Singh and Anr Vs. State of Haryana  Insc 76 (5 February 2004)
Raju & Arijit Pasayat Arijit Pasayat,J.
call in question legality of the judgment rendered by a Division Bench of the Punjab and Haryana High Court whereby the
conviction made and sentence imposed by the Trial Court was affirmed so far as
the appellants are concerned. Four persons faced trial for allegedly causing
homicidal death of one Kaushal Singh (hereinafter referred to as 'the
deceased') after abducting him. All the four accused persons faced trial for
the offences punishable under Sections 364, 302, 323 read with Section 34 of
the Indian Penal Code, 1860 (for short 'the IPC'). They were found guilty of
the charged offences. Sentences of life imprisonment, rigorous imprisonment for
10 years and two months respectively were imposed for three offences, and fine
with default stipulation in case of non-payment of fine. The High Court in
appeal held accused Mahabir Singh and Rakesh (A-2 and A-4 respectively) to be
not guilty and directed their acquittal, but maintained the conviction and
sentence so far as appellants are concerned.
prosecution version as unfolded during trial is essentially as follows:
and appellant no.1 (Narain Singh) were brothers. Appellant Hamir Singh is the
son of appellant Narain. There was series of litigations between them in
respect of some properties. On 4.5.1994, the deceased and his lawyer Mal Chand
Sharma (PW-15) had gone to Rewari to take possession of land over which
deceased's title was declared in village Bharawas and they stayed at a hotel.
At about 9.30 a.m. they went to the Tehsil office, by
a hired Jeep. Tehsildar asked them to come at 1.00 p.m. While the informant and the deceased were going on foot
towards Jeep which was parked across road at about 10.30 a.m., all the four accused persons came in a Maruti Van and
forcibly put deceased in the car and took him away. Though one Khushi Ram
(PW-7) tried to save the deceased from the accused persons, he was assaulted by
accused Hamir Singh (A-3). The accused persons took away the deceased. PW-15
immediately reported the matter to police. On the basis of his report, first
information report was registered at about 10.50 a.m. and the investigation was undertaken. Police officials went
in search of the deceased who was found in old house in village Bharawas. The
statement of deceased was recorded under Section 161 of the Code of Criminal
Procedure, 1973 (in short 'the Cr.P.C.') which was treated subsequently to be
the dying declaration. He was brought to Rewari for treatment. Dr. Vinod Kumar
(PW-12) examined him at 12.00
noon. The deceased was
taken to the Jeypore hospital but on the way he breathed his last in the
afternoon. On examination, PW-12 had found 21 injuries on the body of the
deceased. Subsequently when the deceased breathed his last post-mortem was
conducted by PW-14 on 15.5.1995 and the injuries noticed by him were more or
less the same as were noticed by PW-12. During the course of investigation,
recoveries were made of the lathi and the Khukri which were allegedly used by
the accused persons for assaulting the deceased. On completion of investigation
charge sheet was placed.
witnesses were examined to further the prosecution version and PWs 7 and 8 were
stated to be eyewitnesses. Apart from PW-15, PW-8 was driver of the Jeep in
which the deceased and PW-15 had travelled. PW-7 was claimed to be the
eyewitness who tried to save the deceased when he was forcibly taken in the car
and sustained injuries and PW-15 his advocate gave the first report to the
trial none of the alleged eyewitnesses supported the prosecution version.
Therefore, prosecution relied on the dying declaration purported to have been
made by the deceased. The Trial Court found that the dying declaration was
acceptable to fasten the guilt of the accused and, therefore, convicted and
sentenced them as indicated above.
the four accused persons preferred appeal before the High Court which came to
hold that the dying declaration was not sufficient to hold the accused Mahabir
and Rakesh (A-2 and A-4 respectively) to be guilty. However, since the present
appellant had a motive to murder the deceased and the dying declaration was
acceptable, so far as they are concerned. Accordingly while acquitting accused Mahabir
and Rakesh (A-2 and A-4 respectively), present appellants were convicted.
support of the appeal, learned counsel for the appellant submitted that this is
a case where the informant who was an advocate did not support the prosecution
to him, the assaults were made by some persons on the deceased near the Tehsil
office and not at the place claimed by the prosecution. PW-7 who is supposed to
have sustained injuries while trying to save the deceased also did not support
the prosecution version. Similar was the position of driver PW-8. It was
submitted that the medical evidence clearly rules out the manner of assault as
claimed by the prosecution. The logic applied for disbelieving the involvement
of Mahabir and Rakesh is equally applicable so far as the appellants are
concerned. The so-called dying declaration itself is not believable.
counsel for the State, on the other hand, submitted that merely because the
dying declaration was disbelieved in part, that cannot be ground to acquit
present appellants. Undisputedly, the deceased had sustained injuries and
merely because the hypothetical answers given by the doctor (PW-19) show that
the injuries were not possible by the weapon claimed to have been used by the appellants,
that cannot be a ground to discard the evidence.
