HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Court No. – 16 RESERVED
Case :- CRIMINAL APPEAL No. – 2399 of 2008
Appellant :- Bablu Raidas @ Virendra
Respondent :- State Of U.P.
Counsel for Appellant :- A.P. Misra,(Amicus Curie,Manesh Kumar Singh Yadav,Rajeev Ratna Chaudhary,Soniya Mishra,Sunder Lal
Counsel for Respondent :- G.A.
Case :- CRIMINAL APPEAL No. – 2487 of 2008
Appellant :- Amit Rajput
Respondent :- State Of U.P.
Counsel for Appellant :- Santosh Srivastava,Rajiv Mishra,Soniya Mishra
Counsel for Respondent :- G.A.
Hon’ble Ritu Raj Awasthi,J.
Hon’ble Virendra Kumar-II,J.
(Delivered by Hon’ble Virendra Kumar-II, J.)
1. Heard Shri Maneesh Kumar Singh Yadav, learned Amicus Curiae on behalf of appellants and Ms. Ruhi Siddiqui, learned A.G.A. for the State.
2. Learned Amicus Curiae has also submitted written arguments, which is taken on record.
3. On 05.03.2019 Shri Rajeev Ratna Chaudhary, Advocate, gave a statement at Bar that he has been appointed as Standing Counsel on behalf of State, therefore,Shri Maneesh Kumar Singh Yadav, Advocate has been appointed as Amicus Curiae vide order dated 05.03.2019. It was directed that this Criminal Appeal No. 2399 of 2008 be listed after three weeks along with the connected Criminal Appeal No.2487 of 2008 showing the name of Shri Maneesh Kumar Singh Yadav,Advocate as Amicus Curiae in the cause list. Therefore, in these circumstances, Shri Maneesh Kumar Singh Yadav,Advocate, has argued the aforesaid appeal No.2399 of 2008 on behalf of appellant-Bablu Raidas @ Virendra. Learned counsels Shri Rajeev Mishra and Ms. Soniya Mishra engaged on behalf of appellant Amit Rajput in Criminal Appeal No. 2487 of 2008 have adopted arguments put forth by learned Amicus Curiae.
4. The Criminal Appeal Nos.2399 2487, both of the year 2008, have been preferred by the appellants, Bablu Raidas @ Virendra and Amit Rajput, assailing the impugned judgment and order dated 17.09.2008 delivered by the Court of learned Additional Sessions Judge, Court No.5, Unnao in Session Trial No. 497 of 2006, State Vs. Amit Rajput and Babloo Raidas @ Virendra, arising out of Crime No. 1035 of 2006, for the offence punishable under Section 302 I.P.C. read with Section 34 I.P.C. of Police Station Kotwali, District Unnao.
5. The appellant-Bablu Raidas @ Virendra (Criminal Appeal No.2399 of 2008) and the appellant-Amit Rajput (Criminal Appeal No. 2487 of 2008), have been convicted by the learned trial court for the offence punishable under Section 302 I.P.C. read with Section 34 I.P.C. and sentenced to undergo life imprisonment. An amount of Rs.5,000/- has been imposed on each of the appellants with default stipulation to serve additional rigorous imprisonment for one year, therefore, these two appeals are being heard, taken up and decided together by this common judgment.
6. Smt. Maya Devi submitted a written report through witness Shrawan, P.W.1, at Police Station Kotwali, District Unnao. On the basis of written report submitted by Smt. Maya Devi, Crime No. 1035 of 2006, under Section 307 I.P.C. read with Section 34 I.P.C. was registered at the Police Station Kotwali, District Unnao.
7. As per the prosecution version, on 11.06.2006 at about 9:00 p.m., appellant, Amit Rajput along with appellant, Bablu Raidas @ Virendra asked the deceased, Smt. Maya Devi, to dress up for party. The appellants and the deceased riding, on the motorcycle Hero Honda Passion No. T.U.P. 78-2138 reached at ‘Singrausi Brick Kiln’. Both the appellants gave blow/ slash of knife in her neck and abdomen. She became unconscious. The members of public brought her at Government Hospital, where she was admitted and during the course of treatment she forwarded her written report. Check F.I.R. (Ex.Ka.-2) was registered for the offence punishable under Section 307 I.P.C., G.D. No.50 of registration of crime (Ex.Ka.-3) was prepared on 12.06.2006 at 8:30 p.m. The deceased in injured state was medically examined on 12.06.2006 at 7:55 a.m. and medical examination report (Ex.Ka.-10) was prepared. During the course of treatment the deceased was got discharged from the District Hospital, Unnao and Hewlett Hospital, Kanpur by her family members and brought her at their house. The deceased expired, then crime was converted for the offence punishable under Section 302 vide G.D. No.34 dated 09.07.2006 at 12:35 hours (Ex.Ka.-4).
8. The inquest report of the deceased was prepared on 28.06.2006 at 18:45 hours. The Investigating Officer prepared documents, photo of the dead body (Ex.Ka.-6), report to C.M.O. (Ex.Ka.-7), sample of seal (Ex.Ka.-8), Challan of dead body (Ex.Ka.-13) for autopsy of the dead body of the deceased. The postmortem report (Ex.Ka.-11) was prepared on 29.06.2006 at 12:30 hours at L.L.R. Hospital, Lucknow. The Investigating Officer recorded statements of witnesses, prepared site plan (Ex.Ka.-13) of the place of occurrence.
9. The appellant Amit was arrested on 13.06.2006 by S.I. Khaleeque Ahmad and other police personnel. The Investigating Officer, on the basis of information given by the appellant Amit Rajput, discovered knife under Section 27 of the Indian Evidence Act which was used in this crime on the pointing out of the accused Amit Rajput. The Investigating Officer prepared site plan (Ex.Ka.-14) of the place, from where the knife was discovered by the Investigating Officer.
10. The Investigating Officer submitted charge sheet (Ex.Ka.-15) against both the appellants before the competent court of Chief Judicial Magistrate, Unnao. This case was committed to the Court of Sessions on 30.08.2006 by the Chief Judicial Magistrate, Unnao.
11. The Court of Additional Sessions Judge/ Special Judge (E.C. Act), Unnao framed charges on 18.11.2006 against both the appellants for the offence punishable under Section 302 I.P.C. read with Section 34 I.P.C. Both the appellants pleaded not guilty and claimed to be tried.
12. The learned trial court recorded statements of P.W.1-Shrawan, P.W.2-Smt. Parvati, P.W.4-Constable Moharrir Ram Prasad, P.W.5-Dr. Mahendra Pratap Singh, P.W.6-S.I., Khaleeque Ahmad, P.W.7-S.I., Pramod Kumar Shukla and P.W.8-S.I., Brij Kishore Singh. These witnesses proved the aforesaid documents relied upon by the prosecution.
13. The learned trial court has recorded statements of both the appellants under Section 313 Cr.P.C. The appellant-Amit Rajput has stated that he has falsely been implicated in this crime. The witnesses have adduced false evidence against him. The Investigating Officer has conducted fake and fabricated investigation of this crime and submitted charge sheet wrongly. He has submitted that the deceased Smt. Maya Devi usually worked with him in programmes. He never solemnized marriage with her. Her husband Baburam gave her ample jewellery and clothes. Baburam came to know that his wife eloped with some person and brother and sister of the deceased misappropriated the jewellery of the deceased. He do not know what happened on the behest of Baburam with the deceased. The discovery of knife is false and fabricated. He was arrested from his house. He is having two children.
14. The appellant-Bablu Raidas @ Virendra has stated that he has falsely been implicated in this crime. The Investigating Officer has conducted false and fabricated investigation of this crime. He was an electrician of D.J./ Orchestra Company owned by co-accused/ appellant-Amit Rajput. He has falsely been implicated due to this reason.
15. The learned trial court, after appreciation and analysis of evidence adduced on behalf of prosecution convicted both the accused persons Amit Rajput and Bablu Raidas and awarded aforesaid punishment.
16. Learned Amicus Curiae has firstly argued that P.W.1-Shrawan allegedly saw the deceased in injured state for the first time on the place of occurrence and he was not known to the deceased or the accused persons, therefore, prosecution was obliged to prove this fact that how the concerned doctor mentioned the name and details of the deceased in the injury report prepared by him.
17. We have perused the statement of P.W.1-Shrawan, S/o Ishwari. He has stated that on the date of occurrence, six to seven months ago (from the date of his statement in the court) in the early morning he was going at Singrausi Brick Kiln. P.W.1 is the resident of Village Galgala within the limits of Kotwali Unnao. He has stated that the deceased Smt. Maya Devi was lying on the road in injured state near the brick kiln. Other members of public and 2-4 villagers brought her at 7:30 a.m. by trolley at the District Hospital, Unnao. P.W.1 stayed at the hospital up to 8:30 p.m. When the deceased regained consciousness, she wrote her report and handed over it to him for its submission at the police station. He submitted written report at Police Station Kotwali. He proved written report (Ex.Ka.-1) of the deceased Smt. Maya Devi. He has specifically stated that Smt. Maya Devi wrote this written report in his presence and she signed it. He has also clarified this fact that the police personnel came at the district hospital.
18. P.W.1 has also reiterated the same fact in his cross-examination conducted by the learned defence counsel. He saw the injuries in neck and abdomen of the deceased. He did not meet the deceased after submitting her report at the police station. He has mentioned that he is illiterate person, therefore, he could not read the written report given to him by Smt. Maya Devi. He has refuted the suggestion that he never submitted written report of the deceased at the police station. He also refuted this suggestion that he has adduced his evidence under pressure of the police personnel.
19. Learned Amicus Curiae has pointed out that in his cross-examination, P.W.1-Shrawan has accepted this fact that he did not know the names of accused persons, nor the deceased in injured state apprised him about their names. He has no knowledge when Smt. Maya Devi expired, therefore, evidence of P.W.1 does not extend any benefit to the prosecution.
20. It is relevant to mention here that P.W.1 has proved this fact that Ex.Ka.-1, written report, was handed over by Smt. Maya Devi/ deceased in her injured state, while she was admitted in the District Hospital, Unnao. In this written report (Ex.Ka.-1), Smt. Maya Devi has mentioned that she is wife of Amit Rajput, R/o 27/24, Karachikhana, Birhana Road, Police Station Pheelkhana, District Kanpur Nagar. P.W.1-Shrawan has stated in his examination-in-chief that police personnel came at hospital after registration of this crime, therefore, it can be possible that these police personnel apprised P.W.5-Dr. Mahendra Pratap Singh about the particulars, name of the victim, her residence and name of husband and on the basis of information given by these police personnel on the basis of written report (Ex.Ka.1), P.W.5-Doctor, wrote in the injury report the name of appellant Amit Rajput as husband of Smt. Maya Devi and particulars of her residence.
21. Smt. Maya Devi has mentioned specifically in her written report that both the appellants came on 11.06.2006 at 9:00 p.m. and asked her to dress up for the party. They brought Smt. Maya Devi by Hero Honda Passion Motorcycle No. T.U.P.78 2138 at Singarusi Brick Kiln and slashed her neck with knife and also gave blow in her abdomen. She became unconscious on this incident. The witness, P.W.1 admitted her in unconscious and injured state in the District Hospital, Unnao. Therefore, there is no substance in the argument of learned Amicus Curiae that evidence of P.W.1 does not extend any benefit to the prosecution.
22. Learned Amicus Curiae has further argued that prosecution has not produced the concerned doctor who conducted autopsy of the dead body of the deceased Smt. Maya Devi, therefore, it could not be proved by the prosecution that injuries sustained by Smt. Maya Devi were sufficient in the ordinary course of nature to cause her death. Therefore, ingredients of Section 300 I.P.C. for committing the murder of the deceased were not proved by the prosecution on the basis of sufficient and credible evidence.
23. Learned Amicus Curiae has relied upon the decision, State of Haryana Vs. Ram Singh connected with Rai Sahab and another Vs. State of Haryana, 2002 SCC (Crl) 350, and argued that Hon’ble Supreme Court has observed in para-1 and 12 as follows:
“1.While it is true that the postmortem report by itself is not a substantive piece of evidence, but the evidence of the doctor conducting the postmortem can by no means be ascribed to be insignificant. The significance of the evidence of the doctor lies vis-a-vis the injuries appearing on the body of the deceased person and likely use of the weapon therefor and it would then be the prosecutor’s duty and obligation to have the corroborative evidence available on record from the other prosecution witnesses.
12. While it is true that the law is well settled in regard to the issue that in an appeal against conviction for the offence of murder Supreme Court would be rather slow to intervene in the event of there being a concurrent finding of fact but it is equally settled that in the event the finding, which suffers from the vice of perversity of any fundamental rules or even a definite procedural injustice going to the root of the prosecution case question of the Apex Court being slow in intervention would not arise. In this context, reference may be made to the decision of this Court in Arjun Marik and Ors. v. State of Bihar,  Supp. 2 SCC 372 wherein this Court in paragraph 15 stated as below :(SCC pp. 378-79)
“15. We are also aware of the fact that as a rule of practice, in appeal against conviction for offence of murder Supreme Court is slow to disturb a concurrent finding of fact unless it is shown that the finding is manifestly erroneous, clearly unreasonable, unjust or illegal or violative of some fundamental rule of procedure or natural justice. Further it has also to be remembered that in a murder case which is cruel and revolting it becomes all the more necessary for the Court to scrutinise the evidence with more than ordinary care lest the shocking nature of the crime might induct instinctive reaction against a dispassionate judicial scrutiny of the evidence in law.”
In this case it was observed by Hon’ble Supreme Court in para-13 that “…… It is significant that all the so-called eye- witnesses were produced in Court by the police from its custody in handcuff condition and it is only on the witness box that the handcuffs were released and taken up from the body of the person. All of them are under- trail prisoners being involved in a murder trail. The Court thus has to scrutinise its evidence with a little bit of caution and scrutiny so as to judge their veracity………..”
24. On perusal of postmortem report, Hon’ble Supreme Court in para-9 of the aforesaid judgment has observed as follows:
“9.A bare perusal of the evidence of the doctor depicts three specific features, namely, (i) Dr. Kataria had referred to have injury No. 1 X- rayed; (ii) nature of the weapon used by the accused persons has not been mentioned, as no such column was there in the Performa prepared for postmortem report and as such Dr. Kataria did not given the nature of the weapon used for injuries. As a matter of fact only for the ascertainment of the weapon used, the body of the deceased was referred for X-ray. The X-ray report, however, was not shown to the doctor till the date of examination, or even produced before the court; (iii) Dr. Kataria was also not shown the pieces of bones in the case. These three factors go a long way in support of the defence contention that it was a blind murder and thus a false implication.”
Learned Amicus Curiae has argued that in the present case the postmortem report had not supported the ocular version of witnesses produced by the prosecution.
25. Learned Amicus Curiae has also relied upon the decision Ram Jattan and others Vs. State of U.P., 1995 SCC (Cri) 169, and argued that in para-4 of the said decision, Hon’ble Supreme Court has observed as follows:
“4. ………He, however, noted that 8th and 9th ribs were fractured. Now, coming to the cause of death, he opined that death was due to shock and hemorrhage. It is not noted that any of the injuries was sufficient to cause death in the ordinary course of nature. It could thus been seen that neither clause 1stly nor clause 3rdly of Section 300 are attracted to the facts of the case. This contention was also put forward before the High Court but the learned Judges rejected this contention observing that the fracture of 8th and 9th ribs must have resulted in causing death and therefore these injuries must be held to be sufficient in the ordinary course of nature to cause death. We are unable to agree with this reasoning. In the absence of proof by the prosecution in an objective manner that the injuries caused were sufficient in the ordinary course of nature to cause death, the same cannot be interfered with unless the injuries are so patent. As we have noted above except fracture of ribs there was no other injury to any of the vital organs. As a matter of fact internally the doctor did not notice any damager either to the heart or lungs. Even in respect of these two injuries resulting in fracture of the ribs, there was no corresponding external injuries. Again as already noted all the injuries were on the non-vital parts of the body ………………”
Therefore, Hon’ble Supreme Court has affirmed the conviction of appellants of this case law. Their conviction for the offence punishable under Section 302 I.P.C. read with Section 149 I.P.C. for life imprisonment was set aside and instead of they were convicted under Section 304 Part II of the I.P.C. read with Section 149 I.P.C. and sentenced to undergo rigorous imprisonment for five years.
26. Learned Amicus Curiae has also relied upon the decision of Hon’ble Supreme Court in the case of Sanjay Vs. State of Uttar Pradesh connected with Narendra Vs. State of Uttar Pradesh, (2016) 1 SCC (Cri) 712: (2016) 3 SCC 62, in which in para-14 it has been held as follows:
“14. However, in the instant case, it is apparent that the death occurred sixty two days after the occurrence due to septicaemia and it was indirectly due to the injuries sustained by the deceased. The proximate cause of death on 13.10.1998 was septicaemia which of course was due to the injuries caused in the incident on 11.08.1998. As noted earlier, as per the evidence of Dr. Laxman Das (PW-9), Roop Singh was discharged from the hospital in good condition and he survived for sixty two days. In such facts and circumstances, prosecution should have elicited from Dr. Laxman Das (PW-9) that the head injury sustained by the deceased was sufficient in the ordinary course of nature to cause death. No such opinion was elicited either from Dr. Laxman Das (PW-9) or from Dr. Gulecha (PW-3). Having regard to the fact that Roop Singh survived for sixty two days and that his condition was stable when he was discharged from the hospital, the court cannot draw an inference that the intended injury caused was sufficient in the ordinary course of nature to cause death so as to attract clause (3) of Section 300 IPC.”
Hon’ble Supreme Court modified the conviction of appellants of this case under Section 302 I.P.C. read with Section 34 I.P.C. to Section 304 Part I of the I.P.C. read with Section 34 I.P.C. and sentenced to undergo rigorous imprisonment for ten years.
Hon’ble Supreme Court in the case of Munshi Prasad Vs. State of Bihar, AIR 2001 SCC 3031 has held that,
“………….preparation of an inquest report is a part of the investigation within the meaning of the Criminal procedure Code and as noticed above neither the inquest report nor the post-mortem report can be termed to be a basic evidence or substantive evidence and discrepancy occurring therein can neither be termed to be fatal nor even a suspicious circumstance, which would warrant a benefit to the accused and the resultant dismissal of the prosecution case………………”
Therefore, evidence adduced on behalf of prosecution has to be scrutinized with care and caution.
27. Learned A.G.A. has relied upon the decision of Hon’ble Supreme Court in the case of Sri Bhagwan Vs. State of Uttar Pradesh, (2013) 12 SCC 137, and argued that the deceased herself forwarded written report through P.W.1-Shrawan Kumar. On perusal of written report (Ex.Ka.-1) it reveals that both the appellants participated in the incident with common intention to commit murder of Smt. Maya Devi. They brought her at the scheduled place of occurrence and assaulted her by slashing/ silt her neck and gave blow of knife in her abdomen also on 11.06.2006 at 9:00 p.m. They left Smt. Maya Devi in injured state near Singrausi Brick Kiln on the road.
28. P.W.1-Shrawan found her in injured state in the morning of 12.06.2006 and brought her at the District Hospital, Unnao at 7:30 a.m. P.W.1 has proved this fact that he stayed at the hospital up to 8:00 p.m. and in his presence Smt. Maya Devi regained consciousness, wrote written report (Ex.Ka.-1) and handed over it to him. P.W.8, the Investigating Officer recorded statement of Smt. Maya Devi under Section 161 Cr.P.C. in the injured state at District Hospital, Unnao and proved her hand written statements as Ex.Ka.-16 and Ex.Ka.-17. These statements and the statement recorded under Section 161 Cr.P.C. are admissible in evidence in the nature of her dying declaration under Section 32(1) of the Indian Evidence Act.
