Case: Moti Singh &amp; Another Vs. State of Uttar Pradesh

the deciding factor. It said:"The number of assailants mentioned in the dying declaration Ex. Kha 75 is only four. It is doubtful if the assailants were more than four in number. NO offence under S. 148 was therefore committed and section 149 I. P. C. is not applicable".12. It is clear from the above that the High Court mainly relied on the alleged dying declaration of Gaya Charan for determining that Moti Singh and Jagdamba Prasad, appellants, fired from the room and the platform and that if their names had not been mentioned in this statement of Gaya Charan, they too would have got the benefit of doubt just as Sheo Darshan Singh and Avadh Behari got. There is no other factor for making a distinction between the cases of these two appellants and those two accused as all the prosecution witnesses and named all the accused as assailants of the victim party. It follows that if this alleged dying declaration of Gaya Charan be inadmissible in evidence as urged for the appellants, the appeals have to be allowed and the conviction of the appellants set aside.13. The incident took place on February 9, 1960. Gaya Charans injuries were examined by Dr. Bhatnagar the same day. He found two gunshot wounds of entry 1/4" x 1/4" up to the depth of abdomen and considered those injuries to be caused by gunshot and to be dangerous to life. Gaya Charan left the hospital. He was either discharged on the injuries healing up or he left the hospital before they healed up. There is nothing on the record to show in what circumstance he left the hospital. He died on March 1, 1960.14. Sub-Inspector Puttu Lal, P. W. 24, has deposed that it was know on March 1, 1960 that Gaya Charan had died in Kanpur and that when he reached the Bhairon Ghat he learnt that the dead body of Gaya Charan had been burnt a couple of hours before. There is no evidence on record as to what caused Gaya Charans death. In this state of evidence the finding of the Sessions Judge that Gaya Charan must have died on account of the injuries received in the incident cannot be held be a good finding. What he says in this connection is :"Gaya Charan had a gunshot wound of entry on the left hypochondrium region and one gunshot wound of entry on the right lumber region. Both the injuries were dangerous to life, according to the Doctor. Gaya Charan must have died of these injuries and the mere fact, that no post mortem could be conducted on his dead body before his cremation, does not show that we cannot rely on his dying declaration".The mere fact that the two gun shot injuries were dangerous to life is not sufficient for holding that Gaya Charans death which took place about three weeks after the incident must have been on account of those injuries.15. In this connection our attention was drawn to the fact that Ram Shankar who was also injured in that incident had received one gunshot wound 1/4"x1/4" up to the depth of his abdomen, 1/2" above the right end of upper border of syihphysis Pubes, and that injury was also considered by the Doctor to be dangerous to life, but fortunately Ram Shaker did not succumb to the injury. The High Court did not refer to this question as it appears the admissibility of the alleged dying declaration of Gaya Charan was not raised before it. That however does not mean that we cannot look into the finding of fact about Gaya Charan having died on account of the injuries received in the incident. It is necessary for proving the charge of murder of Gay Charan that he had died on account of the injuries received and any finding to that effect in the absence of evidence, can be looked into by this Court even though the Courts below have confirmed that finding. We find that there is no evidence to support that finding and hod that Gaya Charan is not proved to have died due to the injuries received in the incident.16. The effect of this finding is that the alleged dying declaration of Gaya Charan Ex. Kha 75, cannot be admissible in evidence.Clause (1) of S. 32 of the Evidence Act makes a statement of a person who has died relevant only when that statement is made by as person 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 persons death comes into question. When Gaya Charan is not proved to have died as a result of the injuries received in the incident his statement cannot be said to be the statement as to the cause of his death or as any of the circumstances of the transaction which resulted in his death. This is obvious and is not disputed for the respondent State.17. The result then is that the statement of Gaya Charan Ex. Kha 75 is inadmissible in evidence. It was the mainstay of the judgment of the High Court upholding the finding of the Sessions Judge that Moti Singh and Jagdamba Prasad appellants, were among the persons who had fired from the room and the platform. When this evidence is to be ignored as inadmissible, the remaining evidence on the record, according to the view of the High Court, was insufficient to establish beyond reasonable doubt that these two persons were among the assailants. The appellants deserve the benefit of the doubt. They would have got it if the High Court had not erroneously relied on the statement Ex. Kha 75.18. We therefore hold that Moti Singh and Jagdamba Prasad have not been proved to have taken part in that incident on February 9, 1960, which led to the deaths of Lallan and Matrumal and the causing of hurt to several other persons.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]15. In this connection our attention was drawn to the fact that Ram Shankar who was also injured in that incident had received one gunshot wound 1/4"x1/4" up to the depth of his abdomen, 1/2" above the right end of upper border of syihphysis Pubes, and that injury was also considered by the Doctor to be dangerous to life, but fortunately Ram Shaker did not succumb to the injury. The High Court did not refer to this question as it appears the admissibility of the alleged dying declaration of Gaya Charan was not raised before it. That however does not mean that we cannot look into the finding of fact about Gaya Charan having died on account of the injuries received in the incident. It is necessary for proving the charge of murder of Gay Charan that he had died on account of the injuries received and any finding to that effect in the absence of evidence, can be looked into by this Court even though the Courts below have confirmed that finding. We find that there is no evidence to support that finding and hod that Gaya Charan is not proved to have died due to the injuries received in the incident.16. The effect of this finding is that the alleged dying declaration of Gaya Charan Ex. Kha 75, cannot be admissible in evidence.Clause (1) of S. 32 of the Evidence Act makes a statement of a person who has died relevant only when that statement is made by as person 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 persons death comes into question. When Gaya Charan is not proved to have died as a result of the injuries received in the incident his statement cannot be said to be the statement as to the cause of his death or as any of the circumstances of the transaction which resulted in his death. This is obvious and is not disputed for the respondent State.17. The result then is that the statement of Gaya Charan Ex. Kha 75 is inadmissible in evidence. It was the mainstay of the judgment of the High Court upholding the finding of the Sessions Judge that Moti Singh and Jagdamba Prasad appellants, were among the persons who had fired from the room and the platform. When this evidence is to be ignored as inadmissible, the remaining evidence on the record, according to the view of the High Court, was insufficient to establish beyond reasonable doubt that these two persons were among the assailants. The appellants deserve the benefit of the doubt. They would have got it if the High Court had not erroneously relied on the statement Ex. Kha 75.18. We therefore hold that Moti Singh and Jagdamba Prasad have not been proved to have taken part in that incident on February 9, 1960, which led to the deaths of Lallan and Matrumal and the causing of hurt to several other persons.