Rattan
Singh Vs. The State of Himachal
Pradesh [1996] INSC
1593 (11 December 1996)
A.S.
Anand, K.T. Thomas Thomas, J
ACT:
HEAD NOTE:
A
young housewife (Kanta Devi) enceinte by four months, was shot at with double
barrel gun by an assailant who gatecrashed into her courtyard during the odd
hours of the night when she was sleeping. The shoal of pellets spewed out of
the mouth of the gun had pierced into her lungs and heart and she died
instantaneously. Appellant - an ex-armyman - was challaned by the police for
the said murder. Sessions Court acquitted him but a Division Bench of the High
Court of Himanchal Pradesh, on appeal by the State, convicted him under section
302. I.P.C. and sentenced him to imprisonment for life. He has filed this
appeal under section 2 of the Supreme Court (Enlargement of Criminal Appellate
Jurisdiction) Act 1970 and also under section 379 of the Code of Criminal
Procedure.
The
following is the story which prosecution has unfurled in the trial court:
Kanta Devi
(aged 21) was married to Puran Chand and she was living with her in-laws in her
husband`s house at Bhali village. Her husband was working in the Public Works
Department and most-often he was living away from his family. Her sister-in-law
Sheela Devi (PW10) though married was also residing in the same house.
Appellant, after superannuation from military armies has settled down in his
home village. He obtained a licence for possession of Ex.P1 - gun. Appellant,
in course of time developed some infatuation for Kanta Devi and he started
doting on her with libidinous designs, but she was not willing to reciprocate
his oglings. This negative response had burgeoned the seed of ranccur in his
mind towards Kanta Devi and thenceforth he started harrassing her. When she
found him incorrigible she complained to the police about his lewd conduct.
This led to initiation of security proceedings against him during which his gun
was seized by the authorities, but he secured it back by making an application
through advocate Prahalad Chand Sharma (PW2). Nonetheless his bitterness
towards her, instead of abating, was only brimming up. He made some
unsuccessful attempts to retaliate though in one such attempts he could shoot
down one of the pet dogs of her household.
On the
night of 6.7.1982, all the inmates of Kanta Devi`s house were sleeping on the
courtyard of the house.
Her
husband was, as usual absent from the house. At about 11.00 p.m. Kanta Devi`s
mother-in-law woke up sensing that somebody would have intruded into their
privacy and asked others whether anyone was there. Suddenly, deceased Kanta Devi
cried out that appellant was standing there with a gun.
This
was followed by the sound of a gun shot and pellets have delved into her body. Kanta
Devi`s brother-in-law Prakram Chand (PW3) and his sister Sheela Devi (PW10)
pounced upon the deceased and in about Sheela Devi succeeded in wresting the
gun from him but the assailant made his escape good leaving his torch-light and
chappals at the place of incident. Kanta Devi slumped down to the cot and slouched
her head.
Prakram
Chand (PW3) accompanied by two neighbours, PW-4 Piar Singh and PW-5 Sahib Singh
(who rushed to the scene on hearing the hue and cry from the place of
occurrence) proceeded to the police station, but on the way they came across
the police party to whom Prakram Chand gave First Information Statement (Ex.PD).
Sub-Inspector of police (PW- 23) visited the scene on the morning and held the
inquest, seized the gun and other articles. Appellant was later arrested and
after completion of the investigation charge- sheeted him for the murder of Kanta
Devi.
Appellant
has denied his involvement in the incident which led to the death of Kanta Devi.
However, he owned the gun produced in this case (Ex.P1) but he said that police
had seized that gun from his house. He denied the allegation that he was ogling
on Kanta Devi and later developed acerbity towards her.
Sessions
Court made a scathing criticism on the investigating officer for his failure to
trace out finger impression on the torchlight. Learned Sessions Judge took a
serious view of the omission in the First information Statement that Sheela Devi
(PW10) snatched the gun form the appellant. On that score learned Sessions
Judge disbelieved the entire testimony of Sheela Devi (PW10) as well as Prakram
Chand (PW3) . He sidestepped all the incriminating circumstances against
appellant and gave him a clean chit and permitted him to be armed with the gun
again.
The
Division Bench of the High Court has totally differed from the Sessions Court
and relied on the testimony of Sheela Devi (PW10) as well as her brother Prakram
Chand(PW3). The High Court did not take the omission in the First Information
Statement (regarding wresting the gun) seriously as it did not cause any dent
on the otherwise sturdy prosecution nutshell. The High Court treated the
reasoning of the Sessions Judge for sidelining the evidence of two important
witnesses as exceedingly unreasonable.
