Heeralal Yadav Vs. State of M.P. & Ors [2006] Insc 368 (4 July 2006)
H.K.Sema
& A.K. Mathur H.K.Sema,J
This
appeal by special leave filed by the complainant (PW-2) is directed against the
judgment and order of the High Court dated 2.7.1999 passed in Criminal Appeal
No.678 of 1995 whereby the High Court reversed the conviction and sentence
passed by the Trial Court convicting the respondents for an offence under
Section 302/34 IPC and sentenced them to RI for life and a fine of Rs.1000/-
each and in default of payment further six months simple imprisonment.
The
prosecution case in brief was that on 14.4.1993 at about 8.30 in the morning
the deceased Gokul Singh son of Nirbhay Singh, who was a practicing advocate
and his son Meharban Singh (PW-3) aged about 12 years went to their well in
village Narval, District Shajapur. When the deceased went to answer the call of
nature in the fields of Babulal Teli, all of a sudden, the accused Gokul Singh
son of Amar Singh, Bhawarlal and Babulal armed with sword, farsi and dhariya
and co-accused Lal Singh with knife, Chander Singh, Man Singh, Kalu Singh, Dhannalal
and Lal Singh armed with lathis came on the spot and surrounded the deceased
and assaulted him with their respective weapons. PW-3 Meharban Singh on seeing
this incident ran to his house and told his grandfather PW-6 Nirbhay Singh at
flour mill and his uncle PW-2 Heeralal Yadav (appellant herein) that his father
Gokul Singh was being assaulted. On being told PW-2 Heeralal Yadav and Devsingh
PW-4 went to the spot. They saw the accused persons assaulting the deceased.
PW-6 Nirbhay Singh also went there and saw the accused persons running from the
spot with their respective weapons. The deceased Gokul Singh was badly injured.
He was put in a tractor and was taken to P.S. Agar where PW-2 Heeralal Yadav
lodged F.I.R. at 9.05
a.m. which was
recorded by A.S.I.
PW-1 Dr.A.S.Khan
examined the deceased Gokul Singh and found the following injuries:
-
Incised wound on
the central part of forehead, 2" x <" x <".
-
Incised wound on
the middle side of left orbital, 3" x =" x ="
-
Incised wound on
the upper part of left eye- lid, 1" x <" x <".
-
Incised wound on
middle part of right leg, 3" x =" x =".
-
Incised wound,
1" below injury no.4, 4" x =" x ="
-
Incised wound,
1" below injury no.5, 4" x =" x =".
-
Incised wound on
the upper 1/3rd part of right leg, 1" x =" x ='".
-
Incised wound on
the middle part of left leg, 2" x =" x =".
-
Incised wound,
2" below injury no.8, 3" x =" x =".
-
Incised wound on
the lower 1/3rd part of left leg, 3" x =" x =".
-
Incised wound on
the lower 1/3rd part of left leg, 3" x 1" x =".
-
Incised wound on
the middle part of left forearm, 2" x =" x =".
-
Incised wound
1" middle from the injury no.12, 2" x =" x =".
-
Incised wound on
the lower 1/3rd part of right forearm, 3" x 1" x =".
-
Incised wound on
the metacarpal bones of all fingers and thumb of right hand, 11" x 3"
x 1 =".
-
Bruise on the
middle part of left thigh, 5" x =".
-
Incised wound on
right parietal bone, 2" x =" x =".
-
Bruise on left
parietal bone, 5" x =" x =".
PW-12 S.R.Parihar,
then requested PW-1 Dr.A.S.Khan to record the dying declaration of the deceased
as the Executive Magistrate was not available. PW-1 Dr.Khan recorded the dying
declaration of the deceased at 10.30 a.m.
(Ex.P.2). As the condition of the deceased was serious he was referred to
District hospital, Ujjain, where he succumbed to his
injuries.
On the
basis of the FIR, 9 accused faced the trial for an offence under Section 302/34
before the Trial Court. The Trial Court after examining the evidence on record
particularly the evidence of eyewitnesses PW-2 Heeralal Yadav, PW-3 Meharban
Singh, PW-6 Nirbhay Singh along with the dying declaration recorded by PW-1 Dr.Khan
convicted three accused respondents namely A-1 Gokul Singh son of Amar Singh,
A-2 Bhawarlal son of Ram Singh and A-9 Badulal son of Lal Singh for an offence
under Section 302/34 IPC and acquitted six other accused by giving them benefit
of doubt.
The
High Court on appeal by the accused persons reversed the conviction of the
Trial Court and recorded acquittal. Hence this appeal by special leave by the
complainant, permission for which was granted by this Court.