29. Learned A.G.A. has argued that Hon’ble Supreme Court in paras-14, 20, 23 and 25 of the aforesaid judgment of Sri Bhagwan Vs. State of Uttar Pradesh (supra) has held as follows:
“14. It can be stated that as per the version of PWs-1 and 3 while they were guarding the area as responsible residents of a nearby colony they heard the cries of the deceased and they rushed to the place of occurrence to help the deceased when they were able to witness the act of the appellant in sprinkling acid on the deceased and the attempt of the appellant to flee from the scene of occurrence which was successfully thwarted by the witnesses along with others standing nearby. Their statement in narrating the incident in such a sequence was really convincing and that it was quite natural and acceptable in every respect without giving room for any doubt. Moreover, as rightly pointed out by learned counsel for the respondent, they were not interested in any manner in the deceased. They were total strangers and their presence as claimed by them was justified in every respect and, therefore, there was no room to doubt their version in having stated that it was the appellant who was responsible for causing acid injury on the deceased. The said submission of the learned counsel for the appellant, therefore, does not merit acceptance.
20. While keeping the above prescription in mind, when we test the submission of the learned counsel for the appellant in the case on hand at the time when 161 Cr.P.C. statement of the deceased was recorded, the offence registered was under Section 326, IPC having regard to the grievous injuries sustained by the victim. PW-4 was not contemplating to record the dying declaration of the victim inasmuch as the victim was seriously injured and immediately needed medical aid. Before sending him to the hospital for proper treatment PW-4 thought it fit to get the version about the occurrence recorded from the victim himself that had taken place and that is how Exhibit Ka-2 came to be recorded. Undoubtedly, the statement was recorded as one under Section 161 Cr.P.C. Subsequent development resulted in the death of the victim on the next day and the law empowered the prosecution to rely on the said statement by treating it as a dying declaration, the question for consideration is whether the submission put forth on behalf of the respondent counsel merits acceptance.
23. Going by Section 32(1) Evidence Act, it is quite clear that such statement would be relevant even if the person who made the statement was or was not at the time when he made it was under the expectation of death. Having regard to the extraordinary credence attached to such statement fall under Section 32(1) of the India Evidence Act, time and again this Court has cautioned as to the extreme care and caution to be taken while relying upon such evidence recorded as a dying declaration.
25. Keeping the above principle in mind, it can be stated without any scope for contradiction that when we examine the claim made on the statement recorded by PW-4 of the deceased by applying Section 162 (2), we have no hesitation in holding that the said statement as relied upon by the trial Court as an acceptable dying declaration in all force was perfectly justified. We say so because no other conflicting circumstance was either pointed out or demonstrated before the trial Court or the High Court or before us in order to exclude the said document from being relied upon as a dying declaration of the deceased. We reiterate that having regard to the manner in which the said statement was recorded at the time when the crime was registered originally under Section 326 IPC within the shortest time possible within which it could be recorded by PW-4 in order to provide proper medical treatment to the deceased by sending him to the hospital, with no other intention pointed out at the instance of the appellant to discredit contents of the said statement, we hold that the reliance placed upon the said statement as the dying declaration of the deceased was perfectly justified. Having regard to our above conclusion, the said submission of the learned counsel for the appellant also stands rejected.”
30. Learned A.G.A. relying on the aforesaid expositions of law has argued that both the appellants, with common intention have murdered the deceased Smt. Maya Devi and the learned trial court has convicted them in correct perspectives.
31. We have perused the statement of P.W.8. He has stated in his examination-in-chief that he recorded statements of Smt. Maya Devi, wife of Amit Rajput at District Hospital, Unnao. She apprised him that her husband Amit Rajput levelled charges of in-chastity against her. He and Bablu asked her to accompany him for party. Both the appellants, Amit Rajput and Bablu, assaulted her with knife and caused injuries. She apprised him also by gestures, when she could not speak further. She wrote on two papers in his presence and he proved these written statements of the deceased Smt. Maya Devi as Ex.Ka.-16 Ex.Ka.-17.
32. We have perused these statements, Ex.Ka.-16 Ex.Ka.-17. It is mentioned in the statement, Ex.Ka.-16 that her husband Amit Rajput and his brother-in-law Bablu asked her to go in party. They brought her towards toilet. Her mouth was shut from behind. When she raised alarm then her neck was slashed. Smt. Maya Devi has signed it by writing, ‘Maya’ and resident of Birhana Road, name of brother Rajiv, Gaya Prasad. Phone numbers of her mother and Amit Rajput were also written by her. She also mentioned in this statement that J.P. to arrange her talk with her mother. Mobile phone number of appellant Amit Rajput was also written along with the name of his father, Kailash Prasad. It was also mentioned by her that Amit Rajput was having D.J.
33. In the statement, Ex.Ka.-17, Smt. Maya Devi has written that Amit and Bablu asked her to go in a party with them. One accused shut her mouth, when she raised alarm, then her throat was slashed by both the accused. Smt. Maya Devi has signed it and it is also mentioned that her mother was residing in the house of Vijay Saxena, which was situated in Karmchari Nagar, near P.A.C. Turn. She has also written details of her residence.
34. The following expositions of law of Hon’ble Supreme Court are relevant regarding statement of the deceased under Section 32(1) of Indian Evidence Act:
A Division Bench of this Court in the case of Ved Ram vs. State of U.P., 2017(101) SCC 453 has held as under:
16. It would be pertinent to note the case of Bhajju alias Karan Singh v. State of M.P. reported in 2012 (77) SCC 182 (SC) before the Apex Court which had almost identical facts. The dying declaration of the deceased was relied upon as the witnesses of fact did not support the prosecution case and were declared hostile and similar defence was taken that the deceased had caught fire while she was cooking food. The Hon’ble Court referring to the case of Muuna Raja and another v. The State of Madhya Pradesh reported in (1976) 3 SCC 104 relied upon by the learned counsel for the accused-appellant observed as under:
“Reliance by the learned counsel appearing for the appellant/accused upon the judgement of this Court in the case of Munnu Raja and another v. The State of Madhya Pradesh reported in (1976) 3 SCC 104 to contend that a dying declaration cannot be corroborated by the testimony of hostile witnesses is hardly of any help. As already noticed, none of the witnesses or the authorities involved in the recording of the dying declaration had turned hostile. On the contrary, they have fully supported the case of the prosecution and have, beyond reasonable doubt, proved that the dying declaration is reliable, truthful and was voluntarily made by the deceased. We may also notice that this very judgement relied upon by the accused itself clearly says that the dying declaration can be acted upon without corroboration and can be made the basis of conviction. Paragraph 6 of the said judgement reads as under:-
“….. It is well settled that though a dying declaration must be approached with caution for the reason that the maker of the statement cannot be subject to cross-examination, there is neither a rule of law nor a rule of prudence which has hardened into a rule of law that a dying declaration cannot be acted upon unless it is corroborated (see Khushal Rao v. State of Bombay). The High Court, it is true, has held that the evidence of the two eyewitnesses 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 corroboration.”
In para-22 of this report the Hon’ble Court has further held that-
“The law is very clear that if the dying declaration has been recorded in accordance with law, is reliable and gives a cogent and possible explanation of the occurrence of the events, then the dying declaration can certainly be relied upon by the Court and could form the sole piece of evidence resulting in the conviction of the accused. This Court has clearly stated the principle that section 32 of the Evidence Act, 1872 (for short ‘the Act’) is an exception to the general rule against the admissibility of hearsay evidence. Clause (1) of section 32 makes the statement of the deceased admissible, which is generally described as a ‘dying declaration’.”
The Apex Court relying upon the dying declaration of the deceased being consistent with the prosecution case which was fully corroborated by medical evidence did not disturb the concurrent findings of guilt of accused-appellant recorded by the two Courts. In view of the aforesaid preposition of the law the dying declaration of the deceased recorded in this case fulfills all the legal requirements and it is in consonance with the prosecution story as also the medical evidence.”
17. Thus, what follows from the reading of the aforesaid authorities on the issue is that if the dying declaration has been recorded in accordance with law, is reliable and gives a cogent and possible explanation of the occurrence of the events, then the dying declaration can certainly be relied upon by the Court could form a sole piece of evidence resulting in the conviction of the accused.
In the leading case of Pakala Narayana Swami Vs. Emperor (AIR 1939 Privy Council p.47), the expression ”circumstances of the transaction which resulted in his death’ has been eloquently explained. As per the facts of the said case, the deceased hadleft his house to go to Behrampur. While leaving his house, he had told his wife that he was going to Pakala Narayana Swamy’s house in Behrampur to demand him to pay back the amount given by him. Later on his dead body was found in a trunk and his body had been cut into pieces. The question before the Privy Council was as to whether such a statement made by the deceased to his wife would really come within the purview of Section 32(1) of the Evidence Act. In fact, it was held by the Privy Council that the statement made by the deceased to his wife just prior to leaving his house to go to Behrampur was a statement and one of the circumstances of the transaction which resulted in the death of the man. Therefore the expression ”any of the circumstances of the transaction which resulted in his death’ is necessarily wider in its interpretation than the expression ”the cause of his death.’
In the case of Pakala Narayana Swami Vs. Emperor, AIR 1939 PC 47 Hon’ble Privy Council has held as under:-
…The first question with which their Lordships propose to deal is whether the statement of the widow that on 20th March the deceased had told her that he was going to Berhampur as the accused’s wife had written and told him to go and receive payment of his dues was admissible under S. 32(1) of the Indian Evidence Act, 1872. That section provides:
“Statements written or verbal of relevant facts made by a person who is dead……….are themselves relevant facts in the following cases (1) when the statement is made by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death, in oases in which the cause of that person’s death comes into question.
Such statements are relevant whether the person who made them was or was not at the time when they were made under expectation of death and whatever may be the nature of the proceeding in which the cause of his death comes into question.”
A variety of question has been mooted in the Indian Courts as to the effect of this section. It has been suggested that the statement must be made after the transaction has taken place, that the person making it must be at any rate near death, that the “circumstances” can only include the Acts done when and where the death was caused. Their Lordships are of opinion that the natural meaning of the words used does not convey any of these limitations. The statement may be made before the cause of death has arisen, or before the deceased has any reason to anticipate being killed, The circumstances must be circumstances of the transaction: general expressions indicating fear or suspicion whether of a particular individual or otherwise and not directly related to the occasion of the death will not be admissible. But statements made by the deceased that he was proceeding to the spot where he was in fact killed, or as to his reasons for so proceeding, or that he was going to meet a particular person, or that he had been invited by such person to meet him would each of them be circumstances of the transaction, and would be so whether the person was unknown, or was not the person accused. Such a statement might indeed be exculpatory of the person accused. “Circumstances of the transaction” is a phrase no doubt that conveys some limitations. It is not as broad as the analogous use in “circumstancial evidence” which includes evidence of all relevant facts. It is on the other hand narrower than res gestae.Circumstances must have some proximate relation to the actual occurrence; though as forinstance in a case of prolonged poisoning they may be related to dates at a considerable distance from the date of the actual fatal dose.
It will be observed that the “circumstances” are of the transaction which resulted in the death of the declarant. It is not necessary that there should be a known transaction other than that the death of the declarant has ultimately been caused, for the condition of the admissibility, of the evidence is that “the cause of (the declarant’s) death comes into question.” In the present case the cause of the deceased’s death comes into question. The transaction is one in which the deceased was murdered on 21st March or 22nd March: and his body was found in a trunk proved to be bought on behalf of the accused. The statement made by the deceased on 20th or 21st March that he was setting out to the place where the accused lived, and to meet a person, the wife of the accused, who lived inthe accused’s house, appears clearly to be a statement as to some of the circumstances of the transaction which resulted in his death. The statement was rightly admitted.
Hon’ble Supreme Court in the case of State of Haryana Vs. Harpal Singh, (1978) 4 SCC 465, has held in para-18 of its judgment as under:
18. The High Court was of the view that a person in the state of health as depicted in the Bed Head Ticket could not have possibly made a coherent and detailed statement as contained in Ex. PL. We are unable to share the view of the High Court. The doctor was fully aware of the condition and certified that the patient was in a fit condition to give a dying declaration and has deposed that she was conscious and was in a fit condition to give the dying declaration. The fact that the pulse was not palpable and blood pressure unrecordable and the patient was in a gasping condition would not necessarily show that the patient’s condition was such that no dying declaration could be recorded. We see no reason for rejecting the testimony of the doctor.
Hon’ble Supreme Court in the case of Sher Singh v. State of Punjab, (2008) 4 SCC 265 : (2008) 2 SCC (Cri) 783 at page 271 in following paras has held as under:
16. Acceptability of a dying declaration is greater because the declaration is made in extremity. When the party is at the verge of death, one rarely finds any motive to tell falsehood and it is for this reason that the requirements of oath and cross-examination are dispensed with in case of a dying declaration. Since the accused has no power of cross-examination, the court would insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court should ensure that the statement was not as a result of tutoring or prompting or a product of imagination. It is for the court to ascertain from the evidence placed on record that the deceased was in a fit state of mind and had ample opportunity to observe and identify the culprit. Normally, the court places reliance on the medical evidence for reaching the conclusion whether the person making a dying declaration was in a fit state of mind, but where the person recording the statement states that the deceased was in a fit and conscious state, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of mind of the declarant, the dying declaration is not acceptable. What is essential is that the person recording the dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement without there being the doctor’s opinion to that effect, it can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certificate by the doctor is essentially a rule of caution and, therefore, the voluntary and truthful nature of a statement can be established otherwise.
17. In the present case, the first dying declaration was recorded on 18-7-1994 by ASI Hakim Singh (DW 1). The victim did not name any of the accused persons and said that it was a case of an accident. However, in the statement before the court, Hakim Singh (DW 1) specifically deposed that he noted that the declarant was under pressure and at the time of recording of the dying declaration, her mother-in-law was present with her. In the subsequent dying declaration recorded by the Executive Magistrate Rajiv Prashar (PW 7) on 20-7-1994, she stated that she was taken to the hospital by the accused only on the condition that she would make a wrong statement. This was reiterated by her in her oral dying declaration and also in the written dying declaration recorded by SI Arvind Puri (PW 8) on 22-7-1994. The first dying declaration exonerating the accused persons made immediately after she was admitted in the hospital was under threat and duress that she would be admitted in the hospital only if she would give a statement in favour of the accused persons in order to save her in-laws and husband. The first dying declaration does not appear to be coming from a person with free mind without there being any threat. The second dying declaration was more probable and looks natural to us. Although it does not contain the certificate of the doctor that she was in a fit state of mind to give the dying declaration but the Magistrate who recorded the statement had certified that she was in a conscious state of mind and in a position to make the statement to him. Mere fact that it was contrary to the first declaration would not make it untrue. The oral dying declaration made to the uncle is consistent with the second dying declaration implicating the accused persons stating about their involvement in the commission of crime. The third dying declaration recorded by the SI on the direction of his superior officer is consistent with the second dying declaration and the oral dying declaration made to her uncle though with some minor inconsistencies. The third dying declaration was recorded after the doctor certified that she was in a fit state of mind to give the statement.
Statement of the deceased under Section 161 Cr.P.C. recorded by the Investigating Officer treated as dying declration
Hon’ble Supreme Court in the case of Gulam Hussain v. State of Delhi, (2000) 7 SCC 254 : 2000 SCC (Cri) 1343 at page 258 has held as follows:
7. Exhibit PW 22/B was recorded by PW 22 ASI Balwan Singh in the hospital on 14-10-1989 at about 6.30 a.m. after getting an opinion from the doctor that the injured was fit for statement. The endorsement of the doctor is recorded as Exhibit PW 22/A. Learned counsel appearing for the appellants submitted that as the statement was recorded by the investigating officer which was treated as FIR, the same could not be treated as a dying declaration and was inadmissible in evidence. The submission has no substance because at the time of recording the statement PW 22 Balwan Singh did not possess the capacity of an investigating officer as the investigation had not commenced by then. Such a statement can be treated as a dying declaration which is admissible in evidence under Section 32(1) of the Evidence Act. After critically scanning the statement of PW 22 ASI Balwan Singh and details of Exhibit PW 22/B, we have no hesitation to hold that the aforesaid statement was voluntarily made by the deceased which was reduced to writing and has rightly been treated as a dying declaration after the death of the maker.
13. Upon close scrutiny we have no hesitation to hold that the dying declaration Exhibit PW 22/B is the truthful version of the occurrence which narrates the circumstances leading to the death of its maker. As the said statement was made immediately after the occurrence, there is no reason to doubt its veracity and correctness. The circumstances surrounding the dying declaration are clear and convincing which we have found to be corroborated in material particulars. The general criticism of the defence cannot, in any way, be made a basis for discarding the aforesaid statement which was later on rightly treated as dying declaration of the deceased.
Hon’ble Supreme Court in the case of Kulwant Singh v. State of Punjab, (2004) 9 SCC 257 : 2004 SCC (Cri) 1441 at page 266 has held as follows:
35. Section 32 of the Indian Evidence Act, 1872 nowhere states that the dying declaration must be recorded in the presence of a Magistrate or in other words, no statement which has not been recorded before the Magistrate cannot be treated to be a dying declaration. The fact that the investigating officer from the beginning intended to take the statement of Partap Singh is not in dispute. The endorsement made by the doctor in Ext. PQ/1 and Ext. PR/1 would clearly show that he had not been found fit to make such statement. Only on the fifth day i.e. 18-6-1987, the statement of Partap Singh could be recorded.
36. Section 32 of the Indian Evidence Act also does not state that a dying declaration should be made only in expectation of death and in that view of the matter, the fact that Partap Singh died on 26-6-1987 after a period of one week is of no consequence. Explanation I to Sub-section (1) appended to Section 32 specifies that when the statement is made by a person as to the cause of his death, or any of the circumstances of the transaction which resulted in his death where cause of death of that person’s death comes into question would be a relevant factor.
48. It is not essential that a dying declaration should be made only before a Magistrate.
Hon’ble Supreme Court in the case of Patel Hiralal Joitaram v. State of Gujarat, (2002) 1 SCC 22 : 2002 SCC (Cri) 1 at page 26 has held as follows:
12. Bearing in mind the above standard of caution we may make the judicial scrutiny of the findings arrived at by the High Court. As pointed out earlier, the focus of discussion can first be mustered on the identity of the assailant, for, there is little dispute on the fact situation that one assailant had set her ablaze at the time and place mentioned in her statements. We are, in this context, tempted to dub the reasoning of the Sessions Judge for concluding that “it is impossible that the saree could catch fire if the lighter is thrown at her” as preposterous. It requires no effort for any sensible person to understand that it was the flame of the lighter which was hurled at the victim who was by then soaked with inflammable liquid and catching fire in such a situation is a matter of easy grasping for anyone.
13. We are aware that the statements made by the deceased are the only materials available for establishing the identity of the appellant and hence if those statements are inadmissible or unreliable, even if admissible, or insufficient to point to the appellant as the assailant, its inevitable consequence is to set the appellant free. Knowing this position well Shri U.R. Lalit, learned Senior Counsel first focussed his contention for showing that the prosecution has failed to prove that Asha Ben’s death was due to burns sustained by her on 21-10-1988.
16. Harping on an answer given by PW 12 in cross-examination that death of the deceased had occurred due to “septic” learned Senior Counsel made out an argument that such septic condition could have developed on account of other causes. Mere possibility of other causes supervening during her hospitalisation is not a safe premise for deciding whether she would not have died due to the burns sustained on 21-10-1988. The cause of death can be determined on broad probabilities. In this context we may refer to a passage from Modi’s Medical Jurisprudence and Toxicology, dealing with death by burns:
“As already mentioned, death may occur within 24 to 48 hours, but usually the first week is the most fatal. In suppurative cases, death may occur after five or six weeks or even longer.”
17. In Om Parkash v. State of Punjab [(1992) 4 SCC 212 : 1992 SCC (Cri) 848] the victim was set ablaze on 17-3-1979 and she sustained burns with which she died only 13 days thereafter. The assailant was convicted of murder and the conviction was confirmed by this Court.
21. The main dying declaration was given by Asha Ben to the Executive Magistrate (PW 1). That dying declaration was marked as Ext. 11. It was recorded at 11.15 a.m. on 21-10-1988, when she said this:
“Hiralal Patel, who burnt me, met me near Siddharaj Nagar. His Scooter No. is 3040. He asked me why are you spreading wrong stories about me. He got very excited and poured some corrosive liquid from a tin of 500 gm on me and threw a lighter lighted on me…. Hiralal is the son-in-law of Nanavati.”
