BABU LAL AND ORS. versus STATE OF MADHYA PRADESH

BABU LAL AND ORS.

V. STATE OF MADHYA PRADESH

OCTOBER 31, 2003

[DORAISWAMY RAJU AND ARIJIT PASAYAT, JJ.]

Practice and procedure-Judgment by appellate courts-Held, elaborate and detailed analysis not required but only sufficient reasons for concurrence are required in concurring judgment whereas elaborate and detailed analysis and reasoned conclusions are imperative in judgement of reversal.

Criminal Trial:

Appreciation of evidence-Eye-witnesses-Whether partison witnesses-D Held, relationship cannot wipe out credibility of evidence-If evidence found credible after careful analysis, it can form basis of conviction-On the facts, held, evidence of eye-witnesses credible-Penal Code, 1860-Sections 147, 148, 149 and 302.

Evidence Act, 1872-Section 32-Dying declaration-Injured person lodging FIR before death-Eye-witness giving evidence that deceased was in mentally fit condition-Whether information given by accused can be accepted as dying declaration-Held, there is no legal bar for treating information given by deceased as dying declaration.

Prosecution case was that R, PW-20, was married to accused B, A-F 2, but was thrown out of the house by and re-married to as result of which became inimical to C. On the date of occurrence, the 12 accused persons armed with weapons attacked with common intention to cause his death and inflicted injuries upon him with their respective weapons. However, all accused persons left the place when mother of C, PW-2, reached near him. along with PW-2 and PW-1 went to the Police Station and lodged FIR regarding the incident. was sent for medical examination and Doctor, PW-19, found nearly 17 injuries on his body and four internal injuries which were caused by sharp-edged and also by hard and blunt weapons. However, died before he could be taken to referral hospital for better treatment. Trial Court relying on the evidence of deceased, C,

which formed the FIR and treating it as dying declaration, convicted all

the accused persons in respect of offences punishable under Sections 147, 148, 302 read with Section 149 of the Penal Code, 1860. In appeal, High court upheld the conviction of 7 accused but set aside the conviction of the other 5 accused persons. Hence, this appeal by the 7 accused persons against their conviction.

Appellants contended that High Court failed to analyse evidence in detail while concurring with the conclusions of the court below; that information given by deceased could not be accepted as dying declaration and even otherwise, deceased was not in fit condition to make the dying declaration; and that High court erred in placing reliance on the evidence of eye-witnesses as they were partisan witnesses.

Dismissing the appeal, the Court

HELD : 1. While concurring with the conclusions there need not be elaborate analysis which would be in essence repetition of the conclusions and the reasoning. However, that does not do away the requirement of High Court in analyzing the evidence and to indicate sufficient reasons even for the concurrence. There cannot be total absence of reasons. The position is different when the appellate Court reverses the findings and the conclusions. In such case there is an imperative requirement for detailed analysis of the evidence and reasoned conclusion. The High Court has dealt with the evidence and it cannot be said that there was total absence of reasons. Though analysed in brief, yet the aspects have been touched. [59-C, E)2. 1. There is no legal bar for the information given by the deceased to be treated as dying declaration. Section 32 of the Evidence Act,.1872 deals with dying declaration. Great solemnity is attached to the words of dying person because person on the verge of death is not likely to tell lies or to concoct case so as to implicate an innocent person. The maxim is "a man will not meet his maker with lie in his mouth" (Nemo moriturus praesumitur mentire). It is also said that "truth sits on the lips of dying man". The general principle on which the species of evidence is admitted is that they are declarations made in extremity, when the party is at point of death, and when every hope of this world is gone, when every motive to falsehood is silenced and mind induced by the most powerful consideration to speak the truth; situation so solemn that law considers the same as creating an obligation equal to that which is imposed by

positive oath administered in Court of justice. (59-E-H; 60-A(

Munnu Raja and Anr. v. State of M.P., AIR (1976) SC 2199, relied on.

