IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Chapter VIII, Rule 32(2) (b) Description of Case Criminal Appeal No. 91 of 2004 Date of decision : 2nd September, 2004 For the approval of: Hon’ble Chief Justice V.S. Sirpurkar. Hon’ble Mr. Justice J.C.S. Rawat. - Whether the order/judgment should be sent to the respondent for reporting? (Yes) - Whether the reporters be allowed to see the judgment? (Yes) LSR IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL CRIMINAL APPEAL NO. 91 OF 2003 Baboo Ram Jatav son of Sri Seeta Ram R/o village Dhanori, Police station Swar District Rampur -------------------------Appellant Versus State of Uttaranchal ------------------Opposite Party Mr.Tanvir Alam, learned counsel for the appellant Mr.D.K.Sharma, learned Government Advocate for the State Coram:- Hon’ble V.S.Sirpurkar, C.J. Hon’ble J.C.S.Rawat, J. (Per Hon’ble J.C.S.Rawat J) 1. This is a criminal appeal by the accused Baboo Ram Jatav against the judgment and order dated 21.1.2003 passed by Sri S.K. Raturi the then Sessions Judge, Udham Singh Nagar, by which the appellant has been convicted for an offence of murder and sentenced to undergo rigorous imprisonment for life on the allegation that on 16.3.2000 at about 7.40 p.m., he committed the murder of one Balwant Singh by causing injury by fire arm near Gaushala turn towards Partappur P.S.Kashipur district Udham Singh Nagar. The appellant has been acquitted by the trial court under section 25 Arms Act. 2. The prosecution story, in brief, is that S.I. D.K.Tiwari (P.W.1) was on patrol duty along with constables Gauri Shah and Pramod Kumar on 16.3.2000. When he reached Gaushala turn towards Partappur about 150 yards at 7.40 p.m. he saw a person in the head light of his motorcycle lying in injured condition on the left side of the road from whose back the blood was oozing. On asking, he told his name Balwant Singh son of Seeta Ram resident of village Dhanori P.S.Swar, district Rampur. According to the deceased his SADU (brother-in-law) Kesar was resident of his village. Nardev accused, brother of Kesar, had illicit relations with his wife. Nardev has got his wife separated. Nardev accused had engaged the appellant Baboo Ram Jatav of his village for the murder of Balwant Singh. Due to the fear he left his village and was living in Gaushala village. On the date of occurrence, he was returned from the market of Partappur after purchasing the vegetables. After sometime, in the way, the appellant Baboo Ram Jatav met him. The deceased seeing Baboo Ram Jatav after taking turn back he fired on the back of the deceased. Seeing the serious condition of the deceased, he was sent to Government Hospital, Kashipur by Constables Gauri Shah and Pramod Kumar Singh through the truck and seeing the seriousness of the deceased, S.I. D.K.Tiwari (PW 1) submitted report to the S.D.M. Kashipur for recording dying declaration. 3. The matter was reported at P.S. Kashipur at 8.30 p.m. on the same day by S.I. D.K.Tiwari (PW 1). The chik F.I.R. is Ex. Ka 1. The crime was registered. The investigation was entrusted to S.S.I. Brijesh Kumar Tyagi (PW 11). 4. Balwant Singh was examined on 16.03.2004 at 8.20 p.m. by Dr. Rakesh Singh (P.W.6) Medical Officer, L.D.Bhatt Hospital, Kashipur. The following injuries were found on the person of Balwant Singh: 1. A fire arm wound of entry of size 3.5 cm. x 3 cm, depth could not be probed present over the left side back of chest in the lower part, 3.5 cm left lateral to the T11 vertebra, margins irregular inverted and area of abrasion present surrounding the wound, blackening present, bleeding from wound present. 2. An abraded contusion of 1.5 cm x 1.5 cm present over the right side of fore-head, 2.5 cm above the medial end of right eye brown colour of contusion was reddish and oozing of blood was present. 3. Abrasion over the right side cheek of size 2cm x 1.5 cm, 0.5cm below the lateral angle of right eye, bleeding present. 4. An abrasion of 1cm x .5cm present over the bridge of nose, just over the root, bleeding present. 5. In the opinion of the doctor the injuries were fresh in duration. Injuries no. 2, 3 & 4 were simple in nature and caused by fraction of hard blunt object. Injury no. 1 was kept under observation and advised X-ray. The injury report is Ex. Ka 11. Ex. Ka 12 is the report of the Hospital regarding admission of the deceased on 16.03.2004 at 8.20 p.m. 6. Sri Harak Singh Rawat P.W.3 recorded the dying declaration (Ex ka 5) of the deceased Balwant Singh on 16.03.2004 at 8.45 p.m. Balwant Singh died on 16.03.2004 at 10.55 p.m. 7. S.S.I. Brijesh Kumar Tyagi (PW 11) visited the place of occurrence and prepared site plan Ex. Ka 22. The Investigating Officer took in possession blood stained earth and simple earth and prepared recovery memo Ex. Ka 23. S.I. Brijendra Singh (P,W. 8) prepared Panchayat Nama (Ex Ka 17) of the dead body and also prepared Challan lash, Photo lash, which are Ex. Ka 18 to ka 21. 