26. Learned Senior Counsel made a twofold attack on the admissibility of Ext. 67. First is that a statement recorded by the police under Section 161 of the Code of Criminal Procedure is inadmissible in evidence. Second is that even if it is admissible for any purpose it cannot be used under Section 32 of the Evidence Act as the said statement related only to the parentage of Hiralal.
27. If what is extracted above from Ext. 67 falls under Section 32(1) of the Evidence Act it would stand extricated from the ban contained in Section 162 of the Code of Criminal Procedure. The former is exempted from the ban contained in Section 162. This can be seen from sub-section (2) of Section 162 which reads thus:
“162. (2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of Section 32 of the Indian Evidence Act, 1872 (1 of 1872), or to affect the provisions of Section 27 of that Act.”
28. We have therefore to see whether the statement in Ext. 67 (extracted above) would fall within the purview of Section 32(1) of the Evidence Act. That sub-section reads thus:
“32. (1) When it relates to cause of death.–When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question.
Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.”
29. The above provision relates to the statement made by a person before his death. Two categories of statements are made admissible in evidence and further made them as substantive evidence. They are: (1) his statement as to the cause of his death; (2) his statement as to any of the circumstances of the transaction which resulted in his death. The second category can envelop a far wider amplitude than the first category. The words “statement as to any of the circumstances” are by themselves capable of expanding the width and contours of the scope of admissibility. When the word “circumstances” is linked to “transaction which resulted in his death” the sub-section casts the net in a very wide dimension. Anything which has a nexus with his death, proximate or distant, direct or indirect, can also fall within the purview of the sub-section. As the possibility of getting the maker of the statements in flesh and blood has been closed once and for all the endeavour should be how to include the statement of a dead person within the sweep of the sub-section and not how to exclude it therefrom. Admissibility is the first step and once it is admitted the court has to consider how far it is reliable. Once that test of reliability is found positive the court has to consider the utility of that statement in the particular case.
30. In Sharad Birdhichand Sarda v. State of Maharashtra [(1984) 4 SCC 116 : 1984 SCC (Cri) 487] a three-Judge Bench of this Court considered the scope of Section 32(1) of the Evidence Act. After referring to a number of decisions of different High Courts on the point Fazal Ali, J. who spoke for the majority opinion, laid down five propositions. Among them the first is that the legislature has thought it necessary to widen the sphere of Section 32 for avoiding injustice. Among the remaining propositions the second is relevant for our purpose and hence it is extracted below: (SCC p. 139, para 21)
“(2) The test of proximity cannot be too literally construed and practically reduced to a cut-and-dried formula of universal application so as to be confined in a straitjacket. Distance of time would depend or vary with the circumstances of each case. … Sometimes statements relevant to or furnishing an immediate motive may also be admissible as being a part of the transaction of death. It is manifest that all these statements come to light only after the death of the deceased who speaks from death.”
31. Following the above decision a two-Judge Bench of this Court has stated thus in Rattan Singh v. State of H.P. [(1997) 4 SCC 161 : 1997 SCC (Cri) 525] : (SCC pp. 166-67, para 15)
“The collocation of the words in Section 32(1) ”circumstances of the transaction which resulted in his death’ is apparently of wider amplitude than saying ”circumstances which caused his death’. There need not necessarily be a direct nexus between ”circumstances’ and death. It is enough if the words spoken by the deceased have reference to any circumstance which has connection with any of the transactions which ended up in the death of the deceased. Such statement would also fall within the purview of Section 32(1) of the Evidence Act. In other words, it is not necessary that such circumstance should be proximate, for, even distant circumstances can also become admissible under the sub-section, provided it has nexus with the transaction which resulted in the death.”
32. Taking cue from the legal position as delineated above we have to consider now whether the statement of Asha Ben in Ext. 67 related to any circumstance connected with her death. We cannot overlook the fact that the context in which she made such statements was not for resolving any dispute concerning the paternity of a person called Hiralal or even to establish his parentage. It was in the context of clarifying her earlier statement that she was set ablaze by a man called Hiralal whose second name happened to be mentioned by her as Lalchand. When subsequently she was confronted by the investigating officer with the said description to confirm whether it was Hiralal, son of Lalchand who set her to fire, she made the correction by saying that she made a mistake inadvertently and that it was Hiralal Joitaram who did it and not Hiralal Lalchand. Thus Ext. 67 is inextricably intertwined with the episode in which she was burnt and eventually died of such burns. Looking at Ext. 67 from the above perspective we have no doubt that the said statement would fall within the ambit of Section 32(1) of the Evidence Act.
Hon’ble Supreme Court in the case of Koli Chunilal Savji v. State of Gujarat, (1999) 9 SCC 562 : 2000 SCC (Cri) 432 at page 565 has held as follows:
7. Coming to the first question, the answer to the same would depend upon the correctness of the submission of Mr Keshwani, that in the absence of the doctor while recording the dying declaration, the said declaration loses its value and cannot be accepted. Mr Keshwani in this connection relies upon the decision of this Court in the case of Maniram v. State of M.P. [1994 Supp (2) SCC 539 : 1994 SCC (Cri) 1487 : AIR 1994 SC 840] In the aforesaid case, no doubt this Court has held that when the declarant was in the hospital itself, it was the duty of the person who recorded the dying declaration to do so in the presence of the doctor and after being duly certified by the doctor that the declarant was conscious and in his senses and was in a fit condition to make the declaration. In the said case the Court also thought it unsafe to rely upon the dying declaration on account of the aforesaid infirmity and interfered with the judgment of the High Court. But the aforesaid requirements are a mere rule of prudence and the ultimate test is whether the dying declaration can be held to be a truthful one and voluntarily given. It is no doubt true that before recording the declaration, the officer concerned must find that the declarant was in a fit condition to make the statement in question. In Ravi Chander v. State of Punjab [(1998) 9 SCC 303 : 1998 SCC (Cri) 1004] this Court has held that for not examining the doctor, the dying declaration recorded by the Executive Magistrate and the dying declaration orally made need not be doubted. The Court further observed that the Executive Magistrate is a disinterested witness and is a responsible officer and there is no circumstance or material on record to suspect that the Executive Magistrate had any animus against the accused or was in any way interested in fabricating the dying declaration and, therefore, the question of genuineness of the dying declaration recorded by the Executive Magistrate to be doubted does not arise. In the case of Harjit Kaur v. State of Punjab [(1999) 6 SCC 545 : 1999 SCC (Cri) 1130 : (1999) 4 Scale 447] this Court has examined the same question and held: (SCC p. 547, para 5)
“As regards the condition of Parminder Kaur, the witness has stated that he had first ascertained from the doctor whether she was in a fit condition to make a statement and obtained an endorsement to that effect. Merely because that endorsement was made not on the dying declaration itself but on the application, that would not render the dying declaration suspicious in any manner.”
8. In view of the aforesaid decisions of this Court, we are unable to accept the submission of Mr Keshwani that the two dying declarations cannot be relied upon as the doctor has not been examined and the doctor has not made any endorsement on the dying declaration. With regard to the condition of the deceased, the Magistrate who recorded the dying declaration has been examined as a witness. She has categorically stated in her evidence that as soon as she reached the hospital in the Surgical Ward of Dr Shukla, she told the doctor on duty that she was required to take the statement of Dhanuben and she showed the doctor the police yadi. The doctor then introduced her to Dhanuben and when she asked the doctor about the condition of Dhanuben, the said doctor categorically stated that Dhanuben was in a conscious condition. It further appears from her evidence that though there has been no endorsement on the dying declaration recorded by the Magistrate with regard to the condition of the patient but there has been an endorsement on the police yadi, indicating that Dhanuben was fully conscious. …….
Hon’ble Supreme Court in the case of Panchdeo Singh v. State of Bihar, (2002) 1 SCC 577 : 2002 SCC (Cri) 211 at page 579 has held as follows:
3. One of the latest pronouncements of this Court pertaining to the subject finds place in the decision of Arvind Singh v. State of Bihar [(2001) 6 SCC 407 : 2001 SCC (Cri) 1148 : JT (2001) 5 SC 127] wherein, this Court observed that apart from the care and caution factors as noticed earlier the dying declaration ought otherwise to be treated as trustworthy. The issue thus becomes as to whether the dying declaration has been able to bring about a confidence thereon or not — is it trustworthy or is it a mere attempt to cover up the laches of investigation: it must allure to the satisfaction of the court that reliance ought to be placed thereon rather than a distrust: the confidence of the court is the summum bonum and in the event of there being any affirmation thereto in the judicial mind, question of any disbelief or distrust would not arise. In the event however of there being some infirmity, howsoever negligible it be, the court unless otherwise satisfied about the credibility thereof, ought to look for some corroboration, if however it is otherwise, question of requirement of a corroboration would not arise: dying declaration alluring confidence of the court would be a sufficient piece of evidence to sustain conviction. There is no format as such of dying declaration, neither the declaration need be of any longish nature and neatly structured. As a matter of fact, perfect wording and neatly structured dying declaration may bring about an adverse impression and create a suspicion in the mind of the court since dying declarations need not be drawn with mathematical precision — the declarant should be able to recollect the situation resulting in the available state of affairs.
9. The issue thus arises for consideration as to whether a declaration, as above, by itself would tantamount to substantial evidence against the appellant herein warranting the conviction and sentence as affirmed by the High Court.
Hon’ble Supreme Court in the case of Shambhu v. State of M.P., (2002) 3 SCC 561 : 2002 SCC (Cri) 684 at page 562 has held as follows:
1.Appellant Shambhu and his wife Sadhna Bai were tried by the Court of Additional Sessions Judge, Indore in Madhya Pradesh, for the offence punishable under Section 302 read with Section 34 IPC. Against the present appellant, there was also a charge under Section 376 IPC. The Sessions Judge found them “not guilty” and acquitted them of the charges framed against them. Aggrieved by the judgment of the Sessions Court, the State of Madhya Pradesh preferred an appeal before the High Court of Madhya Pradesh and the Division Bench of the Madhya Pradesh High Court found the present appellant guilty of offences punishable under Section 302 IPC, for having caused the death of one Sunder Bai and he was sentenced to imprisonment for life. The finding of the High Court is challenged before us.
2. ………………………..PW 10 sent a requisition to the Executive Magistrate, PW 9, for recording dying declaration of the deceased. PW 9 Executive Magistrate, reached the hospital and recorded the dying declaration of deceased Sunder Bai. Subsequently, Sunder Bai died while undergoing treatment in the hospital and her body was subjected to post-mortem examination. Ten witnesses were examined on the side of the prosecution and the main items of evidence relied on by the prosecution were the evidence of PW 2 and the dying declaration allegedly made by deceased Sunder Bai, which was recorded by PW 9, the Executive Magistrate. The learned Sessions Judge acquitted the appellant for the reasons that the first information report was recorded belatedly and there were a series of discrepancies in Ext. P-1 FI statement and that the dying declaration recorded by PW 9 was not reliable as there was no satisfactory evidence to show that Sunder Bai was in a fit state to give the dying declaration. Learned Sessions Judge also disbelieved PW 9 on the ground that he was not in a position to state the percentage of the burn injuries on the body of deceased Sunder Bai; he had not brought the memorandum received from the police station; and that he did not verify whether the doctor had given sedatives to the deceased. PW 9 was also disbelieved on the ground that he deposed that he reached the hospital on a scooter whereas the Police Inspector had deposed otherwise.
3. The High Court, in appeal, reversed the finding of the Sessions Judge and held that the prosecution had succeeded in proving that appellant Shambhu had caused the death of deceased Sunder Bai. The High Court held that the dying declaration was reliable and that there was no reason to disbelieve the evidence of PW 9.
14. In the instant case, there has been material corroboration, in the sense that deceased Sunder Bai was found with burn injuries near the house of the appellant. PW 2 saw the deceased near the house of the appellant and it was from that place that the deceased was removed to the hospital. PW 1, husband of deceased Sunder Bai, also deposed that on hearing about the incident, he rushed to the place of occurrence and saw the deceased with burn injuries. The High Court considered all this evidence and came to the conclusion that the appellant had committed the offence of murder.
15. The way in which the learned Sessions Judge appreciated the evidence in the instant case shows that the evidence was not viewed from the correct perspective. The High Court has rightly reversed the judgment of the Sessions Court. There is no merit in this appeal, which is dismissed accordingly.
This Court in the case of Mahesh Kumar v. State, 2001 Cri LJ 4417 has held as under:
2. The prosecution story, briefly stated, was that Brij Bihari Awasthi (P.W. 2) had married his daughter Smt, Sunita deceased (17) about 11 months before the occurrence of this case with the appellant Mahesh Kumar. He had provided adequate dowry in the marriage. But when Sunita deceased started living with the appellant after marriage the appellant along with his sister Km. Shashi and brother-in-law Prem Shankar started demand of scooter in dowry from Brij Bihari (P.W. 2). The deceased when returned back to her parents house told to her father that in case scooter was not given to the appellant in dowry, she would be killed. Prior to few days of the occurrence Brij Bihari (P.W. 2) had sent Upendra (P.W. 1) to the Sasural of the deceased for taking her back. The appellant and the other accused told Upendra that Sunita deceased would not be sent back to her parents’ house unless scooter was provided to him.
28. The evidence of brother and father of the deceased clearly indicate that scooter was being demanded in dowry and Upendra (P.W. 1) has further stated that the appellant and other accused were treating the deceased with cruelty for and on account of demand of dowry. No doubt the father of the deceased has not specifically stated about the ill-treatment or cruelty, but he has stated that the deceased had told to him that scooter was being demanded from her and that his son also told that deceased was not permitted to come with him because the demand of scooter was not fulfilled. The above statement of the deceased to her father is admissible under Section 32(1) of the Indian Evidence Act as held by the Apex Court in the case of Kans Raj v. State of Punjab, (2000) 41 All Cri C 3 : ((2000) 5 SCC 207 : AIR 2000 SC 2324). After considering the other decisions it was held in the said case that in view of the legal position statements of Mrs. Sunita made to her parents, brother and other acquaintances, before her death are admissible under Section 32 of the Indian Evidence Act as Section 32 Indian Evidence Act is admittedly an exception to the general rule of exclusion to the hearsay evidence and the statements of a person, written or verbal, of relevant fact, after his death or admissible in evidence if they refer to the cause of his death or to any circumstances of the transaction which resulted in his death. To attract the provisions of Section 32 for the purposes of admissibility of the statement of a deceased the prosecution is required to prove that the statement was made by a person who is dead or who cannot be found or whose attendance cannot be procured without an amount of delay or expense or he is incapable of giving evidence and that such statement had been made under any of the circumstances specified in sub-sections (1) to (8) of Section 32 of the Act. Section 32 does not require that the statement sought to be admitted in evidence should have been made in imminent expectation of death. The word “as to any of the circumstances of the transaction which resulted in his death” appearing in Section 32 must have some proximate relations to the actual occurrence. In other words the statement of the deceased resulting to the cause of death or the circumstances of the transaction which resulted in his death must be sufficiently or closely connected with the actual transaction. To make such statement as substantive evidence, the person or the agency relying upon it is under a legal obligation to prove the making of such statement as a fact. If it is in writing, the scribe must be produced in the Court and if it is verbal, it should be proved by examining the person who heard the deceased making the statement.
35. The facts narrated in the F.I.R./ written report (Ex.Ka.-1) corroborate and are the same as mentioned in the written statements of the deceased, Ex.Ka.-16 Ex.Ka.-17.
36. Learned Amicus Curiae has argued on the basis of statement of P.W.8, the Investigating Officer, given in his cross-examination that P.W.8 has accepted this fact that mental state and condition of the victim Smt. Maya Devi was not verified from the concerned doctor by him, whether she was able to give her statement or not.
37. P.W.8, the Investigating Officer, has clarified this fact that the deceased Smt. Maya Devi was admitted in the District Hospital, Unnao. He was deputed for investigation of this case, after employee of the hospital informed at the police station. When he visited the District Hospital and inquired from Smt. Maya Devi, he did not inform any doctor or incharge of ward. He has specifically stated that when he recorded statement of injured, nobody, doctor, compounder or nurse was present at the place, where Smt. Maya Devi was admitted.
38. P.W.8 has also stated that her family members were also not present. He did not obtain signatures of family members of the victim. He has specifically stated in his cross-examination that when he took statement of the injured (since deceased), family members of the injured were not present. He has refuted the suggestion that he conducted the aforesaid false proceedings on the dictation of mother and brother of injured Smt. Maya Devi and she never handed over any written statements, Ex.Ka.-16 Ex.Ka.-17 to him. He has also refuted this suggestion that the deceased in injured state was not able to speak, because her trachea was cut.
39. P.W.8, in his cross-examination, conducted on behalf of appellant-Bablu, has stated that Smt. Maya Devi has also mentioned in his aforesaid statements that Bablu also gave blow on her throat. He has specifically stated that Smt. Maya Devi in injured state had not stated before him that injuries were caused on which part of her body. She only told him that the accused persons caused injuries by giving blow of knife. Therefore, no material contradiction was elicited during the cross-examination of P.W.8 and he has proved the statements, Ex.Ka.-16 Ex.Ka.-17 in the nature of written dying declaration given to him by Smt. Maya Devi, while she was admitted in the District Hospital, Unnao. He has also recorded statement of the deceased Smt. Maya Devi under Section 161 Cr.P.C. separately.
40. Both the appellants have not challenged these written statements, Ex.Ka.-16 Ex.Ka.-17, by adducing opinion of hand writing expert regarding these written statements of Smt. Maya Devi. They have never challenged these letters by adducing sufficient and cogent defence evidence, although they have suggested P.W.8 that these written statements were false and fabricated. P.W.8 has proved this fact specifically that Smt. Maya Devi wrote these written statements, Ex.Ka.-16 Ex.Ka.-17 in his presence.
41. On the basis of hand writing available on Ex.Ka.-16 Ex.Ka.-17 and written report, Ex.Ka.-1, these documents could be got compared by the appellants to prove this fact that Smt. Maya never wrote Ex.Ka.-1 or Ex.Ka.-16 Ex.Ka.-17, while she was admitted in District Hospital, Unnao.
42. P.W.8 has also stated in his examination-in-chief that when he recorded statement of deceased in injured state, she spoke same facts and after that she could not speak, therefore, she apprised him by gesture and by writing, Ex.Ka.-16 Ex.Ka.-17, written statements, because she could not speak further.
43. On perusal of case diary it reveal that Investigating Officer on 12.06.2006 has recorded statement of Smt. Maya Devi under Section 161 Cr.P.C., while she was admitted in the District Hospital, Unnao in injured state. It is also mentioned in this statement that Smt. Maya Devi was apprising the Investigating Officer on intervals that her husband Amit Rajput was levelling allegation of inchastity. He asked her to accompany him and Bablu for a party. Her husband Amit Rajput, with intention to commit murder, assaulted her with knife. After that she could not speak, and apprised him by gestures that she could write further details. Therefore, on the basis of expositions of law, propounded by Hon’ble Apex Court, written statements, Ex.Ka.-16 Ex.Ka.-17 of the victim/ deceased Smt. Maya Devi and her statement recorded by the Investigating Officer under Section 161 Cr.P.C. comes within the purview and nature of dying declaration.
44. The version mentioned in the written report of the deceased is the same as mentioned in Ex.Ka.-16 Ex.Ka.-17, written statements provided by her to the Investigating Officer-P.W.8. Apparently, on perusal of these documents, some nature of forming alphabets and words appears to be differed, but formation of name ‘Maya’, ‘Amit’ and ‘Bablu’ are the same. The word, ‘Kailash’ of the names, ‘Kailash Nath’ and ‘Kailash Prasad’ are the same. Formation of word, ‘party, ‘road’, and basic features of hand writing of the deceased Smt. Maya Devi are the same. Therefore, there is no substance in the argument of learned Amicus Curiae that written report of the deceased, Ex.Ka.-1 and the alleged statements, Ex.Ka.-16 Ex.Ka.-17 were prepared, false and fabricated. Moreover, these documents had not been challenged by the appellants by adducing any defence evidence.
