Harbans Singh & ANR Vs. State of
Punjab  INSC 303 (16 October 1961)
GUPTA, K.C. DAS GAJENDRAGADKAR, P.B.
CITATION: 1962 AIR 439 1962 SCR Supl. (1) 104
CITATOR INFO :
RF 1963 SC 200 (17) R 1965 SC 26 (19) R 1965
SC 257 (8) R 1970 SC1566 (5) F 1972 SC 622 (27,31) R 1973 SC 55 (19) R 1973
SC1204 (9) R 1973 SC2195 (8) F 1973 SC2622 (7) R 1974 SC 606 (8,9) R 1976
SC1994 (6) R 1985 SC 416 (13)
Appeal against acquittal -interference by
appellate court, when permissible-Dying declaration Corroboration, if
The High Court set aside the Trial Court's
order of acquittal of the appellants and convicted them on a charge of murder
under s. 302 of the Indian Penal Code. On appeal by the appellants by special
leave ^ Held, that this Court in its earlier decisions emphasised that
interference with an order of acquittal should be based only on "complying
and substantial reasons" and held that unless such reasons were present an
Appeal Court should not interface with an order of acquittal, but this Court
did not try to curtail the powers of the appe11ate court under s. 423 of the
Code of Criminal Procedure. Though in its more recent pronouncements this Court
laid less emphasis on 105 "compelling reasons" the principle has
remained the same. That principle is that in deciding appeals against acquittal
the Court of Appeal must examine the evidence with particular care and must
also examine the reasons on which the order of acquittal was based and should
interfere with the order only when satisfied that the view taken by the
acquitting judge was clearly unreasonable.
Once the Court came to the conclusion that
the view of the lower court was unreasonable that itself was a "compelling
reason" for interference.
Once it was found that the High Court applied
the correct principles in setting aside the order of acquittal this Court will
not ordinarily interfere with the High Court's order of conviction in appeal
against acquittal o enter into the evidence to ascertain whether the High Court
was right in its view of the evidence. Only such examination of the evidence
would ordinarily be necessary as is needed to see that the High Court
approached the question properly and applied the principle correctly.
If the judgment of the High Court did not
disclose a careful examination of the evidence in coming to the conclusion that
the view of the acquitting court was unreasonable or if it appeared that the
High Court erred on questions of law or misread the evidence or the judgment of
the trial court, this Court would, unless the case was sent back to the High
Court for re-hearing, appraise the evidence for itself to examine the reasons
on which the lower court based its order of acquittal and then decide whether
the High Courts view that the conditions of the lower court was unreasonable,
was correct. If on such examination it appeared to the Court that the view of
the acquitting court was unreasonable the acquittal would be set aside and if
on the other had it appeared that the view was not unreasonable the order of
acquittal would be restored.
Suraj Pal Singh v. State,  S.C.R. 194,
Ajmer Singh v. State of Punjab  S.C.R. 418, Puran v. State of Punjab
A.I.R. 1953 S.C. 459, Chinta v. State of M. P., Cr. A. No. 178 of 59 and
Ashrafkha Haibatkha Pathan v. State of Bombay, Cr.
A. No. 38 of 1960, referred to.
It was neither a rule of law nor of prudence
that a dying declaration should be corroborated by other evidence before a
conviction could be ba ed thereon.
Ram Nath v. state of M. P. A.l.R. 1953 S.C.
420, referred to.
Khushal Ram v. State of Bombay, [l958] S.C.R.
A dying declaration did not become less
credible if a number of persons were names are culprits 106 Khurshaid Hussain.
v. Emperor,(1941) 43 Cr.L.J.59, held erroneous.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 115 of 1959.
Appeal by special leave from the judgment and
order dated May 23, 1958, of the Punjab High Court in Criminal Appeal No. 414
N.C. Chatterjee. I.M. Lal, C.L. Sareen and
Mohan La1 Agarwal, for the appellant.