R.V. Woodcock 1 leach 500, referred to.

2. 2. The materials on record clearly established that the deceased was in mentally fit condition, though battered in the physical frame. It has been clearly established by the eye-witnesses that the declarant was in condition to make the dying declaration. PW-16, who had scribed the FIR, stated that the contents were read over to the deceased, who had thereafter put his thumb impression. Merely because some persons have not been named in the FIR and have been given the benefit of doubt that cannot be reason for discarding the dying declaration or the evidence of the witnesses. (60-8, C, E, Fl

3. The evidence of PWs 1, 2 and 3 was treated as partisan. Relationship is not factor to wipe out the credibility of any witness's evidence. The Court in case where relatives are witnesses has to test their version on the touchstone of acceptability and credibility. If after careful analysis the evidence is found credible, it can be relied and acted upon to form the basis of conviction. The evidence of eye-witnesses which has ring of truth deserves acceptance, which the High Court has done. (60-G, H; 61-AI

Munshi Prasad v: State of Bihar, (200211 SCC 353; Hukum Singh v. State of Rajasthan, (20001 7 SCC 410 and Bhagwan Singh v. State of MP., JT, (2002] 3 SC 387, relied on.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 532-534 of 2003.

From the Judgment and Order dated 1.11.2002 of the Madhya Pradesh High Court in Crl.A. No. 249, 252 and 256 of 1989.

Dr. J.N. Dubey, Anurag Dubey, Aditya K. Dubey, Devvrat, Ms. Upasana

Dubey, K.B. Upadhyay, Ms. Sneh Mishra and S.R. Setia for the Appellants .

. Ms. Vibha Datta Makhija for the Respondent.

The Judgment of the Court was delivered by

ARIJIT PASA Y AT, J.

Twelve persons faced trial for alleged

commission of offences punishable under Sections 147, 148, 302 read with Section 149 of the Indian Penal Code, 1860 (in short the '!PC'), were convicted by First Additional Sessions Judge, Shivpuri and sentenced to undergo imprisonment for life in respect of offence punishable under Section 302 read with Section 149 !PC and three years for the rest of the offences. They preferred three appeals before the Madhya Pradesh High Court. By the impugned judgment the appeals were dealt with together and conviction and sentence in respect of Tulua (A- I), Babula! (A-2), Mahesh (A-6), Sahab Singh (A-9), Kishan Singh (A-10), Netram (A-11) and Jagdish Prasad (A-12) were maintained. Sentences of Tulua (A-:), Babula! (A-2) and Netram (A-l I) were reduced to one year and two years respectively for offences relatable to Sections 147 and 148 respectively. The conviction in respect of Uttam Singh (A-3), Phool Singh (A-4), Sobran Singh (A-5), Krishna Kant (A-7) and Sarman Singh (A-8) was set aside. Tulua, Babula! and Netram (A-1, A-2 and A-11 respectively) were acquitted of the offence relatable to Section 148. They were convicted of the offence punishable under Section 147 !PC, while the convictions of Sahab Singh (A-9), Kishan Singh (A-I 0) and Jagdish Prasad (A-12) under Section 148 !PC were maintained with modified sentences. The said judgment is impugned in these appeals.

Prosecution version in nutshell leaving out unnecessary details is as follows:

Mahila Raj Kunwar (PW-20) was previously the wife of accused Babula! (A-2). This marriage was performed while she was minor. Since the character and reputation of Babula! was not without blemish and he was habitual drunkard and used to gamble and had illicit relations with ladies, there was tension in the relationship between Raj Kunwar and Babula!. When the former tried to reform the latter and requested him to follow the correct path in life, p she was beaten and was thrown out of his house in December, 1985. Thereafter, she started living in the house of her father. According to the customs prevalent she was re-married on 3rd March, 1986 with Chhatar Sjngh (hereinafter referred to as the deceased). This led to hostility and Babula! became inimical to deceased. He tried to arouse the communal and caste feelings. On the date of occurrence i.e. 9th March, 1986 while deceased was drawing water from his well all the accused persons reached there. Accused Jagdish, Sarman and Kasiram were armed with Luhangi each. Accused Sabo was armed with gun, accused Mahesh was armed with knife and accused Pappu was armed with hockey stick. Accused Sobran, Kishan Lal and Phoola were also each armed with Luhangi. In addition, accused Netram, Tulua and Babu were

