State of Madhya Pradesh Vs. Mohan Lal & Ors  INSC
674 (7 May 1996)
Pattanaik (J) G.B. Pattanaik (J) Ray, G.N. (J) Pattanaik, J.
JT 1996 (5) 30 1996 SCALE (4)385
appeal by special leave is directed against the judgment and order dated
9.10.1983 passed by the High Court of Madhya Pradesh at Gwalior in Criminal
Appeal No. 450 of 198;3 arising out of Sessions Trial No. 96 of 1980.
respondents were charged under Sections 302/149 as well as under Section 449
I.P.C. The respondents Mohan Lal and Chhagan Lal were further charged under
Section 148 I.P.C. and rest of the respondents stood charged under Section 147
I.P.C. They were convicted under different counts by the Learned Additional
Sessions Judge, Mandsaur for having killed the deceased Mangi Lal after
dragging him out of his hut and thereafter assaulting him mercilessly and
throwing acid on him. On appeal the High Court acquitted all the respondents
and hence the present appeal.
prosecution case briefly stated is that, on 18.9.1980 during night all the
accused respondents being armed with gun, sticks and acid entered into the hut
inside the field of Mangi Lal where Mangi Lal was sleeping.
then dragged him out of the hut and some of them assaulted him by sticks and
respondent Chhagan Lal who was carrying a gun assaulted him with the butt of
- Mohan Lal threw acid on him. Deceased - Mangi Lal shouted for help. Having
heard the noise, Abdul Rehulan, PW. 1 who was staying at a distance of 100
yards, woke up and ran towards the place from where Mohan Lal's voice was
coming. Reaching at the place of occurrence, when PW. 1 asked Mangi Lal about
the incident, he told the names of the accused and told him that they have
killed him by throwing acid. Said PW. 1 then informed Mangi Lal's family
members and soon Mangi Lal's son Ram Gopal, PW. 4 arrived at the place of
occurrence. Mangi Lal was then brought to the village in the injured condition
and was carried on a tractor to Manasa Police Station. Mangi Lal himself lodged
the report, which was treated as F.I.R. Exhibit P-32. It was recorded by the
Head Constable, PW. 14. After registering the case the police sent Mangi Lal to
the hospital at Manasa where he was treated by doctor PW. 9. As the doctor was
of the opinion that the condition of Mangi Lal was serious, the sub-inspector
of Police, PW. 15 requisitioned the services of the Judicial Magistrate, Ist
Class, Manasa, PW. 10 and requested him to record the dying declaration of said
Mangi Lal. The said Magistrate immediately came to the hospital and on being
satisfied by questioning the doctor that Mangi Lal was in a fit condition to
make his statement, enquired from Mangi Lal about b the incident and recorded
his statement which was exhibited in the case as Exhibit P 15.
said statement was read out to Mangi Lal and hereafter Mangi Lal gave his thumb
impression. Doctor PW. 9 then advised that Mangi Lal should the shifted to Mandsaur
hospital. In accordance with the said advice, while Mangi Lal was carried to Mandsaur
hospital he died on the way.
examination on his dead body was, however, conducted by the doctor PW. 2 and
Postmortem report was exhibited as Exhibit P-3. The Investigating Officer in
the meantime proceeded to the place of occurrence, made some seizure at the
spot and finally on completion of investigation, submitted the charge sheet. On
being committed, the accused persons were tried by the Learned Additional
Sessions Judge. The prosecution examined as many as is witnesses of whom the
most important witnesses are PW.1, Abdul Rehman, who was the first person to
arrive at the place of occurrence on hearing the shout of Mangi Lal and before
whom Mangi Lal narrated the names of all the accused persons; PW. 14, the Head
Constable at the Police Station who recorded the F.I.R.; report having been
given by Mangi Lal himself PW. 15, the Investigating Officer who had visited
the place of occurrence and made several seizure;
doctor PW. 9 who had first examined the injured Mangi Lal at the hospital at Manasa;
the Magistrate PW. 10 who recorded the dying declaration of the deceased at 5.00 A.M.
19.9.1990 and the doctor PW. 2 who conducted the Postmortem examination on the
dead body of the deceased. The prosecution also examined PWs. 12, 13 and 14 to
establish the animosity between deceased and Mohan Lal over the field for which
police had taken action against them under Sections 107 and 116(3) of Code of
Criminal Procedure. The plea of the accused persons was one of denial. The
Learned Additional Sessions Judge on thorough scrutiny of the evidence on
record and relying upon dying declaration recorded by the Magistrate, which was
exhibited as Exhibit P-15 and finding out corroboration thereto from the oral
declaration made by the deceased to PW. 1 as deposed to by PW. 1, as well as
the medical evidence, came to the conclusion that the prosecution has been able
to establish the charge against the accused persons beyond reasonable doubt and
accordingly convicted them and sentenced them differently. All the accused
persons were convicted under Sections 302/149 I.P.C. and were sentenced to
imprisonment for life. Accused Mohan Lal and Chhagan Lal were further convicted
under Section 148 and were sentenced to undergo rigorous imprisonment for two
years. The rest of the accused persons were convicted under Section 147 and
were sentenced to undergo rigorous imprisonment for one year. All the accused
persons were further convicted under Section 449 and were sentenced to undergo
rigorous imprisonment for seven years and it was directed that the sentences
shall run concurrently Being aggrieved by their conviction and sentence the
accused person moved the High Court in appeal.
