ON Criminal Appeal No 205 of 1956
Appeal by special leave from the judgment and order dated the 30th November 1955 of the Punjab High Court in Crimi nal Appeal No 282 of 1955 arising out of the judgment and order dated the 15th February 1955 of the Court of the Additional Sessions Judge at Amritsar in Sessions Case No 64 of Trial No 6 of 1955
R L Anand and section N Anand for the appellant
Kartar Singh Chawla Assistant Advocate General for the State of Punjab and T M Sen for the respondent
September 17
The following Judgment of the Court was delivered by KAPUR J This is an appeal against the judgment and order of the Punjab High Court reversing an order of acquittal by the Additional Sessions Judge Amritsar
The appellant Bakshish Singh and his brother Gurbakshi Singh were tried for an offence under sections 30234 of the Indian Penal Code but were acquitted
Against this judgment the State took an appeal to the High Court
As Gurbaksh Singh was said to be ab sconding the appeal against the appellant alone was heard and decided by the High Court
On August 1 1954 sometime between 7 and 8 pm Bachhinder Singh son of Bhagwan Singh of village Kairon was shot in the lane in front of their house and as a result of bullet injuries be died the next day in the hospital at Amritsar
He was at the time of shooting accompanied by his younger brother Narvel Singh a boy of 13 and after getting injured Bachhinder Singh and his brother returned to the house
Bhagwan Singh states that he was informed of the identity of the assailants by Bachhinder Singh who was at his own request carried from the house to the hospital at Kairon but as the injuries were serious 411 the doctor at Kairon rendered  first aid  and advised the father to take his son to V J Hospital at Amritsar
Bhagwan Singh then took Bachhinder Singh to the Railway Station but before the arrival of the train he went to the Police Post at Kairon which is at a distance of about 100 yds
from the Railway Station in order to make a report
As the Assistant Sub Inspector was away at Sarhali he returned to the Railway Station and took his son to the Amritsar hospital by the train leaving Kairon at 9 47 pm Bhagwan Singh was accompanied at that time by his younger son Narvel Singh PW 12 and by Shamir Singh Inder Singh and Narinjan Singh
Soon after their arrival at the Amritsar hospital Bachhinder Singh was examined by Dr Kanwal Ki shore PW 2 at 11 45 pm and finding the injury to be of a serious nature the doctor sent information to the Police as a result of which Head Constable Maya Ram Sharma PW 4 arrived at the hospital sometime after midnight and in the presence of Dr Mahavir Sud PW 17 recorded the dying declaration of Bachhinder Singh Exhibit P H after getting a certificate from the doctor that the injured person was in a fit state to make a statement
This statement is the basis of the First Information Report Exhibit P H 1 which is a copy of Exhibit P H
This report was recorded on August 2 1954 at 7 50 am at Police Station Sarhali which we were told is about 20 miles or so away from Amritsar
In the early hours of the morning Dr K C Saronwala PW I performed an operation on Bachhinder Singh and extracted a bullet from the left abdominal wall which was handed over to the Police
But Bachhinder Singh died at 1 35 pm on August 2 1954
An inquest report Exhibit P K was prepared at 2 30 pm by Head Constable Maya Ram PW 4
The case for the prosecution rests on the dying declaration of Bachhinder Singh exhibit P H and on the statement of Narvel Singh PW 12 who was an eye witness to the occur rence and on the statement made by the deceased to his father as to his assailant as soon as he Bachhinder Singh was brought to the house after receiving the injuries
The prosecution 53 412 also relied on an extra judicial confession made to Teja Singh PW 13 but both the courts below have rejected this piece of evidence and it is unnecessary to consider it any further
The learned Additional Sessions Judge rejected the dying declaration made by Bachhinder Singh on two grounds that at the time of recording the dying declaration not only Bhagwan Singh the father and Narvel Singh the brother of Bachhin der Singh were  present but the police officer had actually made enquiries from them about the occurrence before he proceeded to record the dying declaration of Bachhinder Singh de ceased
Head Constable Maya Ram PW 4 has admitted in cross examination that Bachhinder Singh gave his statement in Punjabi but the form and the detailed account given in the statement Exhibit P H would show that it was not the product of Bachhinder Singh s creation alone but it was a touched up  declaration of the deceased
It is laid down in 1954 Lahore 805 that a dying declaration which records the very words of the dying man unassisted by interested persons is most valuable evidence but the value of a dying declara tion altogether disappears when parts of it had obviously been supplied to the dead man by other persons whether interested or Police Officer
As the dying declaration Exhibit P H in this case cannot be regarded as the creation of Bachhinder Singh deceased no reliance whatsoever can be placed on it and it could not form the basis for the convic tion of any of the accused
 The learned Judges of the High Court did not agree with this criticism
Birhan Narain J who delivered the main judg ment said  This criticism appears to me to be without any substance
The statement was recorded by Head Constable Maya Ram who was posted in Amritsar and was not posted in village Kairon and therefore had no knowledge of the parties nor had any interest in them Thus there was no reason why he should record the statement falsely or irregularly
Throughout the time that the statement was recorded Dr Mahavir Sud of the Amritsar hospital was present
He has appeared 413 as PW 17 in the present case
He is a respectable and disinterested person and he is positive in his testimony before the court that the statement was made by the deceased voluntarily and that there was nobody present to prompt him
He has further stated that he did not allow any person to be present at that time