SUPREME COURT KEPORTS (2003) SUPP. 5 S.C.R.

holding lathis in their hands. After rc:iching the place where deceased was standing accused Jagdish caught hold of him and other accused persons with common intention to cause his _death inflicted injuries by respective weapons. Though the deceased cried for help no one immediately came to save him. However, when his mother (PW-2) reached near him, all the accused persons left the place. The deceased along with his mother (PW-2) and Pran Singh (PW-1) went to the Police Chowk, Magrauni and lodged first information report regarding the incident with the then Station Incharge. Pran Singh (PW-1) had gone to the place on hearing from Brijesh Kumar (PW-11). When report was lodged Shiv Baksh Singh (PW-16) sent the deceased for medical examination where Dr. Ajay Kumar Pathak (PW-19) conducted medical examination. He found nearly 17 injuries on his body. There were four internal injuries also. Most of them were inflicted with sharp edged weapons whereas some were caused by hard and blunt weapons. The deceased was referred to the District Hospital, Shiv Puri for better treatment. Subsequently, the deceased breathed his last at the Primary Centre itself and could not be taken to the referral hospital. On completion of investigation, charge sheet was placed and the accused persons faced trial. They claimed innocence and false implication.

Though the trial Court did not place much reliance on the evidence of the so-called eye-witnesses, yet placed implicit reliance on evidence of the deceased which was given before the police by way of an information which formed the first information report and was treated as dying declaration. Accordingly, the appeal was allowed to the extent indicated, and in respect of some of the accused there was confirmation of the conviction and sentence. During the pendency of the appeal accused Tulua has died and by order dated 5.6.2003 it was directed that the appeal has abated so far as he is

concerned.

In support of the appeals, learned counsel for the appellants submitted that the approach of the High Court is erroneous. The evidence has not been analysed in detail which was required to be done, even though the High Court concurred with the reasoning and the conclusions. The dying declaration is not acceptable and even there is no material to show that he was in fit condition to make the dying declaration. Even the eye-witnesses were not very sure that the deceased was in fit condition, and even Murali and Brijesh Kumar (PWs 3 and 11 respectively) have given varying statements regarding his consciousness and Dr. Ajay Kumar Pathak (PW-19) was vague about his consciousness. Though Pran Singh (PW-I) stated that the deceased

had put his signatures in the FIR, the original documents show that it was thumb impression. The deceased was involved in number of criminal cases. Therefore, it is not unlikely that he had many enemies and accused persons had been falsely roped in. Though the trial Court had disbelieved the evidence of PWs. l, 2, 3 and 11 the High court by erroneous conclusion had placed reliance on their evidence.

In response, learned counsel for the State submitted that the High Court has elaborately analysed the materials on record and has come to the right conclusion relying on the dying declaration. Though there was no necessity for any corroboration, the same was provided by the evidence of PWs l, 2, 3 and 11 on which the High Court has acted upon.

Coming to the plea of appellants relating to detailed analysis of evidence, it can only be said that while concurring with the conclusions there need not be elaborate analysis which would be in essence repetition of the conclusions and the reasoning. However, that does not do away with the requirement of High Court in· analyzing the evidence and to indicate sufficient reasons even for the concurrence. There cannot be total absence of reasons. The position is different when the appellate Court reverses the findings and the conclusions. In ·such case there is an imperative requirement for detailed analysis of the evidence and reasoned conclusions. In the case at hand the High Court has dealt with the evidence and it cannot be said that there was total absence of reasons. Though analysed in brief, yet the vital aspects have been touched.