Learned
counsel for the appellant did not dispute the fact that Kanta Devi was shot
dead on the night of 6.7.1982 at her house. So the only question is whether it
was the appellant who did it.
Learned
counsel for the appellant made an endeavour to persuade us to concur with the
Sessions Judge`s view that the omission (in the First Information Statement)
regarding wresting of the gun from appellant is enough to conclude that the
said part of the story is a later improvement.
Ommission
of the said part of the story is a later improvement. Omission of the said
detail is there in the First Information Statement, no doubt. But Criminal
Courts should not be fastidious with mere omissions in First Information
Statement, since such Statements cannot be expected to be a choronicle of every
detail of what happened, nor to contain an exhaustive catalogue of the events
which took place. The person who furnishes first information to authorities
might be fresh with the facts but he need not necessarily have the skill or
ability to reproduce details of the entire story without anything missing therefrom.
Some may miss even important details in a narration. Quite often the Police
Officer, who takes down the first information, would record what the informant
conveys to him without resorting to any elicitatory exercise. It is the
voluntary narrative of the informant without interrogation which usually goes
into such statement. So any omission therein has to be considered along with
the other evidence to determine whether the fact so omitted never happened at
all. (Vide Podda Narayana & Ors. vs. State of Andhra Pradesh: AIR 1975 SC 1252: Sone Lal &
Ors. vs. The State of Uttar
Pradesh : AIR 1978 SC
1142 :
Gurnam
Kaur vs. Bakhsish Singh & Others :AIR 1981 SC 631.) In this case, there is
overwhelming evidence that the gun was lying near the deadbody, even apart from
the evidence of P.W. 3 and P.W.5. The two neighbours who reached the spot on
hearing the cry were Piar Singh (PW4) and Sahib Singh (PW5). Both of them said
that when they reached the place they saw Kanta Devi lying dead and a gun, a
torchlight and a pair of slippers were lying dead and a gun, a torchlight and a
pair of slippers were lying on the same site. Nothing has been elicited from
these witnesses during cross-examination to doubt the truth of their testimony.
That
apart, PW6, PW7 and PW8 who were present when the Sub- Inspector (PW23)
prepared the inquest have unequivocally said that the gun was lying on the
courtyard where the dead body of Kanta Devi remained. We have, therefore, no
difficulty in believing that the gun would have been wrested from the assailant
at the spot itself.
One of
the most important items of evidence in this case is what the deceased had
uttered immediately before she was fired at. when her mother-in-law sensed that
somebody had intruded in the courtyard during the odd hours, the deceased (near
whom the intruder was standing then) spoke out that appellant was standing
nearby with a gun. In a split second the sound of firearm shot was heard and in
a trice the life of Kanta Devi was snuffed off.
If the
said statement had been made when the deceased was under expectation of death
it becomes dying declaration in evidence after his death. Nonetheless, even if
she was nowhere near expectation of death, still the statement would become
admissible under Section 32(1) of the Evidence Act, though not as dying
declaration as such, provided it satisfies one of the two conditions set forth
in the sub- section. This is probably the one distinction between English law
and the law in India on dying declaration. In English
law, unless the declarant is under expectation of death his (Shared Birdhichand
Ser vs. State of Maharashtra: AIR 1984 SC 1622: Tehal Singh and
ors vs. State of Punjab
AIR 1979 SC 1347).
Section
32(1) of the Evidence Act renders a statement relevant which was made by a person
who is dead in cases in which cause of his death comes into question, but its
admissibility depends upon one of the two conditions: Either such statement
should relate to the cause of his death or it should relate to any of the
circumstances of transaction which resulted in his death.
Three
aspects have to be considered pertaining to the above item of evidence. First
is whether the said statement of the deceased would fall within Section 32(1)
of the Evidence Act so as to become admissible in evidence. Second is whether
what the witnesses have testified in Court regarding the utterance of the
deceased can be believed to the true. If the above two aspect are found in the
affirmative, the third aspect to be considered is whether the deceased would
have correctly identified the assailant? When Kanta Devi (deceased) made the
statement that appellant was standing with a gun she might or might not have
been under the expectation of death. But that does not matter. The fact spoken
by the deceased has subsequently turned out to be a circumstance which
intimately related to the transaction which resulted in her death. The
collocation of the words in Section 32(1) " Circumstances of the
transaction which resulted in his death" is apparently of wider amplitude
than saying "circumstances which caused his death". There need not
necessarily be a direct nexus between "circumstances" and death. It
is enough if the words spoken by the deceased have reference to any
circumstance which has connection with any of the transactions which ended up
in the death of the deceased. Such statement would also fall within the purview
of Section 32(1) of the Evidence Act. In other words. it is not necessary that
such circumstance should be proximate, for, even distant circumstances can also
become admissibile under the sub-section, provided it has nexus with the
transaction which resulted in the death.