45. We have perused the postmortem report and injury report of the deceased. The genuineness of postmortem report, Ex.Ka.-11 was admitted on behalf of appellants on 11.09.2008, therefore, prosecution did not produce the concerned doctor, who conducted autopsy of the deceased on 29.06.2006 at 12:30 p.m. Likewise, genuineness of inquest report(Ex.Ka.-5) and genuineness of other documents, photo-Nash of the dead body (Ex.Ka.-6), report to C.M.O.(Ex.Ka.-7), sample of seal (Ex.Ka.-8) and police proforma(Ex.Ka.-9) was also admitted on behalf of appellants. The inquest report(Ex.Ka.-5) reveals that injuries were found on throat and abdomen of the deceased and Panch witnesses opined that death of the deceased Smt. Maya Devi might have been caused due to ante mortem injuries.
46. P.W.5, Dr. Mahendra Pratap Singh prepared medical examination report (Ex.Ka.-10) on the basis of original injury report register maintained at the hospital. He has stated that on 12.02.2006 (correct date 12.06.2006) at 7:55 a.m. he medically examined Smt. Maya Devi in injured state. He was performing duty of Emergency Medical Officer. He found following injuries on her body:
(i) Incised wound of size 12 c.m. x 4 c.m. x trachea deep present on front of neck, 7 c.m. below chin underneath soft tissue, muscle and trachea were cut. Patient was unable to speak.
(ii) Punctured wound of size 1 c.m. x 0.5 c.m. x cavity deep present on front of abdomen 4.5 c.m. above umbilicus at 1.00 o’clock position.
Dr. Mahendra Pratap Singh has opined that injury-1 was caused by sharp edged weapon. Duration of injury was half day old. He advised X-Ray of neck and head of the deceased. He also opined that injury-2 was caused by sharp edged and pointed thing. This injury was kept under observation. Advised X-Ray and ultrasound of this injury. He also referred Smt. Maya Devi to E.N.T. Surgeon and General Surgeon. He has proved this fact also that these aforesaid injuries may be caused on 11.06.2006 in between 9.00 p.m. to 11:00 p.m.
47. Dr. Mahendra Pratap Singh, P.W.5, has refuted this suggestion in his cross-examination that injury-2 could not be inflicted by sharp edged weapon. He has opined that injury-2 could not be caused by knife. This opinion given by witness P.W.5 does not extend any benefit to the appellants. He was unable to opined regarding nature of injury-2 that it could be fabricated/ self inflicted. P.W.5 has specifically stated that injury-1 could not be self inflicted/ fabricated. He wrote address of the victim as apprised by the witness, P.W.1-Shrawan. He has stated in his examination-in-chief that Shrawan, S/o Ishwari brought the victim Smt. Maya Devi at the District Hospital, Unnao.
48. P.W.5, in his cross-examination has disclosed this fact that he informed police personnel of Kotwali, Unnao and prepared bed head ticket of the victim. He gave treatment to the victim and stayed up to 9:00 p.m. He could not disclose that whether any police person visited hospital in his presence or not. He has denied this fact that injury-1 could be caused by Gadasa, but he has stated that it could be caused by Chhuri of shape of Chikwa Tabal. Although he has opined that injury-2 could be caused by Suja(Poker), but he has opined that this injury could not be self inflicted/ fabricated.
49. Therefore, no material contradiction was elicited during the cross-examination of P.W.5-Doctor on behalf of appellants. Injury-1 was seated on throat/ neck of the victim Smt. Maya Devi and victim sustained this incised wound up to trachea deep and her soft tissue, muscle and trachea was cut by the effect of this injury and ultimately resulted in death of the victim Smt. Maya Devi.
50. Perhaps since genuineness of postmortem report was admitted on behalf of appellants by the learned defence counsel, therefore, prosecution did not produce the concerned doctor, but if appellants really wanted to know the nature of injury according to the provisions of Section 300 I.P.C. Clasue-3 that injuries sustained by the victim Smt. Maya Devi were sufficient in ordinary course of nature to cause death or not, then cross-examination on this point should have been conducted during cross-examination of P.W.5-Dr. Mahendra Pratap Singh. The seat of injury-1 was on neck/ throat of the victim/ deceased and it was size of 12 c.m. x 4 c.m. having depth up to trachea. Soft tissues, muscle and trachea underneath injury-1 was cut. This nature of injury, itself, indicates that fatal and serious injury was sustained by the deceased.
51. We have also perused postmortem report (Ex.Ka.11). The concerned doctor found following injuries on the corpse of the deceased:
“1. Stitched would neck anteriorly 6.0 c.m. below chin 7.0 c.m. long, 5 stitches present, drain tube present on left side neck.
2. Tracheostomy wound 3.0 c.m. below injury No.1 anteriorly midline. 1 c.m. x 1 c.m. x puss present.
The concerned doctor has opined cause of death shock and septicemia due to ante mortem injury.”
52. Learned Amicus Curiae has argued that main cause of death of the deceased was septicemia developed due to alleged ante mortem injuries. The main cause of death was not ante mortem injuries sustained by her. The deceased died after 18 days, therefore, appellants’ punishment may be converted to the offence punishable under Section 304 I.P.C. instead of offence punishable under Section 302 I.P.C. He has further argued that since prosecution did not prove the nature of injuries sustained by the deceased, therefore, there was no occasion to conduct cross-examine on this point to P.W.5-Dr. Mahendra Pratap Singh, because P.W.5 has not stated in his examination-in-chief that injury-1 sustained by victim was sufficient in ordinary course of nature to cause her death.
53. P.W.1-Shrawan brought the victim in an injured state at District Hospital, Unnao and stayed in the hospital until the victim regained consciousness. He submitted written report at police station provided by Smt. Maya Devi to him. P.W.8-Investigating Officer has stated that victim for sometime spoke slowly and apprised him the circumstances in which appellants inflicted injuries on her neck and abdomen. After that victim apprised him by gestures and through written statements, Ex.Ka.-16 Ex.Ka.-17, circumstances of the incident committed by the appellants.
54. P.W.7 has stated that Shri Sanjay Rai, who has expired, was Inspector Incharge, who recorded additional statement of Shrawan on 09.07.2006. P.W.7-S.I., Pramod Kumar Shukla has recorded statement of appellant Bablu in jail on 02.08.2006 and submitted charge sheet against the appellants. He mentioned injury report and post mortem report in case diary and recorded statements of Shiv Charan, Smt. Parvati and Rakesh. In his cross-examination he has stated that the victim was able to speak slowly. She apprised him by gestures that she was unable to go at the place of occurrence and Shrawan had seen the place of occurrence, therefore, he may bring Shrawan at the place of occurrence. P.W.7, in his cross-examination conducted by appellant-Bablu, has stated that he prepared site plan of the place of occurrence on pointing out of Shrawan.
55. It may be fault of P.W.8 that he has not collected bed head ticket of the victim from the District Hospital, Unnao. He did not inform the Ward Incharge or the concerned doctor before he inquired from the victim about the circumstances in which she sustained injuries and recorded statement of the victim under Section 161 Cr.P.C. and while he obtained statements Ex.Ka.-16 Ex.Ka.-17 of the victim.
56. Likewise, it may be fault of P.W.7-S.I., Pramod Kumar Shukla that he did not mention in case diary and site plan, existence of brick kiln and the name of owner of brick kiln, where witness Shrawan was working. It is pertinent to mention here that P.W.7 has mentioned in site plan, Ex.Ka.-14, Singrausi Brick Kiln near which place marked ‘A’ was situated, from where, P.W.1-Shrawan brought the victim Smt. Maya Devi in injured state at District Hospital, Unnao.
57. It may be fault of P.W.7 that he did not obtain bed head ticket of the victim from the hospital. He has stated that when he visited place, where victim was admitted in hospital, Shrawan or family members of the victim were not present there. He has stated that he wanted to bring the victim Smt. Maya Devi at the place of occurrence, but her condition was not good, therefore, he could not brought her at the place of occurrence.
58. P.W.7 has disclosed this fact that due to rain blood was not found at the place of occurrence, when he visited the place of occurrence on 14.06.2006. It may be fault/ omission of P.W.7 that in which circumstances jewellary of victim disappeared and was not found. The statement of P.W.7 given in cross-examination does not extend any benefit to appellant Bablu that he did not inquire about Bablu from the victim, whereas he has accepted that he had met with the victim.
59. It is pertinent to mention here that P.W.7 has not recorded statement of victim Smt. Maya Devi. He contacted her only to bring her at the place of occurrence for inspecting it. P.W.8-S.I., Brij Kishore Singh has recorded statement of the victim. Therefore, there is no substance in the arguments of learned Amicus Curiae that victim did not apprise this witness P.W.7 about involvement of appellant-Bablu in the incident. P.W.7 in his examination-in-chief has specifically stated that he has recorded statements of Shrawan, Shiv Charan, Smt. Parvati, who is mother of victim, and Rakesh, who is brother of victim only. He prepared site plan of the place of occurrence (Ex.Ka.-14) on pointing out by the witness, Shrawan.
60. Therefore, no material contradiction was elicited during cross-examination of P.W.7 on behalf of appellants. The prosecution version/ case cannot be discarded on the basis of omissions and faults committed by the Investigating Officers, P.W.7 P.W.8, as pointed out by learned Amicus Curiae. Therefore, there is no substance in the arguments of learned Amicus Curiae regarding these omissions and faults pointed out by him.
61. The dying declaration of the victim/ deceased, Ex.Ka.16 Ex.Ka.-17 and her statement recorded under Section 161 Cr.P.C. reveal that victim Smt. Maya Devi in her written report, Ex.Ka.-1 and these statements, has apprised the Investigating Officer that both the appellants Amit Rajput and Bablu caused injuries sustained by her.
62. P.W.2-Smt. Parvati, who is the mother of the victim Smt. Maya Devi, has stated in her examination-in-chief that 8-9 months (prior to date of her statement) and in her cross-examination dated 15.05.2007 that on date 12 at 6:30 p.m. information was given by police personnel that victim Smt. Maya Devi was admitted in hospital. She visited on Tuesday/ the next day. She informed her son by phone also and her son also visited hospital on Tuesday. She informed Baburam and his sons about the incident occurred with Maya and her admission in the hospital, then they visited District Hospital, Unnao on the third day. Maya could not speak due to tube inserted in her throat, therefore, on the third day she could not have any conversation with the victim.
63. P.W.2 has specifically stated that victim Maya remained admitted in hospital for 12 days. During this period of 12 days, Baburam and his sons did not visited hospital again. After 12 days she brought the victim at her house. The victim spoke after 2-3 days and apprised her that she would not be survived and please look after her daughter Shivani. On date 28 (28.06.2006) victim expired. P.W.2 has refuted this suggestion that son of Baburam Yadav had obtained entire jewellary from Maya and brought her elsewhere and committed her murder. She has also refuted this suggestion that Baburam and his associates are Goonda, musclemen and they procured to get involve Amit falsely in this crime.
64. Learned Amicus Curiae has pointed out that in the statement of P.W.3 given in his cross-examination, there is contradiction about admission of the victim/ deceased Maya Devi in the hospital that she was admitted in District Hospital for 10 days, then she was brought at Hewlett Hospital, Kanpur and after six days she expired, whereas, P.W.2 Smt. Parvati has stated that victim remained admitted in District Hospital for 12 days, then she brought her at her house and victim expired on 28.06.2006.
65. There is no contradiction in the statements of P.W.2 and P.W.3 regarding the fact that police personnel gave information of incident to P.W.2 and after receiving information P.W.2 visited hospital on the next day and met with the victim Maya who was admitted in the hospital in injured state.
66. P.W.2 has stated in her examination-in-chief that the victim/ deceased apprised her that her husband Amit Rajput and Bablu, appellants, brought her by motorcycle at 7:30 to 8:00 p.m. on the date of occurrence at place of occurrence on the pretext to attend a marriage. On the way both the appellants silt her throat and left her on the place of occurrence perceiving that she had expired and fled away from the place of occurrence. She has also stated that at 6:30 to 7:30 p.m., 8-9 months ago police personnel visited her house and apprised her that victim Maya was admitted in District Hospital, Unnao and her husband inflicted the injury from knife on her neck.
67. Likewise, P.W.3-Rakesh in his examination-in-chief has stated that police personnel informed her mother that her daughter has been assaulted and she is admitted in the hospital. The incident was occurred 6-7 months prior to Rakshabandhan. He visited hospital on the next day then his sister/ victim apprised him that both the appellants Amit and Bablu silt her throat. Therefore, evidence of P.W.2 and P.W.3 is admissible under Section 6 and 32(1) of Indian Evidence Act, because the victim Smt. Maya Devi apprised both these witnesses that both the appellants silt her throat. These were circumstances, in which, Smt. Maya Devi sustained injuries inflicted by the appellants.
68. It is relevant to mention her that P.W.3 in his cross-examination has disclosed this fact that he has not having documents of Hewlett Hospital, Kanpur regarding treatment of victim. The amount of Rs.800-1000/- were expenses of the Hospital, therefore, they brought the victim at his house and her treatment was going on.
69. P.W.3 has refuted this suggestion that they informed Amit regarding the injured state of victim and her admission in the hospital. When appellant Amit visited hospital then he was handed over to the police personnel. This suggestion is contradictory to the cross-examination conducted on behalf of appellant Amit, because in his cross-examination he has disclosed this fact that he visited hospital on dated 13 (13.06.2006) at 11:30 p.m. where the victim Maya was admitted. Tube was inserted in her throat. Bandage was applied. The victim Maya Devi was unable to speak, but she apprised him by gestures. He apprised the police personnel about the name of appellant Amit. Nobody accompanied the police personnel for house of Amit. The police personnel brought Amit two and half to three hours at the hospital. Then he identified the appellant Amit.
70. P.W.3 has specifically stated that knife was not shown to him by the police personnel, who came to the hospital along with Amit. They had shown a paper written by Maya. Therefore, there is no substance in the suggestion given to P.W.3 that Amit was called by him and his family members and he was handed over to the police personnel. P.W.3 has also refuted this suggestion that second husband and his brothers assaulted the victim and appellant Amit was falsely implicated in this crime, because this witness and his family members misappropriated jewellary and clothes of victim Maya.
71. The victim/ deceased Smt. Maya Devi apprised the witnesses P.W.2 and P.W.3, in which, circumstances both the appellants silt her throat and she sustained injuries which have been proved by P.W.5-Dr. Mahendra Pratap Singh. Therefore, ocular evidence of P.W.2 and P.W.3 has been supported and corroborated by the medical evidence of P.W.5.
The following exposition of law is relevant for admissibility of evidence of witnesses, P.W.1, P.W.2 and P.W.3 under Section 6 of the Indian Evidence Act:
In the case of Gentela Vijayavardhan Rao v. State of A.P., reported in (1996) 6 SCC 241, Hon’ble Apex Court in paragraph no. 15 has held as under:-
15. The principle of law embodied in Section 6 of the Evidence Act is usually known as the rule of res gestae recognised in English law. The essence of the doctrine is that a fact which, though not in issue, is so connected with the fact in issue “as to form part of the same transaction” becomes relevant by itself. This rule is, roughly speaking, an exception to the general rule that hearsay evidence is not admissible. The rationale in making certain statement or fact admissible under Section 6 of the Evidence Act is on account of the spontaneity and immediacy of such statement or fact in relation to the fact in issue. But it is necessary that such fact or statement must be a part of the same transaction. In other words, such statement must have been made contemporaneous with the acts which constitute the offence or at least immediately thereafter. But if there was an interval, however slight it may be, which was sufficient enough for fabrication then the statement is not part of res gestae. In R. v. Lillyman [(1896) 2 QB 167 : (1895-99) All ER Rep 586] a statement made by a raped woman after the ravishment was held to be not part of the res gestae on account of some interval of time lapsing between the act of rape and the making of the statement. Privy Council while considering the extent up to which this rule of res gestae can be allowed as an exemption to the inhibition against hearsay evidence, has observed in Teper v. R. [(1952) 2 All ER 447] thus:
“The rule that in a criminal trial hearsay evidence is admissible if it forms part of the res gestae is based on the propositions that the human utterance is both a fact and a means of communication and that human action may be so interwoven with words that the significance of the action cannot be understood without the correlative words and the dissociation of the words from the action would impede the discovery of the truth. It is essential that the words sought to be proved by hearsay should be, if not absolutely contemporaneous with the action or event, at least so clearly associated with it that they are part of the thing being done, and so an item or part of the real evidence and not merely a reported statement.”
The correct legal position stated above needs no further elucidation.
In the case of Sukhar v. State of U.P. reported in (1999) 9 SCC 507 Hon’ble the Apex Court in paragraph nos. 6 and 10 has held as under:
6. Section 6 of the Evidence Act is an exception to the general rule whereunder the hearsay evidence becomes admissible. But for bringing such hearsay evidence within the provisions of Section 6, what is required to be established is that it must be almost contemporaneous with the acts and there should not be an interval which would allow fabrication. The statements sought to be admitted, therefore, as forming part of res gestae, must have been made contemporaneously with the acts or immediately thereafter. The aforesaid rule as it is stated in Wigmore’s Evidence Act reads thus:
“Under the present exception [to hearsay] and utterance is by hypothesis, offered as an assertion to evidence the fact asserted (for example that a car brake was set or not set), and the only condition is that it shall have been made spontaneously, i.e. as the natural effusion of a state of excitement. Now this state of excitement may well continue to exist after the exciting fact has ended. The declaration, therefore, may be admissible even though subsequent to the occurrence, provided it is near enough in time to allow the assumption that the exciting influence continued.”
10. Applying the ratio of the aforesaid two cases to the evidence of PW 2, we have no hesitation to come to the conclusion that his statement indicating that the injured told him that his nephew has fired at him, would become admissible under Section 6 of the Evidence Act. We are, therefore, unable to accept the first submission of Ms Goswami, learned counsel appearing for the appellant.
In Rattan Singh v. State of H.P. reported in 1997 (4) SCC 161, Hon’ble Apex Court has examined the applicability of Section 6 of the Evidence Act to the statement of the deceased and has held in paragraph no. 16 as under:
16. Even apart from Section 32(1) of the Evidence Act, the aforesaid statement of Kanta Devi can be admitted under Section 6 of the Evidence Act on account of its proximity of time to the act of murder. Illustration ”A’ to Section 6 makes it clear. It reads thus:
“(a) A is accused of the murder of B by beating him. Whatever was said or done by A or B or the bystanders at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact.”
Here the act of the assailant intruding into the courtyard during dead of the night, victim’s identification of the assailant, her pronouncement that appellant was standing with a gun and his firing the gun at her, are all circumstances so intertwined with each other by proximity of time and space that the statement of the deceased became part of the same transaction. Hence it is admissible under Section 6 of the Evidence Act.
Hon’ble Supreme Court in the case of Krishan Kumar Malik v. State of Haryana, (2011) 7 SCC 130 : (2011) 3 SCC (Cri) 61 in the following paragraphs has held as under:
33. As per the FIR lodged by the prosecutrix, she first met her mother Narayani and sister at the bus-stop at Kurukshetra but they have also not been examined, even though their evidence would have been vital as contemplated under Section 6 of the Evidence Act, 1872 (for short “the Act”) as they would have been res gestae witnesses. The purpose of incorporating Section 6 in the Act is to complete the missing links in the chain of evidence of the solitary witness. There is no dispute that she had given full and vivid description of the sequence of events leading to the commission of the alleged offences by the appellant and others upon her. In that narrative, it is amply clear that Bimla Devi and Ritu were stated to be at the scene of alleged abduction. Even though Bimla Devi may have later turned hostile, Ritu could still have been examined, or at the very least, her statement recorded. Likewise, her mother could have been similarly examined regarding the chain of events after the prosecutrix had arrived back at Kurukshetra. Thus, they would have been the best persons to lend support to the prosecution story invoking Section 6 of the Act.
34. We shall now deal with Section 6 of the Act, which reads as under:
“6. Relevancy of facts forming part of same transaction.– Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places.”