The
High Court reversed the conviction recorded by the Trial Court on the sole
ground that the dying declaration does not inspire confidence. The sole
question, therefore, to be determined in this appeal is as to whether the dying
declaration of the deceased recorded by PW-1 Dr.Khan, inspires confidence or
not? The principle that "no man at the point of his death is presumed to
lie. A man will not meet his maker with lie in his mouth" is based on
sound public policy. No doubt, as the dead man would not be available for
cross-examination, a duty is cast upon the Court to examine the dying
declaration with care and caution as to whether the dying declaration is
creditworthy for acceptance. In other words whether it inspires confidence on
the basis of which alone conviction can be recorded. Similarly, it is also an
accepted principle of law that the dying declaration, keeping in view the above
principles in mind, if inspiring confidence could be the sole basis for
conviction.
The
High Court rejected the dying declaration of the deceased recorded by PW-1 Dr.Khan.
Reasoning of High Court in paragraph 8 of the judgment reads:- "First and
the foremost thing is that in the dying-declaration Ex.P-2 of the deceased
recorded by Dr.Khan (PW-1) and police statement Ex.P-38 recorded by
sub-inspector S.R. Parihar (PW-12) which became dying declaration after his
death the deceased did not mention that he had gone with his son Meharban singh
to his well and Meharbansingh was present at the time of incident. The
non-mentioning of the name of this witness in dying declaration and police
statement which were recorded in detail creates great suspicion about the
presence of this witness on the spot. His conduct also appears to be abnormal.
He saw his father Gokulsingh being assaulted by the accused persons with sword,
farsi and Dhariya, he went running to his grandfather Nirbhaysingh and uncle Heeralal
and told them that his father was being beaten. But it is surprising that he
did not mention the names of the assailants nor these witnesses asked their
names. Had this witness seen the occurrence, he would have mentioned the names
of the assailants. After giving information, he did not go to the spot as to
what had happened to his father. A normal man, in the above circumstances,
would not stay at home, but immediately would run to see his father. We may
assume that he was panicky and in a confused state of mind, when he came from
the spot and narrated the incident to these witnesses, but thereafter, when he
stayed at home, he must have composed and regained normalcy, even then he did
not mention the names of the assailants to the house ladies." The fallacy
of the High Court, in our view, is that the High Court has not at all
considered the creditworthiness of the dying declaration of the deceased
recorded by PW-1 Dr.Khan. On the contrary, the dying declaration of the
deceased was disbelieved on the ground that the deceased did not mention the
presence of PW-3. The High Court also doubted the presence of PW-3 at the place
of occurrence on the ground that he (PW-3) saw his father being assaulted by
the accused with sword, farsi and dhariya but did not mention the names of the
assailants nor these witnesses asked their names from him. Had he been present
at the scene of occurrence he would have mentioned the names of the assailants.
The High Court was further of the view that he did not accompany them to the spot
to see as to what happened to his father. According to the High Court, the
conduct of PW-3 was unnatural and, therefore, the dying declaration of the
deceased recorded by PW-1 Dr.Khan was disbelieved.
From
the above quoted reasoning of the High Court, we are unable to discern the
logic of the High Court's reasoning. Presence or non-presence of PW-3 at the
scene of occurrence or for that matter non-mentioning of the name of PW-3 in
the dying declaration has no connection with ascertainment of the veracity and
creditworthiness of the dying declaration. In fact, the High Court did not
discuss the veracity and creditworthiness of either the dying declaration
recorded by PW-1 or the testimony of PW-1 Dr.Khan deposed before the Court.
The
other ground on the basis of which the High Court rejected the dying
declaration (Ex.P-2) as doubtful and unreliable is that PW-1 Dr.Khan did not
state that the deceased was in a fit mental condition to give dying declaration
and throughout remained conscious when his statement was recorded. According to
the High Court as is evident from PW.1 Dr.Khan that the deceased was in semi
conscious condition and his blood pressure had gone down to 90/60. The High
Court has also referred to Dr.Pramod Kaushik PW-10 who conducted autopsy on the
dead body and stated that due to excessive hemorrhage the deceased must have
gone in shock within half an hour after the incident. PW- 10 also stated that
blood transfusion could not be given, as the facility was not available at
Agar. Accordingly, the High Court held that in such mental condition, the
recording of dying declaration by PW-1 could not be possible.
In our
view, the High Court was grossly oblivious to the statement of Dr.Khan when he
said that the deceased must have gone in shock at the place of incident but he
recovered consciousness as he was given glucose saline and medicines.
The
main attack on the dying declaration by the counsel for the accused is that
considering the nature of the injury suffered by the deceased there was excessive
hemorrhage and the deceased must have gone in shock within half an hour after
the incident and since blood transfusion could not be given, the so called
dying declaration recorded by Dr.Khan (Ex.P.2) is not reliable. According to
the counsel, the High Court was justified in not relying on the said dying
declaration. We are unable to countenance such submission.
