Panchdeo
Singh Vs. State of Bihar [2001] Insc 644 (7 December 2001)
Umesh
C. Banerjee & K.G. Balakrishnan Banerjee, J.
Admissibility
of a dying declaration has had judicial scrutiny for over five decades. Whereas
the earlier view in Ramnath's case (Ramnath Madhoprasad and others v. State of Madhya Pradesh:
AIR
1953 S.C. 420) to the effect that it is not safe to convict an accused person
merely on the evidence furnished by a dying declaration without further
corroboration, a larger Bench judgment of this Court in Tarachand (Tarachand Damu
Sutar v.The State of Maharashtra: AIR 1962 SC 130) categorically observed that
conviction based on dying declaration, against the correctness of which no
cogent reasons have been given or suggested, is sustainable in law.
This
Court, a decade later in Munnu Raja and another v. The State of Madhya Pradesh
(AIR 1976 SC 2199) stated the law to the effect that though the dying
declaration must be approached with caution for the reason that the maker of
the statement cannot be subjected to cross-examination, there is neither a rule
of law nor a rule of prudence which has hardened into a rule of law that a
dying declaration cannot be acted upon unless it is corroborated. This Court
went up to observe that the court must not look out for corroboration unless it
comes to the conclusion that a dying declaration suffered from any infirmity.
One of
the latest pronouncement of this Court pertaining to the subject find place in
the decision of Arvind Singh v. State of Bihar (J.T. (2001) 5 SC 127) wherein,
this court observed that apart from the care and caution factors as noticed
earlier the dying declaration ought otherwise to be treated as trustworthy. The
issue thus becomes as to whether the dying declaration has been able to bring
about a confidence thereon or not is it trustworthy or it is a mere attempt to
cover up the latches of investigation: it must allure to the satisfaction of
the court that reliance ought to be placed thereon rather than a distrust: The
confidence of the court is the summum-bonum and in the event of there being any
affirmation thereto in the judicial mind, question of any disbelieve or
distrust would not arise. In the event however of there being some infirmity,
howsoever, negligible it be, the Court unless otherwise satisfied about the
credibility thereof, ought to look for some corroboration, if however it is
otherwise, question of requirement of a corroboration would not arise: dying
declaration alluring confidence of the court would be a sufficient piece of evidence
to sustain conviction. There is no format as such of dying declaration neither
the declaration need be of any longish nature and neatly structured. As a
matter of fact, perfect wording and neatly structured dying declaration may
bring about an adverse impression and create a suspicion in the mind of the
court since dying declarations need not be drawn with mathematical precision -
the declarant should be able to recollect the situation resulting in the
available state of affairs.
Having
dealt with the basic issue involved in the matter and adverting to the factual
score, be it noted that against the judgment and order of conviction and
sentence dated 23rd December, 1988 passed by the additional Sessions Judge, Dhanbad,
two separate appeals being Crl.A.No.64/1989 (Panchdeo Singh v. State of Bihar)
and the other Crl.A.No.65/1989 (Dun Bahadur Singh v. State of Bihar), the High
Court by a common judgment affirmed the order of conviction and sentence passed
against the appellant by the court below. The learned Additional Sessions
Judge, Dhanbad convicted the appellant herein under Section 302 read with
Section 149 of the Indian Penal Code for committing murder of one Sriram Singh
and Section 148 of the Indian Penal Code and sentenced rigorous imprisonment
for life. The accused was further convicted under Section 324 read with Section
149 of the Indian Penal Code and Section 148 of the Indian Penal Code and was
sentenced to rigorous imprisonment for 3 years on each count though, however,
sentence were directed to run concurrent. The High Court dealt with both the
appeals by common judgment as noticed above, affirmed the judgment of the
learned Sessions Judge and it is against this order of affirmation that the
present appellant Panchdeo Singh moved this Court for special leave to appeal
under Article 136 of the Constitution and this Court granted such leave by its
order dated 12th May, 2000.
