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

1. Moti Singh and Jagdamba Prasad, appellants, together with five other persons, were convicted by the Sessions Judge of Unnao of offences under Ss. 148, 302 read with 149 and 307 read with 149 I. P. C. Each of them was sentenced to life imprisonment under S. 302 read with S. 149 I. P. C.2. On appeal the High Court acquitted the other five persons of the various offences. The conviction of the appellants under S. 148 I. P. C. was also set aside, but their conviction for the offences under Ss. 302 and 307 read with S. 149 were altered to conviction for offences under Ss. 302 and 307 read with S. 34 I. P. C. On the application of Krishna Kumar, brother of one of the persons who had been murdered, the High Court enhanced the sentence of the appellants for the offence of murder, to death. Moti Singh and Jagdamaba Prasad have preferred these appeals respectively, after obtaining special leave from this Court.

Reasoning: 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.