IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Court’s Order whether the case is or not approved for reporting (Chapter VIII, Rule 32(2) (b) Description of Case CRIMINAL APPEAL NO. 1150 OF 2001 AND CRIMINAL APPEALL NO. 1151 OF 2001 (Old No. 1900 of 1983) Date of decision :-25.05.2006 A.F.R. (Approved for Reporting) Not approved for reporting Date :-25.05.2006 Initials of Judge HIGH COURT OF UTTARANCHAL, AT NAINITAL CRIMINAL APPELA NO. 1150 OF 2001 1. Yatendra alias Hatta S/o Sri Chandra Shekhar R/o 6 Ram Leela Bazar P.S. Kotwali Dehradun 2. Anil Kumar S/o Sri Mangal Sain Madhok S/o 5 Ram Leela Bazar P.S. Kotwali Dehradun ……Appellants Versus State of Uttaranchal ….Respondent AND CRIMINAL APPELA No. 1151 of 2001 (Old No. 1900 of 1983) 1. Satendra alias Munna S/o Sri Gopi Chand R/o 14 Akhara Mohalla P.S. Kotwali Dehradun 2. Hemant Kumar alias Balla S/o Sri Om Prakash R/o 16 Akhara Bazar P.S. Kotwali, Dehradun …….Appellants Versus State of Uttaranchal …..Respondent Date :- 25.05.2006 Mr. Vinod Sharma and Sri K. S. Verma learned counsel for the appellants. Sri A. Rab learned Addl. G.A. for the State. Hon’ble J.C.S. Rawat, J. 1. These two criminal appeals have been filed against the judgment and order dated 10.08.1983 passed by Sessions Judge, Dehradun in S.T. No. 21/1982, whereby the appellants were convicted and sentenced to undergo R.I. for a period of three years under section 326 IPC read with section 34 IPC. 2. Brief facts of the prosecution case are that in the night of 15.03.1981 Suresh @ Gogi (deceased) alongwith his family members was watching T.V. at about 9pm in the house situated in Mohall Akhara - 2 - under police station Kotwali, Dehradun. The appellants were in search of one-Rohit. With a view to extract the information about Rohit, the appellants alongwith one Ravindra Sharma @ Judge formed an unlawful assembly at about 9pm on 15.3.1981 and armed themselves with ’dandas’. One of them, namely, Hemant Kumar @ Balla armed with a knife. They came to the lane leading to the house of Nand Kishore (complainant) in Mohalla Akhara and while four of them remained standing at the turn of this lane, one of them, namely Satendra @ Munna went to the house of the complainant and called the deceased aloud asking him to come out as they had some urgent and important work to discuss with him. The deceased Suresh, who was then watching T.V., came out from the house without suspecting anything as he admittedly had no enmity with any of the accused person. The appellant-Satendra escorted the deceased to the turn of the lane. Reaching there all the four appellants and the fifth (Ravindra Sharma @ Judge) who was not known to the deceased from before encircled the deceased. Thereafter, the appellant-Hemant Kumar enquired the whereabouts of Rohit from the deceased. The deceased stated to them that he did not know anything about Rohit. On this, two appellants, namely, Anil Kumar and Yatendra Kumar grappled and caught hold of the deceased while Hemant Kumar took out his knife and stabbed the deceased on the left side of his chest. The appellant Yatendra assaulted him with kicks and fists while the fifth accused ‘Judge’, who was not known to the deceased from before gave him ‘danda’ blows. The hue and cry raised by the deceased attracted Balli Ram (PW3) and Allu @ Shyam Sunder (PW4). Thereafter the accused persons took the - 3 - injured in a three-wheeler and rushed towards the hospital. Reaching there, the deceased was left on the road in front of the hospital while the accused made good their escape. The injured managed to walk inside the hospital in any way. Thereupon he was immediately admitted in the emergency ward and medically examined at about 9:30 pm. Meanwhile, Balli Ram (PW3) and Shyam Sunder @ Allu (PW4), who had seen the incident, came to the house of the complainant-Nand Kishore(PW1) and informed him about the incident. Consequently, Nand Kishor and his brother Anand Prakash immediately started the search and ultimately came to Doon Hospital where they found Suresh admitted to emergency ward. Doctors attending on Suresh insisted for being provided with blood for transfusion and so while one of the brothers waited in the hospital and other rushed out to make arrangement for blood. Thereafter, on 17.03.1981 an FIR (Ex.ka.1) was lodged by Nand Kishore (PW1) and a case was registered under section 324 IPC. The I.O. immediately started the investigation and recorded the statement under section 161 Cr.P.C. The statement of the deceased was also recorded by the I.O. on 19.03.1981. Later on, the deceased was shifted to private nursing home of Dr. Manoj Kumar from where he was brought home. Ultimately, he succumbed to his injuries on 25.05.1981 and a report about his death was consequently made at police station. Thereafter, the case was amended to one under section 302 IPC. The investigation was taken up as usual which culminated into the submission of the chargesheet against the appellants as absconders. Co-accused Ravinder Sharma @ Judge was arrested during the investigation and his - 4 - identification parade was conducted and none of the eyewitness identified him and as such the court discharged him. After submission of chargesheet the accused were committed to the Court of Sessions for trial and the trial court framed charges against the appellants. The appellants denied charges levelled against them and claimed the trail. 