N. S. Bindra and P. D. Menon, for the
1961. October 16. The Judgment of the Court
was delivered by DAS GUPTA, J.-Six persons including the present appellants
were tried by the Additional Sessions Judge Ferozpur on several charges in
connection with the death by homicidal injuries of two brothers Munshi Singh
and Hazura Singh. Of these six, Bhag Singh was the father of the other five
accused persons. All the six accused persons were acquitted by the Additional
on appeal by the State, the High Court of
Punjab set aside the orders of acquittal in respect of Harbans Singh and Major
Singh and convicted them under section 302 of the Indian Penal Code. The appeal
was dissmissed in respect of the other four, viz., Bhag Singh, Gursi, Bant
Singh and Gian Singh. It is against this order of conviction that Harbans Singh
and Major Singh have filed the present appeal after obtaining special leave
from this Court.
The prosecution case is that at about 8 or 9
P.M. on July 23, 1956, shortly after Munshi Singh had returned home and
complained to his father Hira Singh about the conduct of Harbans Singh and Bant
Singh in abusing him. Munshi Singh ran out of his house on hearing some cries;
but when he reached the Dharamshala not far from his house 107 these two
appellants, along with their father Bhag Singh and their brothers Bant Singh,
Gian Singh and Gursi fell upon him and caused numerous injuries with the
weapons which they carried.
Harbans Singh, it is said, struck Munshi
Singh on the abdomen with a Sela in his hand. Munshi Singh's brother Hazura
Singh and his father Hira Singh also had followed Munshi Singh when he ran out
of the house. On seeing this attack on Munshi Singh, EIazllra Singh tried to
intervene, but he too was attacked and received several injuries.
Harbans Singh, it is said, gave him a Sela
thrust in the abdomen. Munshi Singh died on the spot;
Hazura Singh was brought to the hospital at
Gidderbha the following morning and received some treatment but he also died of
his injuries the following day, that is, the 24th July.
All the accused pleaded not guilty, the
defence being that they had been falsely implicated out of enmity.
To prove its Base the prosecution relied on
the evidence of two persons, the deceased's father Hira Singh and their uncle
Bhag Singh and the dying declaration alleged to have been made by Hazura Singh,
once in the village before Devendra Singh, the Sub-Inspector of Police who had
come to the village that night in connection with some other investigation and
for the second time at Gidderbha hospital before a Magistrate.
On a consideration of the evidence the Trial
Judge came to the conclusion that the prosecution case had not been proved
against any of the accused person. Being of opinion that the First Information
Report had been recorded as late as 4- 30 P.M. On the 24th July he thought that
"the complainant party was not able to day who the assailants were and the
police was making time to find out the culprits after investigation and the
First Information Report was delayed on that account." He was doubtful
also about the truth of the Sub-Inspector's 108 story that he actually reached
the village of occurrence on that very night and consequently doubtful about
any statement having been made by Hazura Singh to him on that night. In any
case, he thought Hazura Singh's dying declaration had little probative value
because as many as six persons had been named and that it could not be relied
upon without corroboration. The learned Judge was also not satisfied that Bhag
Singh (Prosecution Witness) "was present in the village or at his house at
the time of the occurrence" since "his statement was not recorded in
the Inquest Report prepared by the police at midnight". The learned Judge
also thought it unsatisfactory that nobody other than these two near relatives,
that is, the father and uncle of the deceased persons had been examined as
witnesses of the occurrence. These were the main reasons for which he came to
the conclusion that the case had not been proved against any of the accused
beyond reasonable doubt and accordingly acquitted the accused The High Court
was of opinion that the learned Judge was wholly "wrong in holding that
Bhag Singh was not mentioned in the Inquest Report"; that he had misread
the time of the first Information Report as 4-30 P. M. for 4-30 A. M.
and that he was again in error in concluding
that "the statement made by Hazura Singh to the police on their arrival at
1-15 A.M. was inadmissible".
After pointing out these "errors"
in the reasoning of the learned Trial Judge the High Court said:- "We have
no hesitation in concluding that for the said reasons the judgment of the
learned Additional Sessions Judge is wholly erroneous resulting in complete
miscarriage of justice.
After having gone through the testimony of
both of the eye-witnesses and examining the other material, particularly the
two dying 109 declarations, we are of the view that the projection case was
substantially true and have been proved.
As regards complicity of Harbans Singh and
Major Singh, there appears to be no doubt. Both of them had been assigned
participation and were responsible for the fatal blow on each of the deceased.
