@ Champa and Ors Vs. State of Madhya Pradesh  Insc 1097 (24 October 2007)
Arijit Pasayat & D.K. Jain
APPEAL NO.1166 of 2001 Dr. ARIJIT PASAYAT, J.
Challenge in this appeal is to the judgment of the Madhya Pradesh High Court at
Jabalpur upholding the conviction of the appellants for offence punishable
under Section 304 Part I read with Section 34 of the Indian Penal Code, 1860
(in short the 'IPC') and the award of sentence of 7 years rigorous imprisonment
as awarded by the trial Court.
Prosecution version in a nutshell is as follows:
morning of 26th April, 1987 Ramesh (hereinafter referred to as the 'deceased')
was returning from the house of Ismail Khan. He was waylaid by the three
accused persons who attacked him with knife, lathi and rod. Ramesh sustained
numerous injuries on his person. Rakesh Kumar and Bittu alias Gurdeo Singh
intervened. The incident was witnessed by his mother Khargi Bai (PW-1),
maternal grandmother Tulasa Bai (PW-22) and others. Ramesh was taken to the
Police Station where he lodged the first information report (Ex.P.10) which was
recorded by Head Constable Santosh Kumar (PW- 20). Ramesh was immediately taken
to the District Hospital at Bina where Dr. Rajnish Shrivastava (PW-11) examined him.
found as many as 18 injuries on his body as per his report Ex.P.16. Ramesh was
admitted in the hospital. On the following day he was referred to District Hospital, Sagar for X- ray and further treatment. There he breathed
last on 30.4.1987. Dr. M.C. Jain (PW-16) performed the autopsy on the next day.
Postmortem report is Ex.P.28.
the course of investigation knife article 'B' was recovered from the possession
of accused Dashrath alias Champa on the basis of the information supplied by
Govind also made a disclosure statement leading to recovery of lathi article
'D' and accused Satish made a statement leading to the recovery of rod article
completion of investigation, a challan was put up against the three accused
persons for commission of offence punishable under Section 302 read with
Section 34 IPC.
three accused persons were tried. Seven witnesses were examined as
eye-witnesses to further the prosecution version. They included the mother
(PW-1) and grand mother (PW-22) of the deceased. The other five eye-witnesses
produced were Laxmi Bai (PW-2), Asgari Begam (PW-4) and neighbours of the
deceased and Santosh Singh (PW-17), Rakesh (PW-18) and Bittu (PW-19). But none
of the witnesses admitted to having seen the incident. Therefore, the
prosecution with the permission of the Court cross examined them. The trial
Court was of the view that these witnesses were deliberately making false
statements and concealing the truth. But the First Information Report (Ex.P10)
was recorded by the Head Constable Santosh Kumar (PW-20) on the information
given by the deceased. The said Head Constable had also recorded the statement
of the deceased under Section 161 of the Code of Criminal Procedure, 1973 (in
short the 'Cr.P.C.'). His statement is marked as Ex.P.32. Learned Additional
Sessions Judge treated both the statements to be statements under Section 32(1)
of the Indian Evidence Act, 1872 (in short the 'Evidence Act'). Relying on
those statements and the medical evidence, the trial Court found that Ramesh
had died as a result of the injuries inflicted upon him by the accused persons.
But since none of the injuries was found on the vital organs of the deceased it
was held that the offence committed was covered under Section 304 Part I IPC.
The accused persons challenged correctness of the judgment before the High
Court by filing an appeal which was dismissed by the impugned order.
Learned counsel for the appellants submitted that there was no material
evidence to connect appellants with the crime and, therefore, both the trial
Court and the High Court were not justified in finding the accused persons
guilty. It is submitted that considering the nature of injuries sustained, it
would have been impossible for the deceased to make any statement.
Learned counsel for the State on the other hand supported the judgments of the
trial Court and the High Court.
factual scenario as borne out from the records is that the deceased was brought
to District hospital, Bina where he was admitted for observation and treatment.
Dr. Rajnish Shrivastava (PW-11) found 18 injuries on his person. The doctor in
cross examination stated that the deceased was examined by him at 1.00 p.m. in the afternoon on 26.4.1987.
that time the patient had not gone in shock. It was later that shocks started
developing resulting in fall of blood pressure and vomiting as was recorded in
bed head ticket (Ex. P.17). The observation was recorded at 5.00 p.m. on 26.4.1987. The deceased was admitted in District Hospital, Sagar. The bed head ticket (Ex.P.27) shows that he was
admitted in the hospital at 11.15 p.m. on 27.4.1987 and in the bed head ticket
the general condition was recorded to be satisfactory and also that he was
conscious. The deceased breathed his last three days later on 30.4.1987.
