased. soon after the incident. The· second dying declaration was the first information report Jodge<l by the deceased at the Police Station. The Sessions Judge was clearly in error in holding that the first information report cannot be treated as d;·ing declara-tion. After making the statements before the police the deceased succumbed to his injuries and. therefore, the statement can be treated as dying declaratior.. ·and is admissible under section 32( J) of the Evidence Act. The .maker of th~ statement is dead arid the statement relates to the cause or his death. [766DF]

3. It is · weU settled that_ though dying declaration must be apPrOached with caution for the reason that the maker of the statement cannot be subjected ta cross examination, there i.s neither rule of law nor rule of prudenee that dying declaration cannot be acted upon unless it is corroborated. [7660]

4. Law does not require that the maker of the dying declaration mu"t cover the whole incident or narrate the case history. \Vhat is necessarv is that the whole of the statement made by the deceased must be laid before the cmurt \vithout t:impering with its terms or its tenor. [767-q

dying declaration mu"t

5. The deceased did not bear ~ny enmity or hostility towards the appdJant-1 nor did any other persons who were in the company ot the deceac;;ed after the assault were shown to have any anin1us for implicating the appellantc;; f<11"e· Jy. [767EJ o;::.,• ~

o;::.,• ~

6. The second dying d~claration was not made to thC-JilveStigati;g Officer~ It was_ made by way of First Information Report and it was only after the information was_ recorded that the investigation commenced. The High Court was right in relying on the first and· second dying declatations. Considering the fact~ and circumstances of the c;¥;.C these two dying declarations -can be accepted without corroboration. [767F, 768q

7. The High Court ought not to ha~e relied on the third dying declaration which is !iiaid to have been made by the deceased in ·1he hospital. The Investi-gating Officer ought to h~ve requisitioned the services of Magistrate for re-cording that dying declaration. Investigating Officerg are naturally integrated in the success of the investigation and the practice ·of the Investigating Officer himse1f recording dying declaration during the course or investigation ought ·not to be encouraged. [768CD]

8. The High Court in reversing the order. of acquittal passed by the SeS5ion<; Court did not violate any. of the principles governing appeals against acquit. ta!. (7 68E] .

. CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 227 of 1972. . .

From the Judgment and Order dated the 8th September, 1972 of the Madhya Pradesh High Court in Criminal Appeal No. 927169.

Mohan Behari Lal for the Appellant.

Ram Panjwani, Dy. Advocate General for the State of M.P., N. S. Parihar and I. N. Shroff for the Respondent.

ORDER·

CHANDRACHUD, J.-The appellants, Munmi Raja and Chbuttan, were tried by . the learned Sessions Judge, Chatarpur on the charge th·at at about 10 a.m. on April 30, 1969 they co=itted the murder . of one Bahadur Singh. In support of itS case, the prosecution relied UJl<Y.1 the ·evidence of. Santosh Singh (P.W. 1) and Mst. Gumni (P.W. 4) who claimed to be eye witnesses and on three dying dec-larations alleged to have been made by the deceased. The two eye witnesses were permitted to be cross-examined by. the Public Prose· cutor a5 they supported the case of the prosecution only partly. Santosh Singh stated th-at he saw Chhuttan assaulting Bahadur Singh with spear but that he did not see Munnu Raja at all. On the other .. harul, Mst. Gumni stated that it was Munnu Raja and not Chbuttan who assaulted the deceased. Since the two principal witnesses turned hostile, the learned Sessions Judge thought it unsafe to rely on their testimony and, in our opinion, rightly. The icarned Judge was also . not impressed by any of the dying declarations with the result that he--·· came to the conclusiaa that the prosecution· had failed to establish its case beyond reasonable doubt. In that view of the matter, the appellants were acquitted by the learned Judge .

Being aggrieved by the order of acquittal, the State Government filed an appeal in the High Court of Madhya Pradesh, which was allowed by Division Bench of that Court by its judgment dated Sep-tember S, 1972. The Hgh Court did not discard the evidence o~

the eye witnesses but utilised it by way of corroboration to the dying declarations alleged to have been made by the deceased. . Setting aside the order of acquittal, the High Court has convicted the appel-lants under -s~ 302 read with s. 34 of the Penal Code and has sen-tenced each· of them to impriSonment for life. The appellants have filed this appeal under s. 2(1) of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 ..

We have heard Mr. Mohan Behari Lal on behalf of the appellants at some length and we have considered each of his submissions care-fully. It is however unnecessary to discuss every one of the points made by him because, basically, the scope of this appeal-not fcr-getting that the appellants had right to file this appeal in this Court-lies within narrow compass. As we have indicated earlier, no ex-ception ·can be taken to the view taken by tl1e learned Sessions Judge that it is not safe to place reliance on the testimony of Santosh Singh . and Mst. Gumni. They resiled from their police statements and it is evideqt that they have no regard for truth. · Their evidence can-not be used to corroborate the dying declarations either.

We are· thus left with the three dying declarations made Bahadur Singh and since the prosecution has placed great reliance on them, we thought it necessary to hear the learned counsel fully on the facts ~nd circumstances leading to the dying declarations.