In this respect the testimony of both of the witnesses and the dying
declarations are consistent. They were accordingly held guilty under section
302, Indian Penal code." The main contention raised by Mr. Chatterjee on
behalf of the appellants is that the High Court had no sufficient reasons for
interfering with the order of acquittal made by the Additional Sessions Judge
and that the High Court itself had been guilty of "errors",
especially as the High Court has misread the judgment of the learned Additional
Sessions Judge and had attributed to him statements which are not to be found
in his judgment.
The question as regards the correct
principles to be applied by a Court hearing an appeal against acquittal of a
person has engaged the attention of this Court from the very beginning. In many
cases, especially the earlier ones, the Court has in laying down such
principles emphasised the necessity of interference with an order of acquittal
being based only on "compelling and substantial reasons" and has
expressed the view that unless such reasons are present an Appeal court should
not interfere with an order of acquittal. (Vide Suraj Pal Singh v. The State
Ajmer Singh v. State of Punjab (2); Puran v.
State of Punjab (3). The use of the words "compelling reasons"
embarrassed some of the High Courts in exercising their jurisdiction in appeals
against acquittals and difficulties occasionally arose as to what this Court
had meant by the (1)  S. C. R. 194. (2)  S. C. R. 418.
3)A.l.R. (1953) S. C. 459.
110 words "compelling reasons". In
later years the Court has often avoided emphasis on "compelling
reasons" but nonetheless adhered to the view expressed earlier that before
interfering in appeal with an order of acquittal a Court must examine not only
questions of law and fact in all their aspects but must also closely and
carefully examine the reasons which impelled the lower courts to acquit the
accused and should interfere only if satisfied after such examination that the
conclusion reached by the lower court that the guilt of the person has not been
proved is unreasonable. (Vide Chinta v. The State of Madhya Pradesh (1);
Ashrafkha Haibatkha Pathan v. The State of Bombay (2), It is clear that in
emphasising in many cases the necessity of "compelling reasons" to
justify an interference with an order of acquittal the Court did not in any way
try to curtail the power bestowed on appellate courts under s 423 of the Code
of Criminal Procedure when hearing appeals against acquittal; but conscious of
the intense dislike in our jurisprudence of the conviction of innocent persons
and of the facts that in many systems of jurisprudence the law does not provide
at all for any appeal against an order of acquittal the Court was anxious to
impress can the appellate courts the importance of bestowing special care in
the sifting of evidence in appeal against acquittals. As has already been
pointed out less emphasis is being given in the more recent pronouncements of
this Court on "compelling reasons". But, on close analysis, it in clear
that the principles laid down by the court ill this matter have remained the
same. What may be called the golden thread running through all these decisions
is the rule that in deciding appeals against acquittal the Court of Appeal must
examine (1) Criminal Appeal No. 178 of 1959 decided on l8-11-60.
(2) Criminal Appeal No. 38 of 1960 decided on
111 the evidence with particular care, must
examine also the reasons on which the order of acquittal was based and should
interfere with the order only when satisfied that the view taken by the
acquitting Judge is clearly unreasonable. Once the appellate court comes to the
conclusion that the view taken by the lower court is clearly an unreasonable
one that itself is a "compelling reason" for interference. For, it is
a court's duty to convict a guilty person when the guilt is established beyond
reasonable doubt, no less than it is its duty to acquit the accused when such
guilt is not so established.
When the High Court's judgment shows clearly
that the matter has been approached in the proper manner and the correct
principles have been applied, there is very little scope for this Court to
interfere with an order made by the High Court convicting an accused person in
an appeal against acquittal. Once it is found that the principles laid down by
this Court have been correctly applied this Court will not ordinarily embark
upon a reappraisal of the evidence to ascertain whether the High Court was
right in its view of the evidence. The only examination of the evidence that
this Court may find itself called upon to undertake will ordinarily be just so
much as is necessary to see whether the High Court has approached the question
properly and applied the principles correctly.