appellants had the motive to kill the deceased and that is the distinctive
feature between the acquitted A-2 and A-4 and the appellants.
counsel for the informant who has filed/applied for impleadment adopted stand
of the State.
in law there is no bar in acting on a part of the dying declaration, it has to
pass the test of reliability. Section 32(1) of the Indian Evidence Act, 1872
(in short '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. A dying declaration made by a person
on the verge of his death has a special sanctity as at that solemn moment a
person is most unlikely to make any untrue statement. The shadow of impending
death is by itself guarantee of the truth of the statement of the deceased
regarding circumstances leading to his death. But at the same time the dying
declaration like any other evidence has to be tested on the touchstone of
credibility to be acceptable. It is more so, as the accused does not get an
opportunity of questioning veracity of the statement by cross-examination. The
dying declaration if found reliable can form the base of conviction.
however, seen that there are some circumstances which assume importance in view
of the fact that the informant (PW-15) who was advocate of the deceased has
departed from the statement supposed to have given during investigation, and in
the first information report. Similar is the position of the witness who is
supposed to have received injuries. In the dying declaration, specific roles
were attributed to all the accused persons. The High Court found the roles attributed
to the accused Rakesh to be unacceptable, as he was not found present when the
police arrived at the house from where the deceased was supposedly recovered.
Similar is the situation so far as accused- appellant Hamir is concerned. In
the dying declaration the deceased had said that it was Mahabir and appellant Narain
who were trying to kill him. The High Court found that since Mahabir would not
have benefited from the death; he cannot be convicted. The reasoning is
fallacious. A definite role was attributed to Mahabir and it was stated that he
wanted to kill the deceased. On mere surmise that there was no motive, a
different approach was adopted. Added to this, there are other suspicious
circumstances. Firstly, the incident is supposed to have taken place at 10.30 a.m. and the report was lodged with the police at 10.50 a.m. The distance of police station from the house from
where the deceased was allegedly recovered, is about 8 kms. It would have
certainly taken some time to reach that place.
to the prosecution, the statements of two witnesses were immediately recorded
at the spot by the police. This is unusual because the first effort should have
been in the normal course to send the deceased to the nearest hospital for
treatment. Doctor (PW-12) examined the deceased at about 12.00 noon after the deceased was brought there after covering
at least ten kilometers. The dying declaration is supposed to have been taken
after recording the evidence of the witnesses. It is more baffling, that the investigating
officer did not accompany the deceased to the hospital and claimed to have sent
him along with the constable who was not examined. The High Court has
erroneously observed that the first effort of the police was to save the life
of the deceased and, therefore, the statements were not recorded immediately.
This is contrary to what the investigating officer (PW-16) himself stated.
the original statement stated to be dying declaration has not been brought on
record and what was purported to be exhibited document was a carbon copy.
Doctor (PW-19) in his evidence also stated that the injuries found on the
deceased were of such nature that he would not be in a position to give any
statement without getting medical aid from a specialist and that too after two
to three hours.
(PWs 12 and 19) have also stated that the deceased would not have been in a
position to give a detailed statement like the one produced by the prosecution
as a dying declaration. The time period between the recording of F.I.R.,
examination of the witnesses and recording statement of deceased, that too
after traveling 8 kms. and again bringing deceased to hospital to be examined
by PW-12 has to much more than one hour and ten minutes as stated by the
prosecution. The alleged dying declaration runs to several pages being a very
detailed and elaborate one, and the recording of which itself would take
in his cross-examination (PW-16) says that he does not remember recording the
statement of the deceased. Doctor (PW-19) has also stated as to the injuries
found on the body of the deceased by PW-12 and as indicated in the injury
report and in the post-mortem report were not such as could be possible by the Khukri
which was shown to him in Court and purported to have been recovered on the
basis of information given by accused Hamir. Adding to that, the number of the
car which was supposed to have been used for taking away the deceased from the
road near the Tehsil office was differently described during trial. In the
circumstances of the case, merely because the accused and the deceased were
claimed to be inimical towards each other, that would not be sufficient to
adopt a different method of analyzing or appreciating the evidence which was common
for all the four persons without any distinct or reasonably distinguishable
features. The Trial Court and the High Court having accepted this position, on
the hypothetical distinction of a supposed motive could not have adopted
different yardstick. When the so-called dying declaration was itself not
proved, as noted above, the question of acting on it did not arise. There is no
evidence to establish kidnapping and/or murder to attract Section 364 IPC and
Section 302 IPC. PW-7 allegedly suffered injuries at the hands of the
appellants for which they were convicted in terms of Section 323/34 IPC. PW-7
himself did not support prosecution version in this regard.
in the aforesaid background, the only inevitable conclusion permissible on the
nebulous and suspect nature of the evidence let in would be that the
prosecution has not established accusations so far as appellants are concerned.
conviction is set aside and the appeal is allowed. The prayer for impleadment
is disposed of. Accused-appellant Hamir be set at liberty forthwith unless
required in any other case. The bail bonds of accused Narain Singh who is on
bail shall stand cancelled.