Naresh and another vs State

P. N. Goel, J.

Naresh aged about 21 years and his younger brother Shilo, alias Susheel aged about 1920 years, hereinafter called Shilo, residents of Delhi Gate in the town of Ghaziabad, district Meerut have been convicted under Section 302/34 I. P. C. and sentenced to suffer imprisonment for life for having caused the death of Ganga Ram aged about 26 years, son of Fateh Chand, P.W.I, on 2.3.1974 at about 7P.M. on the road infront of the shop of Radhey, Sweetmeetseller at Delhi Gate, Ghaziabad.

The learned 5th Additional Sessions Judge, Meerut, who tried the case did not place reliance on the testimony of the two eyewitnesses, Fateh Chand and Surajpal, P. Ws, 1 and 2. He recorded the conviction of the appellants on the basis of a dying declaration, Ex. ka. 11 recorded by Sri S. R. Yadav (P.W.6), Magistrate First Class, Ghaziabad on 3.3.19744 at 1.15 P.M. in M.M.G. Hospital, Ghaziabad in the presence of Dr. A. K. Uppal, P. W. 5, Medical Officer.

In this appeal 2 legal points have been canvassed before us i.e. (1) Whether the dying declaration, Ex. Ka, 11 was admissible under Section 32 of the Evidence Act. and (2) whether the said dying declaration alone could be made basis of conviction.

With regard to Shilo, the learned counsel for the appellants further contended that he could not be convicted under Sec. 302 I.P.C. with the aid of Sec. 34.

Facts giving rise to the abote 2 legal points are these .:

On 2.3.1974 at about 6.45 or 7.00 P. M., Ganga Ram, who was a railway servant, happened to pass infront of the shop of Radhey or Rajan, Sweetmeetsellers at Delhi Gate. Four or five persons were engaged, in gambling there. Ganga Ram asked them not to indulge in gambling in the market and advised them to do so in a street. Naresh told him to go away because he wanted to make money for liquor. Ganga Ram told him that he should not do so in the market. Thereupon Naresh grappled with him, took out a knife from his pocket and gave knife blows at his neck and side of the chest. Ganga Ram fell down. Shilo then attacked him at his back and hands with an iron rod, Naresh and Shilo then ran away.

Ganga Ram was immediately taken to M. M. G. Hospital, Ghaziabad by his father Fateh Chand and brother Suresh Chand. Dr. A. K. Uppal examined him at 7.10 P. M. and found 3 injuries on his person which are indicated below

Incised wound 3"x 1/4" x muscle deep on the front of right side neck, bleeding present.

Incised wound 1/4"x 3/10"x muscle deep on the right side neck. 1 /2" above injury on.'' 1.

Incised wound 1" x 1/2" x depth not probed, on the front left side chest. 3" below the nipple at 6 o'clock position.

Ganga Ram was admitted in the hospital and his injuries were kept under observation.

Fateh Chand got a report of the occurrence written out by one Kameshwar in the Hospital. Then he went to police station Ghaziabad and lodged the report at 7.35 P. M. in the presence of V. S. Chahar. S. I., P. W. 3. He entered upon ivestigation. He prepared site plan of the place of occurrence. He took blood stained earth from that place. He reached the hospital. But he found the Ganga Ram was not able to give statement on the date of occurrence. On 3.3.1974 he again went to the hospital and found that Ganga Ram was in a fit state of giving statement. He interrogated him and recorded his statement (copy Ex. Ka. 4). The condition of Ganga Ram deteriorated. Therefore, Fateh Chand desired to take him to Delhi hospital for treatment. Consequently Gana Ram was discharged from M.M.G. Hospital, Ghaziabad on 3.3.1974 at 12.30 Hours. In the meantime Sri S. R. Yadav, Magistrate, was informed to record his dying declaration. Sri S. R. Yadav reached M, M. G Hospital at 1.15 P.M. By that time Ganga Ram had not been removed from the hospital. Sri S. R. Yadav recorded his dying declaration, Ex. Ka. 11, in the presence of Dr. A. K. Uppal finding that he was in a state of giving statement.

Thereafter Gunga Ram was taken to Sufdarganj hospital, Delhi in which he was admitted. He died in the said hospital on 10.4.1974 at 11.50P.M. On 11.4.1974, Ram Singh, A. S. I. attached to police station Vijai Nagar, New Delhi, P. W. 8, held inquest on the dead body. Then on the same day at 5 P. M., Dr. Bharat Singh Surgeon, Police Hospital, Delhi, P. W. 9, C3nducted Postmortem examination on the dead body of Ganga Ram.

Following antemortem injuries were found :

Healed scar 3" x 2/10" pinkish, over the front of neck, transverse above the thyroid cartilage.

Scar of wound 1/2" x 2/10", pinkish over the right angle of mandibale, horizontal.

Healed scar 1,1/2" x 2/10" over the left side chest in mid axillary line, 6" below the armpit, pinkish, angles tapering.

Linear scar over the left para median line of abdomen, 7" long with rubber drainagetube at its upper end (operational), suture marks presnet in healing stage.

Healed scar 1" x 3/10" over the left iliac fossa, tapering angle whitish to pinkish, transverse,

Cut open marks over both angles.

Bed sore 3" x 2" muscle deep over the sacral area.