The position may however be different if the
judgment of the High Court while indicating its conclusion that in its opinion
the view taken by the lower court is unreasonable does not disclose a careful
examination of the evidence for coming to such conclusion. Or it may appear
from the High Court's judgment that the High Court has erred on questions of
law or has obviously misread the evidence on the record or the judgment of the
Trial Court. What is this Court to do in such cases ? We are unable to agree
112 with Mr. Chatterjee that the only proper course for this court to take is
to set aside the order made by the High Court and restore the order of
acquittal. For, even where the High Court's judgment suffers from any of these
defects it may very well be that the High Court's conclusion that the view of
the lower court is unreasonable is correct. So, unless this Court thinks fit to
send the case back to the High Court for re-hearing of the appeal and its
disposal in accordance with law, it becomes the duty of this Court in cases
like these which fortunately are likely to be few in number-to appraise the
evidence for itself, to examine the reasons on which the lower court based the
order of acquittal and then decide whether the High Court's conclusion that the
view taken by the lower Court on the question of the guilt of the accused is
clearly unreasonable, is correct. If satisfied that the view was clearly
unreasonable, this Court is bound to dismiss the appeal and to maintain the
order of conviction made by the High Court; if on the contrary, this Court is
not satisfied on such examination that the conclusion reached by the lower
court that the guilt of the accused has not been proved was clearly
unreasonable, the order of acquittal would be restored.
The judgment of the High Court in the present
case does not contain much discussion of the evidence in the case. All the
discussion of the evidence is confined to the few sentences which we have
quoted earlier in this judgment. We also notice that the learned judges of the
High Court were under some misapprehension in thinking that the Additional
Sessions Judge had held that Bhag Singh was not mentioned as a witness in the
Inquest Report. What the Additional Sessions Judge had pointed out was that
Bhag Singh's statement had not been recorded in the Inquest Report. The
Additional Sessions Judge was certainly right in this. While the High Court
might have well thought that no doubt against 113 the credibility of Bhag Singh
should be based on this fact that his statement was not recorded, the High Court
was not justified in attributing to the Trial Judge something which he did not
It is also not quite clear how the learned
Judge said about the appellant Major Singh that he had been assigned
participation and was responsible for the fatal blow on each of the deceased.
In fact, neither of the two who claim to be the eye-witnesses of the occurrence
has said that Major Singh dealt a fatal blow on either Hazura Singh or Munshi
Singh. While it is true that a general statement is made by both the witnesses
as regards all the six accused having attacked both Munshi Singh and Hazura
Singh neither of them has spoken of any particular injury having been caused by
Major Singh. Hazura Singh himself in his dying declaration did say that Major
Singh gave him a Sela blow on his left wrist but does not speak of any other
injury having been caused by Major Singh either to him or to Munshi Singh
except that he also said generally that all the accused gave blows on the
person of Munshi Singh. The High Court has therefore clearly misdirected itself
in thinking that Major Singh was responsible for any of the fatal injuries.
In view of all this we consider it necessary
to examine the judgment of the Trial Court and also the evidence on record
ourselves for a proper decision of this appeal.
Turning to the judgment of the Trial Court we
find that the main circumstance which weighed with him for doubting the truth
of the prosecution story is what he considered the considerable delay in
recording the First Information Report. From the printed record before us we
find that Narendar Nath Moharrir Head Constable, who actually entered the
formal First Information Report, stated in his evidence that he made the entry
at "4.30 P.M." on the 24th July 1956. It is apparently this 114 fact
taken with the fact that the report did not reach the Magistrate Shri Pasricha
before 8.45 P.M. on the 24th July that made the learned Judge think that the
First Information was made at the Police Station at 4.30 P.M. He has
unfortunately not noticed that the record of the First Information Report Ex.
PP1 shows the time of record as 4.30 A.M. He also overlooked Narendranath's own
evidence in cross-examination in these words: "I have perused the
Roznamcha entries and find that this special report was despatched by me
through Chanan Singh Foot Constable at 5.15 A.M. I cannot say why he did not
deliver it to the Magistrate till 8.45 P.M." It is quite clear that 5.15
A.M. as recorded in the printed record in Narender Nath's cross- examination is
not a mistake for 5.15 P.M. If that had been so there would have been no point
in his saying that he could not say why the Constable did not deliver it to the
Magistrate till 8.45 P.M.
when this statement in cross-examination is
considered along with the recording of the time in Ex. PP1 itself there is no
escape from the conclusion that 4.30 P.M. as stated in Narender Nath's
Examination-in-Chief was a slip of tongue and the correct time of the record
was 4.30 A.M.
and that the fact that it reached the
Magistrate at 8.45 P.M. that day may well be due to the fact that the Constable
was negligent and took his own time about going to the Magistrate or to some
other reason not clear from the record. The reasoning of the Trial Judge based
on his wrong view about the time of recording of the formal First Information
Report that the complainant party was not able to say who the assailants were
and so delay was made, therefore falls to the ground.