Though PWs. 18 and 1 stated that the deceased was unconscious, PW-22 stated
that he was in senses. It was also stated by this witness that the deceased had
lodged the report.
also stated that the police had recorded the statement of the deceased. Though
some of the witnesses resiled from the statements made during investigation,
PW-19 stated that he and Ramesh's mother carried him to the police station.
Kumar, Head Constable (PW-20) had testified that the deceased was fully
conscious when he was brought to the police chowki and it was the deceased who
had lodged the complaint which was recorded by him. The statement of the
deceased was marked as Ex.P.32. The trial Court and the High Court relying on
the evidence of PW-20 concluded that the statement given by the deceased was to
be treated as a dying declaration. The bed head ticket of District Hospital, Sagar, (Ex.P.27) shows that when the deceased was brought
he was conscious and his general condition was satisfactory. These materials
were sufficient to discard the stand of the accused persons that the deceased
was unconscious when he was brought to the hospital. As the deceased died on
30.4.1987 the trial Court and the High Court treated the first information report
(Ex. P.10) to be in the nature of the dying declaration;
the statement of the deceased (Ex.P.32). In both these statements the three
accused persons have been named as the assailants. The trial Court and the High
Court analysed the evidence in great detail and found that the prosecution
established its stand because of the dying declaration.
this juncture, it is relevant to take note of Section 32 of the Evidence Act,
which deals with cases in which statement of relevant fact by person who is
dead or cannot be found, etc. is relevant. The general rule is that all oral
evidence must be direct viz., if it refers to a fact which could be seen it
must be the evidence of the witness who says he saw it, if it refers to a fact
which could be heard, it must be the evidence of the witness who says he heard
it, if it refers to a fact which could be perceived by any other sense, it must
be the evidence of the witness who says he perceived it by that sense. Similar
is the case with opinion. These aspects are elaborated in Section 60. The eight
clauses of Section 32 are exceptions to the general rule against hearsay just
stated. Clause (1) of Section 32 makes relevant what is generally described as
dying declaration, though such an expression has not been used in any Statute.
It essentially means statements made by a person as to the cause of his death
or as to the circumstances of the transaction resulting in his death. The
grounds of admission are: firstly, necessity for the victim being generally the
only principal eye-witness to the crime, the exclusion of the statement might
deflect the ends of justice; and secondly, the sense of impending death, which
creates a sanction equal to the obligation of an oath. The general principle on
which this species of evidence is admitted is that they are declarations made
in extremity, when the party is at the point of death and when every hope of
this world is gone, when every motive to falsehood is silenced, and the mind is
induced by the most powerful considerations to speak the truth; a situation so
solemn and so lawful is considered by the law as creating an obligation equal
to that which is imposed by a positive oath administered in a Court of justice.
These aspects have been eloquently stated by Lyre LCR in R. v. Wood Cock (1789)
1 Leach 500. Shakespeare makes the wounded Melun, finding himself disbelieved
while announcing the intended treachery of the Dauphin Lewis explain:
I met hideous death within my view, Retaining but a quantity of life, Which bleeds
away even as a form of wax, Resolveth from his figure 'gainst the fire? What is
the world should make me now deceive, Since I must lose the use of all deceit?
Why should I then be false since it is true That I must die here and live hence
King John, Act 5, Sect.4)
The principle on which dying declaration is admitted in evidence is indicated
in legal maxim "nemo moriturus proesumitur mentiri a man will not meet
his maker with a lie in his mouth."
This is a case where the basis of conviction of the accused is the dying
declaration. The situation in which a person is on deathbed is so solemn and
serene when he is dying that the grave position in which he is placed, is the
reason in law to accept veracity of his statement. It is for this reason the
requirements of oath and cross-examination are dispensed with. Besides, should
the dying declaration be excluded it will result in miscarriage of justice
because the victim being generally the only eye-witness in a serious crime, the
exclusion of the statement would leave the Court without a scrap of evidence.