36. The said evidence thus becomes relevant and admissible as res gestae under Section 6 of the Act.
37. Section 6 of the Act has an exception to the general rule whereunder hearsay evidence becomes admissible. But as for bringing such hearsay evidence within the ambit of Section 6, what is required to be established is that it must be almost contemporaneous with the acts and there could not be an interval which would allow fabrication. In other words, the statements said to be admitted as forming part of res gestae must have been made contemporaneously with the act or immediately thereafter. Admittedly, the prosecutrix had met her mother Narayani and sister soon after the occurrence, thus, they could have been the best res gestae witnesses, still the prosecution did not think it proper to get their statements recorded. This shows the negligent and casual manner in which the prosecution had conducted the investigation, then the trial. This lacunae has not been explained by the prosecution. The prosecution has not tried to complete this missing link so as to prove it, beyond any shadow of doubt, that it was the appellant who had committed the said offences.
72. The evidence adduced by witnesses P.W.2 and P.W.3 is also admissible under Section 32(1) of Indian Evidence Act regarding facts and circumstances apprised by the victim to them, in which victim/ deceased sustained injuries in the incident committed by both the appellants Amit and Bablu. It is not required for the statement of the deceased admissible under Section 32(1) of Evidence Act that it should be given by the victim/ deceased in anticipation of her death. If statement was given in injured state by the deceased regarding facts and circumstances in which he or she sustained injuries, which resulted in death, then this statement of victim/ deceased would certainly come within the category of dying declaration. Therefore, there is no substance in the arguments of learned Amicus Curiae that witnesses, P.W.1-Shrawan, P.W.2-Smt. Parvati and P.W.3-Rakesh had not seen the alleged incident, in which, both the appellants assaulted the victim.
73. We have perused the evidence of witnesses, P.W.2-Smt. Parvati and P.W.3-Rakesh regarding the fact whether the victim Smt. Maya Devi was legally wedded wife of appellant Amit Rajput or not, because appellant Amit Rajput has denied this fact that he was never married with the victim. The suggestions were given during cross-examination of P.W.2 and P.W.3 that victim Smt. Maya Devi was married to son of Baburam and they gave ample jewellary and clothes to Smt. Maya Devi. They were annoyed due to relationship of victim with the appellant Amit Rajput, therefore, they snatched jewellary and clothes from Smt. Maya Devi and committed this incident with the victim.
74. P.W.2 and P.W.3 have specifically refuted these suggestions that Baburam and his family members inflicted injuries to the victim in some other incident. No such circumstances were proved by adducing defence evidence in support of suggestion given by learned defence counsel to P.W.2 and P.W.3. The appellant Amit Rajput by taking permission under Section 315 Cr.P.C. from the trial court or by adducing any other defence evidence could prove this fact that Baburam and his family members were annoyed from the victim. On the other hand, P.W.2 has stated in her cross-examination that Baburam and his sons visited on the third day of the incident at District Hospital, while they were informed by her about the injured state and admission of the victim in the hospital. Baburam or his family members could have been produced in defence on behalf of appellant Amit if he has falsely been implicated in this crime on the basis of fact of misappropriation of jewellary and clothes of Smt. Maya Devi by P.W.2 and P.W.3 which were given by Baburam.
75. Therefore, there is no substance in the arguments of learned Amicus Curiae that accused Amit Rajput has falsely been implicatedin this crime due to the reason that witnesses P.W.2 and P.W.3 misappropriated the jewellary and clothes of the victim and Baburam and his sons assaulted the victim.
76. P.W.2-Smt. Parvati is mother of the victim. She has stated that her daughter Maya solemnized love marriage with Amit 12 years ago. Amit deserted Maya, therefore, Maya was residing with her. She has further stated that after one year of Maya’s marriage with Amit, his first wife Anno quarelled with Maya at her house, then she came to know that Amit was already married. P.W.2 has also disclosed this fact that his son Sanjay is residing separately from her since long. P.W.2 has further stated that Amit was not maintaining her daughter, but he often met her daughter on the third or fourth day.
77. P.W.2 has mentioned that she solemnized marriage of the victim with the son of Baburam again. Maya got ample jewellary from her in-laws. Maya visited her house after 6-7 days of her marriage and after that on fourth day she left her house bringing with her jewellary and other articles and started living with Amit Rajput in Cantt., Kanpur. Afterwards, Maya resided with Amit in Shuklaganj in a rented accommodation.
78. During her cross-examination, P.W.2 has stated that her husband Gaya Prasad was posted in C.O.D., Lucknow and her marriage was solemnized with him at Lucknow. She is receiving pension after death of her husband. She has refuted the suggestion that she left her husband Harinath and then settled with Gaya Prasad. She has specifically stated that her marriage was solemnized with Gaya Prasad 20-27 years ago. Gaya Prasad was the resident of hilly area. Gaya Prasad expired 10 years ago.
79. P.W.2 has also stated that on this point of time she was residing in servant quarter of Colonel Prabhakar and worked as domestic help in the house of Colonel Prabhakar. She worked as domestic help in houses of other persons also after Colonel Prabhakar left this place then she resided in the house of Kumkum Chaurasia. Daughter of Smt. Maya Devi born in the house of Colonel Prabhakar. P.W.2 during her cross-examination has specifically denied this fact that Smt. Maya Devi never went to perform the events of singing. She was educated up to 8th class.
80. P.W.2 in her cross-examination dated 25.04.2007 has also stated that Amit for the first time visited to call his son and daughter-in-law for working in orchestra 6-7 years ago. Afterwards, his son, daughter-in-law or Maya Devi never went to perform in orchestra. She has stated that when the victim Maya Devi solemnized her marriage with Amit, then her son Sanjay got annoyed and lived separately.
81. P.W.2 in her cross-examination dated 15.05.2007 has clarified this fact that marriage of Smt. Maya Devi was solemnized in Navratra with the son of Baburam, resident of Sarsaul, Kanpur one year ago. She has disclosed this fact that Baburam was having two sons and three daughters. She has stated that she contacted Sub Inspector when the incident was occurred with Maya. She did not apprise the Investigating Officer that she solemnized marriage of Maya with some person resident of Banepurwa, District Barabanki. She has further stated in her cross-examination that her daughter resided in her matrimonial house for two months. She returned back on 15 May and brought jewellary and clothes with her.
82. P.W.2 has clarified this fact that she apprised Baburam about first marriage of Maya and that her husband was alive. She has also stated that on date 15 May, Maya left her house and on fourth day she came back along with Amit and his associate and brought her entire household goods. She informed in this regard to Baburam Yadav, then Baburam and his sons visited her place. Maya and Amit were residing in Deviganj. Babu and his sons were apprised in this regard, thereafter she never met with them.
83. P.W.2 has refuted this suggestion that she misappropriated jewellary and clothes given by Baburam to Smt. Maya Devi at the point of time of her marriage. She has specifically stated that Baburam and his sons never tried to trace Maya prior to the incident of this case. She has accepted this fact that Bablu is not brother of Amit. She does not know father of Bablu. She never met him, nor her son knows Bablu and where he resides. She did not apprise the Investigating Officer that she and her son know house of Bablu.
84. Therefore, the victim/ deceased resided with the appellant Amit as wife after alleged love marriage. When she came to know that Amit was already married then she left his place of residence and resided with her mother, P.W.2-Smt. Parvati. Then P.W.2 solemnized marriage of Maya with the son of Baburam and the deceased resided in her matrimonial house only for two months and then returned back at her house. The appellant Amit often met the victim at the house of P.W.2 and the victim Maya left her house and started living with Amit again, while she came back at her house on 15 May. Baburam and his sons visited the District Hospital, Unnao on the third day, when information was given to them by P.W.2. Afterward they never turned up at the District Hospital and contacted her. Therefore, the fact of love marriage of victim with appellant Amit has been proved by P.W.2, although Amit Rajput has denied this fact in his statement recorded under Section 313 Cr.P.C., but his denial only cannot extend any benefit to him and is of no avail.
85. P.W.3-Rakesh is the brother of the victim/ deceased. She was his younger sister. Amit was working in orchestra and often visited house of P.W.3. He has stated that Amit solemnized marriage with his sister in a temple 10 years ago. After 6-7 months, when she came to know that Amit was already married, then Maya left house of Amit and resided at her parental house with P.W.2, her mother and this witness. Afterwards, Amit often visited house of this witness and met with Smt. Maya Devi. P.W.3 has clarified this fact that Shivani born out of relationship of Amit and Maya. Amit quarelled with Maya and did not maintain her, therefore, marriage of victim was solemnized again. Maya came back from her matrimonial house after one and half months, then Amit again visited his house and enticed the victim. The jewellary and other articles were brought by them. He has accepted this fact that he does not know Bablu Raidas.
86. P.W.3 in his cross-examination has clarified this fact that when Amit solemnized marriage with Maya, then he was residing with his family in a house situated at Karmchari Nagar, P.A.C. Turn. He has specifically stated that Smt. Maya Devi never accompanied Amit for performing and singing at the stage. He knows Amit from 12 years. Amit was his friend and often visited his house. When Amit solemnized marriage with his sister/ victim, then he came to know about their love affair. When Amit and victim solemnized their marriage in a temple, then he did not raise any objection. Maya resided with Amit for six months and did not came at his house.
87. P.W.3 came to know after seven months of marriage of Maya that Amit was already married and he was having children. He apprised Maya about this fact, then Maya started living with him and P.W.2. Amit often visited their house, but did not maintain Maya. Maya was his wife, therefore, he could not raise any objection. He has stated that since Amit did not maintain Maya, therefore, they solemnized marriage with Baburam, resident of Village Eda, which is situated ahead Ramadevi.
88. Learned Amicus Curiae for appellants has argued that there is contradiction in the statement of P.W.2 and P.W.3 regarding the fact that second marriage of Smt. Maya Devi was solemnized with Baburam or his son. Smt. Maya Devi/ deceased solemnized love marriage with Amit Rajput, appellant, as stated by P.W.2 and after solemnization of marriage of Smt. Maya Devi with Amit, P.W.3-Rakesh, her son, got annoyed and started living separately. P.W.3-Rakesh never visited house of Baburam prior to marriage of Smt. Maya Devi.
89. P.W.3 has also specifically stated that he apprised Baburam that husband of Maya did not maintain her, therefore, her second marriage was being solemnized. Maya did not obtain divorce from any court. Maya resided at house of Baburam for 15-20 days. In-laws of Maya/ victim gave ample jewellary and clothes to Maya. She brought this jewellary and clothes with her and resided at his house. The victim Maya was enticed by Amit Rajput one month prior to the date of incident. He has also stated corroborating statement of P.W.2 that they informed Baburam in this regard.
90. P.W.3 in his statement in cross-examination has clarified that residence of Amit and Maya was not known to him, therefore, he could not apprise Baburam about details of their residence. P.W.3 has accepted this fact that he apprised the Investigating Officer that after marriage of Maya with Amit, he started living in Bansmandi after six months. Baburam visited his house 2-3 times and asked them to trace Maya. P.W.3 has clarified in his cross-examination that Bablu is friend of Amit. He does not know caste and name of his father. He never apprised the Investigating Officer that Bablu is the son of Jagdish Raidas and his house number is 8135.
91. The contradictions appeared in the statement of P.W.3 about the marriage of Smt. Maya Devi with Baburam or his son seems to be given carelessly or due to his annoyance with the victim on the ground that she solemnized marriage with Amit. Because he was residing separately from his mother, P.W.2, therefore, he stated as such in his cross-examination. P.W.3 in his examination-in-chief has not specifically stated that second marriage of Smt. Maya Devi was solemnized with Baburam. This statement that second marriage of Smt. Maya Devi was solemnized with Baburam, was stated by him in his cross-examination.
92. Whereas, P.W.2, his mother, has specifically stated that second marriage of Smt. Maya Devi was solemnized with the son of Baburam. The contradictions pointed out by the learned Amicus Curiae is of no avail in the circumstances disclosed by P.W.2 and P.W.3 that Smt. Maya Devi was residing with appellant Amit Rajput, even after her marriage with son of Baburam.
93. On 15 May, 2006, i.e., one month prior to the date of incident, Smt. Maya Devi eloped with Amit Rajput from the house of P.W.2 and resided with him, until the date of incident. The witnesses, P.W.2 and P.W.3 have proved this fact that Amit Rajput was already married and he solemnized marriage with Smt. Maya Devi concealing this fact and when this fact came in the knowledge of P.W.3, he apprised the victim and the victim Smt. Maya Devi left house of Amit even then Amit often visited house of P.W.2 and enticed the victim and resided with her till the date of incident.
94. Therefore, the relationship of Smt. Maya Devi with Amit, can be termed as wife and husband/ live-in-relationship also because P.W.2 and P.W.3 have not produced evidence regarding so called love marriage of the victim with Amit solemnized in a temple. The arguments of learned Amicus Curiae in this regard does not help the appellants in any way. The involvement of Bablu in the incident as associate of appellant Amit came to light by means of written report, Ex.Ka.-1 and the written statements, Ex.Ka.-16 and Ex.Ka.17, which were written by the victim herself after the incident. Therefore, P.W.2 and P.W.3 were not able to disclose parentage and details of residence of appellant Bablu Raidas @ Virendra is of not so important.
95. Moreover, P.W.3 has disclosed this fact that Bablu Raidas is friend of Amit. Bablu has accepted this fact in his statement recorded under Section 313 Cr.P.C. that he worked as electrician in orchestra of Amit, therefore, there is possibility that he was associate of Amit for committing this incident with the victim as disclosed by her. The statements of P.W.2 and P.W.3 in this regard do not affect the prosecution version adversely.
96. Learned Amicus Curiae has further argued that discovery of knife on alleged pointing out by accused Amit Rajput is false and fabricated. No such discovery was made by P.W.6-S.I. Khaleeque Ahmad. On the other hand, P.W.3, Rakesh has accepted in his statement that police personnel visited the District Hospital, Unnao, where the victim was admitted after incident and he identified Amit and apprised the police personnel. The police personnel of Kotwali Unnao arrested the appellant Amit Rajput within two to three hours, when P.W.3 apprised them. Therefore, these facts indicate that discovery of knife is false and fabricated.
97. We have perused the statement of P.W.6-S.I., Khaleeque Ahmad and recovery memo dated 13.06.2006 (Ex.Ka.-12) prepared by him. He has narrated the facts and circumstances mentioned in the recovery memo, Ex.Ka.-12 in his examination-in-chief that on 13.06.2006 in absence of Investigating Officer, Shri Pramod Kumar Shukla, he took up this investigation. He was searching out the accused persons. An informer gave tipoff that accused Amit is coming from Kanpur towards Unnao. During vehicle checking, he intercepted motorcycle No. T.U.P. 78-2138. Amit was driving it. He was arrested at 1:45 p.m. at Karoban Turn.
98. On inquiry Amit apprised witness, P.W.6 that he used knife in the incident of this case. He would get recovered this knife. P.W.6 along with his associates and accused Amit Rajput tried to take independent witness with them, but nobody was prepared to become witness of discovery, who were available at the place of occurrence at Singrausi Brick Kiln.
99. P.W.6 has proved this fact that accused Amit pointed out the place, bushes, which was standing 15 paces from the place of occurrence, from where he picked up blood stained knife. He apprised P.W.6 that he silt throat of his wife Smt. Maya Devi from this knife. He prepared recovery memo(Ex.Ka.-12) in his hand writing. He sealed it at the place of occurrence. Copy of recovery memo was given to the accused Amit and he signed the recovery memo. P.W.6 also prepared site plan of place of discovery and proved it as Ex.Ka.-13. Further investigation was conducted by S.I., Pramod Kumar Shukla. He has proved knife as material Ex.Ka.-1.
100. P.W.6, in his cross-examination has disclosed this fact that accused was intercepted after 15-20 minutes after receiving of information from informer. He reiterated again in his cross-examination that nobody was prepared to witness discovery made by him. He has stated that he tried to take witness from Kerosene Shop, which was situated near Karoban Turn, but nobody was ready to become witness or help him. The place of occurrence/ brick kiln was situated at a distance of one and half to two kilometers. He also tried to take help of persons available near the brick kiln, but nobody was ready to become witness or help him.
101. P.W.6 has refuted the suggestion that Amit was arrested from his house and discovery of knife was planted against him and it was false and fabricated. P.W.6 has clarified this fact in his cross-examination that after discovery he reached at police station at 14:30 hours and motorcycle of the accused was also deposited at the police station.
102. As far as, learned Amicus Curiae has argued that accused was arrested from his house and discovery of knife was planted on him, the appellant has not forwarded any complaint against P.W.6 and his companions that his arrest was shown falsely from Karoban Turn and he never pointed out the place, from where, discovery of knife has been shown as per the recovery memo, Ex.Ka.-12. On the basis of statement given by P.W.3 in cross-examination, it cannot be inferred that police personnel arrested the appellant Amit from his house. No defence evidence has been adduced on his behalf that he was arrested on 13.06.2006 from his house.
103. P.W.2 could produce his neighbours, if factually, he was arrested from his house. No material contradiction was elicited during cross-examination of P.W.6 on behalf of appellants regarding discovery of knife on the pointing out of accused appellant Amit. The following expositions of law of Hon’ble Supreme Court is relevant:
104. The following exposition of law on the point of discovery under Section 27 Indian Evidence Act is also relevant:
In the case of State of Maharashtra Vs. Bharat Fakira Dhiwar, reported in 2002 SCC (Cr) 217, the Hon’ble Supreme court relying on exposition of law in the case of State of H.P. Vs. Jeet Singh:(1999) 4 SCC 370 has quoted paras. 26 and 27 and these paras have been quoted by Hon’ble Supreme Court regarding discovery of incriminating article/substance from open place, which are as follows :
“26. There is nothing in Section 27 of the Evidence Act which renders the statement of the accused inadmissible if recovery of the articles was made from any place which is ”open or accessible to others’. It is a fallacious notion that when recovery of any incriminating article was made from a place which is open or accessible to others, it would vitiate the evidence under Section 27 of the Evidence Act. Any object can be concealed in places which are open or accessible to others. For example, if the article is buried in the main roadside or if it is concealed beneath dry leaves lying on public places or kept hidden in a public office, the article would remain out of the visibility of others in normal circumstances. Until such article is disinterred, its hidden state would remain unhampered. The person who hid it alone knows where it is until he discloses that fact to any other person. Hence, the crucial question is not whether the place was accessible to others or not but whether it was ordinarily visible to others. If it is not, then it is immaterial that the concealed place is accessible to others.
27. It is now well settled that the discovery of fact referred to in Section 27 of the Evidence Act is not the object recovered but the fact embraces the place from which the object is recovered and the knowledge of the accused as to it. The said ratio has received unreserved approval of this Court in successive decisions. (Jaffar Hussain Dastagir v. State of Maharashtra [(1969) 2 SCC 872] , K. Chinnaswamy Reddy v. State of A.P. [AIR 1962 SC 1788 : (1963) 1 Cri LJ 8] , Earabhadrappa v. State of Karnataka [(1983) 2 SCC 330 : 1983 SCC (Cri) 447] , Shamshul Kanwar v. State of U.P. [(1995) 4 SCC 430 : 1995 SCC (Cri) 753] , State of Rajasthan v. Bhup Singh [(1997) 10 SCC 675 : 1997 SCC (Cri) 1032] .”
In the case of State (NCT of Delhi) Vs. Navjot Sandhu :2005 Cri.L.J. 3950 the Hon’ble Apex Court has observed in para 13 and 14 as under:
13. ……….It is explicitly clarified in the Section that there is no taboo against receiving such information in evidence merely because it amounts to a confession. At the same time, the last clause makes it clear that it is not the confessional part that is admissible but it is only such information or part of it, which relates distinctly to the fact discovered by means of the information furnished. Thus, the information conveyed in the statement to police ought to be dissected if necessary so as to admit only the information of the nature mentioned in the Section. The rationale behind this provision is that, if a fact is actually discovered in consequence of the information supplied, it affords some guarantee that the information is true and can therefore be safely allowed to be admitted in evidence as an incriminating factor against the accused.
……..We are of the view that Kotayya’s case is an authority for the proposition that ‘discovery of fact’ cannot be equated to the object produced or found. It is more than that. The discovery of fact arises by reason of the fact that the information given by the accused exhibited the knowledge or the mental awareness of the informant as to its existence at a particular place.
……..It is clear therefore that what should be discovered is the material fact and the information that is admissible is that which has caused that discovery so as to connect the information and the fact with each other as the ’cause and effect’.