The learned Judge has also misdirected
himself in thinking that the dying declaration had very little probative value
because as many as six accused persons had been named and that no conviction
could in law be based on such dying declaration without corroboration. The law
does not make any 115 distinction between a dying declaration in which one
person is named and a dying declaration in which several persons are named as
culprits. A dying declaration implicating one person may well be false while a
dying declaration implicating several persons may be true. Just as when a
number of persons are mentioned as culprits by a person claiming to be an
eye-witness in his evidence in court the court has to take care in deciding
whether he has lied or made a mistake about any of them, so also when a number
of persons appear to have been mentioned as culprits in a dying declaration
that court has to scrutinise the evidence in respect of each of the accused.
But it is wrong to think that a dying declaration becomes less credible if a
number of persons are named as culprits. The contrary view taken in the Lahore
High Court in Khurshaid Hussain v. Emperor (1) on which apparently the Trial
Judge has relied is clearly erroneous.
The learned Judge appears to have relied also
on what was said by this Court in Ram Nath v. State of Madhya Pradesh(2) on the
need of corroboration for a dying declaration. Speaking for the Court Mahajan
J. (as he then was) observed in that case:- "It is settled law that it is
not safe to convict an accused person merely on the evidence furnished by a
dying declaration without further corroboration because such a statement is not
made on oath and is not subject to cross-examination and because the maker of
it might be mentally and physically in a state of confusion and might well be
drawing upon his imagination while he was making the declaration." The
question was however considered again by this Court in Khushl Rao v. State of
Bombay(3). After pointing out that in Ram Nath's Case (Supra) the 116 Court
after a careful examination of the facts of that case distinctly came to the conclusion
that the dying declaration was not true and could not be relied upon this Court
stated in the later case that the observations of the Court in Ram Nath's case
were in the nature of obiter dicta. The Court then proceeded to review the
relevant provisions of the Evidence Act and of the decided cases in the
different High Courts in India and in this Court and stated the law in these
words:- "that it cannot be laid down as an absolute rule of law that a
dying declaration cannot form the sole basis of conviction unless it is
corroborated; (2) that each case must be determined on its own facts keeping in
view the circumstances in which the dying declaration was made; (3) that it
cannot be laid down as a general position that a dying declaration is a weaker
kind of evidence than other pieces of evidence; (4) that a dying declaration
stands on the same footing as another piece of evidence and has to be judged in
the light of surrounding circumstances and with reference to the principles
governing the weighing of evidence; (5) that a dying declaration which has been
recorded by a competent magistrate in the proper manner, that is to say, in the
form of questions and answers, and, as far as practicable, in the words of the
maker of the declaration, stands on a much higher footing than a dying
declaration which depends upon oral testimony which may suffer from all the
infirmities of human memory and human character, and (6) that in order to test
the reliability of a dying declaration, the Court has to keep in view the
circumstances like the opportunity of the dying man for observation, for
example, whether there was sufficient light if the crime was committed at
night; whether the capacity of the man to remember the facts stated had not
been impaired at the time he 117 was making the statement by circumstances
beyond his control that the statement has been consistent throughout if he had
several opportunities of making a dying declaration apart from the official
record of it; and that the statement had been made at the earliest opportunity
and was not the result of tutoring by interested parties.
"Hence, in order to pass the test of
reliability a dying declaration has to be subjected to a very close scrutiny,
keeping in view the fact that the statement has been made in the absence of the
accused who had no opportunity of testing the veracity of the statement by
cross-examination. But once the court has come to the conclusion that the dying
declaration was the truthful version as to the circumstances of the death and
the assailants of the victim, there is no question of further corroboration.