Though a dying declaration is entitled to great weight, it is worthwhile to
note that the accused has no scope of cross- examination. Such a scope is
essential for eliciting the truth as an obligation of oath could be. This is
the reason the Court also insists that the dying declaration should be of such
a nature as to inspire full confidence of the Court in its correctness. The
Court has to be on guard that the statement of deceased was not as a result of
either tutoring, or prompting or a product of imagination. The Court must be
further satisfied that the deceased was in a fit state of mind after a clear
opportunity to observe and identify the assailant. Once the Court is satisfied
that the declaration was true and voluntary, undoubtedly, it can base its
conviction without any further corroboration. It cannot be laid down as an
absolute rule of law that the dying declaration cannot form the sole basis of
conviction unless it is corroborated. The rule requiring corroboration is
merely a rule of prudence. This Court has laid down in several judgments the
principles governing dying declaration, which could be summed up as under as
indicated in Smt. Paniben v. State of Gujarat (AIR 1992 SC 1817):
There is neither rule of law nor of prudence that dying declaration cannot be
acted upon without corroboration. [See Munnu Raja & Anr. v. The State of Madhya Pradesh (1976) 2 SCR 764)]
If the Court is satisfied that the dying declaration is true and voluntary it
can base conviction on it, without corroboration. [See State of Uttar Pradesh v. Ram Sagar Yadav and Ors. (AIR
1985 SC 416) and Ramavati Devi v. State of Bihar (AIR 1983 SC 164)]
The Court has to scrutinize the dying declaration carefully and must ensure
that the declaration is not the result of tutoring, prompting or imagination.
The deceased had an opportunity to observe and identify the assailants and was
in a fit state to make the declaration. [See K. Ramachandra Reddy and Anr. v.
The Public Prosecutor (AIR 1976 SC 1994)]
Where dying declaration is suspicious, it should not be acted upon without
corroborative evidence. [See Rasheed Beg v. State of Madhya Pradesh (1974 (4) SCC 264)]
Where the deceased was unconscious and could never make any dying declaration
the evidence with regard to it is to be rejected. [See Kaka Singh v State of M.P. (AIR 1982 SC 1021)]
dying declaration which suffers from infirmity cannot form the basis of
conviction. [See Ram Manorath and Ors. v. State of U.P. (1981 (2) SCC 654)
Merely because a dying declaration does not contain the details as to the
occurrence, it is not to be rejected. [See State of Maharashtra v. Krishnamurthi Laxmipati Naidu
(AIR 1981 SC 617)]
Equally, merely because it is a brief statement, it is not to be discarded. On
the contrary, the shortness of the statement itself guarantees truth. [See Surajdeo
Oza and Ors. v. State of Bihar (AIR 1979 SC 1505).
Normally the Court in order to satisfy whether deceased was in a fit mental
condition to make the dying declaration look up to the medical opinion. But
where the eye- witness said that the deceased was in a fit and conscious state
to make the dying declaration, the medical opinion cannot prevail. [See Nanahau
Ram and Anr. v. State of Madhya
Pradesh (AIR 1988 SC
Where the prosecution version differs from the version as given in the dying
declaration, the said declaration cannot be acted upon. [See State of U.P. v. Madan Mohan and Ors. (AIR 1989 SC 1519)].
Where there are more than one statement in the nature of dying declaration, one
first in point of time must be preferred. Of course, if the plurality of dying
declaration could be held to be trustworthy and reliable, it has to be
accepted. [See Mohanlal Gangaram Gehani v.State of Maharashtra (AIR 1982 SC
the light of the above principles, the acceptability of alleged dying
declaration in the instant case has to be considered. The dying declaration is
only a piece of untested evidence and must like any other evidence, satisfy the
Court that what is stated therein is the unalloyed truth and that it is
absolutely safe to act upon it. If after careful scrutiny the Court is
satisfied that it is true and free from any effort to induce the deceased to
make a false statement and if it is coherent and consistent, there shall be no
legal impediment to make it basis of conviction, even if there is no
Singh v. State of U.P. (JT 1992 (2) SC 417), Goverdhan Raoji
Ghyare v. State of Maharashtra (JT 1993 (5) SC 87), Meesala Ramakrishan
v. State of Andhra
Pradesh (JT 1994 (3)
SC 232) and State of Rajasthan v. Kishore (JT 1996 (2) SC 595)].
There is no material to show that dying declarations were result of product of
imagination, tutoring or prompting. On the contrary, they appear to have been
made by the deceased voluntarily. It is trustworthy and has credibility.
view of the factual scenario as analysed in the background and the principles
set out above the inevitable conclusion is that the trial Court and the High
Court were justified in finding the accused persons guilty. There is no merit
in this appeal which is dismissed accordingly. The appellants who are on bail
shall surrender to custody forthwith to serve remainder of sentence, if any.