dying declaration, recorded by the
Executive Magistrate P.W.19 did not contain the
thumb impression of the deceased, and hence could
not be relied upon. The Executive Magistrate P.W.19
has stated that the signature or thumb impression
could not be taken since there were injuries on both
his hands.
Reliance is placed on the decision of this Court in Sukanti Moharana v. State of Orissa9 wherein the Court took the view that there is no reason why a dying declaration which is otherwise found to be true, voluntary and correct should be rejected only because the person who recorded the dying declaration could not affix his signatures or thumb impressions on the dying declaration
NON REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1522 OF 2009
DAYARAM & ANOTHER …APPELLANT
Versus
STATE OF MADHYA PRADESH …RESPONDENT
J U D G M E N T
INDU MALHOTRA, J.
1. The appellants have filed the present Criminal Appeal to
challenge the order of conviction under Section 302, IPC
and sentence of Life Imprisonment passed vide Judgment
and Order dated 04.12.2008 by the Jabalpur Bench of the
Madhya Pradesh High Court in Criminal Appeal
No.206/1994. The High Court has affirmed the Judgment
passed by the Sessions Court.
1
2. The present appeal arises out of FIR No. 86/1991 lodged on
19.12.1991 at 4:20 p.m. under Sections 341, 323, 325, 307
read with 34 IPC by the deceased – Ghansu himself.
Ghansu, in his F.I.R, stated that on 19.12.1991 he had
gone to Ishanagar Police Station to file a Report against
appellant No.1 Dayaram Yadav for having beaten his son
Chandu. On his way back from the Police Station, at about
3:00 p.m., near Nahar ki Puliya, both the accused viz.
Dayaram and Parsu Yadav were hiding in the bushes with
lathis. Both of them waylaid him started hitting the
deceased with lathis on his head, hands, legs and body
which led to severe bleeding. Ghansu fell unconscious. The
accused assumed that the Ghansu had died, and threw his
body into the canal, and fled from the scene. While Ghansu
was in the water, he regained consciousness and cried for
help. Ghansu stated that Chouda Chamar – P.W.9, Thakur
Sunla Kumar, Lula Kumhar and Ramlal Kumhar reached
the site of occurrence and rescued him. Ghansu stated that
the beating was given with a motive to eliminate him
completely.
2
3. Ghansu was taken to the Ishanagar Police Station where the
F.I.R was lodged. Thereafter, he was taken to the Primary
Health Centre, Ishanagar for treatment.
The Executive Magistrate P.W.19 recorded the dying
declaration of Ghansu at 4:55 p.m. on 19.12.1991, which
reads as follows:
“I, Ghansu Yadav son of Judhiya Yadav,
aged about 50 years, occupation –
cultivation, resident of Pahargaon do
hereby state on oath that when I was
returning back to my village from
Ishanagar, then, in the afternoon at nearby
place of the culvert (puliya) of canal in
village Pahargaon, Dayaram and Parsu,
sons of Durju Yadav, both brothers,
assaulted me with lathis.
Even prior to it, my son Chandu was
assaulted by Dayaram. I had gone to the
Police Station to register a Report. But, the
Report could not be registered. Thereafter, I,
with my son Chandu, was coming back and
at that time, Dayaram and Parsu have
assaulted me.”
The medical examination of Ghansu was conducted by
P.W.14 – Dr. Ramakant Chaturvedi who certified that the
dying declaration was recorded in his presence and Ghansu
was fully conscious and welloriented to the time and place
at the time of giving his statement.
4. Ghansu was referred to the District Hospital, Chhattarpur
due to his critical condition. He succumbed to his injuries
at the Hospital.
3
5. The Post Mortem examination of the deceased was
conducted by Dr. Hari Aggarwal – P.W.17 who recorded the
following injuries:
(i) Wound on the right forearm – ½ x ½ inch – underlying
bone broken in pieces.
(ii) Wound on left forearm with contusion on medial
border forearm lower 1/3 – underlying bone broken in
pieces.
(iii) Deep Wound on right III of 2 x 1 x 1 inches. Underlying
bone of II, IV and V metacarpal broken.
(iv) Deep Lacerated Wound on scalp – 2 x ½ inches –
underlying parietal bone broken, and haematoma
collection, subdural and epidural.
(v) Lacerated wound – ½ x ½ inches size on right leg.
