Moti Singh & ANR Vs. State of
Uttar Pradesh  INSC 11 (23 January 1963)
23/01/1963 DAYAL, RAGHUBAR DAYAL, RAGHUBAR
IMAM, SYED JAFFER SUBBARAO, K.
CITATION: 1964 AIR 900 1964 SCR (1) 688
R 1984 SC1622 (201)
Declaration-Admissibility ofCause of death of declarant not established-Indian
Evidence Act, 1872 (1 of 1872), s. 32 (1).
Seven persons including the appellants were
convicted for murder. Relying upon the dying declaration 'of one G, the High
Court acquitted five of the accused but convicted the appellants. G had been
injured during the occurrence and had been taken to the hospital where his
dying declaration was recorded. He left the hospital and died 20 days later.
Before any postmortem examination could be
held, his body was cremated. The appellants contended that the dying
declaration was inadmissible and that they were entitled to an acquittal.
Held, that the dying declaration was
inadmissible in evidence. There was no evidence on the record as to what caused
the death of G. The mere fact that G had received two gunshot injuries during
the occurrence which in the opinion of the doctor were dangerous to life was
not sufficient for holding that G must have died on account of these injuries.
Under s. 32 (1) of the Evidence Act the
Statement of a person who has died is relevant only when it relates to the
cause of his death or to any of the circumstances of the transaction which
resulted in his death. When it was not established that G had died as a result
of the injuries received at the incident, his statement did not relate to the
cause of his death or to the circumstances of the transaction which resulted in
his death and did not fall within s. 32 (1).
CRIMINAL APPFLLATE JURISDICTION: Criminal
Appeals Nos. 146 and 147 of 1962.
Appeals by special leave from the judgment
and order dated February 2, 1962, of the Allahabad High Court in Criminal
Appeals Nos. 157 and 158 of 1961 and Criminal Revision No. 384 of 1961.
689 A. S. R. Chari, Ravinder Narain, J. B.
Daduchanji and 0.
C. Mathur, for the appellants.
G. C. Mathur and C. P. Lal, for the
1963. January 23. The judgment of the Court
was delivered by RAGHUBAR DAYAL, J.-Moti Singh and jagdamba Prasad, appellants,
together with five other persons, were convicted by the Sessions judge of Unnao
of offences under s. 148, 302 read with 149 and 307 read with 149 I. P. C. Each
of them was sentenced to life imprisonment under s. 302 read with s. 149 1. P.
On appeal, the High Court acquitted the other
five persons of the various offences. The conviction of the 'appellants under
s. 148 1. P. C., was also set aside, but their conviction for the offences
under ss. 302 and 307 read with s. 149 were altered to conviction for offences
under ss. 302 and 307 read with s. 34 1. P. C. On the application of Krishna
Kumar, brother of one of the persons who had been murdered, the High Court
enhanced the sentence of the appellants for the offence of murder to death.
Moti Singh and jagdamba Prasad have preferred these appeals respectively, after
obtaining special leave from this Court.
It is not necessary to detail the facts of
the incident in which several persons lost their lives and for participation in
which incident the appellants were convicted, as we are of- opinion that the
conviction cannot be maintained on the basis of the evidence on record as
appreciated by the High Court.
All the eye witnesses of the incident deposed
in practically identical terms about the progress of the incident in which it
was alleged that the members of 690 the accused party fired with guns and
pistols both from inside and outside the room on one side of the passage and
also from the seori (cattle shed) on the other side of the passage when the victim
party passed along the passage. The High Court felt doubtful about the firing
of the shots from the cattle shed, and consequently acquitted Sheo Shankar,
jagjiwan and Shankar Dayal who were said to be mainly the persons who had fired
from that place.
The High Court, however, believed the
prosecution version of the firing from the room and later from the' platform.
It appears that the, High Court believed this version because the prosecution
witnesses stated so and because the statements exhibits Kha 5, Kha 8 and Kha 75
mentioned about the shots being fired from those places. Statement ex. Kha 75
does not say so. It says that firing took place from the front and that these
people fired shots with guns.