In regard to these dyi.1g declarations, the judgment of the Sessions Court suffers from patent infirmity in that it wholly overlooks the earliest of these dying declarations, which was made by the deceased soon after the incident in the house of one Barjor Singh. The second statement which has been treated by the High Court as dyiilg dec-laration is Ex. P-14, being the first information report which was lodged by the deceased at the police station. The learned Sessions Judge probably assumed that since the statement was recorded as first information report, it could not be treated as dyirig declara-tion. · In this assumption, he was clearly in error. After making the statement before the police, Bahadur Singh succumbed to his ill· juries and therefore the statement can be treated as dying declara-tion and is admissible under section 32(1) of the Evidence Act. The maker of the statement is dead and the statement relates to the cause of his death.

The High C0urt has held that these statements are essentially true and do not suffer from any i'afirmity. It is well settled that though dying declaration must be approached with caution for the reason that the maker of the statement cannot be subject to cross-examina-tion, there is neither rule of law nor rule of prudence which has hardened into rul~ of law that dying declaration ca'Imot be acted upon unless it is corroborated : [see Khushal Rao v. State of Bom- -bay(')]. The High Court, it is true, has held that the evidence of the two eye witnesses corroborated the dying declarations but it - did not come to the conclusion that the dying declarations suffered from

any infirmity by reason of which it was necessary to look out for car-roboraticl'.1.

It was contended by the learned cQunsel for the appel1'ants that the oral statement which Bahadur Singh made cannot, in the eye of law, constitute dying declaration because he did not give full account of the incident or of the transaction which resulted in his death. There is no substance in this contention because in order that the • Court may be in position to assess the evidentiary value of dying declaration, wlrat is necessary is that the whole of the statement made by the deceased must be laid before the Court, without tampering with its terms or its tenor. Law does not require that the maker of the • dying declaration must cover the whole r.icidcnt or narrate the case history. Indeed, quite often, all that the victim may be able to say is that he was beaten by certain person or persons. That may either be due' to the suddenness of the attack or the conditions of \'isibility or because the victim is not in physical condition to re· capitulate the entire incident or to 11arrate it at length. In fact, many time, dying declarations which are copiously worded or neatly structured excite snspicion for· the re-ason that they bear traces of tutoring. - ----It was was urged by the learned counsel that after the attack, the de-the learned counsel that after the attack, the de-' . ceased was all along accompanied by large number of persons and

It was was urged by the learned counsel that after the attack, the de-the learned counsel that after the attack, the de-ceased was all along accompanied by large number of persons and one crutaot therefore exclude the possibility that he was tutored into in\'olving the appellants falsely. We see no basis for this submission because not even suggestion was m;ide to any of the witnesses that the deceased was tutored into making the statement. The deceased, on his own, did not bear any enmity or hostility to the appellants and had therefore no reason to implicate them falsely. Indeed, none of the persons who were in the company of the deceased after he was assaulted, is shown to have any particular animus for. implicating the appellants falsely. In regard to the second .dying declaration, Ex. P-14, the main objection of the learned counsel is that it was made to the investigat-ing officer himself and ought therefore be treated as suspect. Jn sup· port of this submission, reliance was placed on jud~ent of this Court iu Balak Ram v. State of U.P.('). The error of this argu-ment consists in the assumption that the dyiug~declaration was made to an investigating officer. The statement, Ex. P.14, was made by Bahadur Singh at the police station by way of first information .. report. It is after the information was recorded, and indeed be-cause of it, that the investigatiQll commenced and therefore it is wrong to say that the statement was made to an investigating officer. The Station House Officer who recorded the statement did not possess the capacity of an investigating officer at the time when he recorded the statement. The judgment on which the counsel relies has there-fore no application.

We arc in full agreement with the High Court that both of these dyinl!. declarations are true. We :ire further of the opinion that considering the facts and circumstances of the case, these two state-ments can be accepted without corroboration. Bahadur Singh was assaulted in broad day light and he knew the appellants. He did not bear any grudge towards them and had therefore no reason to implicate them falsely. Those who were .in the constant company of Bahadur. Singh after the assault, had also no reason to implicate the appellants falsely. They bore no ill-will or malice towards the appel-lants. We sec no infirmity attaching to the two dying declarations which . would make it necessary to look out for corroboration.We~might, however, mention before we close that the High Court ought not' to have placed any relrance on the third dying declaration. Ex. P-2, which is said to have been made by the deceased in the hospital. The investigating officer who recorded t~at statement had undoubtedly taken the precaution of keeping doctor present and . it appears that some of the friends and relations of the deceased were also present at the time when the statement was recorded. But, if the investigating officer thought that Ilahadur Singh was in, preca-rious condition, he ought to have requisitioned the services of Magistrate for recording the dying declaration. Investigating officers arc naturally interested in the success of the investigation and the practice·of the investigating officer himself recording dying declara-tion during the course of investigation ought not to be encouraged. We have therefore excluded from our consideration the dying dcclara-. lion, Ex. P-2, recorded in the hospital.

The High Court was, therefore, justified in reversing tl1c order of acquittal passed by the Sessions· Court and in convicting the appel-lants of the offence of which they were charged. In so doing, the High Court did not violate any of the principles governing appeals against acquittal, to which our attention was drawn by the appellants' counsel from time to time.

In the result, we confirni the judgment of !lie High Cocrt and dismiss the appeal.

Appeal dismissed.