(vi) Parietal bone broken.
The medical report recorded that the cause of death was
shock due to head injury and other injuries.
6. The case was registered as Case No. 20/ 1992 before the
Sessions Judge, Chhatarpur, Madhya Pradesh (Sessions
Court).
P.W.3 – Ram Lal, P.W.4 – Balwant Singh, P.W.7 – Asha
Ram, P.W.8 – Arjun, P.W.9 – Chouda Chamar and P.W.15 –
Vijay Singh deposed that they heard pother of screaming
and shouting of Ghansu. They went towards the canal
where Ghansu was lying with severe injuries all over his
4
body. Ghansu told P.W.4 – Balwant Singh and other people
who had gathered there that Durju Nata (father of the
accused) had got the assault done on him.
In the statement of P.W.3 and P.W.4 before the Police,
they deposed that when they rescued Ghansu from the
canal, Ghansu told them that the present accused have
injured him with lathis. The statements given by P.W.3 and
P.W.4 were confirmed by the I.O – P.W.11.
However, at the time of evidence, P.W.s 3, 4, 7, 8, 9
and 15 were declared hostile by the Prosecution.
7. The Sessions Court vide Judgment and Order dated
05.02.1994 convicted the Appellants for murder under
Section 302 IPC and sentenced them to Life Imprisonment.
The Sessions Court held that:
(i) The deceased – Ghansu had lodged the F.I.R [ExP20]
wherein the Appellants were specifically mentioned as
the assailants. The F.I.R was recorded by P.W.16 – N.D
Mishra who certified that the F.I.R contained the
thumb impression of the deceased.
(ii) The deceased was in a state of consciousness at the
time of filing the F.I.R, which is corroborated by the
medical evidence of P.W.14 – Dr. Ramakant
Chaturvedi, who has deposed that the medical
5
certificate appended to the Dying Declaration was true
and correct.
The F.I.R was recorded 1 hour and 15 minutes prior to
the death of the deceased.
The F.I.R was treated as the first dying declaration of
the deceased.
(iii) The statement made by the deceased before the
Executive Magistrate – P.W.19 [ExP19], was
considered to be the second dying declaration. Even
though the second dying declaration does not bear the
thumb impression of the deceased, the contents of the
same are consistent with the F.I.R lodged by the
deceased himself which bears the thumb impression of
the deceased.
(iv) The dying declaration recorded by the Executive
Magistrate P.W19 and the F.I.R recorded by P.W16
are consistent and credible.
(v) The Sessions Court convicted the Accused /Appellant
No.1 and Appellant No.2 under Section 302 IPC and
sentenced them to Life Imprisonment.
8. Aggrieved by Judgment dated 05.02.1994 passed by the
Trial Court, the Appellants filed a common appeal being
Criminal Appeal No. 206/1994 before the Madhya Pradesh
High Court.
6
8.1. The High Court vide the impugned Judgment and
Order dated 04.12.2008 dismissed the Appeal filed by
the Appellants, and affirmed the Judgment and Order
of Conviction passed by the Sessions Court. The High
Court held that death of the deceased was homicidal,
and caused by grievous injuries on the head and other
parts of the body.
8.2. From the depositions of the Executive Magistrate
P.W.19 and P.W.14 – Dr. Ramakant Chaturvedi, it is
evident that the deceased was conscious at the time of
recording the dying declaration. The Medical certificate
was issued by P.W.14 – Dr. Ramakant Chaturvedi
which was appended at the foot of the Dying
Declaration that the deceased was fully conscious at
the time of recording his dying declaration.
8.3. The High Court relied on the Judgment of this Court in
Laxman v. State of Maharashtra1 wherein this Court
held that:
“3…What is essentially required is that
the person who records a dying
declaration must be satisfied that the
deceased was in a fit state of mind. Where
it is proved by the testimony of the
magistrate that the declarant was fit to
make the statement even without
1 (2002) 6 SCC 710.
7
examination by the doctor the declaration
can be acted upon provided the court
ultimately holds the same to be voluntary
and truthful. A certification by the doctor is
essentially a rule of caution and therefore,
the voluntary and truthful nature of the
declaration can be established otherwise.”
(emphasis supplied)
8.4. The High Court found that there was no inconsistency
in the statement made by the deceased in the F.I.R
lodged by the deceased before P.W.16 and the dying
declaration recorded by Executive Magistrate P.W.19.
