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 302/34 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 p.m 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 p.m. Bhagwan Singh was accompanied at that time by his younger son, Narvel Singh, P.W. 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, P.W. 2, at 11 45 p.m. 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, P.W. 4, arrived at the hospital sometime after midnight and, in the presence of Dr. Mahavir Sud, P.W. 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 a.m. 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 P.W. 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 p.m. on August 2, 1954.
An inquest report Exhibit P K was prepared at 2 30 p.m. by Head Constable Maya Ram, P.W. 4.
The case for the prosecution rests on the dying declaration of Bachhinder Singh, exhibit P H, and on the statement of Narvel Singh, P.W. 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, P.W. 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, P.W. 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 P.W. 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, P.W. 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) A.I.R. 1945 P.C. 42 (2) A.I.R. 1936 P.C. 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 32(1) 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, A.I.R. , Stephen Servaraine vs The King, A. 1.
R. ,and Habeeb Mohammed vs The State of Hydera bad; , , referred to.