High Court though accepted the prosecution case that the Judicial Magistrate,
PW. 10 recorded the dying-declaration of deceased Mangi Lal, when said Mangi Lal
was in a fit state of mind but since it had not been stated in the said dying
declaration that the accused persons dragged Mangi Lal out of his house and
assaulted. came to the conclusion that the occurrence having been taken place
in mid-night inside the hut of the deceased, it was not possible for the
deceased to identify the assailants and, therefore, the dying declaration does
not inspire confidence. The High Court also lightly brushed aside the statement
of PW. 1, Abdul Rehman to whom the deceased had not only stated the names of
all the accused persons but had also stated that he was dragged out of the hut
and was beaten and acid was thrown on him. With these conclusions the light
Court set aside the conviction and sentences passed by the learned Additional
Sessions Judge and acquitted all the accused persons.
learned senior counsel appearing for the State - appellant contended that the
High Court set in law in discarding the dying declaration recorded by the
Judicial Magistrate, PW. 10, on very flimsy grounds and thereby erred in law in
acquitting the accused persons. Mr. Shukla, further contended that the deceased
having given out the names of all the accused persons to PW. 1 who reached the
place of occurrence while deceased was crying for help and further the deceased
himself having gone to the Police Station and lodged the report giving a brief
narration of the incident and the medical evidence being corroborative of the
same, the conclusion is irresistible that the prosecution has been able to
establish the charge beyond reasonable doubt and therefore the order of
acquittal is wholly illegal. Mr. Sushil Kumar, learned senior counsel appearing
for the respondents on the other hand contented that the dying declaration
being the sole basis of conviction and for justifiable reasons the High Court
having discarded the same and having acquitted the accused persons, said order
of acquittal should not be interfered with by this Court. In support of the
conclusion of the High Court that the dying declaration, Exhibit P-15, recorded
by the Magistrate does not inspire confidence, Mr. Sushil Kumar submitted that
the very fact that the deceased has not stated that he was brought outside
being dragged and was assaulted and acid was thrown on him, could lead to the
only conclusion that the assault was committed inside the hut and therefore
under such circumstances, the occurrence having taken place in the mid-night,
it will be wholly impossible to identify the assailants and consequently the
said dying declaration has rightly been discarded by the High Court.
view of the rival submissions at the bar the sole question that arises for
consideration is whether the dying declaration made by the deceased and
recorded by the Magistrate can be accepted and form the basis of conviction of
the accused respondents? There cannot be any dispute with the proposition that
a dying declaration can form the sole basis of conviction, though court look
for corroboration from different circumstances since the same cannot be tested
by cross-examination. Such declaration being made under a solemn sense of
impending death, the deceased is usually not likely to commit any mistake and therefore
the same is given great weight. But at the same time a court has the. duty to
scrutinize the same since the accused has no right of getting the statement
tested by cross-examination. In the case of Kundula Bala Subrahmaniyam and
another vs. State of Andhra
Pradesh, (1993) 2 SCC
684, it has been field by this Court:
32(1) of the Evidence Act is an exception to the general rule that hearsay
evidence is not admissible evidence and unless evidence is tested by cross-
examination, it is not creditworthy. Under Section 32, when a statement is made
by a person, as to the cause of death or as to any of the circumstances which
result in his death, in cases in which the cause of that person's death comes
into question, such a statement, oral or in writing, made by the deceased to
the witness is a relevant fact and is admissible in evidence. The statement
made by the deceased, called the dying declaration, falls in that category-
provided it has been made by the deceased while in a fit mental condition. A
dying declaration made by person on the verge of his death has a special
sanctity as at that solemn moment, a person is most unlikely to make all,
untrue statement. The shadow of impending death is by itself the guarantee of
the truth of the statement made by the deceased regarding the causes or
circumstances leading to his death.