8. Dr. Surendra Singh (PW 2), Medical Officer, L.D. Bhatt Hospital, Kashipur conducted the post mortem on the dead body of Balwant Singh on 17.04.2000 at 4.00 p.m. The postmortem report is Ex. Ka 3. The following ante mortem injuries were found on the dead body of the deceased: 1. Lacerated wound (firearm wound of entry) 4cm x 3.5cm present back of lower portion of left side chest, 3.5cm left lateral to the T11 vertebra, margin irregular, inverted. Blackening and tattooing present. On cutting the wound in chest and abdominal cavity deep. 2. Abraded contusion 4cm x 2cm present below anterior side of right eye. 3. Abraded contusion 3cm x 2cm present right side for forehead. 9. The doctor opined that the cause of death was due to shock and haemorrhage as a result of ante mortem firearm injury. 10. The appellant was arrested on 17.03.2000 at 9.30 p.m. from the Cheti Chauraha by the Investigating Officer S.S.I. Brijesh Kumar Tyagi (PW 11) along with S.I. D.K.Tiwari (PW 1), Constable Kishan Singh and Constable Vikram Singh and a country made pistol was recovered from his possession and a case under section 25 Arms Act was also registered against the accused. 11. After completing the investigation charge sheet (Ex Ka 24) was submitted against the appellant and Nardev. 12. Charge was framed against the appellant u/s 302 I.P.C. for murdering Balwant Singh and also under section 25 Arms Act. The appellant pleaded not guilty and claimed to be tried. The charge was framed against accused Nardev under section 120 B I.P.C. of conspiracy and the trial court has acquitted him for the said offence. 13. The prosecution in support of its case examined S.I. D.K.Tiwari as PW 1,informant, PW 2 Dr. Surendra Singh conducted the postmortem on the dead body of the decease. P.W. 3 Harkat Singh Rawat, Naib Tehsildar, recorded the dying declaration (Ex Ka 5) of the deceased. P.W. 4 constable Jagdish Prasad proved chik FIR Ex Ka 6 and G.D. entry Ka 7. PW 5 S.I. Shyam Singh investigated the case u/s 25 Arms Act against the appellant. PW 6 Dr. Rakesh Singh proved injury report Ex. Ka 11 to Ex. K 15. P.W 7 Head Constable Ashok Kumar Sharma proved chik F.I.R. Ex ka 1 and G.D. entry Ex. Ka 16. PW 8 S.I. Brijendra Singh proved Panchayat Nama Ex ka 17 and connected papers Ex. ka 18 to Ex. ka 21. PW 9 Nem Chand is the witness of Panchayat Nama. PW 10 Satish Kumar is the witness to prove the factum of conspiracy against Nardev. Nardev has already been acquitted by the trial court and P.W. 11 S.S.I. Brijesh Kumar Tyagi is the Investigation Officer. 14. Before the trial court the defence of the accused was that he has been falsely implicated. The defence of the accused is that of denial. The defence did not prevail and the learned Sessions Judge accepted the prosecution case and convicted the appellant Baboo Ram Jatav for the offence under section 302 I.P.C. and awarded rigorous imprisonment for life. It is, against this verdict that the accused Baboo Ram Jatav comes before us by way of this appeal. 15. It is not disputed that the deceased Balwant Singh had homicidal death on account of injury sustained by him on the date of occurrence. Dr. Surendra Singh P.W. 2 conducted the autopsy on the dead body of the deceased and he has stated in his statement that the death of the deceased was caused due to shock and haemorrhage resulting from ante mortem firearm injury. 16. Now the question for consideration is whether the appellant was responsible for the injury sustained by the deceased, which resulted in his death. The prosecution in its support relied upon the dying declaration of Balwant Singh. There are two dying declarations, one is oral dying declaration given by the deceased to S.I. D.K. Tiwari P.W. 1 at the spot and later on S.I. D.K. Tiwari reduced into writing by way of F.I.R. at the Police Station on the same day. It is stated by S.I. D.K. Tiwari in his evidence that while he was on patrol duty and he reached at Gaushala turn near Pratappur, he found a person lying on the left side of the road on 16.03.2000 at 7.40 p.m. PW 1 S.I. D.K.Tiwari was coming on the motor cycle and he saw him in the head