There is absolutely no reason for doubting the correctness of this statement            
Coming to the other objection of the Additional Sessions Judge it is difficult to understand the significance at tached by him to the fact that the deceased spoke in Punjabi while the statement was recorded by Maya Ram in Urdu
The court language is Urdu and the Police generally records statements in Urdu even if they are made in the Punjabi language
I have no doubt in my mind that the dying decla ration recorded in the present case is a voluntary one and was made without any prompting from anybody
The High Court in our opinion correctly appreciated the evidence and was right in accepting the authenticity of the dying declaration
The statement of Maya Ram P W 4 does not support the criticism of the learned trial judge
And he had read more in the statement of Narvel Singh P W 12 made before the Committing Magistrate than it really con tains
It is unfortunate that the criticism has proceeded on the English record of the Magistrate s Court which does not appear to have been correctly recorded as the Urdu record is in many parts materially different
The fact that the statement contained in Exhibit P H was made without any prompting is also supported by the testimony of a wholly disinterested witness Dr Mahavir Sud whose statement made before the Committing Magistrate was transferred at the trial stage under section 33 of the Evidence Act
He stated  The statement of Bachhinder Singh was voluntary and there was none to prompt it
I did not allow any attendant on Bachhinder Singh then
 In cross examination he made it clearer that there was no relation or friend of the deceased person when 414 the statement was recorded
Some criticism was levelled against the dying declaration based on a sentence in the statement of Dr Mahavir Sud P W 17 that the Head Consta ble put certain questions to clarify the ambiguities and these questions and answers do not find place in Exhibit P H the record of the dying declaration
No such question was put to the Head Constable who recorded the statement
The Head Constable stated that the dying declaration was written at the declarant s own dictation without any addi tion or omission
In cross examination nothing was asked as to any questions having been put to the deceased by this witness
Therein the witness also stated   It is not correct that I first made the inquiry from the father of the deceased and other persons before I proceeded to record his statement 
He also made it clear that before he allowed the statement to be made he satisfied himself that Bachhinder Singh was in a fit state to make the statement
We are of the opinion that the High Court rightly held the dying declaration to be a statement made by the deceased unaided by any outside agency and without prompting by anybody
The declarant was free from any outside influence in making his statement
Another reason given by the Additional Sessions Judge for rejecting the dying declaration was that the deceased gave the narrative of events in Punjabi and the statement was taken down in urdu
In the Punjab that is how the dying declarations are taken down and that has been so ever since the courts were established and judicial authority has never held that to be an infirmity in dying declarations making them inefficacious
As a matter of fact in the Punjab the language used in the subordinate courts and that employed by the Police for recording of statements has always been Urdu and the recording of the dying declaration in Urdu cannot be a ground for saying that the statement does not correctly reproduce what was stated by the declarant
This in our opinion was a wholly in
adequate reason for rejecting the dying declaration
415 Exhibit P H the dying declaration is a long document and is a narrative of a large number of incidents which happened before the actual assault
Such long statements which are more in the nature of First Information Reports than recital of the cause of death or circumstances resulting in it are likely to give the impression of their being not genuine or not having been made unaided and without prompting
The dying declaration is the statement 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 and such details which fall outside the ambit of this are not strictly within the permissible limits laid down by section 32 1 of the Evi dence Act and unless absolutely necessary to make a state ment coherent or complete should not be included in the statement
We are informed that in the Punjab no rules have been made in regard to the recording of dying declara tions which we are told has been done in several other States
We think it would be desirable if some such rules were framed and included in the Rules and Orders made by the High Court for the guidance of persons recording dying declarations
Of course the authenticity of the dying declaration has to be judged in accordance with the circum stances of each case depending upon many factors which would vary with each case but those recording such statements would be well advised to keep in view the fact that the object of a dying declaration is to get from the person making the statement the cause of death or the circumstances of the transaction which resulted in death
The admissibility of the statement of Dr Mahavir Sud was assailed by counsel for the appellant on the ground that the conditions laid down for the admissibility of statements under section 33 had not been complied with and several decided cases were relied upon
This question does not seem to have been raised at any previous stage of the proceedings nei ther before the Additional Sessions Judge nor before the High Court and this criticism seems to be without much substance
At the trial the prosecution produced Foot Constable Kartar Singh P W 14 who deposed that he took the 416 summons for this witness to the hospital where he was previ ously employed and the Superintendent of the hospital made a report that he was no longer in service and it was not known where he was
This witness also stated that  from the inquiries made by me I learnt that his whereabouts are not known