The pivotal point which was pressed into service with some amount of · vehemence was acceptability of dying declaration. There is no legal bar for the information given by the deceased to be treated as dying declaration. This position was stated succinctly by this Court in Munnu Raja and Anr. v. State of MP., AIR (1976) SC 2199. Section 32 of the Indian Evidence Act, 1872 (in short the 'Evidence Act') deals with dying declaration. person who is facing imminent death, with even shadow of continuing in this world practically non-existent, every motive of falsehood is obliterated. The mind gets altered by most powerful ethical reasons to speak only the truth. Great solemnity and sanctity is attached to the words of dying person because person on the verge of death is not likely to tell lies or to concoct case so as to implicate an innocent person. The maxim is "a man will not meet ~is maker with lie in his mouth" (Nemo moriturus praesumitur mentire). Mathew Arnold said, "truth sits on the lips of dying man". lbe general principle on which the species of evidence is admitted is that they are

declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone, when every motive to falsehood is silenced and mind induced by the most powerful consideration to speak the truth; situation so solemn that law considers the same as creating an obligation equal to that which is imposed by positive oath administered in Court of justice (See R.V. Woodcock 1 Leach 5-00).

The materials on record clearly established that the deceased was in mentally fit condition, though battered in the physical frame. The High Court has rightly held that presence of PWs I and 2 did not result in any presumption of tutoring, when the FIR was recorded. Merely because there was thumb impression on the FIR, and not the signature as stated by PW-I, that does not falsify the prosecution version. The same has been clarified by the High Court. It has to be noted that PW-16, who had scribed the FIR, stated that the contents were read over to the deceased, who had thereafter put his thumb impression. In fact the defence itself has suggested to PW-I during cross examination that the thumb impression was taken on the paper first and thereafter the writings were inserted. In other words, there was acceptance of the fact that the thump impression was there but writings were done later which have been denied by PW-I. We do not find any reason to discard the dying declaration only on this ground. The High Court has also found in analyzing the evidence that the plea relating to anti dating or anti timing of the FIR is myth. Though some of the accused persons have been acquitted by the trial Court, the High Court has carefully analysed the evidence and have sifted the grain from the chaff and disengaged truth from falsehood. Merely because some persons have not been named in the FIR and have given the benefit of doubt, that cannot be reason for discarding the dying declaration or the evidence of the witnesses.

As far as the condition of the deceased at the time of dying declaration is concerned it has been clearly established by the eye-witnesses that the declarant was in condition to make the dying declaration. It is to be noted that at the time of dying declaration, the presence of PW-2 has been clearly mentioned. The evidence of PWs I, 2 and 3 was treated to be as partisan. Relationship is not factor to wipe out the credibility of any witness's evidence. The Court in case where relatives are witnesses has to test their version ori the touchstone of acceptability and credibility. If after careful analysis the evidence is found credible, it can be relied and acted upon to form the basis of conviction. (See Munshi Prasad v. State of Bihar, [2002] I SCC 353,. Hukum Singh v. State of Rajasthan, [2000] 7 SCC 410, Bhagwan Singh v.

State of MP., JT (2002) 3 SC 387. The High Court has precisely done that. The trial Court had entertained shadow of doubt merely on account of their relationship. As rightly observed by the High Court the approach is indefensible. That being the position, the evidence of eye-witnesses which has ring of truth deserves acceptance, which the High Court has done. Though the evidence of PW-11 was attacked on the ground of having traces of tutoring, yet his whole evidence does not get wiped out even if it is assumed, as urged, that it contains exaggerations and embellishment. PW-2 who is the mother of the deceased had reached the place first. The presence of PW-2 (mother of the deceased) has been established by ample evidence. The appeals are sans merit and deserve dismissal, which we direct. A.K.T. Appeals dismissed.