light of the motor cycle. On enquiry being made, the deceased disclosed his name as Balwant Singh and he stated that his wife had illicit relations with Nardev accused. His wife has left his house. The deceased has left his village and he was residing in Gaushala village, P.S. Kashipur. Nardev has hatched a conspiracy against the deceased and engaged Baboo Ram Jatav appellant to eliminate him. In pursuance to the said conspiracy Baboo Ram Jatav appellant fired on him by a country made pistol. S.I. D.K.Tiwari managed to send him to the Hospital by the truck along with his accompanied constables and Tiwari went to the Police Station where he lodged F.I.R. in which he stated all the details, which were narrated to him by the deceased at the Gaushala turn. He also sent a report to the S.D.M. for recording the dying declaration. Thereafter Dr. Rakesh Singh P.W. 6 examined the deceased at 8.20 p.m. and found that there was one gunshot injury on the person of the deceased, apart from other injuries. He prepared injury report Ex. ka 11. Meanwhile, Naib Tehsildar Harak Singh Rawat PW 3 reached at the Hospital and he recorded the dying declaration of the deceased at 8.40 p.m. Before recording the dying declaration the Naib Tehsildar Harak Singh Rawat P.W. 3 obtained a certificate of Dr. Rakesh Singh to the effect that the deceased was conscious and was able to make the statement to him. He recorded the dying declaration in the of question and answer from. Thereafter, he again obtained certificate of the doctor that he was conscious while he was given the statement to Harak Singh Rawat, P.W. 3. After recording the statement of Balwant Singh he died at 10.55 p.m. on 16.03.2000. Thus, he has given one oral dying declaration to S.I. D.K. Tiwari PW 1 and another dying declaration was recorded by Harak Singh Rawat Naib Tehsildar P.W. 3 in the hospital on the date of incident in presence of the doctor. 17. At this juncture it is relevant to take note of section 32 of Indian Evidence Act, with deals with the cases in which the statement of relevant fact by a person who is dead or cannot be found, etc., is relevant. The general rule is that all oral evidence must be directs, namely, if it refers to a fact, which could be seen. It must be the evidence of the witness who says that he saw it. If it refers to evidence, which could be heard, it must be the evidence of the witness who says that he heard it. If it relates to a fact, which could be perceived by any other sense, it must be the evidence of witness who says that he perceived it by that sense. Section 32 (1) is the exception to the general rule against hearsay just stated. It is essentially means the statement made by a person as to the cause of his death or as to the circumstances of the transaction resulting in his death. The grounds of admission are firstly necessity for the victim being generally the only eye witness to the crime, the exclusion of the statement might deflect the ends of justice; secondly the sense of impending death which creates a sanction equal to the obligation of an oath. The general principal on which this evidence is admitted is that they are declarations made in extremity, when a man is at the point of death and when every hope of this world is gone, when every motive of falsehood is silenced and the mind is induced by the most powerful consideration to speak the truth; a situation so solemn and so lawful is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in the court of law. The situation in which a person is on the dead bed is so solemn and serene when he is dying that the grave situation in which he is placed, is the reason in law to accept the veracity of his statement. It is for this reason that the requirements of oath and cross-examination are dispensed with. If the dying declaration is excluded it will result in miscarriage of justice because the victim being generally the only eye witness in a serious crime; the exclusion of the statement would leave the court without a scrap of evidence. Such a power is essential for eliciting the truth. This is the reason the court also insists that the dying declaration should be of such 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 or prompting or a product of imagination. The court must be further satisfied that the deceased was in a fit condition of mind after a clear opportunity to observe and identify the assailants. Once the court is satisfied that the declaration was voluntary and true, undoubtedly, it can base the conviction without any further corroboration. The rule requiring corroboration is merely rule of prudence. The Apex court has laid down the principle in several pronouncements that the dying declaration can be the sole basis of the conviction. 