 In cross examination he again stated that he made inquiries but he could not discover the whereabouts of this witness
After the statement of Kartar Singh P W 14 the Public Prosecutor made a statement that Dr Mahavir Sud s whereabouts were not known  and prayed that his statement be transferred under section 33 of the Evidence Act on the ground that there was no likelihood of the witness being available without unreasonable delay and expense and no objection is shown to have been taken by the defence at that stage
Thereupon the learned trial judge ordered the statement to be transferred under section 33 of the Evidence Act
He might have been well advised to give fuller reasons for making the order transferring the statement
It appears to us that the learned judge transferred it on the ground of unreasonable delay and expense and we do not find any infirmity in this order of transfer
Counsel then contended that for the efficacy of the dying declaration corroboration was essential
In the present case there is the statement of Narvel Singh P W 12 who is an eye witness to the occurrence which is relied upon by the prosecution as corroboration of the dying declaration
The learned Additional Sessions Judge rejected the testimony of this witness on the ground that there were discrepancies between his statement made in the commitment proceedings and at the trial
We have already pointed out that the cross examination of this witness was based on somewhat inaccurate English record of his statement in the Committing Court the statement in Urdu record puts a different complexion on it
But even if this were not so the High Court in our opinion has taken a correct view of the testimony of this witness and has accepted it for cogent reasons
Besides Narvel Singh there is the statement of Bhagwan Singh the father who stated that as soon as Bachhinder Singh 417 came into the house he mentioned the names of his assailants to him
The incident took place just outside the house of Bhagwan Singh and it was never disputed that he was present in the house when the incident took place
It is only natural that as soon as the injured son came into the house he would be asked as to who had injured him or would himself state who had caused him the injury
He was in his senses at that time and no reason has been suggested why the son would not disclose to his father the names of his assail ants
There is no adequate reason for rejecting this por tion of the testimony of Bhagwan Singh and merely because the dying declaration does not mention it is hardly a reason for not accepting it
The non production of Sucha Singh who is stated in the dying declaration and in the statement of Narvel Singh PW 12 to have witnessed the occurrence was commented upon by counsel as a very serious omission
The Public Prosecutor stated at the trial that he was giving up Sucha Singh as he had been won over
Therefore if produced Sucha Singh would have been no better than a suborned
witnesss
He was not a witness essential to the unfolding of the narrative on which the prosecution was based and if examined the result would have been confusion because the prosecution would have automatically proceeded to discredit him by cross examination
No oblique reason for his non production was alleged least of all proved
There was therefore no obligation on the part of the prosecution to examine this witness See Abdul Moham
mad vs Attorney General of Pales tine 1  Stephen Servaratne vs The King 1 Habeeb Moham mad vs The State of Hyderabad 3
In the circumstances the court would not interfere with the discretion of the prosecutor as to what witnesses should be called for the prosecution and no adverse inference under section 114 of the Evidence Act can be drawn against the State
The High Court in our opinion have kept in view correct principles governing appeals against acquittals and have rightly applied them to the circumstances i AIR 1945 PC 42 2 AIR 1936 PC 289
3  418 of this case
The erroneous view that the learned Sessions Judge took of the dying declaration and of the oral evidence were compelling enough reasons for the reversal of that judgment
We therefore dismiss this appeal
Appeal dismissed


Summary:
The appellant was convicted for murder on the basis inter alia of the dying declaration of the deceased
The Sessions Court rejected it on the ground that though the deceased gave the narrative of events in Punjabi the statement was taken down in Urdu
Held that in view of the fact that in the Punjab the lan guage used in the subordinate courts and by the Police for recording statements has always been Urdu the recording of dying declarations in Urdu cannot be a ground for saying that the statement does not correctly reproduce what was stated by the declarant
Accordingly the dying declaration should not have been rejected
The dying declaration in the instant case was a long docu ment containing a narrative of a large number of incidents which happened before the actual assault which was more in the nature of the First Information Report  Held that the object of a dying declaration being to get from the person making the statement the cause of his death or the circumstances of the transaction which resulted in his death persons who record such declaration should not include in that statement details which are not relevant under section 321 of the  unless they are necessary to make the statement coherent or complete
It is desirable that rules should be framed for the guidance of persons recording dying declarations and included in the Rules and Orders made by the High Court
Where a person who was stated in the dying declaration to have witnessed the occurrence was not examined by the prose cution at the trial on the ground that he had been won over and it was contended that this was a serious omission and an adverse inference should be drawn Held that there was no obligation on the part of the prose cution to examine this witness and that the court would not interfere with the discretion of the prosecutor 410 Abdul Mohammad vs Attorney General of Palestine AIR  Stephen Servaraine vs The King A 1
R and Habeeb Mohammed vs The State of Hydera bad   referred to