3. The prosecution in order to support its case examined witnesses. Nand Kishore PW1, who was the real uncle of the deceased, lodged the FIR. He himself did not witness the incident and his version was based on information given to him by two eye witnesses namely Bali Ram (PW3) and Allu @ Shyam Sunder (PW4). He deposed that he alongwith his brother PW2 Anand Prakash and the deceased with other members of his family was witnessing T.V. in the night of 15.3.1981. He further stated that his close neighbour Satendra @ Munna came to his house and called out Suresh and took him away. At about 10pm PW3 and PW4 came to his house and informed that there was an altercation with Suresh in which Suresh was assaulted by the appellants as well as one more whom he did not know by name. All of them took the injured in a three- wheeler to some unknown place. These two eye witnesses have not corroborated the fact that the appellants stabbed the deceased with a knife at the spot. They were declared hostile by the prosecution. The prosecution has also adduced the evidence of Anand Prakash as PW2. He was the father of the deceased. He too was watching T.V. that night. He also corroborated the evidence of PW1. S.I.-T.P. Sharma (PW5) was the Investigating Officer of this case. He recorded the statements of witnesses soon after - 5 - lodging the FIR. He proved the site plan (Ex.ka.21). He also took the blood stained clothes and prepared the memo thereof which is Ex.ka.4. He proved the chargesheet (Ex.ka.25). The statement of the deceased (Ex.ka.22) was recorded by the I.O. on 19.03.1981 when the deceased was said to have regained consciousness. After completing the investigation, he submitted the chargesheet against the appellants. The prosecution has also produced the injury report (Ex.ka.3) as a formal proof which has been dispensed with by the defence. The prosecution has also produced the X-ray report Ex.ka.17 and the formal proof of this report has been dispensed with by the appellants. The I.O. had also sought the opinion of the expert with is Ex.ka.15 and the formal proof of this report has also been dispensed with by the defence. 4. In the statement recorded u/s 313 Cr.P.C. the appellants denied the prosecution case and stated that they have been falsely implicate in this case. No defence evidence was adduced by the appellants. 5. The learned trial court after appraisal of the evidence on record, the appellants were convicted and sentenced as mentioned above. 6. I have heard the learned counsel for the parties and perused the evidence on record. 7. It needs to be mentioned here that it is not disputed that the deceased met a homicidal death on account of injuries sustained on the date of occurrence. Injuries of the deceased were medically examined soon - 6 - after the occurrence on 15.03.1981 at 9:31pm at Doon Hospital, Dehradun. Injury report (Ex.ka.3) reveals that Suresh Kumar himself came to the hospital. He was examined by Dr. S.D. Sharma at Doon Hospital on 15.03.1981 at about 9:31pm and the following injury was found on the person of the injured:- “(i) Stab wound 4cm x 2 cm on lateral side of left chest 12cm below axially internal organs has protruded on side” The doctor was of the opinion that the duration of the injury was fresh and the injury was caused by the sharp pointed object. X-ray of the injured was advised. Expert opinion (Ex.ka.15) of Dr. Gupta was obtained and according to this report, the stab wound was on the left side of chest near 8th rib through which omentum was coming out. According to the medical report, the death was caused due to septicaemia and toxaemia as a result of ante-mortem injuries. Autopsy report reveals that the dead body was found to have five ante mortem injuries one of which was an old scar while rest were septic wounds. Medical report also reveals that the deceased had only one stab wound. In view of the above, it is clearly established that it was a homicidal death. 8. Now, I have to examine who was the author of the injuries sustained by the deceased. The prosecution has adduced the evidence of Nand Kishore PW1 and Anand Prakash PW2, who were the real uncle and the father of the deceased respectively. They had stated that they were witnessing a film on the T.V. alongwith - 7 - their family members. At about 9pm, one Satendra @ Munna came to the house and called out Suresh and took him away. At about 10pm, Bali Ram PW3 and Allu @ Shyam Sunder PW4 came to the house and informed them that there was an altercation with Suresh in Which Suresh was assaulted by the four accused persons as well as by one more whom he did not know by name. Both these witnesses had told them and narrated the incident. When the PW1 and PW2 came to know about the incident from the above two witnesses, they immediately started search of the deceased and ultimately found Suresh Admitting in the hospital where the condition of the deceased was very serious. Thereafter, they made necessary arrangements for the treatment and survival of the deceased. PW1 reported the matter to the police station on 17.03.1981. PW2 has also stated that Suresh Kumar remained in the hospital upto 09.04.1981. Thereafter, he was shifted to a private nursing home of Dr. Manoj Kumar from where he was brought home. Ultimately, he succumbed to these injuries on 25.05.1981. PW2 had also stated that the statement of the deceased was recorded by the I.O. before him. The prosecution has also adduced the evidence of Bali Ram PW3 and alu @ Shyam Sunder. At the time of incident, PW 3 was returning with bucket of water from the public tap adjacent to the place of incident and PW4 was returning from picture hall. When both these witnesses reached near the place of incident they heard the hue and cry of Suresh Kumar, who was stabbed at the spot. Both the witnesses