If, on the other hand, the Court, after examining the dying declaration in all
its aspects and testing its veracity, has come to the conclusion that it is not
reliable by itself, and that it suffers from an infirmity, then, without
corroboration it cannot form the basis of a conviction. Thus, the necessity for
corroboration arises not from any inherent weakness of a dying declaration as a
piece of evidence, as held in some of the reported cases, but from the fact
that the court, in a given case has come to the conclusion that that particular
dying declaration was not free from the infirmities referred to above or from
other infirmities as may be disclosed in evidence in that case." In view
of this latest pronouncement of this Court-which it should be stated in
fairness to the Trial Judge was made long after he gave his judgment-it must be
held that it is neither a rule of law nor of prudence that a dying declaration
requires to be corroborated by other evidence before a conviction can be based
thereon. The evidence furnished by the dying declaration must be considered by
the Judge, just as the evidence of any 118 witness, though undoubtedly some
special considerations arise in the assessment of dying declarations which do
not arise in the case of assessing the value of a statement made in Court by a
person claiming to be witness of the occurrence. In the first place, the Court
has to make sure as to what the statement of the dead man actually was. This
itself is often a difficult task, specially where the statement had not been
put into writing. In the second place, the court has to be certain about the
identity of the persons named in the dying declaration-a difficulty which does
not arise where a person gives his depositions is Court and identifies the
person who is present in court as the person whom he has named. Other special
considerations which arise in assessing the value of dying declarations have
been mentioned by this Court in Khushal Rao v. State of Bombay(1) and need not
be repeated here.
In view of this latest pronouncement of this
Court on the question of need of corroboration of a dying declaration by other
evidence, it must be held that the Trial Judge was wrong in thinking that he
could not act on the dying declaration of Hazura Singh unless it was
corroborated by other evidence.
In view of the several defects in the
reasoning of the Trial Judge, it is necessary for us to examine the evidence on
the record to see whether the High Court was right in thinking that the view
taken by the learned Judge was clearly unreasonable. The most important
evidence in the case is furnished by the dying declaration made by Hazura
Singh. The Investigating Officer, Devender Singh has said that on July 22, 1956
he had gone to the village Rikala on an excise raid and from there he went to
Mallan at about 2 P.M. on July 23, to investigate a case under section 392 of
the Indian Penal Code. His further evidence is that it was on the same night at
about midnight that he started for Dhurkot from Mallan. We see 119 no reason to
doubt the truth of his statement that he did reach Dhurkot shortly after
midnight of the 23rd July and that when on hearing that a murder had taken
place near the Dharamshala he came to the Dharamshala. Hazura Singh who was
lying injured on a cot there made a statement to him, he recorded the statement
correctly. That statement has been marked Ex. PP. The substance of this
statement is that at about 9 P.M. on the night of the occurrence his brother
Munshi Singh came and complained about the conduct of Bant Singh, Harbans Singh
and other sons of Bhag Singh and that shortly after this on hearing shouts of
Bant Singh and others near the Lharamshala, Munshi Singh went towards that
place followed by Hazura Singh and his father Hira Singh and that when they
reached the place they found Harbans Singh and the other accused persons all
armed with weapons raising uproar and when Munshi Singh reached the place and
returned the abuse Harbans Singh gave the first blow to Munshi Singh with a
Sela in his hand hitting him on the front of the chest after which others of
the party also gave blows and when Hazura Singh stepped forward to rescue his
brother, Harbans Singh gave him a blow with a Sela in his hand which hit him on
the abdomen and the other accused also gave him blows. The blow given by Major
Singh hit him on his left wrist.
It is clear that this statement was made by
Hazura Singh shortly after midnight i.e., within about four hours after the
occurrence. It has to be remembered that Hazura Singh had one single serious
injury viz., the penetrating wound on his abdomen. We are satisfied from the
evidence of the witnesses that there was sufficient moonlight that to enable
Hazura Singh to recognize clearly the assailant who struck the blow which
caused this injury. He could have therefore made no mistake about the indentity
of his assailant. Nor is it likely that he 120 would within a few hours of the
occurrence ascribe this fatal blow on him to somebody other than the real
assailant. The several injuries on Hazura Singh and the numerous injuries on
Munshi Singh justify the conclusion that there was more than one assailant in
the attacking party. Whether or not Hazura Singh could have made a mistake
about the identity of the other assailants or could have implicated some of
them at least falsely, it will be unreasonable to think that he would
substitute another person for the one assailant who gave him the fatal blow. On
a consideration of these circumstances we are therefore satisfied that it would
be unreasonable to doubt or disbelieve the truth of Hazura Singh's statement
when he said that Harbans Singh struck him with the Sela in his hand which hit
him on the abdomen. Even if there was no other evidence on the records as
regards the part taken by the appellant Harbans Singh this dying declaration of
Hazura Singh is so clearly true that the only reasonable view for a judge of
facts to take is that Harbans Singh caused the death of Hazura Singh by
striking him with a Sela.