Ex.P-3
is the requisition dated 14.4.1993 sought by the Investigating Officer
regarding the condition of the deceased Gokul Singh son of Nirbhay Singh for
recording dying declaration. There is an endorsement in Ex.P-3 by the Medical Officer Primary Health Center by PW-1 Dr.A.S.Khan that the deceased Gokul Singh son of Nirbhay
Singh aged 35 years would be able to give the statement of dying declaration.
In the
dying declaration (Ex.P-2) the deceased in an answer to the question "who
has beaten you" clearly stated that accused Gokul Singh s/o Amar Singh, Bhawar
Singh s/o Ram Singh, Babulal son of Lal Singh and there were many others whose
names he did not remember. He further stated that he was beaten with farsi, dhariya
and lathis and badly beaten up with weapons. He further stated that he was
beaten near his well and field itself. In an answer to a question "what
were you doing", he stated, "I was answering call of nature there.
All the people beat me with dharia, sword and farsi etc. weapons." The
deceased also stated that he was giving the statement in full consciousness. He
also stated that the dying declaration was not under any pressure.
Dr.A.S.Khan
was examined as PW-1. He has stated that on 14.4.1993 he was posted as Medical
Officer at Primary Health Centre, Agar. On that day he recorded the dying
declaration (Ex.P-2). He has also admitted that he has given the fitness
certificate (Ex.P-3). In cross-examination he has stated that after 9.30 a.m. his treatment started, glucose and antibiotic
medicines had been given, therefore, after 9.30 a.m. he had become conscious. He denied a suggestion that the condition of
the injured further deteriorated. He has stated that the dying declaration was
recorded in the operation theatre in the presence of staff and inspector (SI)
and the policemen. He further stated that the relatives of the patient Gokul
Singh were not inside the operation theatre. PW-1 was confronted with the
principle of Samson Wright's Applied Physiology, page 152. He categorically
ruled out the application of the principle.
Mr.S.K.
Gambhir, learned senior counsel for the respondents, however, brought to our
notice the statement of PW-2 Heeralal Yadav when he stated that when Dr.Khan
took the statement of my brother I was there. According to the counsel for the
respondents, this statement contradicted with the statement of PW-1 Dr.Khan
that the statement was recorded in the operation theatre and the relatives of
the deceased were outside the theatre. We do not see any contradiction. PW-2
only stated his presence at the hospital at the time when the dying declaration
was recorded. He never stated that he was inside the operation theatre when the
statement of his brother was recorded.
One of
the grounds on which the High Court disbelieved the dying declaration was that Dr.Khan
did not state that the deceased was in a fit mental condition to give dying
declaration and throughout remained conscious when his statement was recorded.
This reasoning of the High Court, in our view, is also fallacious. In the
instant case, the doctor himself recorded the dying declaration (Ex.P-2). He
has given the fitness certificate vide Ex.P-3 as referred to above stating that
the patient was fit for recording dying declaration. Even if it is assumed that
was not there, in view of the decision of the Constitution Bench of this Court
in Laxman vs. State of Maharashtra (2002) 6 SCC 710, these would be no
impediment to the creditworthiness of the dying declaration.
Counsel
for the respondents referred to the Samson Wright's Applied Physiology,
thirteenth edition and strenuously urged that if the same principle is applied
and considering the nature of injuries sustained by the deceased and due to
excessive hemorrhage the patient must have gone in shock within half an hour
after the incident and since no blood transfusion could be given the patient
was not conscious and was not in a position to give the statement. As already
noted PW-1 was confronted with this principle in cross- examination and he
completely ruled out the application of the principle in the present case.
Counsel
also referred to the decision of this Court in Balak Ram vs. State of U.P. (1975) 3 SCC 219. In that case this Court did not
rely upon the dying declaration because the condition of the patient was
critical when he reached the hospital. Before the dying declaration was
recorded an attempt was made to give him saline but even after making incisions
on the hands and a leg, the attempt did not succeed. In the present case saline
and glucose was administered and the deceased regained consciousness.
Counsel
also referred to the case of Paparambaka Rosamma vs. State of A.P., (1999) 7 SCC 695. This decision has been expressly
over-ruled by a Constitution Bench in the case of Laxman vs. State of Maharashtra (2002) 6 SCC 710.
In the
view we have taken, we are clearly of the opinion, that the dying declaration
of the deceased recorded by PW-1 Dr.A.S.Khan and well corroborated with other
attending circumstances inspires confidence, on the basis of which conviction
could be sustained. The High Court committed grave miscarriage of justice by
reversing the conviction recorded by the Trial Court. The impugned order of the
High Court is set aside. The sentence and conviction recorded by the Trial
Court is restored. The appeal is allowed.
Respondents
are directed to be taken back into custody forthwith to serve out the remaining
period of sentence.
Compliance
report within one month.
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