have found that the injured was surrounded by the appellants. However, they had stated that they did not see the accused persons stabbing the knife upon the deceased. They have stated that they - 8 - recognized the appellants at the spot. These witnesses were declared hostile by the prosecution. PW3 was confronted with the statement recorded under section 161 Cr.P.C. and he did not give any explanation and he kept mum. 9. The prosecution has also relied upon the statement of the deceased recorded by the I.O. on 19.03.1981, which is Ex.ka.22. The prosecution has tendered this statement as a dying declaration of the deceased. The statement recorded by the I.O. supports the entire prosecution case. 10. It was contended on behalf of the appellants that the said dying declaration cannot be relied upon and it should be excluded from the evidence of the prosecution. Learned counsel for the appellants contended that the statement of the deceased (Ex.ka.22) recorded under section 161 Cr.P.C. cannot be taken as a dying declaration and as such the same is inadmissible under the Indian Evidence Act. It was further contended that the statement was recorded after two days of the occurrence. At the second place, the defence further contended that the alleged dying declaration had been recorded by the I.O. himself and he had not taken any step to get it recorded by the Magistrate and such it cannot be relied upon. At the third place, it was contended that two eye-witnesses i.e. PW3 and PW4 had not supported the version and as such the dying declaration cannot be taken into account. At the fourth place, it was contended that the I.O. had not taken the requisite certificate from the doctor with regard to the mental condition of the deceased at the time of recording the statement. - 9 - Learned Addl. G.A. refuted the contention. Section 32 of the Indian Evidence Act does not state that a dying declaration should be made only under expectation of death. The deceased died on 25.05.1981 after about two months of the recording of the statement. Explanation 1 to sub-section appended to section 32 specifies that when the statement is recorded by a person as to the cause of his death, or as to any of the circumstances for the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question. Tehal Singh Vs. State of Punjab AIR 1979 S.C. p/1347, 1980 Suppl. S.C.C. p/400 It has been held that apart from the fact that section 32 of the Evidence Act does not require that a statement should be made in expectation of death. The Hon’ble Supreme Court has also held that it does not mean that the police recorded something other than what the deceased stated. All that it means is that the language was his but the substance was what the deceased stated. The details contained in any statement depend upon the capacity for observance of the person making the statement, the condition of the person at the time of making the statement, his anxiety to mention details and the manner in which questions are put and answers elicited. It may be that in certain situations the very wealth of detail in a statement attributed to a dying man may arouse suspicion. On the other hand the circumstances that a statement contains a wealth of detail cannot necessarily lead to the inference that the statement is a fabricated one. It has been held in Tehal’s case (supra) that section 32 of the Evidence Act does not require that a statement should be made in expectation of death. The Hon’ble Supreme Court has also held that it does not mean that - 10 - the police recorded something other than what the deceased stated. All that it means is that the language was his but the substance was what the deceased stated. The details contained in any statement depend upon the capacity for observance of the person making the statement, the condition of the person at the time of making the statement, his anxiety to mention details and the manner in which questions are put and answers elicited. It may be that in certain situations the very wealth of detail in a statement attributed to a dying man may arouse suspicion. On the other hand the circumstances that a statement contains a wealth of detail cannot necessarily lead to the inference that the statement is a fabricated one. In the case of Najjam Faranghi alias Najjam Faruqui Vs. State of West Bengal AIR 1998 S.C. p/682, the incident took place on 29.6.1985 and the statement was recorded by the Sub-Inspector on 01.07.1985. Another statement was recorded by the Magistrate on 11.07.1985 and the victim died on 31.07.1985. In that case, it was submitted by the learned counsel that the statements recorded by the I.O. and the Magistrate cannot be considered as a dying declaration because the deceased died long after making the dying declaration. The Hon’ble Supreme Court has held that:- “9. There is no merit in the contention that the appellant (deceased) died long after making the dying declarations and, therefore, those statements have no value. The contention overlooks the express provision in Section 32 for the Evidence Act. The second paragraph of Sub-section (1) reads as follows:- “ Such statements are relevant whether the person who made them was or - 11 - was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceedings in which the cause of his death comes into question”. No doubt it has been pointed out that when a person is expecting his death to take place shortly he would not be indulging in falsehood. But that does not mean that such a statement loses its value if the person lives for a longer time than expected. The question has to be considered in each case on the facts and circumstances established therein. If there is nothing on record to show that the statement could not have been true or if the other evidence on record corroborates the contents of the statements, the Court can certainly accept the same and act upon. In the present case both courts have discussed the entire evidence on record and found that two dying declarations contained in Exs.5 & 6 are acceptable.” 