At
this juncture it will be convenient to advert to the prosecution case briefly :
on 20.12.1980, around 8 a.m., the informant Ramsumer Singh (PW-8), in the
company of Sriram Singh (the deceased) was going to Modidih Colliery Office on
some election work and when on way they arrived on the road, at a distance of
about 50 yards from the Modidih Director's Technical Bungalow, the informant
spotted the appellants, co-accused Sakaldeo Singh, Vinod Kumar Singh (since
deceased) and Nagendra Singh (who died during the trial) standing with their
Car No.BHW 98 stationed on the west of the road, and Sakaldeo Singh hurled a
bomb on Sriram Singh (the deceased), which hit in his abdomen, and thereafter Nagender
Singh and Dun Bahadur Singh threw bombs, causing injuries to the deceased and
the informant too sustained wounds. On alarm, the witnesses arrived and the
culprits fled away in the parked car towards Loyalabad. The informant, Bhagwan
Singh and other witnesses carried Sriram Singh to Loyalabad Central Hospital, where the fard-beyan of Ramsumer
Singh (PW-8) was recorded by the police officer, attached to Jogta Police
Station, on 20.12.1980 at 10.30 a.m. The
motive behind the occurrence is alleged to be the previous enmity.
On its
basis, the formal First Information Report (Exhibit 2) was drawn up and the
investigation commenced. During investigation, the injured (Sriram Singh)
succumbed to the wounds on the next day of the occurrence, around 10.30 a.m., at Sadar Hospital, Dhanbad, and after completion of
the investigation, charge-sheet was laid in court against the appellants and
other accused in the case.
In
their statements, recorded under section 313 of the Criminal Procedure Code,
the appellants denied their involvement in the occurrence and stated false
implication.
At the
trial, the prosecution examined as many as 14 witnesses. Out of it three are
formal witnesses. Even one of the formal witnesses were declared hostile along
with other eight. But admittedly the conviction under Section 302 IPC and
sentence to undergo rigorous imprisonment for life both by the Additional
Sessions Judge, Dhanbad and that of the High Court has been on the basis of the
dying declaration of the deceased, which admittedly does not involve the
appellant herein with the crime.
There
is, however, a positive statement against the appellant herein in regard to his
presence at the site of occurrence and it is on the basis of this statement in
a dying declaration that the High Court sustained the conviction and sentence
as passed by the learned Additional Sessions Judge. The dying declaration thus
needs to be considered with some detail. For convenience sake, the dying
declaration is set out herein below:
"Dying
declaration of Shri Ram Singh son of Chandwar Singh of Village: Akbarpur,
Police Station (Illegible), Distt. Azamgarh, at present Modidih, PS: Jogta, Distt.
Dhanbad, being recorded at Sadar Hospital, Dhanbad on 20.12..1980 at 11.20 AM. According to the injured the occurrence took place
at 8.00 AM today.
Question
: When, how, and where did you sustain injury? Answer: Sakaldeo Singh son of Mukhram
Singh threw bomb on me from the front side on my belly on Modidih Road which leads to Tetanwari Station Road.
Question
: Do you want to say anything more? Answer: Nagender Singh son of Mukhram Singh
also threw and hit bomb from behind. Dun Bahadur Singh and Vinod Singh son of Mukh
Ram Singh also ran with the bomb.
Pachdeo
Singh was also with them.
When
the bomb hit me, I ran away but fell down on the ground due to hit of another
bomb on the back side. I was wearing vest, shirt and woolen jacket. I was going
from Modidih to the Union Office, Modidih." The filed copy of the above
noted declaration does not contain any signature but a perusal of the original
depicts that the deceased signed the declaration but the signature appears at
the bottom of the page with some space in between the last writing and the
signature. In this context, the evidence of the Magistrate, being PW-12, seems
to be of some relevance :
"..
On that day I received an order of the Chief Judicial Magistrate, Dhanbad to
record the dying declaration of injured Shri Ram Singh son of Shri Chander
Singh R/o Aklipur, PS: Meh Nagar, Distt. Azamgarh, at present Modidih, Police Station
: Jogta, Distt. Dhanbad. After receipt of this order I went to Sadar Hospital, Dhanbad on the same day and recorded dying declaration of
the said injured at 11.20. I recorded it, in the presence of Dr.Raman Shanker
Prasad. I recorded his statement as stated by the injured and the same was read
over to him.