The substratum of both the Dying Declarations
remained consistent to the effect that both the
Appellants had assaulted the deceased with lathis on
his head, hands and legs when he was returning from
Ishanagar Police Station.
The dying declaration was corroborated by the
medical evidence that the Appellants had inflicted
grievous injuries on the deceased, which caused his
death.
The High Court dismissed the Appeal filed by the
Appellants and affirmed the conviction of the
Appellants under Section 302 of IPC and the sentence
of Life Imprisonment.
9. The Appellants have filed a common Special Leave Petition,
against the Judgment and Order of the Madhya Pradesh
8
High Court dated 04.12.2008. Leave to Appeal was granted
vide Order dated 13.08.2009.
10. FINDINGS AND ANALYSIS
We have carefully perused the record of the case and
considered the submissions made by the Counsel for the
parties.
10.1. The motive for the crime was established by the
prosecution from the dying declaration of the
deceased, and the deposition of the P.W.6 son of
deceased. Chandu – P.W.6 has deposed that, on the
date of the incident, the Accused/ Appellant No.1 –
Dayaram had abused and beaten him up and then
picked up an axe to assault him, when he ran away.
The assault took place since the buffaloes belonging to
Chandu had got mixed up with the buffaloes of
Appellant No.1 Dayaram. Thereafter, Chandu – P.W.6
along with his father – Ghansu went to lodge a Report
at the Ishanagar Police Station. While returning from
the Police Station, appellant No.1 attacked his father
with a lathi on his head, while Appellant No.2 attacked
Chandu – P.W.6 on his hand with a lathi. P.W.6 then
ran to inform Sullu and others about the incident.
9
P.W.6 – Chandu returned to the site of occurrence, and
saw his father – Ghansu lying on a cot, surrounded by
Sullu and Balwant Singh – P.W.4, who then took him
to Ishanagar Police Station.
The motive behind the attack is established from
the evidence of P.W.6 Chandu.
10.2. The F.I.R was lodged by the deceased and bears his
thumb impression. The F.I.R is treated as the 1st dying
declaration of the deceased.
10.3. The deceased was admitted to the Primary Health
Centre, Ishanagar. The deceased gave his 2nd Dying
Declaration before the Executive Magistrate – P.W.19.
10.4. The examinationinchief of P.W.s 3, 4, 7, 8, 9 and 15
records that on the date of the incident, they had
heard the cries of the deceased. The deceased was
found lying in the canal in an injured condition. The
deceased told them of the attack by the assailants.
These prosecution witnesses took the deceased to the
hospital.
From their examinationinchief it is evident that
the deceased was conscious and, in a state to lodge the
F.I.R. In their crossexamination, these witnesses
10
denied having any knowledge about the persons who
attacked the deceased. They were declared hostile
during their crossexamination. The testimony, prior to
crossexamination can be relied upon.
Reliance is placed on the decisions of this Court
in Bhagwan Singh v. State of Haryana2
, Rabindra
Kumar Dey v. State of Orissa3 and Syad Akbar v. State
of Karnataka,4 wherein it has been held that the
evidence of a prosecution witness cannot be rejected in
toto, merely because the prosecution witnesses turned
hostile. The evidence of such witnesses cannot be
treated as effaced or washed off the record altogether
but the same can be accepted to the extent that their
version is found to be dependable on careful scrutiny.
This Court in Khujji v. State of M.P,5
in paragraph
6 of the Judgment held that:
“6…The evidence of PW 3 Kishan Lal
and PW 4 Ramesh came to be
rejected by the trial court because
they were declared hostile to the
prosecution by the learned Public
Prosecutor as they refused to identify
the appellant and his companions in
the dock as the assailants of the
deceased. But the counsel for the
2 (1976) 1 SCC 389.
3 (1976) 4 SCC 233.
4 (1980) 1 SCC 30.
5 (1991) 3 SCC 627.
11
State is right when he submits that
the evidence of a witness, declared
hostile, is not wholly effaced from the
record and the part of the evidence
which is otherwise acceptable can be
acted upon.”