………………….As explained by this Court as well as by the Privy Council, normally Section 27 is brought into operation where a person in police custody produces from some place of concealment some object said to be connected with the crime of which the informant is the accused. the concealment of the fact which is not known to the police is what is discovered by the information and lends assurance that the information was true. ………………….What makes the information leading to the discovery of the witness admissible is the discovery from him of the thing sold to him or hidden or kept with him which the police did not know until the information was furnished to them by the accused. ………..
………..Now it is fairly settled that the expression “fact discovered” includes not only the physical object produced, but also the place from which it is produced and the knowledge of the accused as to this (see Palukuri Kotayya v. Emperor; Udai Bhan v. State of Uttar Pradesh)”
……………………….. The statement of law in Kotayya that the fact discovered “embraces the place from which the object is produced and the knowledge of the accused as to it and the information given must relate distinctly to this fact” was reiterated without any gloss or qualification.
…………… There is one more point which we would like to discuss i.e. whether pointing out a material object by the accused furnishing the information is a necessary concomitant of Section 27. We think that the answer should be in the negative. Though in most of the cases the person who makes the disclosure himself leads the Police Officer to the place where an object is concealed and points out the same to him, however, it is not essential that there should be such pointing out in order to make the information admissible under Section 27. It could very well be that on the basis of information furnished by the accused, the Investigating Officer may go to the spot in the company of other witnesses and recover the material object. By doing so, the Investigating Officer will be discovering a fact viz., the concealment of an incriminating article and the knowledge of the accused furnishing the information about it. In other words, where the information furnished by the person in custody is verified by the Police Officer by going to the spot mentioned by the informant and finds it to be correct, that amounts to discovery of fact within the meaning of Section 27. Of course, it is subject to the rider that the information so furnished was the immediate and proximate cause of discovery. If the Police Officer chooses not to take the informant- accused to the spot, it will have no bearing on the point of admissibility under Section 27, though it may be one of the aspects that goes into evaluation of that particular piece of evidence.
14………. In fact, joint or simultaneous disclosure is a myth, because two or more accused persons would not have uttered informatory words in a chorus. At best, one person would have made the statement orally and the other person would have stated so substantially in similar terms a few seconds or minutes later, or the second person would have given unequivocal nod to what has been said by the first person. Or, two persons in custody may be interrogated separately and simultaneously and both of them may furnish similar information leading to the discovery of fact. Or, in rare cases, both the accused may reduce the information into writing and hand over the written notes to the police officer at the same time. We do not think that such disclosures by two or more persons in police custody go out of the purview of Section 27 altogether. If information is given one after the other without any breakalmost simultaneously, and if such information is followed up by pointing out the material thing by both of them, we find no good reason to eschew such evidence from the regime of Section 27. However, there may be practical difficultiesin placing reliance on such evidence. It may be difficult for the witness (generally the police officer), to depose which accused spoke what words and in what sequence. In other words, the deposition in regard to the information given by the two accused may be exposed to criticism from the stand point of credibility and its nexus with discovery. Admissibility and credibility are two distinct aspects, as pointed out by Mr. Gopal Subramanium. Whether and to what extent such a simultaneous disclosure could be relied upon by the Court is really a matter of evaluation of evidence. With these prefaratory remarks, we have to refer to two decisions of this Court which are relied upon by the learned defence counsel. …………………
In the case of State Govt. of NCT of Delhi Vs. Sunil: (2001) 1 SCC 652 in paras-19, 20, 21 and 22 the Hon’ble Apex Court has observed as under:
19. In this context we may point out that there is no requirement either under Section 27 of the Evidence Act or under Section 161 of the Code of Criminal Procedure, to obtain signature of independent witnesses on the record in which statement of an accused is written. The legal obligation to call independent and respectable inhabitants of the locality to attend and witness the exercise made by the police is cast on the police officer when searches are made under Chapter VII of the Code. Section 100(5) of the Code requires that such search shall be made in their presence and a list of all things seized in the course of such search and of the places in which they are respectively found, shall be prepared by such officer or other person “and signed by such witnesses”. It must be remembered that a search is made to find out a thing or document about which the searching officer has no prior idea as to where the thing or document is kept. He prowls for it either on reasonable suspicion or on some guesswork that it could possibly be ferreted out in such prowling. It is a stark reality that during searches the team which conducts the search would have to meddle with lots of other articles and documents also and in such process many such articles or documents are likely to be displaced or even strewn helter-skelter. The legislative idea in insisting on such searches to be made in the presence of two independent inhabitants of the locality is to ensure the safety of all such articles meddled with and to protect the rights of the persons entitled thereto. But recovery of an object pursuant to the information supplied by an accused in custody is different from the searching endeavour envisaged in Chapter VII of the Code. This Court has indicated the difference between the two processes in the Transport Commr., A.P., Hyderabad v. S. Sardar Ali [(1983) 4 SCC 245 : 1983 SCC (Cri) 827 : AIR 1983 SC 1225] . Following observations of Chinnappa Reddy, J. can be used to support the said legal proposition: (SCC p. 254, para 8)
“Section 100 of the Criminal Procedure Code to which reference was made by the counsel deals with searches and not seizures. In the very nature of things when property is seized and not recovered during a search, it is not possible to comply with the provisions of sub-sections (4) and (5) of Section 100 of the Criminal Procedure Code. In the case of a seizure under the Motor Vehicles Act, there is no provision for preparing a list of the things seized in the course of the seizure for the obvious reason that all those things are seized not separately but as part of the vehicle itself.”
20. Hence it is a fallacious impression that when recovery is effected pursuant to any statement made by the accused the document prepared by the investigating officer contemporaneous with such recovery must necessarily be attested by the independent witnesses. Of course, if any such statement leads to recovery of any article it is open to the investigating officer to take the signature of any person present at that time, on the document prepared for such recovery. But if no witness was present or if no person had agreed to affix his signature on the document, it is difficult to lay down, as a proposition of law, that the document so prepared by the police officer must be treated as tainted and the recovery evidence unreliable. The court has to consider the evidence of the investigating officer who deposed to the fact of recovery based on the statement elicited from the accused on its own worth.
21. We feel that it is an archaic notion that actions of the police officer should be approached with initial distrust. We are aware that such a notion was lavishly entertained during the British period and policemen also knew about it. Its hangover persisted during post-independent years but it is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognised even by the legislature. Hence when a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through cross-examination of witnesses or through any other materials, to show that the evidence of the police officer I s either unreliable or at least unsafe to be acted upon in a particular case. If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions.
22. In this case, the mere absence of independent witness when PW 17 recorded the statement of A-2 Ramesh and the knickers were recovered pursuant to the said statement, is not a sufficient ground to discard the evidence under Section 27 of the Evidence Act.
In the case of Sanjay Vs. State(NCT of Delhi): (2001) 3 SCC 190 in paras-17, 18, 20 and 27 the Hon’ble Apex Court has observed as under:
17. Section 25 mandates that no confession made to a police officer shall be proved as against a person accused of an offence. Similarly Section 26 provides that confession by the accused person while in custody of police cannot be proved against him. However, to the aforesaid rule of Sections 25 and 26 of the Evidence Act, there is an exception carved out by Section 27 providing that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Section 27 is a proviso to Sections 25 and 26. Such statements are generally termed as disclosure statements leading to the discovery of facts which are presumably in the exclusive knowledge of the maker. Section 27 appears to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true and accordingly it can be safely allowed to be given in evidence.
18. As the section is alleged to be frequently misused by the police, the courts are required to be vigilant about its application. The court must ensure the credibility of evidence by police because this provision is vulnerable to abuse. It does not, however, mean that any statement made in terms of the aforesaid section should be seen with suspicion and it cannot be discarded only on the ground that it was made to a police officer during investigation. The court has to be cautious that no effort is made by the prosecution to make out a statement of accused with a simple case of recovery as a case of discovery of fact in order to attract the provisions of Section 27.
20. In State of U.P. Vs Deoman Upadhyaya: [AIR 1960 SC 1125] this Court held that Sections 25 and 26 were manifestly intended to hit an evil, viz., to guard against the danger of receiving in evidence testimony from tainted sources about statements made by persons accused of offences. These sections form part of a statute which codifies the law relating to the relevancy of evidence and proof of facts in judicial proceedings. The State is as much concerned with punishing offenders who may be proved guilty of committing of offences as it is concerned with protecting persons who may be compelled to give confessional statements. Section 27 renders information admissible on the ground that the discovery of a fact pursuant to a statement made by a person in custody is a guarantee of truth of the statement made by him and the legislature has chosen to make on that ground an exception to the rule prohibiting proof of such statement. The principle of admitting evidence of statements made by a person giving information leading to the discovery of facts which may be used in evidence against him is manifestly reasonable. In that case the High Court had acquitted the accused on the ground that his statement which led to the recovery of gandasa, the weapon of offence, was inadmissible. The accused Deoman had made a statement to hand over the gandasa which he had stated to have thrown into a tank and got it recovered. The trial court convicted the accused for the offence of murder. The Full Bench of the High Court held that Section 27 of the Evidence Act which allegedly created an unjustifiable discrimination between persons in custody and persons out of custody offending Article 14 of the Constitution, was unenforceable. After the opinion of the Full Bench a Division Bench of the Court excluded from consideration the statement made by the accused in the presence of the police officer and held that the story of the accused having borrowed a gandasa on the day of occurrence was unreliable. The accused was acquitted but at the instance of the State of U.P., the High Court granted a certificate to file the appeal in this Court. This Court did not agree with the position of law settled by the High Court and decided to proceed to review the evidence in the light of that statement, insofar as it distinctly related to the fact thereby discovery being admissible. Dealing with the conclusions arrived at by the High Court and on the facts of the case, this Court observed:
“The High Court was of the view that the mere fetching of the gandasa from its hiding place did not establish that Deoman himself had put it in the tank, and an inference could legitimately be raised that somebody else had placed it in the tank, or that Deoman had seen someone placing that gandasa in the tank or that someone had told him about the gandasa lying in the tank. But for reasons already set out the information given by Deoman is provable insofar as it distinctly relates to the fact thereby discovered: and his statement that he had thrown the gandasa in the tank is information which distinctly relates to the discovery of the gandasa. Discovery from its place of hiding, at the instance of Deoman of the gandasa stained with human blood in the light of the admission by him that he had thrown it in the tank in which it was found therefore acquires significance, and destroys the theories suggested by the High Court.”
27. Raising objections to the words “after commission of the offence” appearing in the disclosure statement of Vinod and “looted property” in the statement of Nawabuddin, the learned counsel for the appellants submitted that the whole of the statement was hit by Sections 24 to 26 of the Evidence Act and Section 162 of the Code of Criminal Procedure. We are not inclined to accept such a general statement. Even if the objectionable words (bracketed above) are deleted, the appellants cannot be conferred with any benefit which would entitle them to acquittal. It is not disputed that consequent upon the disclosure statements made, the articles mentioned therein were actually recovered at their instance from the place where such articles had been hidden by them. The mere use of the words “looted property” in relation to the articles seized which were found to have been taken away after the commission of the crime of murder and robbery would not change the nature of the statement. The words do not implicate the accused with the commission of the crime but refer only to the nature of the property hidden by them which were ultimately recovered consequent upon their disclosure statements. Hypertechnical approach, as projected by the defence counsel, would defeat the ends of justice and have disastrous effect. The property recovered consequent upon the making of the disclosure statements has been proved to be the property of the deceased, stolen after the commission of the offence of robbery and murder.
The Hon’ble Supreme Court in the case of State of M.P. Vs. Paltan Mallah, (2005) 3 SCC 169 : 2005 SCC (Cri.) 674 in the following paras has held as under:
28. In India, the evidence obtained under illegal search is not completely excluded unless it has caused serious prejudice to the accused. The discretion has always been given to the court to decide whether such evidence is to be accepted or not. In Radhakishan v. State of U.P. [1963 Supp (1) SCR 408 : AIR 1963 SC 822 : (1963) 1 Cri LJ 809] speaking for a three-Judge Bench, Justice Mudholkar held: (SCR pp. 411-12)
“So far as the alleged illegality of the search is concerned it is sufficient to say that even assuming that the search was illegal the seizure of the articles is not vitiated. It may be that where the provisions of Sections 103 and 165 of the Code of Criminal Procedure are contravened the search could be resisted by the person whose premises are sought to be searched. It may also be that because of the illegality of the search the Court may be inclined to examine carefully the evidence regarding the seizure. But beyond these two consequences no further consequence ensues.”
31. The provisions contained in the Criminal Procedure Code relating to search and seizure are safeguards to prevent the clandestine use of powers conferred on the law-enforcing authorities. They are powers incidental to the conduct of investigation and the legislature has imposed certain conditions for carrying out search and seizure in the Code. The courts have interpreted these provisions in different ways. One view is that disregard to the provisions of the Code of Criminal Procedure relating to the powers of search and seizures amounts to a default in doing what is enjoined by law and in order to prevent default in compliance with the provisions of the Code, the courts should take strict view of the matter and reject the evidence adduced on the basis of such illegal search. But often this creates a serious difficulty in the matter of proof. Though different High Courts have taken different views, the decisions of this Court quoted above have settled the position and we have followed the English decisions in this regard. In the Privy Council decision in Kuruma v. R. [1955 AC 197 : (1955) 1 All ER 236 : (1955) 2 WLR 223 (PC)] Lord Goddard, C.J. was of the firm view that in a criminal case the Judge always has a discretion to disallow evidence if the strict rule of admissibility would operate unfairly against an accused. The trend of judicial pronouncements is to the effect that evidence illegally or improperly obtained is not per se inadmissible. If the violation committed by the investigating authority is of serious nature and causes serious prejudice to the accused, such evidence may be excluded.
32. It may also be noticed that the Law Commission of India in the 94th Report suggested the incorporation of a provision in Chapter 10 of the Indian Evidence Act, 1872. The suggestion was to the effect that in a criminal proceeding, where it is shown that anything in evidence was obtained by illegal or improper means, the court, after considering the nature of the illegality or impropriety and all the circumstances under which the thing tendered was obtained, may refuse to admit it in evidence, if the court is of the opinion that because of the nature of the illegal or improper means by which it was obtained, its admission would tend to bring the administration of justice into disrepute. The Commission also quoted the various circumstances surrounding the proceedings that may entail the exclusion of such evidence but the suggestion of the Law Commission was not accepted and no legislation was effected in line with the recommendations of the 94th Report of the Law Commission and the position continues to be that the evidence obtained under illegal search could still be admitted in evidence provided there is no express statutory violation or violation of the constitutional provisions. For example, if certain specific enactments are made and the search or seizure is to be effected in accordance with the provisions of such enactment, the authorities shall comply with such provisions. The general provisions given in the Criminal Procedure Code are to be treated as guidelines and if at all there is any minor violation, still the court can accept the evidence and the courts have got discretionary power to either accept it or reject it.
33. In the instant case, we do not think that the court has violated any such provision merely because the witness was not from the same locality and his evidence cannot be rejected.
The Hon’ble Supreme Court in the case of State of Rajasthan v. Teja Ram : (1999) 3 SCC 507 in the following paras has held as under:
25. Failure of the serologist to detect the origin of the blood due to disintegration of the serum in the meanwhile does not mean that the blood stuck on the axe would not have been human blood at all. Sometimes it happens, either because the stain is too insufficient or due to haematological changes and plasmatic coagulation that a serologist might fail to detect the origin of the blood. Will it then mean that the blood would be of some other origin? Such guesswork that blood on the other axe would have been animal blood is unrealistic and far-fetched in the broad spectrum of this case. The effort of the criminal court should not be to prowl for imaginative doubts. Unless the doubt is of a reasonable dimension which a judicially conscientious mind entertains with some objectivity, no benefit can be claimed by the accused.
27. We are unable to find out from the aforesaid decisions any legal ratio that in all cases where there was failure of detecting the origin of the blood, the circumstance arising from recovery of the weapon would stand relegated to disutility. The observations in the aforesaid cases were made on the fact situation existing therein. They cannot be imported to a case where the facts are materially different.
28. Learned counsel in this context invited our attention to one step which PW 21 (investigating officer) had adopted while preparing the seizure-memos Ex. P-3 and Ex. P-4. He obtained the signature of the accused concerned in both the seizure-memos. According to the learned counsel, the aforesaid action of the investigating officer was illegal and it has vitiated the seizure. He invited our attention to Section 162(1) of the Code which prohibits collecting of signature of the person whose statement was reduced to writing during interrogation. The material words in the sub-section are these:
“162. (1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it;”
No doubt the aforesaid prohibition is in peremptory terms. It is more a direction to the investigating officer than to the court because the policy underlying the rule is to keep witnesses free to testify in court unhampered by anything which the police claim to have elicited from them. (Tahsildar Singh v. State of U.P. [AIR 1959 SC 1012 : 1959 Cri LJ 1231] and Razik Ram v. Jaswant Singh Chouhan [(1975) 4 SCC 769 : AIR 1975 SC 667] .) But if any investigating officer, ignorant of the said provision, secures the signature of the person concerned in the statement, it does not mean that the witness’s testimony in the court would thereby become contaminated or vitiated. The court will only reassure the witness that he is not bound by such statement albeit his signature finding a place thereon.
29. That apart, the prohibition contained in sub-section (1) of Section 162 is not applicable to any proceedings made as per Section 27 of the Evidence Act, 1872. It is clearly provided in sub-section (2) of Section 162 which reads thus:
“Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of Section 32 of the Indian Evidence Act, 1872 (1 of 1872), or to affect the provisions of Section 27 of that Act.”
30. The resultant position is that the investigating officer is not obliged to obtain the signature of an accused in any statement attributed to him while preparing seizure-memo for the recovery of any article covered by Section 27 of the Evidence Act. But if any signature has been obtained by an investigating officer, there is nothing wrong or illegal about it. Hence, we cannot find any force in the contention of the learned counsel for the accused that the signatures of the accused in Exs. P-3 and P-4 seizure-memos would vitiate the evidence regarding recovery of the axes.
Hon’ble Apex Court after considering the various expositions of law regarding provisions of Section 27 in Natarajan Vs. Union Territory of Pondicherry, rep. by the Inspector of Police, Pondicherry, 2003 Cri. L.J. 2372 has held as follows:
57. The relevant observation by a Constitution Bench of the Supreme Court in State of U.P. v. Deoman Upadhayaya, (1961) 1 S.C.R. 14 at 26: A.I.R. 1960 S.C. 1125 which has been followed in A.I.R. 1980 S.C. 1632 is as follows:
“Counsel for the defence contended that in any event Deoman was not at the time when he made the statement attributed to him, accused of any offence and on that account also apart from the constitutional plea, the statement was not provable. This contention is unsound. The expression “accused of any offence” is descriptive of the person against whom evidence relating to information alleged to be given by him is made provable by Sec. 27 of the Evidence Act. It does not predicate a formal accusation against him at the time of making the statement sought to be proved, as a condition of its applicability.”
58. These decisions would clearly show that even though the accused was not formally arrested, once he appears before the police and offers to give information leading to the discovery of a fact, he must be deemed to have surrendered himself to the police and as such, in the said surrender, the information given by him is provable under Sec. 27 of the Evidence Act.
59. However, in this case, as indicated above, there is a clear evidence that P.W.21, the Inspector of Police got the information from his informant about the involvement of the accused Natarajan in this case and therefore, he arrested the suspect accused on the said information and brought him to the police station where he gave a voluntary confession which led to the recovery of the articles. As such, both the requirements are very much present in this case.
71. From the above observations, the following principles would emerge:
(1) Under Sec. 27, where the statement of the accused distinctly relates to the discovery it will be admissible whether it is confessional or not. Even when these words contained in the statement show some of the offences, the same would not prove the said offences for the reason after the articles have been recovered, the prosecution has still to show that the articles recovered are connected with the main crime.
(2) If any fact is discovered on a search made on the strength of any information from the accused, such a discovery is a guarantee that the information supplied by the accused is true.
(3) A fact can be discovered by the police pursuant to an information elicited from the accused if such disclosure was followed by one or more of a variety of causes. Recovery of an object is only one such cause? An object could also be a fact, but recovery of a fact cannot be equated with recovery of the object though the latter may help in the final shape of what exactly was the fact discovered pursuant to the information.
(4) The basic idea embedded in Sec. 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The “fact discovered” envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it.