dying declaration, therefore, enjoys almost a sacrosanct status, as a piece of
evidence, coming as it does from the mouth of the deceased victim. Once a
statement of the dying person and the evidence of the witnesses testifying to
the same passes the test of careful scrutiny of the courts, it becomes a very
important and a reliable piece of evidence and if the court is satisfied that
the dying declaration is true and free from any embellishment such a dying
declaration, by itself can be sufficient for recording conviction even without
looking for any corroboration." If the dying declaration is found to the
true and voluntary and was made by a person concerned while he was in a fit
condition to make the same then the same can be easily relied upon by the
courts in convicting the accused persons even without any corroboration as has
been held by this Court in K. Ramachandra Reddy and another vs. The Public
Prosecutor, (1976) 3 SCC 618.
in mind the aforesaid legal principles let us now examine the dying declaration
recorded by the Magistrate. Exhibit p-15, in the case in hand. But before focussing
our attention on the same it would be appropriate to notice the injuries found on
the deceased by the doctor, PW. 9, who treated' deceased Mangi Lal at the
hospital at Marsasa as well as the injuries found by the doctor PW. 2, who had
conducted the autopsy over the dead body of the deceased. PW. 9 found the
following 12 injuries:
On the left side of the skull 2" above the ear-on the parietal-region one
open wound 1-1/2 long l/8" wide and bone deep. There was slight scrapping
on the bone in this wound. He had recommended X-Raying for this injury.
the left arm, 2" above the elbow on the outside, one lacerated wound, in
which there was fracture of lower part of the humerus bone. Open wound was
1" long 1/4" wide and 1/2" deep. For this injury also he had
recommended X-Ray examination.
One more lacerated wound, about 3/4" above the injury No. 2 on the left
arm, which was l/2" long, 1/8" wide and 1/8" deep.
the back side of the left shoulder one contusion 4" x 1".
One contusion 4" x 1" on left side of the back about 3" below
the shoulder injury No. (4).
3" below the injury No. 5, one more contusion on the back 4" x
3/4", the inner part of this injury reaching upto the back bone.
About 3" below the shoulder bone on the left side of the back, one more
contusion 6" x 1/2".
the left hip, one oblique contusion 6" x 1'.
the left thigh, outwards, about 12" above the knee, one contusion 3"
On the left thigh also, 1" above injury No. 9, in the side, one more
contusion 4" x 3", in which a number of injuries appear to have been
caused by stick blows.
Compound fracture lower 1/3rd of left humerus.
Stitched wound 2", slightly oblique on left parietal region.
wound 1" x 1/6", bone deep, on center of frontal region.
Lacerated wound 1/4" x 1/8" x 1/10" middle phalanx left middle
Contusion 4 x 1" oblique left scapular region.
Contusion 3-1/2" X 1" oblique, left infra-scapular region.
Contusion 10" x 1' slightly oblique, left Thoracolumbar region.
Contusion 5" x l" oblique, center of lower back.
Contusion 12" x l/2" oblique, right scapular an infra-scapular
Contusion 7" x 1-1/" on left lower back.
Contusion 3-1/2" x 1" left deltoid region.
Contusions 3" x 1" and 3" x 1" cross, middle of left upper
Contusion 3-1/2" x 1-1/2" left elbow region.
Contusion 3" x 1" oblique, middle of left leg posterior aspect.
Contusion 3-1/2" x 1-1/2" upper third of left leg posterior aspect.
Contusions 2" x 1" and 2" x 1" oblique, lower 1/3rd of
Right thigh posterior later aspect."
said doctor had opinined that the injuries had been inflicted before death and
the death was caused by shock resulting from the various injuries and acid
burns inflicted on the body. He also further opined that the death of the
deceased could not possibly be caused by any single specific injury but the
death could possibly result from the cumulative effect of all the injuries.
Coming now to Exhibit P-15, the dying declaration recorded by the Magistrate,
PW.10, it is crystal clear from the prosecution evidence that when the injured
reached the hospital at Manasa, the doctor PW. 9 noticed the condition of Mangi
Lal to be serious. To the querry of Balwant Singh Yadav, PW. 15, the doctor
also stated that Mangi Lal was in a fit state of mind and fully capable of making
any statement. PW. 15, therefore, took immediate steps, requisitioned the
services of the Judicial Magistrate, Ist Class and the said Magistrate came to
the hospital soon thereafter. The evidence of Magistrate, PW. 10 further
indicates that he enquired from the deceased about his name, father,s name,
residential address and his age and then enquired from him about the incident
and whatever he stated he recorded the same as per Exhibit P-15. The doctor who
was present during recording of the statement of deceased by the Magistrate,
gave the certificate that Mangi Lal was fully conscious and was in his sense
after completing his declaration. The prosecution evidence also clearly
establishes the fact that Mangi Lal was taken to the Police Station where he gave
his statement immediately after the occurrence, which was treated as F.I.R. and
was then taken to the hospital and shortly after reaching the hospital his
statement was recorded by the Magistrate as stated earlier. In the aforesaid
state of affairs the conclusion becomes irresistible that the deceased was in a
fit state of mind to make the statement and he was making that statement
without any influence or rancour. There was neither any possibility of tutoring
or prompting by any other person. In this connection we will examine the
contention of Mr. Sushil Kumar appearing for the respondents about the
non-mentioning of the accused being dragged and assaulted outside which
according to him would logically lead to the conclusion that the assault took
place inside the hut and therefore the deceased could not have the opportunity
of observing and identifying his assailants. It is no doubt true that in
Exhibit P-15, the deceased has not stated about the accused persons dragging
him out of hut and assaulting. But if the evidence of PW. 1. Abdul Rehman is
examined it would appear that while the deceased was shouting for help after
being assaulted by the accused persons when PW. 1 reached him, deceased had
told him that Mohan Lal threw acid on him and along with Mohan Lal his so Ghanshyam,
Bhanwar Singh Banjara, Chaggan Telli, Sambhu Pattedar, Shambhu Bachera, Sanjay Bachera
and Ramchander Bachera assaulted him and thereafter assailants threw acid.