As has already been noticed Hazura Singh in
this statement mentioned Harbans Singh as the person who gave the first blow to
Munshi Singh, the blow which caused one of the injuries on his chest. We can
think of no reason why this main part should be ascribed falsely to Harbans
we think, considering the circumstances in
which the statement was made, that this part of Hazura Singh's statement is
also clearly the truth and could reasonably be accepted even without any corroboration.
A second statement of Hazura Singh was
recorded at the Hospital where he was removed.
This statement appears to have been recorded
at about midnight of the 24th July. In this statement also he mentioned Harbans
Singh and the other accused persons as having taken part in the attack. It
appears that when this statement was made 121 Hazura Singh's condition was very
bad. Indeed, after he had made a part of the statement the Magistrate recorded
that he had started giving indifferent answers and asked the Doctor to give him
the necessary treatment. After the treatment was given the statement was
concluded. We would not attach much weight to this statement on the 24th July.
But, it will be noticed that there is nothing in this latter statement which
detracts from the truth of the earlier statement made shortly after the
occurrence to the police sub- Inspector.
There is apart from this the testimony in
Court of Hira Singh the father of the two deceased persons and his uncle Bhag
Singh. As regards Bhag Singh the learned Trial Judge has pointed out that Bhag
Singh's statement was not recorded by the sub-Inspector in the Inquest Report.
While there is nothing in law which requires the statement of witnesses to be
recorded in the Inquest Report, it appears to be a common practice in Punjab
for police officers to record statements of witnesses in Inquest Reports. In
the present case the Sub- Inspector appears to have recorded a fairly full
statement of Hira Singh as also short statements of Arjan Singh, Matha Singh
and Lakal Singh in the Inquest Report itself. It is somewhat curious therefore
that the Sub-Inspector did not record the statement of Bhag Singh also in this
report even though it is found that Bhag Singh was named as a witness of the
occurrence in Hazura Singh's dying declaration itself. It is also difficult to
understand Bhag Singh's statement that he left the place as soon as some
neighbours came up after the occurrence and did not go back to the spot till he
was called by the police. He has offered no explanation for this rather unusual
conduct. In view of all this, we are not prepared to say that tho Trial Judge
acted unreasonably in doubting his testimony.
We are unable however to discover any valid
reason for doubting the presence of Hira Singh at 122 the place of occurrence.
It seems to us that the main reason for the Trial Judge to doubt the truth of
Hira Singh's evidence was what he considered the great delay in lodging the
formal First Information Report. That reason, as we have already pointed out,
does not exist.
On an examination, it seems to us quite
likely that Hira Singh also accompanied Hazura Singh when the latter followed
Munshi Singh towards the Dharmashala and it also seems to us improbable that he
would give the main part in the assault falsely to Harbans Singh if somebody
else was responsible for the blow which caused Hazura Singh's death. In our
view the learned Trial Judge acted unreasonably in doubting the truth of Hira
Singh's evidence against Harbans Singh.
On a consideration of the evidence we are
therefore satisfied that the conclusion reached by the High Court that the view
taken by the Trial Court as regards Harbans Singh's guilt Was clearly
unreasonable is correct and that the only reasonable view on the evidence can
be that Harbans Singh committed murder by causing the death of Hazura Singh and
also committed murder by causing the death of Munshi Singh.
The position is however different as regards
Major Singh. As has already been pointed out the High Court is wrong in
thinking that the evidence Shows that Major Singh gave any of the fatal blows.
Hazura Singh in his first dying declaration mentioned Major Singh as having
given a below on him on his left wrist. Apart from Bhag Singh only Hira Singh
has ascribed any specific part to Major Singh in addition to saying generally
that he took part in the attack. The evidence therefore leaves scope for
thinking that Hazura Singh has made a mistake about Major Singh or has wrongly
implicated him. We are not therefore prepared to say that the view taken by the
Trial Judge as regards Major Singh is clearly unreasonable.
123 We therefore allow the appeal of Major
Singh set aside the order of conviction and sentence made against him by the
High Court and restore the order of acquittal made by the Trial Court. The
appeal of Harbans Singh is dismissed. Major Singh should be set at liberty at
Appeal of appellant 2 allowed.
Appeal of appellant 1 dismissed.