He
marked his signature after being found the statement correct. That statement is
scribed and signed by me. Dying declaration is marked as Ex.5." In
cross-examination, the witness stated :
"
3. Before recording dying declaration I asked to the injured about his name
etc. He was in a fit condition to make the statement or not, I did not put up
any other question to know about it. He voluntarily stated his name and full address,
therefore, I got satisfied myself that he was in fit condition to make the
statement. The statement was read over to the injured and he marked his
signature after being found it correct which is not on my record. Below the
statement "Ram Singh" has been mentioned, therefore, I state that the
injured marked his signature. I do not recollect as to whether he put his
signature or not. There is no mention of L.T.I. before "Ram Singh".
L.T.I.
of Ram Singh is not on the Dying Declaration.
4. The
injured was not previously known to me. The injured was introduced by the
doctor. This fact has not been noted down by me on the dying declaration."
The issue thus arises for consideration as to whether a declaration, as above, by
itself would tantamount to substantial evidence against the appellant herein
warranting the conviction and sentence as affirmed by the High Court.
Before
so doing, a look at the decision of this Court in Rosamma (Paparambaka Rosamma
and others vs. State of A.P.(1999) 7 SCC 695) would be of some relevance
wherein this Court observed that where conviction is solely based on the dying
declaration there is an obligation on the part of the Court to consider with
extreme care and caution both the dying declaration as also the evidence of the
witnesses supporting it. In Rosamma (supra) the doctor was also examined and
the doctor appended a certificate at the end of the declaration that the
patient is "conscious while recording the statement". It is on this,
this Court observed that the question that needs to be considered is as to
whether the Magistrate could have come to a definite conclusion that the
injured was in a fit state of mind to make a declaration in the absence of a
certificate by the doctor certifying the state of the mind that existed before
recording the dying declaration and this Court opined that in the absence of a
medical certification that the injured was in a fit state of mind at the time
of making that declaration, it would be very risky to accept the subjective
satisfaction of the Magistrate, who opined that the injured was in a fit state
of mind at the time of making a declaration. In Rosamma (supra) noting of the
state of mind of the declarant before making the statement by the doctor has been
stated to be an essential requirement for the prosecution to prove incidentally
mere certification by even a doctor at the end of the declaration that the
patient is conscious while recording the statement was stated to be not
sufficient this is so by reason of the factum of the dying declaration being
only the circumstance for conviction and sentence of the accused. Presently,
however, there is not even a doctor's certification as regards the state of the
condition of the declarant. It is only the Judicial Magistrate, who has stated
from the witness box that the declarant was in a fit condition to make the
statement and he was otherwise satisfied in regard thereto. The doctor was
available since the Magistrate named him as Dr.Raman Shanker Prasad but unfortunately
there is neither any certification nor even a signature of the doctor in the
declaration.
As
noticed above, declaration itself can be treated as a substantive piece of
evidence and can be the basis of an Order of conviction and sentence without
there being any corroboration, provided, however, the same brings forth a sense
of confidence and trustworthiness in the mind of the Court why did not the
doctor certify the fitness of the person making the statement or even append
his signature, there is no answer to the same. The Magistrate also did not
recollect as to whether the deceased did put his signature or not but since
there is no mention of "L.T.I." before "Ram Singh"
obviously left thumb impression is not there on the dying declaration. This is
the declaration which happened to be the only material piece of evidence on the
basis of which the trial Court came to a conclusion that the appellant herein
ought to be found guilty under Section 302 IPC warranting sentence of life
imprisonment. The decision of this Court in Rosamma (supra) directly runs
counter to the Judgment under appeal. In our view it is not otherwise a very
safe piece of evidence to rely upon for conviction under Section 302 IPC. The
declaration must be such so as to evoke confidence in the factual context.
However, we are unable to record our confidence on such a declaration so as to
lend support and concurrence to the Judgment under appeal. As noticed above, Rosamma
(supra) decides counter and we do record our respectful agreement, apart from
being a larger Bench Judgment which should act as a binding precedent, with the
observations and findings and on the wake of the aforesaid we are of the view
that the High Court fell into a manifest error. The Judgment under appeal thus
cannot be sustained. The appeal is thus allowed. The appellant be released
forthwith, if not wanted in any other case.
..J.
(Umesh
C. Banerjee) J.
Back