Statements- exs. Kha 5 and Kha 8 were made by
Ram Shankar and jageshwar, who were examined as Court-witnesses 1 and 2
respectively. Ram Shankar and jageshwar have been disbelieved by the Sessions
judge and it appears that the High Court did not take any more favourable view
of their deposition in Court. It however seems to have relied on their
statements exs. Kha 5 and Kha 8 respectively, recorded by a Magistrate at the
hospital. In this it was in error. Those statements could have been used only
in either corroborating or contradicting the statements of these Witnesses in
Court. If those witnesses were not to be believed, their previous statements
could not be used as independent evidence in support of the other prosecution
In considering the complicity of individual
accused in the firing from the room and later from the chabutra, the High Court
said that Raj Kumar, P. W. 1 1 and Chandra Kumar, P.
W. 15, were partisan witnesses whose evidence
had to be examined 691 with caution, that Shyam Lal, P. W. 12 and Gopi Singh,
14, were not quite independent witnesses, and
that there was nothing particular against Lal Singh, P. W. 17, and Sardar (P.
W. 16) who had received gunshot injuries. It further said :
"While considering the evidence of the
prosecution witnesses we have to bear in mind the rule that the evidence has to
be examined with caution".
It also considered it necessary to refer to
the statements exs. Kha 5 and Kha 8 which, as already stated, could not be used
as substantive evidence, and the statement ex. Kha 75 of Gaya Charan, deceased.
The High Court fully relied on the alleged
dying declaration ex. Kha 75 of Gaya Charan and considered it to be a complete
account of the occurrence and the assailants as seen by him. The view of the
High Court about this statement of Gaya Charan may be quoted :
"The dying declaration Ex. Ka-75 (Kha
75) of Gaya Charan appears to be a complete account of the occurrence and the
assailants as seen by him, for he stated : 'Lallan, Chandu, Raj Narain, Sardar,
Sri Prakash were going to the bazar. Shots were fired from front, jagdamba,
Phunnar, Moti and one man whom I know by face fired gunshots on us'. The
statement does not show that Gaya Charan did not see all the assailants who
fired gunshots. It -is therefore not possible to hold that any accused not mentioned
in the dying declaration of Gaya Charan had also fired shots. At the same time
we see no reason to hold that the dying declaration of Gaya Charan is not true.
jageshwar identified the accused Jagdamba 692
among the assailants. The evidence of the eye-witnesses has therefore to be
judged in the light of the statements Exs. Kha 5 and Kha-8 of Ram Shankar and
jageshwar and the dying declaration Ex. Kha 75 of Gaya Charan." Now, the
evidence relied on by the High Court for the conviction of Jagdamba Prasad
consists of the statements of the prosecution -witnesses, the statement of
jageshwar I, K. Kha 8 and the alleged dying declaration of Gaya Charan Ex. Kha
75. It also took into consideration the fact that he remained absconding till
his arrest on September 30, 1960, the incident having taken place on February
The evidence relied on for the conviction of
Moti Singh consists of the dying declaration Ex. Kha 75 of Gaya Charan and,
presumably, also of the statements of the I prosecution witnesses, as the High
Court has not specifically stated so.
It has said "We have also no doubt about
the participation of the accused Moti in the firing of shots from the east of
the galiara. He is named in the dying declaration Ex. Kha. 75, of Gaya
Charan." With regard to the criticism for the accused about the
indefiniteness of the description of Moti in the dying declaration of Gaya
Charan when there were three persons by the name of Moti in the village, the
High Court said :
"We have no doubt that he is mentioned
in the dying declaration." How they arrived at that conclusion is not
clear from the judgment. The three persons with the name of Moti belonged to
different castes. The case. of Moti is not mentioned in the dying declaration
693 of Gaya Charan. It is therefore not possible to state with any confidence
that Gaya Charan must have referred to Moti Singh, 'the appellant, by the name
in acquitting Sheo Darshan Singh, the High
Court said that though there were strong circumstances against him, he was not
mentioned in the dying declaration of Gaya Charan and that therefore his
presence among the assailants became doubtful. In acquitting Avadh Behari it
again said that his name was not mentioned in the dying declaration of Gaya
Again, in fixing the number of persons who
had taken part in the firing from the room and the platform, the High Court
relied on Exhibit Kha 75, the alleged dying declaration of Gaya Charan as the
deciding factor. It said "The number of assailants mentioned in the dying
declaration Ex. Kha. 75 is only four., It is doubtful if the assailants were
more than four in number. No offence under section 148 was therefore committed
and section 149 I.P.C. is not applicable." It is clear from the above that
the High Court mainly relied on the alleged dying declaration of Gaya Charan
for determining that Moti Singh and jagdamba Prasad, appellants, 'fired from
the room and the platform and that if their names had not been mentioned in
this statement of Gaya Charan, they too would have got the benefit of doubt
just as Sheo Darshan Singh and Avadh Behari have got. There is no other factor
for making a distinction between the cases of these two appellants and those
two accused as all the prosecution witnesses had named all the accused as assailants
of the victim 694 party. It follows that if this alleged dying declaration of
Gaya Charan be inadmissible in evidence as urged for. the appellants, the
appeals have to be allowed and the conviction of the appellants set aside.