18. In the light of the above principle the acceptability of the dying declarations relied by the prosecution has to be considered by us. We will discuss both the dying declarations. The prosecution has placed reliance on the oral dying declaration recorded by S.I. D.K.Tiwari, P.W.1. He has stated in his evidence that while he was on patrol duty along with other constables when he reached near Gaushala turn towards Pratappur about 150 yards at 7.40 p.m., he saw a person in the headlight of motor cycle in an injured condition on the left side of the road from whose back the blood was oozing. On asking his name he disclosed his name as Balwant Singh S/o Seeta Ram R/o District Rampur. He further stated that his wife had illicit relation with Nardev. Nardev has got his wife separated. Nardev has hatched a conspiracy for his murder and engaged Baboo Ram. Due to the fear he left his village and was living in Gaushala village. On the date of occurrence he was coming back from the market of Pratappur after purchasing vegetables. In the way the appellant Baboo Ram met him. The deceased Balwant Singh tried to escape but Baboo Ram filed on the back of the deceased. PW 1 D.K.Tiwari has further stated in his evidence that he sent the deceased to the Civil Hospital, Kashipur through Constables Gauri Sah and Prem Kumar by the truck and he went to the Police Station. He sent a report to the S.D.M. for recording the dying declaration of the deceased. The constables took the deceased to the hospital. P.W. 1 D.K. Tiwari reached at the police station and lodged a report at 8.30 p.m. on the same day. Thus the report was lodged promptly and he narrated the whole incident what was stated to him by the deceased. Since the deceased has given his statement to D.K. Tiwari P.W.1 Sub- Inspector and subsequently he died in the hospital at Kashipur in spite of treatment given to him on the same day. The statement whatever was given to S.I. D.K. Tiwari by the deceased was recorded in the F.I.R. Thus, it is the substantial piece of evidence. 19. It was submitted by the learned counsel for the defence that the said oral dying declaration is not cogent and credible because S.I. D.K. Tiwari had written the parentage of the deceased as Bhajan Lal in the F.I.R. meaning thereby the deceased informed his parentage to P.W.1. P.W1 had also sent a report (Ex ka 4) to the S.D.M. Kashipur for recording the dying declaration in which he has not written the parentage of the deceased. If he was aware of the parentage of the deceased he would have mentioned it in the report Ex ka 4 submitted to S.D.M. to record the dying declaration. The said dying declaration cannot be relied upon to convict the appellant. The non-mentioning of parentage in Ex ka 4 is not significant because a perusal of Ex ka 4 reveals that the report has been written by some other person and D.K.Tiwari has only signed on it. Looking to the circumstances of the case D.K.Tiwari P.W.1 had sent the deceased to the hospital immediately by arranging the transport. It is obvious that D.K.Tiwari was in hurry to send the deceased to hospital so that he might get the medical treatment immediately. The submission of the learned counsel for the defence is not tenable. 20. The learned counsel for the defence further contended that S.I. D.K.Tiwari P.W.1 has stated in his evidence that he had not reduced into writing the statement made by the deceased at the place of occurrence. It was not possible for the informant D.K.Tiwari to recollect and remember the incident and the name of the accused. This contention of the learned counsel for the defence is also insignificant because D.K.Tiwari P.W.1 immediately recorded the F.I.R. at the police station. It is obvious that D.K.Tiwari P.W.1 without wasting any further time sent the deceased to the hospital for medical aid. When D.K.Tiwari P.W.1 would have started to reduce the statement in writing at the place of incident, the deceased could not have got the medical aid immediately. P.W.1 had taken due care and precaution so that the life of the deceased could be saved by providing medical assistance at the earliest. We have gone through the evidence of D.K.Tiwari P.W.1. The defence cross-examined D.K.Tiwari P.W.1 at length but there is nothing in his cross-examination, which makes his evidence untrustworthy. Thus, we are of the view that the said oral dying declaration is voluntary and truthful and there is no impediment in relying on the said oral dying declaration. 