(emphasis supplied)
This position in law was reiterated in Vinod
Kumar v. State of Punjab6
, wherein the court held that :
“31. The next aspect which requires to be
adverted to is whether testimony of a
hostile witness that has come on record
should be relied upon or not. Mr. Jain,
learned Senior Counsel for the appellant
would contend that as PW 7 has totally
resiled in his crossexamination, his
evidence is to be discarded in toto. On a
perusal of the testimony of the said
witness, it is evincible that in
examinationinchief, he has supported
the prosecution story in entirety and in
the crossexamination, he has taken the
path of prevarication. In Bhagwan Singh
v. State of Haryana7
, it has been laid
down that even if a witness is
characterised as a hostile witness, his
evidence is not completely effaced. The
said evidence remains admissible in the
trial and there is no legal bar to base a
conviction upon his testimony, if
corroborated by other reliable
evidence…”
(emphasis supplied)
The F.I.R lodged by the deceased was prompt. As
per the statement of the deceased, the incident
6 (2015) 3 SCC 220.
7 (1976) 1 SCC 389.
12
occurred at 3:00 p.m., and the F.I.R was lodged at
4:20 p.m. by the deceased. The distance between the
Police Station and the site of occurrence is about 4
kilometres. The F.I.R was lodged with promptness and
the appellants were named in the F.I.R along with
details of their weapons.
As per Section 32(1) of the Evidence Act, the F.I.R
should be treated as a Dying Declaration.
This Court in Dharam Pal & Ors. v. State of U.P,8
held that :
“17… The report dictated by the deceased
fully satisfied all the ingredients for being
made admissible as a dying declaration.
To ascertain this aspect, we may refer to
some of the general propositions relating
to a dying declaration. Section 32(1) of the
Indian Evidence Act deals with dying
declaration and lays down that when a
statement is 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, such a statement is
relevant in every case or proceeding in
which the cause of the person’s death
comes into question. Further, such
statements are relevant whether the
person who made them was or was not at
the time when they were made under the
expectation of death and whatever may be
the nature of the proceedings in which the
cause of his death comes into question.
18. The principle on which a dying
declaration is admissible in evidence is
8 (2008) 17 SCC 337.
13
indicated in the Maxim “ Nemo Moriturus
Praesumitur Mentire”, which means that a
man will not meet his maker with a lie in
his mouth. Thus it is clear that a dying
declaration may be relating to :
a) As to the cause of death of the
deceased
b) As to “any of the circumstances of
the transaction” which resulted in
the death of the deceased”
“20. …If we look at the report dictated by
the deceased in the light of the aforesaid
propositions, it emerges that the names
of the accused and the important
features of the case have been clearly
mentioned in the report. It contains a
narrative by the deceased as to the
cause of his death, which finds complete
corroboration from the testimony of eyewitnesses and the medical evidence on
record...”
(emphasis supplied)
From the testimonies of P.W.3, P.W.4, P.W.7,
P.W.8, P.W.9 and P.W.15, prior to crossexamination
and the evidence of the Executive Magistrate P.W.19
who recorded the dying declaration of the deceased in
the Hospital and P.W.14 – Dr. Ramakant Chaturvedi,
it is evident that the deceased was conscious, and in a
state to give a dying declaration.
14
The F.I.R lodged by the deceased clearly states
the names of both the Appellants, as being the
assailants, and gives clear details of the incident.
10.5. The Learned Counsel for the Appellants contended that
the second dying declaration, recorded by the
Executive Magistrate P.W.19 did not contain the
thumb impression of the deceased, and hence could
not be relied upon. The Executive Magistrate P.W.19
has stated that the signature or thumb impression
could not be taken since there were injuries on both
his hands. P.W.17 Dr. Hari Agrawal who conducted
the post mortem on the body of the deceased.
Reliance is placed on the decision of this Court in
Sukanti Moharana v. State of Orissa9 wherein the Court
took the view that there is no reason why a dying
declaration which is otherwise found to be true,
voluntary and correct should be rejected only because
the person who recorded the dying declaration could
not affix his signatures or thumb impressions on the
dying declaration.
9 (2009) 9 SCC 163.
15
11. Considering the totality of the evidence including the two
dying declarations made by the deceased, which are both
consistent with each other and the ocular evidence is
corroborated by the medical evidence, we are satisfied that
the prosecution has proved the case beyond reasonable
doubt. The chain of circumstances is complete. We affirm
the Judgment passed by the Sessions Court and the High
Court.
In view of the aforesaid, the appeal fails and is hereby
dismissed.
..….……..........................J.