In Sharad
Birdhi Chand Sarda`s case (cited supra) this Court has stated the above
principle in the following words :
"The
test of proximity cannot be too literally construed and practically reduced to
a cut and dried formula of universal application so as to be confined in a
strait-jacket. Distance of time would depend or vary with the circumstances of
each case. For instance, where death is a logical culmination of a continuous
drama long in process and is, as it were.
a
finale of the story, the statement regarding each step directly connected with
the end of the drama would be admissible because the entire statement would
have to be read as an organic whole and not torn from the context.
Sometimes
statements relevant to or furnishing an immediate motive may also be admissible
as being a part of the transaction of death." Even apart from section
32(1) of the Evidence Act, the aforesaid statement of kanta Devi can be
admitted under section 6 of the Evidence Act on account of its proximity of
time to the act of murder. Illustration `A' to section 6 makes it clear. It
reads thus:- "A is accused of the murder of B by beating him. Whatever was
said or done by A or B or the by standers at the beating or so shortly before
or after as to from part of the transaction is a relevant fact." (emphasis
supplied) Here the act of the assailant intruding into the courtyard during
dead of the night, victim`s identification of the assailant, her pronouncement
that appellant was standing with a gun and his firing the gun at her, are all
circumstances so intertwined with each other by proximity of time and space
that the statement of the deceased became part of the same transaction. Hence
it is admissible under Section 6 of the Evidence Act.
In
either case, whether it is admissible under section 32(1) or under section 6 of
the Evidence Act, it is substantive evidence which can be acted upon with or
without corroboration in finding guilt of the accused.
But
then the court must be assured of the remaining two aspects i.e. reliability of
the evidence and accuracy of the contents of the pronouncement. We have no
difficulty in believing that Kanta Devi would have said so. Both PW 3 and PW 10
have spoken about this in their evidence. Further PW3 has mentioned about it
even at the earliest opportunity when he gave first Information Statement. As
to the question whether Kanta Devi would have correctly identified appellant,
it was contended that it was then dark and there was shadow of a mango tree and
hence she could not have identified him correctly. The evidence shows that it
was a moonlit night and it happened on the open courtyard. The gunning down was
followed by about between the assailant on the one side and pW3 and PW 10 on
the other during which these witnesses also had occasion to identify the
assailant at very close range. Further again Ex.P1 gun which PW10 Sheela Devi
succeeded in wresting from the appellant is admittedly the gun of the
appellant.
From
the above circumstances we can unhesitatingly come to the conclusion that Kanta
Devi had correctly identified the appellant when she said that it was the
appellant who was standing with a gun.
Learned
counsel for the appellant tried to make out much from the fact that no finger
impression of Sheela Devi was found on the gun. We do not find any consequence
on account of it in this case. In fact, appellant did not seriously dispute
when the trial judge put the question to him regarding that circumstance during
his examination under Section 313 of the code of Criminal Procedure (question
no. 25 related to the evidence that gun was produced by Sheela Devi and was
taken into possession by the police. The answer given by the appellant to that
question was "I do not know"). Examination of the accused under
Section 313 of the Code is not a mere formality. Answers given by the accused
to the questions put to him during such examination have a practical utility for
criminal courts. Apart from incriminating circumstances against him, they would
help the court in appreciating the entire evidence adduced in the Curt during
trial. Ex.P1 - gun - admittedly belongs to the assailant. Therefore, when PW10
said in court that she succeeded in snatching it from the assailant and she
surrendered it to the police, we see no reason to disbelieve her, particularly
in view of the evasive answer given by the appellant to the question concerned.
We
have no doubt that the Division Bench of the High Court has salvaged criminal
justice in this case by interferring with the unmeritted acquittal emerged from
a perverse approach made by the Sessions Court. We, therefore, confirm the
conviction and sentence passed on the appellant and dismiss the appeal.
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