(5) A fact should have been discovered in consequence to the information received from the accused. The fact so discovered should have been deposed to by the witness.
72. The decisions referred to above and the principles emerging from the decisions mentioned above would never indicate that the full details such as addresses, etc. of the places from where the objects are to be recovered have to be mentioned in the confession. The only requirement contemplated under Sec. 27 of the Evidence Act is that the discovery of the fact in pursuance of the information given by the accused would embrace the place from where to be recovered as well as the objects recovered.
105. Therefore, there is no substance in the arguments of learned Amicus Curiae that no independent witness was associated by police party of P.W.6 for the purpose of alleged discovery of knife made on the pointing out of appellant Amit. The presence of independent witness is not required, when the place, where knife was hidden by the appellant Amit was within his personal knowledge. As far as it is argued that blood stained knife, material exhibit-1, was proved by P.W.6, but it was not sent by P.W.6 or other Investigating Officers for chemical analysis, it may be fault of Investigating Officers, P.W.6, P.W.7 and P.W.8, but on the basis of fault and omissions, made by these Investigating Officers, it cannot adversely affect the prosecution version.
106. The learned trial court has analyzed the evidence of P.W.5, Dr. Mahendra Pratap Singh and witnesses, P.W.1-Shrawan, P.W.2-Smt. Parvati and P.W.3-Rakesh, and recorded finding that F.I.R. of this crime was registered at Kotwali Unnao without consultation, deliberations and undue delay. P.W.1 has proved written report of the victim/ deceased Smt. Maya Devi as Ex.Ka.-1 and he along with two to four persons brought the victim on 12.06.2006 at 7:30 p.m. at District Hospital, Unnao when the victim regained consciousness then she provided written report to him.
107. The learned trial court has recorded the finding that P.W.4 has proved this fact that information from District Hospital was received on 12.06.2006 at 17:10 hours and this fact was mentioned in G.D. No.39 regarding admission of victim in injured state at the hospital, then police personnel were sent at the District Hospital. The learned trial court has also recorded finding that Check F.I.R., Ex.Ka.-2 and G.D. of registration of crime has been proved by P.W.4 and written report, Ex.Ka.-1 was submitted by P.W.1-Shrawan at the police station.
108. The learned trial court has discarded the arguments of learned defence counsel that police personnel, who visited the District Hospital got prepared false written report after due consultation and deliberations of police personnel. The learned trial court has recorded finding that F.I.R. of this case was registered without any undue delay and it was explained by the prosecution.
109. The learned trial court has also analyzed the evidence of P.W.1, P.W.2, P.W.3 and P.W.5, witnesses and recorded finding that P.W.5-Dr. Mahendra Pratap Singh medically examined the victim on 12.06.2006 at 7:55 a.m., when P.W.1-Shrawan admitted her, after bringing her from the place of occurrence. The injuries found by P.W.5 supported and corroborated the statements of P.W.2-Smt. Parvati and P.W.3-Rakesh. The inquest report, Ex.Ka.-5 and postmortem report, Ex.Ka.-11 were considered by the trial court and it was found that genuineness of these documents were admitted by the learned defence counsel. The cause of death was found shock and septicemia, which was result of ante mortem injuries sustained by the victim. The victim, Smt. Maya Devi died due to ante mortem injuries sustained by her on her neck and abdomen.
110. The learned trial court has also recorded finding after analyzing facts and circumstances disclosed by the victim in her written report, Ex.Ka.-1 and written statements, Ex.Ka.-16 and Ex.Ka.-17 that these statements and her statement recorded under Section 161 Cr.P.C. were found in category of dying declaration, which was based on evidence of P.W.1, P.W.2 and P.W.3. The written report, Ex.Ka.-1 and written statements, Ex.Ka.-16 and Ex.Ka.-17 were admissible in evidence under Section 32(1) of Indian Evidence Act.
111. The learned trial court has specifically recorded finding that this argument could not be accepted that victim was unable to speak as per statement given by P.W.2 in her examination-in-chief. The learned trial court has analyzed evidence of P.W.2 and P.W.3 and found that they were illiterate persons, therefore, contradictions appeared in their cross-examination conducted by learned defence counsel are not material. Learned trial court has held that victim apprised these witnesses, about the facts and circumstances, in which, victim/ deceased sustained injuries inflicted by both the accused persons and this incident was committed by the accused persons with common intention. The written statements, Ex.Ka.-16 and Ex.Ka.-17 were proved by the Investigating officer-P.W.8 in the category of dying declaration. The learned trial court has also analyzed the facts mentioned in Ex.Ka.-16 regarding mobile numbers and hand writing and signatures of the victim available on Ex.Ka.-16 and Ex.Ka.-17. These written statements were found admissible in evidence.
112. The learned trial court has also discarded arguments of learned defence counsel that dying declaration of the victim/ deceased was not recorded by any Magistrate or police officers. The trial court has held that written statements, Ex.Ka.-16 and Ex.Ka.-17 and the written report, Ex.Ka.-1 were not found suspicious and were accepted in evidence by the trial court under Section 32(1) of Indian Evidence Act. The fact of marriage of victim with Amit was also analyzed by the trial court. The trial court found involvement of the co-accused Bablu Raidas @ Virendra and recorded finding that victim Smt. Maya Devi resided with Amit Rajput after love marriage. The argument of learned defence counsel was discarded by the trial court in this regard that Baburam and his sons committed the incident with the victim by holding that P.W.2 and P.W.3 would not have spared actual culprits, if this incident was committed by Baburam and his sons.
113. The case laws relied upon by learned Amicus Curiae in the case of Sanjay Vs. State of Uttar Pradesh, in the case of State of Haryana Vs. Ram Singh (supra) and Ram Jattan and others Vs. State of U.P. (supra) does not extend any benefit to the appellants. These case laws are not applicable to the facts of this case. The deceased herself by means of written report, Ex.Ka.-1 and written statements, Ex.Ka.-16 and Ex.Ka.-17 has disclosed intention of both the appellants to commit her murder, and participation of both the appellants is apparent on the perusal of these documents. The death of victim is direct result of the injuries inflicted by the accused persons on her neck, which resulted in cut of trachea of the deceased. She remained admitted at the District Hospital, Unnao and Hewlett Hospital for 12 days and due to poverty, P,W.2 and P.W.3 brought her at their residence and she ultimately died on 28.06.2006 at their house. The septicemia was developed due to ante mortem injuries, even then she was getting treatment in aforesaid hospitals. Therefore, we do not find this case to alter punishment of appellants for the offence punishable under Section 304 Part I of the I.P.C. instead of the offence punishable under Section 302 I.P.C.
114. It is relevant to mention here that Sections 299 and 300 I.P.C. provide as follows:
“299. Culpable homicide.–Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
300. Murder.–Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or–
Secondly. –If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or–
Thirdly. –If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or–
Fourthly. –If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
115. On the basis of expositions of law Hon’ble Supreme Court, propounded in the case of Veerla Satyanarayana v. State of A.P., (2009) 16 SCC 316 and in the case of Sudershan Kumar v. State of Delhi, (1975) 3 SCC 831 it is held that septicemia may develop during treatment of patient also and it may persist even after good and proper treatment given to the patient. Perhaps septicemia was developed during treatment of victim at District Hospital, Unnao and Hewlett Hospital, Kanpur, because victim was left by the appellants on the place of occurrence after committing assault on her on 11.06.2006 at 9:00 p.m. up to 12.06.2006 at time 7:55 a.m. Therefore, septicemia could not be controlled and subsided, even after proper treatment given by the concerned doctors. The appellants silt throat and trachea of the victim during course of incident and victim remained lying on the place of occurrence without any treatment for about 11 hours.
116. In this regard following exposition of law is relevant:
The Hon’ble Supreme Court in the following paragraphs in the case of Veerla Satyanarayana v. State of A.P., (2009) 16 SCC 316 has held as follows:
1. By judgment and order dated 11-10-1996, in Sessions Case No. 12 of 1994, the Sessions Judge, Krishna Division, Machilipatnam convicted the appellant for the offences punishable under Sections 304 (Part I), 307 and 447 IPC. Against the said judgment, the State preferred Criminal Appeal No. 1215 of 1998, contending that the appellant ought to have been convicted for the offence punishable under Section 302 IPC. By judgment and order dated 27-12-1999, the High Court of Andhra Pradesh allowed the said appeal and convicted the appellant for the offence punishable under Section 302 IPC and sentenced him to suffer RI for life and fine of Rs 2000 and in default of payment of fine to suffer simple imprisonment for one month. Hence, the appellant-accused has preferred this appeal.
4. In our view, this submission is not tenable as because of the burn injuries by throwing of the acid on the deceased, who was sleeping, septicaemia was caused and he died. PW 15 (doctor) has made it clear that even in the cases of proper treatment also there is possibility of septicaemia. For this purpose, the High Court has rightly referred to and relied upon the decision of this Court in Sudershan Kumar v. State of Delhi [(1975) 3 SCC 831 : 1975 SCC (Cri) 250] . In the said case, the Court confirmed the conviction under Section 302 IPC, by considering the fact that there were 35% burn injuries by pouring of acid which according to the doctor’s evidence was due to toxaemia and septicaemia from absorption of toxins. The Court also considered the relevant Explanation 2 to Section 299, which provides that where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment the death might have been prevented.
5. In the present case, the prosecution has established beyond reasonable doubt the motive of the accused for causing this injury. It is also established that the act of the appellant in pouring acid on the body of the deceased was a preplanned one; he selected nighttime when the deceased as well as PW 1 were sleeping; he poured the acid which caused 60% burn injuries and as the injuries caused by the appellant were sufficient in the ordinary course of nature to cause death, the appellant is rightly held to be guilty of the offence punishable under Section 302 IPC.
The Hon’ble Supreme Court in the following paragraphs in the case of Sudershan Kumar v. State of Delhi, (1975) 3 SCC 831 has held as under:
9. In the present case, it is established beyond all reasonable doubt that the accused intended to cause injuries by throwing acid and injuries were caused on the person of Maya Devi. Dr V.K. Jain, who treated Maya Devi in the City Clinic has stated in his evidence that the injuries suffered by Maya Devi were sufficient collectively, in the ordinary course of nature, to cause death. The opinion of Dr Jain is corroborated by the evidence of Dr K.S. Raj Kumar. He said that the burns were to the extent of 35 per cent of the body, that if the burn exceeded 30 per cent, the same would be dangerous to life and that the injuries on Maya Devi were dangerous to life. Dr S.S. Kaushal who conducted the post-mortem examination was of the view that death was due to toxaemia and septicaemia from absorption of toxins on account of the extensive superficial ulceration of the body caused by some corrosive material. The evidence of these doctors would show that the injuries caused to Maya Devi were of a dangerous character. The fact that Maya Devi lingered for about 12 days would not show that the death was not the direct result of the act of the appellant in throwing acid on her. The medical evidence is clear that 35 per cent of the surface of the body of Maya Devi was burnt as a result of the injuries received by her.
“The involvement of one-third to one-half of the superficial surface of the body is likely to end fatally [ See Modi’s Medical Jurisprudence and Toxicology, 17th Edn., p. 196] .
… In suppurative cases, death may occur after five or six weeks or even longer [ Ibid., p. 198] .”
13. Nor is there any substance in the argument that Maya Devi was not given proper treatment and that her death was due to negligence of the doctors who treated her. The evidence shows that immediately after she received the injuries, she was taken to the City Clinic and there Dr Jain treated her. As her condition did not improve, she was removed to the Burns Unit of Safdarjang Hospital. There is no evidence that it was because she did not receive proper treatment that she developed toxaemia and septicaemia. Explanation 2 to Section 299 is relevant in this context:
“Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment the death might have been prevented.”
15. The act of the appellant in pouring acid on the body was a pre-planned one and he intended to cause the injury which he actually caused. As the injuries caused by the appellant were sufficient in the ordinary course of nature to cause death, the appellant is guilty of an offence punishable under Section 302 of the Indian Penal Code.
117. It is pertinent to mention here that P.W.2 and P.W.3 have also proved this fact that the victim/ deceased expired within 4-6 days after discharge from hospital. Therefore, it may be safely inferred that her condition was not satisfactory, when she was discharge from hospital and septicemia persisted, even after proper treatment given to her.
118. It may be fault of the concerned A.D.G.C. who conducted this session trial before the trial court that he did not summon the bed head ticket of the deceased from the concerned District Hospital, Unnao and during examination-in-chief of P.W.5-Dr. Mahendra Pratap Singh, he has not put up any question regarding condition of the victim/ deceased on the point of her discharge after 12 days from the hospital and nature of injuries-1 and 2 sustained by her.
119. Learned defence counsel did not try to summon bed head ticket to establish this fact that victim/ deceased Smt. Maya Devi was discharged from the District Hospital, Unnao and Hewlett Hospital, Kanpur in improved and satisfactory condition. The bed head ticket could not be brought on record, because the Investigating Officers, P.W.6, P.W.7 and P.W.8 did not collect bed head ticket of the victim/ deceased, even then P.W.5-Dr. Mahendra Pratap Singh prepared bed head ticket of the victim. If defence counsel actually wanted to know nature of injury No.1 then he might have put question in this regard to P.W.5 that victim was discharged from District Hospital, Unnao and Hewlett Hospital, Kanpur in improved and satisfactory condition.
120. On the other hand, P.W.2 and P.W.3 have proved this fact that the victim was brought by them at their house after her admission for 10-12 days in the District Hospital, Unnao and Hewlett Hospital, Kanpur, because they were unable to bear the expenses Rs.800-1000/-per day of admission of the victim in the hospital. P.W.2 has proved this fact that the victim Smt. Maya Devi could speak at her house after two days when she was discharged from the hospital. She anticipated her death and told her (P.W.2) that she should look after her daughter.
121. On the basis of evidence adduced by the prosecution, direct actual connection between the act of the accused appellants and the death of victim was established. The injuries sustained by the victim were direct cause of death. There was no doubt whatever with the fact that appellants slashed throat of the victim and their act was premeditated and calculated. The appellants intentionally caused injury on the neck of the victim.
122. We have considered the nature of injuries sustained by the victim objectively in the light of medical evidence, which was sufficient in ordinary course of nature to cause death of the victim. This is a clear cut case of intention to cause death of the victim. It is not a case of knowledge about the injuries inflicted by both the appellants. Seat and nature of injuries sustained by the victim itself is self explanatory about the intention of both the appellants to commit murder of the deceased. The genuineness of the postmortem report was admitted by the learned defence counsel, therefore, there was no occasion for the prosecution to produce the concerned doctor. The learned defence counsel has not cross-examined the witness P.W.5-Dr. Mahendra Pratap Singh regarding nature of injury-1 regarding the fact this injury was sufficient in ordinary course of nature to cause death or not. P.W.5 has specifically stated that due to injury-1, trachea of victim was cut, which is self explanatory about the intention of both the appellants.
123. The following expositions of law are also relevant on the point of conversion of punishment under Section 302 I.P.C. and Section 304 Part (I) and (II) of the I.P.C.
Hon’ble Supreme Court in the case of State of A.P. v. Rayavarapu Punnayya, (1976) 4 SCC 382 has held as under:
2. In Rompicheria village, there were factions belonging to three major communities viz. Reddys, Kammas and Bhatrajus. Rayarapu (Respondent 1 herein) was the leader of Kamma faction, while Chopparapu Subbareddi was the leader of the Reddys. In politics, the Reddys were supporting the Congress party, while Kammas were supporters of the Swatantra party. There was bad blood between the two factions which were proceeded against under Section 107 CrPC. In the panchayat elections of 1954, a clash took place between the two parties. A member of the Kamma faction was murdered. Consequently, nine persons belonging to the Reddy faction were prosecuted for that murder. Other incidents also took place in which these warring factions were involved. So much so, a punitive police force was stationed in this village to keep the peace during the period from March 1966 to September 1967. Sarikonda Kotamraju, the deceased person in the instant case, was the leader of Bhatrajus. In order to devise protective measures against the onslaughts of their opponents, the Bhatrajus held a meeting at the house of the deceased, wherein they resolved to defend themselves against the aggressive actions of the respondents and their partymen. PW 1, a member of Bhatrajus faction has a cattle shed. The passage to this cattle shed was blocked by the other party. The deceased took PW 1 to Police Station Nekarikal and got a report lodged there. On July 22, 1968, the Sub-Inspector of Police came to the village and inspected the disputed wall in the presence of the parties. The Sub-Inspector went away directing both the parties to come to the police station on the following morning so that a compromise might be effected.
3. Another case arising out of a report made to the police by one Kallam Kotireddi against Accused 2 and 3 and another in respect of offences under Sections 324, 323 and 325 of the Penal Code was pending before a magistrate at Narasaraopet and the next date for hearing fixed in that case was July 23, 1968.
4. On the morning of July 23, 1968, at about 6.30 a.m., PWs 1 and 2 and the deceased boarded bus No. APZ 2607 at Rompicheria for going to Nekarikal. Some minutes later, Accused 1 to 5 (hereinafter referred to as A1, A2, A3, A4 and A5) also got into the same bus. The accused had obtained tickets for proceeding to Narasaraopet. When the bus stopped at Nekarikal crossroads, at about 7.30 a.m., the deceased and his companions alighted for going to the police station. The five accused also got down. The deceased and PW 1 went towards a choultry run by PW 4, while PW 2 went to the roadside to ease himself. Al and A2 went towards the Coffee Hotel, situate near the choultry. From there, they picked up heavy sticks and went after the deceased into the choultry. On seeing the accused, PW 1 ran away towards a hut nearby. The deceased stood up. He was an old man of 55 years. He was not allowed to run. Despite the entreaties made by the deceased with folded hands, Al and A2 indiscriminately pounded the legs and arms of the deceased. One of the bystanders, PW 6, asked the assailants as to why they were mercilessly beating a human being, as if he were a buffalo. The assailants angrily retorted that the witness was nobody to question them and continued the beating till the deceased became unconscious. The accused then threw their sticks at the spot, boarded another vehicle, and went away. The occurrence was witnessed by PWs 1 to 7. The victim was removed by PW 8 to Narasaraopet Hospital in a tempo-car. There, at about 8.45 a.m., Doctor Konda Reddy examined him and found 19 injuries, out of which, no less than 9 were (internally) found to be grievous. They were:
“1.Dislocation of distal end of proximal phalan of left middle finger.
2.Fracture of right radius in its middle.
3.Dislocation of lower end of right ulna.
4.Fracture of lower end of right femur.
5.Fracture of medial malleolus of right tibia.
6.Fracture of lower 1/3 of right fibula.
7.Dislocation of lower end of left ulna.
8.Fracture of upper end of left tibia.
9.Fracture of right patella.”
5. Finding the condition of the injured serious, the doctor sent information to the Judicial Magistrate for getting his dying declaration recorded. On Dr K. Reddy’s advice, the deceased was immediately removed to the Guntur Hospital where he was examined and given medical aid by Dr Sastri. His dying declaration, Ext. P-5, was also recorded there by a Magistrate (PW 10) at about 8.05 p.m. The deceased, however, succumbed to his injuries at about 4.40 a.m. on July 24, 1968, despite medical aid.
6. The autopsy was conducted by Dr P.S. Sarojini (PW 12) in whose opinion, the injuries found on the deceased were cumulatively sufficient to cause death in the ordinary course of nature. The cause of death, according to the doctor, was shock and haemorrhage resulting from multiple injuries.
7. The trial Judge convicted Al and A2 under Section 302 as well as under Section 302 read with Section 34 of the Penal Code and sentenced each of them to imprisonment for life.
8. On appeal by the convicts, the High Court altered their conviction to one under Section 304 Part II of the Penal Code and reduced their sentence to five years’ rigorous imprisonment, each.
12. In the scheme of the Penal Code, “culpable homicide” is genus and “murder” its specie. All “murder” is “culpable homicide” but not vice-versa. Speaking generally, “culpable homicide” sans “special characteristics of murder”, is “culpable homicide not amounting to murder”. For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first is, what may be called, “culpable homicide of the first degree”. This is the greatest form of culpable homicide, which is defined in Section 300 as “murder”. The second may be termed as “culpable homicide of the second degree”. This is punishable under the first part of Section 304. Then, there is “culpable homicide of the third degree”. This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304.