(INDU MALHOTRA)
…..……...........................J.
(R. SUBHASH REDDY)
New Delhi
November 7, 2019.
16
Reliance is placed on the decision of this Court in Sukanti Moharana v. State of Orissa9 wherein the Court took the view that there is no reason why a dying declaration which is otherwise found to be true, voluntary and correct should be rejected only because the person who recorded the dying declaration could not affix his signatures or thumb impressions on the dying declaration
NON REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1522 OF 2009
DAYARAM & ANOTHER …APPELLANT
Versus
STATE OF MADHYA PRADESH …RESPONDENT
J U D G M E N T
INDU MALHOTRA, J.
1. The appellants have filed the present Criminal Appeal to
challenge the order of conviction under Section 302, IPC
and sentence of Life Imprisonment passed vide Judgment
and Order dated 04.12.2008 by the Jabalpur Bench of the
Madhya Pradesh High Court in Criminal Appeal
No.206/1994. The High Court has affirmed the Judgment
passed by the Sessions Court.
1
2. The present appeal arises out of FIR No. 86/1991 lodged on
19.12.1991 at 4:20 p.m. under Sections 341, 323, 325, 307
read with 34 IPC by the deceased – Ghansu himself.
Ghansu, in his F.I.R, stated that on 19.12.1991 he had
gone to Ishanagar Police Station to file a Report against
appellant No.1 Dayaram Yadav for having beaten his son
Chandu. On his way back from the Police Station, at about
3:00 p.m., near Nahar ki Puliya, both the accused viz.
Dayaram and Parsu Yadav were hiding in the bushes with
lathis. Both of them waylaid him started hitting the
deceased with lathis on his head, hands, legs and body
which led to severe bleeding. Ghansu fell unconscious. The
accused assumed that the Ghansu had died, and threw his
body into the canal, and fled from the scene. While Ghansu
was in the water, he regained consciousness and cried for
help. Ghansu stated that Chouda Chamar – P.W.9, Thakur
Sunla Kumar, Lula Kumhar and Ramlal Kumhar reached
the site of occurrence and rescued him. Ghansu stated that
the beating was given with a motive to eliminate him
completely.
2
3. Ghansu was taken to the Ishanagar Police Station where the
F.I.R was lodged. Thereafter, he was taken to the Primary
Health Centre, Ishanagar for treatment.
The Executive Magistrate P.W.19 recorded the dying
declaration of Ghansu at 4:55 p.m. on 19.12.1991, which
reads as follows:
“I, Ghansu Yadav son of Judhiya Yadav,
aged about 50 years, occupation –
cultivation, resident of Pahargaon do
hereby state on oath that when I was
returning back to my village from
Ishanagar, then, in the afternoon at nearby
place of the culvert (puliya) of canal in
village Pahargaon, Dayaram and Parsu,
sons of Durju Yadav, both brothers,
assaulted me with lathis.
Even prior to it, my son Chandu was
assaulted by Dayaram. I had gone to the
Police Station to register a Report. But, the
Report could not be registered. Thereafter, I,
with my son Chandu, was coming back and
at that time, Dayaram and Parsu have
assaulted me.”
The medical examination of Ghansu was conducted by
P.W.14 – Dr. Ramakant Chaturvedi who certified that the
dying declaration was recorded in his presence and Ghansu
was fully conscious and welloriented to the time and place
at the time of giving his statement.
4. Ghansu was referred to the District Hospital, Chhattarpur
due to his critical condition. He succumbed to his injuries
at the Hospital.
3
5. The Post Mortem examination of the deceased was
conducted by Dr. Hari Aggarwal – P.W.17 who recorded the
following injuries:
(i) Wound on the right forearm – ½ x ½ inch – underlying
bone broken in pieces.
(ii) Wound on left forearm with contusion on medial
border forearm lower 1/3 – underlying bone broken in
pieces.
(iii) Deep Wound on right III of 2 x 1 x 1 inches. Underlying
bone of II, IV and V metacarpal broken.
(iv) Deep Lacerated Wound on scalp – 2 x ½ inches –
underlying parietal bone broken, and haematoma
collection, subdural and epidural.
(v) Lacerated wound – ½ x ½ inches size on right leg.
(vi) Parietal bone broken.
The medical report recorded that the cause of death was
shock due to head injury and other injuries.
