Narender Nath vs The State

Chet Ram Thakur, J.—This application under Article 134(1)(c) of the Constitution of India has been filed by Shri Narender Nath against the order of this Court affirming on appeal the judgment and order of the Additional Sessions Judge, Dharamsala, convicting and sentencing him to life imprisonment u/s 302 of the Indian Penal Code.

An appeal can only be taken to the Supreme Court if it is certified by the High Court to be a fit one for appeal. This, therefore, would show that the Court has to exercise this power with great circumspection and only in a case which in its opinion is really fit for appeal. It is also apparent that under Clause (c) of Article 134(1) of the Constitution the Supreme Court is not made an ordinary court of criminal appeal and the High Court is not by grant of certificate to attempt to create a jurisdiction which is not intended to be conferred on the Supreme Court as has been laid down in C.S.D. Swamy Vs. The State, It has also been observed by the Supreme Court in a number of cases that the certificate should not be granted to afford another hearing of facts unless there is an error of a fundamental character. The High Court before it certifies the case must satisfy itself that the case involves some substantial question of law or principle. Thus in an appeal affirming the judgment of the Court below the Applicant has to show some special or exceptional circumstances which exist in order to certify the case as a fit one for appeal to the Supreme Court, or that there is a question of outstanding difficulty or importance arising in the case which the High Court considers should be resolved by the Supreme Court. Applying this test we have to advert to the arguments canvassed by the learned Counsel for the Applicant.

The first argument addressed is that the post-mortem report was highly contradictory to the statement of the lady doctor inasmuch as in those circumstances the deceased could not have survived for more than a few minutes and, therefore, the making of the dying declaration, contained in Exhibit PE, was highly improbable; that this dying declaration according to him, had been recorded by the investigating officer whose statement with regard to the recoveries etc. had not been believed. Moreover, it has been observed by the Court that he has made certain interpolations in the statement of Smt. Rameshwari Devi and, therefore, in these circumstances this dying declaration was a very weak piece of evidence and this weak piece of evidence could not be supported by another weak piece of evidence found in the statement of Smt. Rameshwari Devi whose statement was also found by the Court to be contradictory and a part of her statement was disbelieved. Therefore, he says that in these circumstances a question of great public importance was involved as to whether some unreliable witness can support or corroborate the witness of the similar nature when there is no independent corroboration and that this Court had come to a conclusion that in the absence of the independent corroboration a doubtful witness can corroborate a witness of the same character, and which is not a sound proposition of law.

This submission of the learned Counsel does not appear to be correct. Nowhere the Court has stated in its judgment that in the absence of any independent corroboration a doubtful witness can corroborate a witness of the same character. The Court has believed the testimony of Smt. Rameshwari Devi as also the statement of the investigating officer. However, it has disbelieved certain portions of the statement of the investigating officer and which the Court is entitled to do because the function of the Court is to sift the grain from the chaff. The statement of a witness cannot be discarded in its entirety if a certain portion of his statement is found to be incredible. The statement is to be thrown out in its entirety only in case the truth and the falsehood are so intermingled as to make it impossible to separate them, as is held in Kanbi Nanji Virji and Others Vs. The State of Gujarat, . It is nothing but a pure question of appreciation of the evidence on a question of fact and no question of great public importance is involved in the same.

Similarly, with regard to the dying declaration, it may be stated that the same has been held to be believable and trustworthy and the Court has nowhere stated that it suffers from several infirmities. Conviction can be based even on a mere dying declaration, provided the Court believes it to be true. Therefore, the question that the dying declaration is a very weak piece of evidence is not correct. This is also nothing but a pure question of appreciation of evidence on the record on a question of fact and both the courts have come to a concurrent finding. Smt. Rameshwari Devi, who is an eye-witness to the occurrence, has been believed by the Court notwithstanding some discrepancies. The Court has discarded them as of a minor character, as they do not affect the truthfulness of the prosecution story. Therefore, there is no question of corroboration of weak evidence by another weak piece of evidence.

The arch of the aorta, according to the statement of the lady-doctor, had not been completely cut as she had explained in the Court. Therefore, there was nothing very surprising if the death was not instantaneous. The deceased made the dying declaration after she was given dextraven intravenous injections by the lady-doctor in the hospital and she had regained consciousness. This is a matter purely of appreciation of evidence.

It has been urged that the dying declaration appears to be a fictitious document inasmuch as the deceased was an educated lady who could sign her name, but in his zeal to make out a case against the accused the investigating officer who has been disbelieved with regard to a certain part of his statement by the Court got a thumb impression affixed on this document, and that casts a serious doubt on the truthfulness of the prosecution story that Smt. Kanta made the dying declaration. This is also not a question of great public importance but involves only the appraisal of the evidence.

Regarding the medical evidence it has been urged that the statement of Smt. Rameshwari Devi was in contradiction to the medical evidence as regards the manner of the causing of the injuries. According to learned Counsel either Smt. Rameshwari Devi who is said to be an ey-witness has deposed falsely or the medical evidence was wrong and, therefore, this was also a point of great public importance requiring decision by the Supreme Court. This submission will not detain me for a minute in view of the recent decision by the Supreme Court reported as Bajwa and Others Vs. State of U.P., in which it has been held that:

The mere fact that in murder case the evidence of eye-witnesses is inconsistent with the medical evidence will not by itself render the former unreliable.

Therefore, in view of this authority of the Supreme Court there is no substance in the submission made by the learned Counsel for the Applicant. The learned Counsel for the Applicant has also drawn our attention to various portions of the judgment of this Court in order to bring home his point, but I do not feel persuaded to hold that there is any substantial question of great public importance involved in the matter, which, according to me, is a pure question of fact and involves merely an appraisal of the evidence on the same.

The learned Counsel has further argued that the name of the accused was not given in the F.I.R. This point is also not of any substance inasmuch as the F.I.R. is not a detailed document in which the details are required to be given. The object of the F.I.R. is to set the investigating machinery into motion on information being received that a cognizable offence has taken place at a particular place and then it is for the police to collect the material and as such the omission of the name of the accused in the F.I.R. is not very material nor it can be said to be a substantial question of the public importance so as certify the case as a lit one for appeal to the Supreme Court.

In Janak Singh Vs. The State of U.P., it has been held that:

Where there is a concurrent unanimity as to the appraisal of the evidence both by the trial court and the High Court there can be no question of fresh assessment of that evidence by the Supreme Court in view of its well established practice not to do so except on certain exceptional grounds.

A case must involve something more than mere a appreciation of evidence in order to justify the grant of a certificate under Article 134(1)(c). The principles to be followed by the High Court in granting a certificate under Article 134(1)(c) have been laid down in Babu and Others Vs. State of Uttar Pradesh, The Applicant has not been able to make out any case for the grant of such certificate.

For the above reasons, I do not find any substance in this application and the same is hereby dismissed.

R.S. Pathak, J.

I agree.