The incident took place on February 9, 1960.
Gaya Charan's injuries were examined by Dr. Bhatnagar the same day. He found
two gunshot wounds of entry 1/4 x 1/4" up to the depth of abdomen and
considered those injuries to be caused by gunshot and to be dangerous to life.
Gaya Charan left the hospital. He was either discharged on the injuries
healding up or he left the hospital before they healed up.
There is nothing on record to show in what
circumstances he left the hospital. He died on March 1. 1960.
Sub-Inspector Puttu Lal, P.W. 24, has deposed
that it was known on March 1, 1960 that Gaya Charan had died in Kanpur and that
when he reached the Bhairon Ghat he learnt that the dead body of Gaya Charan
had been burnt a couple of hours before. There is no evidence on record as to
what caused Gaya Charan's death. In this state of evidence the finding of the
Sessions judge that Gaya Charan must have died on account of the injuries
received in the incident cannot be held to be a good finding. What he says in
this connection is:
"Gaya Charan had a gunshot wound of
entry on the left hypochondrium region and one gunshot wound of entry on the
right lumbar region.
Both the injuries were dangerous to life,
according to the Doctor. Gaya Charan must have died of these injuries and the
mere fact, that no post mortem could be conducted on his dead body before his
cremation, does not show that we cannot rely on his dying declaration."
The mere fact that the two gun-shot injuries 695 were dangerous to life is not
sufficient for holding that Gaya Charan's death which took place about three
weeks after the incident must have been on account of those injuries.
In this connection our attention was drawn to
the fact that Ram Shankar who was also injured in that incident had received
one gunshot wound -I' x 1/4" up to the depth of his abdomen above the
right end of upper border of Syihphysis Pubes, and that injury was 'also
considered by the Doctor to be dangerous to life, but fortunately Ram Shankar
did not succumb to the injury. The High Court did not refer to this question as
it appears the admissibility of the alleged dying declaration of Gaya Charan
was not raised before it. That however does not mean that ' we cannot look into
the finding of fact about Gava Charan having died on account of the injuries
received in the incident. It is necessary for proving the charge of murder of
Gaya Charan that he had died on account of the injuries received, and any
finding to that effect, in the absence, of evidence can be looked into by this
Court even though the Courts below have confirmed that finding. We find that
there is no evidence to support that finding and hold that Gaya Charan is not
proved to have died due to the injuries received in the incident.
The effect of this finding is that the
alleged dying declaration of Gaya Charan,, Ex. Kha 75, cannot be admissible in
evidence. Clause (d) of s. 32 of the evidence Act makes a statement of a person
who has died relevant only when that 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. When Gaya Charan is not proved to have died as a result of the
injuries received in the incident, his statement 696 cannot be said to be the
statement as to the cause of his death or as to any of the circumstances of the
transaction which resulted in his death. This is obvious and is not disputed
for the respondent State.
The result then is that the statement of Gaya
Charan Ex. Kha 75 is inadmissible in evidence. It was the mainstay of the
judgement of the High Court upholding the finding of the Sessions.judge that
Moti Singh and jagdamba Prasad, appellants,were among the persons who had fired
from the room and the platform. When this evidence is to be ignored as
inadmissible, the remaining evidence on the record according to the view of the
High Court, was insufficient to establish beyond reasonable doubt that these
two persons were among the assailants. The appellants deserve the benefit of
that doubt. They would have got it if the High Court had not erroneously relied
on the statement Ex. Kha 75.
We therefore hold that Moti Singh and
jagdamba Prasad have not been proved to have taken art in that incident on
February 9, 1960, which part to the deaths of Lallan and Matrumal and the
causing of hurt to several other persons.
We accordingly allow the appeals, set a de
the order of the High Court and acquit Moti Singh and jagdamba Prasad of the
offences they were convicted of. We direct that they be released forthwith, if
not required to be detained under any other process of law.