6. The case was registered as Case No. 20/ 1992 before the
Sessions Judge, Chhatarpur, Madhya Pradesh (Sessions
Court).
P.W.3 – Ram Lal, P.W.4 – Balwant Singh, P.W.7 – Asha
Ram, P.W.8 – Arjun, P.W.9 – Chouda Chamar and P.W.15 –
Vijay Singh deposed that they heard pother of screaming
and shouting of Ghansu. They went towards the canal
where Ghansu was lying with severe injuries all over his
4
body. Ghansu told P.W.4 – Balwant Singh and other people
who had gathered there that Durju Nata (father of the
accused) had got the assault done on him.
In the statement of P.W.3 and P.W.4 before the Police,
they deposed that when they rescued Ghansu from the
canal, Ghansu told them that the present accused have
injured him with lathis. The statements given by P.W.3 and
P.W.4 were confirmed by the I.O – P.W.11.
However, at the time of evidence, P.W.s 3, 4, 7, 8, 9
and 15 were declared hostile by the Prosecution.
7. The Sessions Court vide Judgment and Order dated
05.02.1994 convicted the Appellants for murder under
Section 302 IPC and sentenced them to Life Imprisonment.
The Sessions Court held that:
(i) The deceased – Ghansu had lodged the F.I.R [ExP20]
wherein the Appellants were specifically mentioned as
the assailants. The F.I.R was recorded by P.W.16 – N.D
Mishra who certified that the F.I.R contained the
thumb impression of the deceased.
(ii) The deceased was in a state of consciousness at the
time of filing the F.I.R, which is corroborated by the
medical evidence of P.W.14 – Dr. Ramakant
Chaturvedi, who has deposed that the medical
5
certificate appended to the Dying Declaration was true
and correct.
The F.I.R was recorded 1 hour and 15 minutes prior to
the death of the deceased.
The F.I.R was treated as the first dying declaration of
the deceased.
(iii) The statement made by the deceased before the
Executive Magistrate – P.W.19 [ExP19], was
considered to be the second dying declaration. Even
though the second dying declaration does not bear the
thumb impression of the deceased, the contents of the
same are consistent with the F.I.R lodged by the
deceased himself which bears the thumb impression of
the deceased.
(iv) The dying declaration recorded by the Executive
Magistrate P.W19 and the F.I.R recorded by P.W16
are consistent and credible.
(v) The Sessions Court convicted the Accused /Appellant
No.1 and Appellant No.2 under Section 302 IPC and
sentenced them to Life Imprisonment.
8. Aggrieved by Judgment dated 05.02.1994 passed by the
Trial Court, the Appellants filed a common appeal being
Criminal Appeal No. 206/1994 before the Madhya Pradesh
High Court.
6
8.1. The High Court vide the impugned Judgment and
Order dated 04.12.2008 dismissed the Appeal filed by
the Appellants, and affirmed the Judgment and Order
of Conviction passed by the Sessions Court. The High
Court held that death of the deceased was homicidal,
and caused by grievous injuries on the head and other
parts of the body.
8.2. From the depositions of the Executive Magistrate
P.W.19 and P.W.14 – Dr. Ramakant Chaturvedi, it is
evident that the deceased was conscious at the time of
recording the dying declaration. The Medical certificate
was issued by P.W.14 – Dr. Ramakant Chaturvedi
which was appended at the foot of the Dying
Declaration that the deceased was fully conscious at
the time of recording his dying declaration.
8.3. The High Court relied on the Judgment of this Court in
Laxman v. State of Maharashtra1 wherein this Court
held that:
“3…What is essentially required is that
the person who records a dying
declaration must be satisfied that the
deceased was in a fit state of mind. Where
it is proved by the testimony of the
magistrate that the declarant was fit to
make the statement even without
1 (2002) 6 SCC 710.
7
examination by the doctor the declaration
can be acted upon provided the court
ultimately holds the same to be voluntary
and truthful. A certification by the doctor is
essentially a rule of caution and therefore,
the voluntary and truthful nature of the
declaration can be established otherwise.”
(emphasis supplied)
8.4. The High Court found that there was no inconsistency
in the statement made by the deceased in the F.I.R
lodged by the deceased before P.W.16 and the dying
declaration recorded by Executive Magistrate P.W.19.