21. We have gone through the evidence of P.W.1 D.K.Tiwari. There is no enmity of the appellant with P.W.1 D.K.Tiwari and the appellant has not stated in his statement u/s 313 Cr.P.C. that there was any enmity with S.I. D.K. Tiwari, PW1. There was no suggestion to the prosecution witness as to how the appellant has been falsely implicated by PW1 D.K.Tiwari. Thus there is no reason to falsely implicate the appellant by P.W.1 D.K.Tiwari. 22. The next question, which arises for consideration, is whether this statement is voluntary and truthful. It is not the case of the defence that when the made the statement he was surrounded by any close of his relations/friends who could have prompted him to make an incorrect or false statement. So far as the voluntariness of the dying declaration is concerned there can be no doubt because the deceased was free from any influence or pressure. P.W.1 D.K.Tiwari has stated in his evidence that on enquiry being made to the deceased as to whether anybody was known to him. There he told him that there was none known to him. Thereafter, he sent him to the hospital. Thirdly D.K.Tiwari recorded the version of the deceased in the F.I.R. immediately within a span of 50 minutes at the police station, which was 12 kilomerters from the place of occurrence and he has narrated all the details in the F.I.R. The deceased in his statement to Sri D.K.Tiwari has in clear terms stated that the appellant fired on the back of the deceased from the point blank range and he sustained gunshot injury on his person. 23. The report Ex. ka 4 was sent to the S.D.M. by D.K.Tiwari P.W.1 to record the dying declaration of the deceased Balwant. The S.D.M. directed the Naib Tehsildar Harak Singh Rawat PW3 to record the dying declaration of the deceased. The said dying declaration was recorded at 8.40 p.m. Earlier to this the injuries on the person of the deceased were examined by Dr. Rakesh Singh at 8.20 p.m. and he found the general condition of the patient as under: GC-very-very low PR-not palpable PR- Gasping BP-not recordable Temp.-Extremities cold & clammy Pallor- xxxx Dehydration-xxxx Consciousness-Conscious but restless Pupils- B/L slightly and reacting to light slugging. 24. Before recording the dying declaration P.W.3 Harak Singh, Naib Tehsildar has obtained the certificate of the doctor Ex ka 13 on the top of the dying declaration who certified that the patient was able to give the statement. As such the doctor has certified that the patient was conscious and was able to make the statement. Thereafter, he recorded the dying declaration, which is as follow: “1- esjk uke cyoUr gS] esjs firk dk uke Hktuyky gSA /kukSjh Lokj dk jgus okyk gw¡A iz'u %1&rqEgsa xksyh fdlus ekjk \ mRrj % ckcw iq= lhrkjke us ekjh tks /kukSjh Lokj gh jgrk gSA iz u%2& xksyh D;ksa ekjh\ mRrj% esjh chch esjs lk<w ujnso iq= dsljh ls yxh Fkh] eq>s ujnso us ejok;k gSaA iz u%3& rqEgkjh chch dgka jgrh gS\ mRrj% ekbds jgrh gSA mlds xkao ds uke&dsejhtA iz u%4& chch dk D;k uke gS \ mRrj % Hkokfu;kA“ 25. Thus, the Naib Tehsildar P.W.3 had also obtained the certificate of the doctor at the end of the dying declaration after recording the statement of the deceased (Ex ka 14). The doctor had certified that he was fully conscious while he was giving his statement. The prosecution had produced Harak Singh Rawat as PW3, who had proved the dying declaration, in his evidence. He had, in his cross-examination specifically denied that there was any police personnel with him while recording the said dying declaration. 26. It is also not the case of the defence that when the statement was recorded by P.W.3 Harak Singh Rawat the deceased was surrounded by any of his close relations or friends who could have promoted him to make an incorrect or false statement. The evidence of P.W.6 and P.W.3 clearly reveals that he was not surrounded by any person who could have promoted him to make a false statement. So far as, the voluntariness of the statement is concerned there can be no doubt because the deceased was free from external influence or pressure. So far as the truthfulness of the statement is concerned, Dr.Rakesh Singh P.W.6. and Harak Singh Rawat P.W.3 stated that the deceased made the said dying declaration, which was not seriously challenged in their cross- examinations. The deceased in his brief statement has clearly stated that