13. The academic distinction between “murder” and “culpable homicide not amounting to murder” has vexed the courts for more than a century. The confusion is caused, if courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minutae abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300. The following comparative table will be helpful in appreciating the points of distinction between the two offences.
14. Clause (b) of Section 299 corresponds with clauses (2) and (3) of Section 300. The distinguishing feature of the mens rea requisite under clause (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the internal harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to cause death of a person in normal health or condition. It is noteworthy that the “intention to cause death” is not an essential requirement of clause (2). Only the intention of causing the bodily injury coupled with the offender’s knowledge of the likelihood of such injury causing the death of the particular victim, is sufficient to bring the killing within the ambit of this clause. This aspect of clause (2) is borne out by Illustration (b) appended to Section 300.
A person commits culpable homicide if the act by which the death is caused is done —
Subject to certain exceptions culpable homicide is murder if the act by which the death is caused is done —
With the intention of causing death; or
With the intention of causing death; or
With the intention of causing such bodily injury as is likely to cause death; or
With the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused; or
With the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; or
With the knowledge that the act is likely to cause death
With the knowledge that the act is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of causing death or such injury as is mentioned above.
15. Clause (b) of Section 299 does not postulate any such knowledge on the part of the offender. Instances of cases falling under clause (2) of Section 300 can be where the assailant causes death by a fist blow intentionally given knowing that the victim is suffering from an enlarged liver, or enlarged spleen or diseased heart and such blow is likely to cause death of that particular person as a result of the rupture of the liver, or spleen or the failure of the heart, as the case may be. If the assailant had no such knowledge about the disease or special frailty of the victim, nor an intention to cause death or bodily injury sufficient in the ordinary course of nature to cause death, the offence will not be murder, even if the injury which caused the death, was intentionally given.
16. In clause (3) of Section 300, instead of the words “likely to cause death” occurring in the corresponding clause (b) of Section 299, the words “sufficient in the ordinary course of nature” have been used. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The distinction is fine but real, and, if overlooked, may result in miscarriage of justice. The difference between clause (b) of Section 299 and clause (3) of Section 300 is one of the degree of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. The word “likely” in clause (b) of Section 299 conveys the sense of “probable” as distinguished from a mere possibility. The words “bodily injury … sufficient in the ordinary course of nature to cause death” mean that death will be the “most probable” result of the injury, having regard to the ordinary course of nature.
17. For cases to fall within clause (3), it is not necessary that the offender intended to cause death, so long as the death ensues from the intentional bodily injury or injuries sufficient to cause death in the ordinary course of nature. Rajwant v. State of Kerala [AIR 1966 SC 1874 : 1966 Supp SCR 230 : 1966 Cri LJ 1509.] is an apt illustration of this point.
18. In Virsa Singh v. State of Punjab [AIR 1958 SC 465 : 1958 SCR 1495 : 1958 Cri LJ 818.] Vivian Bose, J. speaking for this Court, explained the meaning and scope of clause (3), thus (at p. 1500):
“The prosecution must prove the following facts before it can bring a case under Section 300, ”thirdly’. First, it must establish quite objectively, that a bodily injury is present; secondly the nature of the injury must be proved. These are purely objective investigations. It must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further, and fourthly it must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.”
19. Thus according to the rule laid down in Virsa Singh case of even if the intention of accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature, and did not extend to the intention of causing death, the offence would be “murder”. Illustration (c) appended to Section 300 clearly brings out this point.
20. Clause (c) of Section 299 and clause (4) of Section 300 both require knowledge of the probability of the act causing death. It is not necessary for the purpose of this case to dilate much on the distinction between these corresponding clauses. It will be sufficient to say that clause (4) of Section 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general — as distinguished from a particular person or persons — being caused from his imminently dangerous act, approximates to a practical certainty. Such knowledge on the part of the offender must be of the highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid.
21…….. a court is confronted with the question whether the offence is “murder” or “culpable homicide not amounting to murder”, on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to “culpable homicide” as defined in Section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300 of the Penal Code, is reached. This is the stage at which the court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of “murder” contained in Section 300. If the answer to this question is in the negative the offence would be “culpable homicide not amounting to murder”, punishable under the first or the second part of Section 304, depending, respectively, on whether the second or the third clause of Section 299 is applicable. If this question is found in the positive, but the case comes within any of the exceptions enumerated in Section 300, the offence would still be “culpable homicide not amounting to murder”, punishable under the first part of Section 304, of the Penal Code.
22. The above are only broad guidelines and not cast-iron imperatives. In most cases, their observance will facilitate the task of the court. But sometimes the facts are so intertwined and the second and the third stages so telescoped into each other, that it may not be convenient to give a separate treatment to the matters involved in the second and third stages.
34. ……the formidable weapons used by the accused in the beating, the savage manner of its execution, the helpless state of the unarmed victim, the intensity of the violence caused, the callous conduct of the accused in persisting in the assault even against the protest of feeling bystanders — all, viewed against the background of previous animosity between the parties, irresistibly lead to the conclusion that the injuries caused by the accused to the deceased were intentionally inflicted, and were not accidental. Thus the presence of the first element of clause thirdly of Section 300 had been cogently and convincingly established.
35……According to the medical evidence the injuries of the deceased were cumulatively sufficient in the ordinary course of nature to cause death and the cause of the death was shock and hemorrhage due to the multiple injuries. Hence the second element is also established….
38…..here, a direct casual connection between the act of the accused and the death was established. The injuries were the direct cause of the death. No secondary factor such as gangrene, tetanus ectc. supervened. There was no doubt whatever thet the beating was premeditated and calculated.
39. …..The mere fact that the beating was designedly confined by the assailants to the legs and arms, or that none of the multiple injuries inflicted was individually sufficient in the ordinary course of nature to cause death, will not exclude the application of clause thirdly of Section 300. The expression “bodily injury” in clause thirdly includes also its plural, so that the clause would cover a case where all the injuries intentionally caused by the accused are cumulatively sufficient to cause the death in the ordinary course of nature, even if none of those injuries individually measures upto such sufficiency. The sufficiency spoken of in this clause, as already noticed, is the high probability of death in the ordinary course of nature, and if such sufficiency exists and death is caused and the injury causing it is intentional, the case would fall under clause thirdly of Section 300….
30. Although the learned Judges of the High Court have not specifically referred to the quotation from page 289, of Modi’s book on Medical Jurisprudence and Toxicology (1961 Edn.) which was put to Dr Sarojini, in cross-examination, they appear to have derived support from the same for the argument that fractures of such bones “are not ordinarily dangerous”; therefore, the accused could not have intended to cause death but had only knowledge that they were likely by such beating to cause the death of the deceased.
31. It will be worthwhile to extract that quotation from Modi, as a reference to the same was made by Mr Subba Rao before us, also. According to Modi “Fractures are not ordinarily dangerous unless they are compound, when death may occur from loss of blood, if a big vessel is wounded by the split end of a fractured bone”.
32. It may be noted, in the first place, that this opinion of the learned Author is couched in too general and wide language. Fractures of some vital bones, such as those of the skull and the vertebral column are generally known to be dangerous to life. Secondly, even this general statement has been qualified by the learned author, by saying that compound fractures involving hemorrhage, are ordinarily dangerous. We have seen, that some of the fractures underneath the injuries of the deceased, were compound fractures accompanied by substantial hemorrhage. In the face of this finding, Modi’s opinion far from advancing the contention of the defence, discounts it.
29…….facts, that the High Court was wrong in doubting the medical opinion thet death was caused by shock and also hemorrhage…..
40. For all the foregoing reasons, we are of opinion that the High Court was in error in altering the conviction of the accused-respondent from one under Sections 302, 302/34, to that under Section 304, Part II of the of the Penal Code. Accordingly, we allow this appeal and restore the order of the trial court convicting the accused (Respondent 2 herein) for the offence of murder, with a sentence of imprisonment for life. Respondent 2, if he is not already in jail, shall be arrested and committed to prison to serve out the sentence inflicted on him.
Hon’ble Supreme Court in the case of Lavghanbhai Devjibhai Vasava v. State of Gujarat, (2018) 4 SCC 329 has held as under:
5. As aforesaid, on the conclusion of the trial and after appreciating the oral and documentary evidence, the trial court returned a finding of guilt against the appellant and convicted and sentenced him under Section 302 IPC. As far as the event/occurrence is concerned, that stands proved and to that extent judgments of the courts below are without any infirmity. As mentioned above, the only question is as to whether it was a case for conviction under Section 302 IPC or Section 304 IPC.
6. We have perused the evidence in this behalf. We find that the prosecution case itself proceeds that the incident took place in the spur of moment. On 15-3-2008, when the deceased along with her mother went for labour work in agricultural field and she returned home around noon, she was preparing lunch in the kitchen when, as per the prosecution story, the appellant came to the house and questioned the deceased about delay in cooking lunch. On this, altercation took place between the appellant and his wife. At that stage, the appellant got furious and in a rush of the moment, he picked a wooden object lying near the place of incident and inflicted injury to the deceased. It is also an admitted case of the prosecution that only one single blow was inflicted. The death of Shakuben took place 10 days after the said incident while she was undergoing treatment at Baroda Hospital. This is the case of the prosecution itself.
7. This Court in Dhirendra Kumar v. State of Uttarakhand [Dhirendra Kumar v.State of Uttarakhand, 2015 SCC OnLine SC 163] has laid down the parameters which are to be taken into consideration while deciding the question as to whether a case falls under Section 302 IPC or Section 304 IPC, which are the following:
(a) The circumstances in which the incident took place;
(b) The nature of weapon used;
(c) Whether the weapon was carried or was taken from the spot;
(d) Whether the assault was aimed on vital part of body;
(e) The amount of the force used.
(f) Whether the deceased participated in the sudden fight;
(g) Whether there was any previous enmity;
(h) Whether there was any sudden provocation.
(i) Whether the attack was in the heat of passion; and
(j) Whether the person inflicting the injury took any undue advantage or acted in the cruel or unusual manner.
9. This appeal is, thus, partly allowed. While maintaining the culpability of the appellant, his conviction is altered to Section 304 Part II IPC instead of Section 302 IPC. The appellant has already served 9 years and 3 months of imprisonment approximately. In the facts of this case, we are of the opinion that the sentence of the appellant be reduced to the period already undergone. Ordered accordingly.
Hon’ble Supreme Court in the following paragraphs in the case of Gurwinder Singh v. State of Punjab, (2018) 16 SCC 525 has held as follows:
11. It cannot be held as an invariable proposition that as soon as the accused received the injuries in the same transaction, the complainant party were the aggressors–it cannot be held as a rule that the prosecution is obliged to explain the injuries and on failure of the same, the prosecution case should be disbelieved. It is well settled that before placing the burden on the prosecution to explain the injuries on the person of the accused, two conditions are to be satisfied:
(i) the injuries were sustained by the accused in the same transaction; and
(ii) the injuries sustained by the accused are serious in nature.
12. This Court considered the effect of non-explanation of injuries sustained by the accused person in Takhaji Hiraji v. Kubersing Chamansing [Takhaji Hiraji v.Kubersing Chamansing, (2001) 6 SCC 145 : 2001 SCC (Cri) 1070] and held as under: (SCC p. 154, para 17)
“17. The first question which arises for consideration is what is the effect of non-explanation of injuries sustained by the accused persons. In Rajender Singhv. State of Bihar [Rajender Singh v. State of Bihar, (2000) 4 SCC 298 : 2000 SCC (Cri) 796] , Ram Sunder Yadav v. State of Bihar [Ram Sunder Yadav v. State of Bihar, (1998) 7 SCC 365 : 1998 SCC (Cri) 1630] and Vijayee Singh v. State of U.P. [Vijayee Singh v. State of U.P., (1990) 3 SCC 190 : 1990 SCC (Cri) 378] , all three-Judge Bench decisions, the view taken consistently is that it cannot be held as a matter of law or invariably a rule that whenever the accused sustained an injury in the same occurrence, the prosecution is obliged to explain the injury and on the failure of the prosecution to do so the prosecution case should be disbelieved. Before non-explanation of the injuries on the persons of the accused persons by the prosecution witnesses may affect the prosecution case, the court has to be satisfied of the existence of two conditions: (i) that the injury on the person of the accused was of a serious nature; and (ii) that such injuries must have been caused at the time of the occurrence in question. Non-explanation of injuries assumes greater significance when the evidence consists of interested or partisan witnesses or where the defence gives a version which competes in probability with that of the prosecution. Where the evidence is clear, cogent and creditworthy and where the court can distinguish the truth from falsehood the mere fact that the injuries on the side of the accused persons are not explained by the prosecution cannot by itself be a sole basis to reject the testimony of the prosecution witnesses and consequently the whole of the prosecution case.” (emphasis supplied)
13. In the present case, the incident had taken place near the tubewell where both the parties assembled to settle the land dispute. When there was exchange of words, there was a scuffle between both the parties. In the same transaction where Harbhajan Singh was attacked, the accused party also sustained injuries. Apart from the stray statement made by the complainant Sukhwinder Singh in the FIR, the prosecution has not offered any explanation for the injuries sustained by the accused. Since both the accused sustained injuries in the incident, non-explanation of injuries sustained by the accused assumes significance. Having regard to the injuries sustained by the accused, the trial court and the High Court ought to have made an effort in searching out the genesis of the occurrence.
16. For bringing in operation of “Exception 4” to Section 300 IPC, it has to be established that the act was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner.
17. Considering the scope of “Exception 4” to Section 300 IPC, in Sridhar Bhuyan v. State of Orissa [Sridhar Bhuyan v. State of Orissa, (2004) 11 SCC 395 : 2004 SCC (Cri) Supp 98] , it was held as under: (SCC p. 397, para 8)
“8. The fourth exception of Section 300 IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men’s sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A “sudden fight” implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused: (a) without premeditation; (b) in a sudden fight; (c) without the offender’s having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the “fight” occurring in Exception 4 to Section 300 IPC is not defined in IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in a cruel or unusual manner. The expression “undue advantage” as used in the provision means “unfair advantage”.”
21. In the result, the conviction of the appellants under Section 302 IPC read with Section 34 IPC is modified as conviction under Section 304 Part I IPC and the appellants are sentenced to undergo imprisonment for seven years and the appeals are partly allowed. Appellant Gurwinder Singh is said to have undergone imprisonment for more than ten years, he is ordered to be released forthwith unless his presence is required in any other case. Appellant Satnam Singh is directed to surrender to serve the remaining period of sentence, failing which, he shall be taken into custody.
Hon’ble Supreme Court in the aforesaid decisions Lavghanbhai Devjibhai Vasava Vs, State of Gujarat (supra) found that incident of this case law took place in a spur of moment, therefore, conviction of the appellant was altered to Section 304 Part II of I.P.C. instead of Section 302 I.P.C. The appellant had already served 9 year and 3 months of imprisonment. Likewise, in the case of Gurwinder Singh alias Sonu and Others vs State of Punjab (supra), Hon’ble Supreme Court found that the incident had taken place near the tubewell where both the parties assembled to settle the land dispute, when there was exchange of words there was a scuffle between both the parties. In the same transaction where Harbhajan Singh was attacked the accused parties also sustained injuries. The prosecution had not offered any explanation for the injuries sustained by the accused. Therefore, it was found that the trial court and the High Court ought to have made an effort in searching out the genesis of the occurrence. Hon’ble Supreme Court, in this circumstances, has altered and modified conviction of the appellants under Section 302 I.P.C. read with Section 34 I.P.C. as conviction under Section 304 Part I of I.P.C. On the peculiar facts and circumstances of the case, but Hon’ble Supreme Court has laid down the principle on which the courts shall analysis the peculiar facts and circumstances and would decide as to whether offence punishable under section 302 I.P.C. is made out or for the offence under section 304 I.P.C. is made out.
The deceased Maya Devi never provoked or quarrelled with appellants on the date of incident at the place of occurrence, therefore, there was no occasion for appellants to commit incident in a spur of moment due to quarrel and sudden provocation given by the deceased, rather it was premeditated crime.
Hon’ble Supreme Court in the following paragraphs in the case of State of Uttar Pradesh Vs. Faquirey(Criminal Appeal No. 1842 of 2012 decided on 11.02.2019) has held as under:
1. The Respondent was convicted under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as ‘IPC’) and sentenced to undergo life imprisonment by the Trial Court. The High Court converted the conviction to an offence under Section 304 Part I, IPC and sentenced the Respondent to 10 years rigorous imprisonment. Aggrieved thereby, the State of Uttar Pradesh is in appeal before us.
4. In the appeal filed by the Respondent, against the conviction and sentence, there was no contest on merits. The only submission made on behalf of the Respondent was that he could not have been convicted under Section 302 IPC. According to the Appellant, his conviction should have been under Section 304 IPC as the case is covered under Exception I to Section 300 IPC. The High Court observed that the intervention of the deceased in the quarrel between the two factions led to the Respondent losing his self control. The High Court was of the opinion that this resulted in grave and sudden provocation. Observing so, the High Court converted the conviction of the Respondent from Section 302 IPC to Section 304 Part I IPC. The Respondent was sentenced to suffer rigorous imprisonment for 10 years.
5. Mr. V. Shekhar, learned Senior Counsel appearing for the Appellant submitted that the High Court committed an error in converting the conviction of the Respondent from under Section 302 IPC to Section 304 Part I, IPC. He further submitted that the case of the defence that Exception I to Section 300 IPC is applicable is not correct. The Respondent was enraged at the sight of the deceased in view of the doubt he had in his mind about the deceased having an evil eye on his wife. The learned Senior Counsel relied upon the First Proviso to Exception I of Section 300 IPC to submit that the accused is not entitled to claim that the crime was committed due to grave and sudden provocation. Mr. D. K. Garg, learned counsel appearing for the Respondent submitted that the judgment of the High Court does not deserve any interference as the High Court was right in recording a finding that the Respondent lost his self control due to grave and sudden provocation which resulted in his shooting the deceased. He further submitted that the incident occurred almost 18 years ago and the Respondent has undergone the sentence of 10 years which is an additional reason for us not to reverse the judgment of the High Court.
9. For the aforementioned reasons, the judgment of the High Court is set aside and the judgment of the Trial Court convicting the Respondent under Section 302 IPC and sentencing him to life imprisonment is restored. The Respondent is directed to surrender within a period of four weeks to serve the remaining sentence.
124. On the basis of evidence adduced by the prosecution it reveals that both the appellants inflicted injury by slashing throat of the victim with common intention and this incident was committed by them selecting night time by bringing the victim on pretext to attend party/ marriage and they brought her at a scheduled place and inflicted grievous injury on her throat by which her trachea was cut, which resulted in death of victim. Both the appellants committed premeditated murder of the victim. Both the appellants actively participated in this crime. It is a case of two blows from knife on the neck and abdomen of the victim. It may be possible that injury-2 could not give effect on the internal organs of the body of the deceased, even then depth of injury-2 was up to the cavity of abdomen.
125. Both the appellants committed premeditated crime by sharp edged weapon, knife, by slashing throat and trachea of the victim which was vital part of the body. Mouth of the deceased was shut from behind and her throat was slashed/ silt by the accused persons. Therefore, these facts indicate common intention of both the appellants to cause death of the deceased and therefore, this act comes within the purview of culpable homicide amounting to murder.
126. On the basis of above discussions and expositions of law propounded by Hon’ble Supreme Court, there is no ground to convert the punishment of appellants for the offence punishable under Section 302 I.P.C. to the offence punishable under Section 304 Part (I) of the I.P.C. The detention of appellants for about 13 years has no relevance, as argued by the learned Amicus Curiae.
127. The learned trial court has recorded conviction of both the appellants in correct perspectives and the impugned judgment and order dated 17.09.2008 cannot be termed as perverse or against the evidence available on record. It is liable to be upheld and it is affirmed.
128. Both these appeals lack merit and are liable to be dismissed.
129. Dismissed accordingly.
130. Copy of this judgment be sent to the learned trial court and the concerned Jail Superintendent for compliance.
131. Learned Amicus Curiae shall receive fee prescribed by the Government of U.P. immediately.
132. Record of the trial court be sent back.
Order Date :- 16th April, 2019.