The substratum of both the Dying Declarations
remained consistent to the effect that both the
Appellants had assaulted the deceased with lathis on
his head, hands and legs when he was returning from
Ishanagar Police Station.
The dying declaration was corroborated by the
medical evidence that the Appellants had inflicted
grievous injuries on the deceased, which caused his
death.
The High Court dismissed the Appeal filed by the
Appellants and affirmed the conviction of the
Appellants under Section 302 of IPC and the sentence
of Life Imprisonment.
9. The Appellants have filed a common Special Leave Petition,
against the Judgment and Order of the Madhya Pradesh
8
High Court dated 04.12.2008. Leave to Appeal was granted
vide Order dated 13.08.2009.
10. FINDINGS AND ANALYSIS
We have carefully perused the record of the case and
considered the submissions made by the Counsel for the
parties.
10.1. The motive for the crime was established by the
prosecution from the dying declaration of the
deceased, and the deposition of the P.W.6 son of
deceased. Chandu – P.W.6 has deposed that, on the
date of the incident, the Accused/ Appellant No.1 –
Dayaram had abused and beaten him up and then
picked up an axe to assault him, when he ran away.
The assault took place since the buffaloes belonging to
Chandu had got mixed up with the buffaloes of
Appellant No.1 Dayaram. Thereafter, Chandu – P.W.6
along with his father – Ghansu went to lodge a Report
at the Ishanagar Police Station. While returning from
the Police Station, appellant No.1 attacked his father
with a lathi on his head, while Appellant No.2 attacked
Chandu – P.W.6 on his hand with a lathi. P.W.6 then
ran to inform Sullu and others about the incident.
9
P.W.6 – Chandu returned to the site of occurrence, and
saw his father – Ghansu lying on a cot, surrounded by
Sullu and Balwant Singh – P.W.4, who then took him
to Ishanagar Police Station.
The motive behind the attack is established from
the evidence of P.W.6 Chandu.
10.2. The F.I.R was lodged by the deceased and bears his
thumb impression. The F.I.R is treated as the 1st dying
declaration of the deceased.
10.3. The deceased was admitted to the Primary Health
Centre, Ishanagar. The deceased gave his 2nd Dying
Declaration before the Executive Magistrate – P.W.19.
10.4. The examinationinchief of P.W.s 3, 4, 7, 8, 9 and 15
records that on the date of the incident, they had
heard the cries of the deceased. The deceased was
found lying in the canal in an injured condition. The
deceased told them of the attack by the assailants.
These prosecution witnesses took the deceased to the
hospital.
From their examinationinchief it is evident that
the deceased was conscious and, in a state to lodge the
F.I.R. In their crossexamination, these witnesses
10
denied having any knowledge about the persons who
attacked the deceased. They were declared hostile
during their crossexamination. The testimony, prior to
crossexamination can be relied upon.
Reliance is placed on the decisions of this Court
in Bhagwan Singh v. State of Haryana2
, Rabindra
Kumar Dey v. State of Orissa3 and Syad Akbar v. State
of Karnataka,4 wherein it has been held that the
evidence of a prosecution witness cannot be rejected in
toto, merely because the prosecution witnesses turned
hostile. The evidence of such witnesses cannot be
treated as effaced or washed off the record altogether
but the same can be accepted to the extent that their
version is found to be dependable on careful scrutiny.
This Court in Khujji v. State of M.P,5
in paragraph
6 of the Judgment held that:
“6…The evidence of PW 3 Kishan Lal
and PW 4 Ramesh came to be
rejected by the trial court because
they were declared hostile to the
prosecution by the learned Public
Prosecutor as they refused to identify
the appellant and his companions in
the dock as the assailants of the
deceased. But the counsel for the
2 (1976) 1 SCC 389.
3 (1976) 4 SCC 233.
4 (1980) 1 SCC 30.
5 (1991) 3 SCC 627.
11
State is right when he submits that
the evidence of a witness, declared
hostile, is not wholly effaced from the
record and the part of the evidence
which is otherwise acceptable can be
acted upon.”