said PW. 1 has been cross-examined at great length but nothing has been
elicited from him so as to impeach his testimony. He appears to us to be a
truthful witness who has narrated whatever he heard from the deceased and
whatever he saw at the place of occurrence. His evidence unequivocally
indicates that place of assault was not inside the hut but was outside, after
the deceased had been dragged from the hut. He has also stated in his evidence
that it was a moonlit night. That apart the evidence of Investigating Officer,
PW. 15 gives sufficient corroboration that the place of assault was not inside
the hut but outside, after the accused dragged the deceased from his hut. When
PW. 15 reached the place of occurrence he found marks of a person being dragged
on the ground from the hut upto the Mirch filed. He also found some scoreped
plants which seemed to have been scorched by some acidic article and further he
found burnt papers including a half burnt two rupee note. A glass bottle was
also seen floating in the well containing some fluid.
aforesaid evidence of PW. 15 clinches the matter that the assault as well as
throwing of acid on Mangi Lal had taken place outside the hut in the Mirch
filed of Mangi Lal after he was dragged from his hut. The F.I.R. which had been
lodged by the deceased himself also indicates the state of affairs. Therefore,
non-mentioning of being dragged and assaulted outside in Exhibit P-15 had
rightly been appreciated by the Learned Additional Sessions Judge that due to
the deteriorating condition of the deceased the omission might have taken place
and the said omission is not fatal. In our opinion the High Court was wholly in
error in discarding the voluntary statement of the deceased recorded by the
Magistrate on flimsy grounds which cannot be sustained. Having examined the
dying declaration made by the deceased and recorded by the Magistrate PW. 10 as
well as the F.I.R. which had been lodged by the deceased prior to his death and
the evidence of PW. 1, Abdul Rehman. to whom the deceased had narrated the
incident immediately after the occurrence, we have no doubt in our mind that
Exhibit P-15 is true and voluntary and had been made by the deceased while he
was in a fit state of mind and there was no opportunity of either tutoring or
prompting and as such the same can be easily pressed into service by the
prosecution in proving the charges against the accused persons. That apart, the
number of injuries found on the deceased as well as the acid injury on him
corroborates the said dying declaration.
Kumar in course of his submissions had raised a contention that three of the. accused
persons Namely Ramchandra, Chhagan alias Sajan and Shambhu belong to a
different village and there can be no justifiable reason for them to assault
the deceased. But this submission in our considered opinion is devoid of any
force, inasmuch as while discussing the evidence about the motive the Learned
Additional Sessions Judge in paragraphs 59 to 62 of his judgment has clearly
found out that all the accused persons belong to the rival group and had
strained relations with the deceased on account of land cultivation and in the
case that had been filed in the Court in Manasa, Ramchandra, Chhagan alias Sajan
and Shambhu have been arrayed as accused along with Mohan Lal. It is no doubt
true that the High Court has recorded the order of acquittal of the respondents
but it would be travesty of justice, if this court does not interfere with such
order of acquittal, where a gruesome murder has taken place and the High Court
rejects a true and voluntary dying declaration recorded by a Judicial
Magistrate by entering into realm of conjectures. We have gone through the
evidence on record and for the reasons already stated we unhesitatingly come to
the conclusion that the order of acquittal recorded by the High Court is wholly
unwarranted and unjustified. The prosecution has proved the case against the
accused - respondents beyond reasonable doubt. We accordingly set aside the
judgment passed by the High Court and confirm the conviction and sentences
recorded by the Learned Additional Sessions Judge.
accused - respondents who are on bail are directed to surrender to receive the
balance period of sentence and if they fail to surrender. appropriate steps be
taken for their arrest. This appeal is accordingly allowed.