11. it is well settled principle of law that it is not necessary that the maker of the statement at the time of making the statement should be under the shadow of death and should entertain the belief that his death was eminent. The expectation of death is not the requirement for recording the statement. {see State of Haryan Vs. Mun 2003 (1) SCC p/637} In view of the foregoing discussions, the statement of the deceased is admissible under section 32 of the Indian Evidence Act and I do not find any substance in the first argument advanced by the learned counsel for the appellants. - 12 - 12. Section 32 of the Indian Evidence Act nowhere provides that the dying declaration must be recorded before the Magistrate. In other words, the statement, which is not recorded before the Magistrate, can be treated to be a dying declaration. The fact that the I.O. from the beginning intended to take statement of the deceased, but he could take on 19.03.1981 when Suresh-injured regained his senses on 19.03.1981. On that date, he found him in a fit condition to give the statement. PW2 had stated in his evidence that the condition of the deceased was precarious in the hospital and he was unconscious till 19.03.1981. This statement can be treated as a dying declaration. It is also settled position of law that any statement written or oral made by a person who is dead as to the cause of death or circumstances resulted in death is admissible under section 32 Evidence Act. It is not required that it should be necessarily be made before a Magistrate. He was It has been held in Ramawati Devi Vs. State of Bihar 1983 Vol.I SCC p/211 :- “7. In our opinion neither of these two decisions relied on by the appellant is of any assistance in the facts and circumstances of this case. These decisions do not lay down, as they cannot possibly lay down, that a dying declaration which is not made before a Magistrate, cannot be used in evidence. A statement, written or oral, made by a person who is dead 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, becomes - 13 - admissible under section 32 of the Evidence Act. Such Statement made by the deceased is commonly termed as dying declaration. There is no requirement of law that such a statement must necessarily be made to a Magistrate. What evidentiary value or weight has to be attached to such statement, must necessarily depend on the facts and circumstances of each particular case. In a proper case, it may be permissible to convict a person only on the basis of a dying declaration in the light of the facts and circumstances of the case. In the instant case, the dying declaration has been properly proved. It is significant to note that in the course of cross-examination of the witness proving the dying declaration, no questions were put as to the state of health of the deceased and no suggestion was made that the deceased was not in a fit state of health evidence also clearly indicates that it was possible for the deceased to make the statement attributed to her in the dying declaration in which her thumb impression had also been affixed. In the instant case, it cannot also be said that there is no corroborative evidence of the statement contained in the dying declaration. The evidence of PWs 1, 4, 5 and 8 clearly corroborates the statement recorded in the dying declaration. We do not find any material on record on the basis of which the testimony of these witnesses can be - 14 - disbelieved. It may also be noticed that none of these witnesses including the police officer who recorded the statement could be attributed with any kind of ill-feeling against the accused. The High Court has elaborately dwelt on this aspect and has carefully considered all the materials on record and also the arguments advanced on behalf of the appellant. We are in agreement with the view expressed by the High Court and in our opinion the High Court was right in upholding the conviction of the appellant.” 13. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no opportunity of cross examination. Such an opportunity is essential for eliciting the truth as an obligation of oath could be. This is the reason the court also insists that the dying declaration should be of such a nature as to inspire full confidence of the court in its correctness. The court has to be on guard that the statement of the deceased was not as a result of either tutoring. Once the court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. If a person recording the dying declaration is satisfied that the declarant is in a fit medical condition to make a dying declaration then such dying declaration will not be invalid solely on the ground that the doctor has not certificate as to the condition of the declarant to make - 15 - the dying declaration {See Muthu Kutty & another Vs. State 2005 SCC (Cri) 1202}. 14. In the light of the above principles, the acceptability of the alleged dying declaration in the instant case has to be considered. Even the PW3 and PW4 had not supported the prosecution version, the conviction can be sustained solely on the basis of the dying declaration if it inspire confidence. The injured was fully conscious