(emphasis supplied)
This position in law was reiterated in Vinod
Kumar v. State of Punjab6
, wherein the court held that :
“31. The next aspect which requires to be
adverted to is whether testimony of a
hostile witness that has come on record
should be relied upon or not. Mr. Jain,
learned Senior Counsel for the appellant
would contend that as PW 7 has totally
resiled in his crossexamination, his
evidence is to be discarded in toto. On a
perusal of the testimony of the said
witness, it is evincible that in
examinationinchief, he has supported
the prosecution story in entirety and in
the crossexamination, he has taken the
path of prevarication. In Bhagwan Singh
v. State of Haryana7
, it has been laid
down that even if a witness is
characterised as a hostile witness, his
evidence is not completely effaced. The
said evidence remains admissible in the
trial and there is no legal bar to base a
conviction upon his testimony, if
corroborated by other reliable
evidence…”
(emphasis supplied)
The F.I.R lodged by the deceased was prompt. As
per the statement of the deceased, the incident
6 (2015) 3 SCC 220.
7 (1976) 1 SCC 389.
12
occurred at 3:00 p.m., and the F.I.R was lodged at
4:20 p.m. by the deceased. The distance between the
Police Station and the site of occurrence is about 4
kilometres. The F.I.R was lodged with promptness and
the appellants were named in the F.I.R along with
details of their weapons.
As per Section 32(1) of the Evidence Act, the F.I.R
should be treated as a Dying Declaration.
This Court in Dharam Pal & Ors. v. State of U.P,8
held that :
“17… The report dictated by the deceased
fully satisfied all the ingredients for being
made admissible as a dying declaration.
To ascertain this aspect, we may refer to
some of the general propositions relating
to a dying declaration. Section 32(1) of the
Indian Evidence Act deals with dying
declaration and lays down that when a
statement is 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, such a statement is
relevant in every case or proceeding in
which the cause of the person’s death
comes into question. Further, such
statements are relevant whether the
person who made them was or was not at
the time when they were made under the
expectation of death and whatever may be
the nature of the proceedings in which the
cause of his death comes into question.
18. The principle on which a dying
declaration is admissible in evidence is
8 (2008) 17 SCC 337.
13
indicated in the Maxim “ Nemo Moriturus
Praesumitur Mentire”, which means that a
man will not meet his maker with a lie in
his mouth. Thus it is clear that a dying
declaration may be relating to :
a) As to the cause of death of the
deceased
b) As to “any of the circumstances of
the transaction” which resulted in
the death of the deceased”
“20. …If we look at the report dictated by
the deceased in the light of the aforesaid
propositions, it emerges that the names
of the accused and the important
features of the case have been clearly
mentioned in the report. It contains a
narrative by the deceased as to the
cause of his death, which finds complete
corroboration from the testimony of eyewitnesses and the medical evidence on
record...”
(emphasis supplied)
From the testimonies of P.W.3, P.W.4, P.W.7,
P.W.8, P.W.9 and P.W.15, prior to crossexamination
and the evidence of the Executive Magistrate P.W.19
who recorded the dying declaration of the deceased in
the Hospital and P.W.14 – Dr. Ramakant Chaturvedi,
it is evident that the deceased was conscious, and in a
state to give a dying declaration.
14
The F.I.R lodged by the deceased clearly states
the names of both the Appellants, as being the
assailants, and gives clear details of the incident.
10.5. The Learned Counsel for the Appellants contended that
the second dying declaration, recorded by the
Executive Magistrate P.W.19 did not contain the
thumb impression of the deceased, and hence could
not be relied upon. The Executive Magistrate P.W.19
has stated that the signature or thumb impression
could not be taken since there were injuries on both
his hands. P.W.17 Dr. Hari Agrawal who conducted
the post mortem on the body of the deceased.
Reliance is placed on the decision of this Court in
Sukanti Moharana v. State of Orissa9 wherein the Court
took the view that there is no reason why a dying
declaration which is otherwise found to be true,
voluntary and correct should be rejected only because
the person who recorded the dying declaration could
not affix his signatures or thumb impressions on the
dying declaration.
9 (2009) 9 SCC 163.
15
11. Considering the totality of the evidence including the two
dying declarations made by the deceased, which are both
consistent with each other and the ocular evidence is
corroborated by the medical evidence, we are satisfied that
the prosecution has proved the case beyond reasonable
doubt. The chain of circumstances is complete. We affirm
the Judgment passed by the Sessions Court and the High
Court.
In view of the aforesaid, the appeal fails and is hereby
dismissed.
..….……..........................J.
(INDU MALHOTRA)
…..……...........................J.
(R. SUBHASH REDDY)
New Delhi
November 7, 2019.
16