Internal examination revelled skull bone normal, brain pale, neck tissure normal. It further revealed two important things

(1) collection of pus on the left side chest, lung collapsed, pus in tissues of lung, pericardium covered by pug. Heart and right lung, normal, and

(2) peritoneum inflamed, pus present in peritonial cavity and covering the omentum and intestines, pus in abdominal cavity, pus pockets in the liver.

No injury was visible in the internal organs of chest and abdomen. All the injuries were old.

In the opinion of Dr. Bharat Singh, Ganga Ram died of peritintis and generalised speticaemia.

Section 32 (1) of the Evidence Act makes a dying declaration admissible when it is made by a person as to the cause of his death or as to any of the cricumstances of the transaction which resulted in his death, in cases in which the cause of that person's death conies into question.

Sri Jagdish Singh, learned counsel for the appellants urged that Ganga Ram, according to the opinion of Dr. Bharat Singh, had died of peritonitis and generalised speticaemia, that on the date of occurrence Ganga Ram was not caused any injury at his abdomen, that injuries 4 and b of the potmortem report which were on the abdomen caused peritonitis and septicaemia and that, therefore, injuries found by Dr. A. K. Uppal on the person of Ganga Ram on the date of occurrence were not the cause of the death of Ganga Ram and that as such the dying declaration, Ex. Ka, 11, was not admissible in evidence under Section 32 of the Evidence Act. It is undisputed that if the chest injury (injury no. 3) found by Dr. A. K. Uppal was the cause of the death of Ganga Ram, the dying declaration Ex. Ka. 11, was admissible in evidence.

The prosecution had not brought on record the treatment given to Ganga Ram at Sufdarganj hospital, Delhi. It did not bring his bedhead ticket of the said hospital on record. It had not examined any Doctor of the said hospital. In these circumstances we considered it just and expedient to have an opinion of a medical expert. Consequently we summoned Dr. B. K. Sharma, Chief Medical Officer, Allahabad, who is competent to give opinion in medico legal cases in this Court under the orders of the State Government. His statement was recorded on 27.2.1980. We allowed the learned counsel for the appellants to crossexamine him at length. Thereafter we recorded the statements of the two appellants with reference to the opinion expressed by Dr. B.K. Sharma, We asked the appellants, if they would lead any evidence to rebutthe opinion of Dr. Sharma. The appellants did not lead any evidence to rebut or contradict the opinion of Dr. Sharma.

We have now to form an opinion whether injury no. 3 found by Dr. A. K. Uppul on the date of occurrence was the caused causans of the death of Ganga Ram which took place about more than a month later in Delhi Hospital.

The material in this respect on record is indicated below :

(1) Fateh Chand, P. W. 1, has stated that on receiving the injuries Ganga Ram became unconscious. He took him to M. M. G. Hospital, Ghaziabad.

(2) Dr. A. K. Uppal recorded the above mentioned injuries of Ganga Ram within about 1015 minutes of the occurrence. He admitted him in the Hospital and kept his injuries under observation. He has stated that all the 3 injuries were on the vital parts and that they were sufficient in the ordinary course of nature to cause death. In the bedhead ticket his general condition at the time of the admission in the hospital was recorded low. His pulse was 60 per minute as against 72 per minute. His blood presure could not be recorded. He was restless. At 9.15 P. M. (i.e.within about 2 hours of the examination) he was in a state of coma, On 3.3.1974 his blood pressure and pulse rate were not recorded. He was allowed to be discharged on that day at 12.30 hours because his condition was bad and his guardian wanted to taken him to Delhi.

(3) Injury no. 3 of the postmortem examination report correspond to injury no. 3 recorded by Dr. A. K. Uppal. Under this injury pus was found on the left side chest, in tissues of lung (left) and on pericardium. Left lung was found collapsed.

(4) Injuries 4 and 5 of the postmortem report are a result of operation. In the opinion of Dr. Sharma it was an exploratory operation. It is evident that injury no. 4 was in healing stage on the date of postmortem examination. Therefore it appears that Ganga Ram was operated upon within about 10 days or so of the date of his death.

(5) Under the operational injuries peritoneum was inflamed and there was pus in peritonial cavity as well as in abdominal cavity and the pus was covering omentum, intestines and liver. It is thus obvious that peritonitis occurred.

(6) Postmortem report did not indicate any communication between abdominal cavity and chest (thoracic cavity). Therefore, in the opinion of Dr. Sharma the pus in the abdominal cavity cannot cause pus in chest cavity and pericardium.

(7) In the opinion of Dr. Sharma the left lung collapsed on account of injury no. 3 found by Dr. A.K. Uppal because this injury must have gone deep into thoracic cavity creating positive pressure on the lung. The postmortem report did not indicate other reason for the collapse of the lung.

(8) Dr. Sharma has given a positive opinion that injury no. 3 found by Dr. A. K. Uppal in the light of the findings during the postmortem examination regarding the condition of thoracic cavity was sufficient in the ordinary course to cause death. Dr. Sharma has also expressed the opinion that collapse of lung must have taken place at the time of causing of injury no. 3 of the injury report of Dr. A. K. Uppal, that after receiving injury no. 3 and subsequent collapse of lung the victim would not have died immediately because of the said injury. But in the long run it could have led to the complications as in the present case (collection of pus in the tissues) which could have proved fatal.

It is apparent that Ganga Ram was shifted to Delhi Hospital because his condition was serious mainly on account of injury no. 3 found by Dr. A. K. Uppal, that he was treated at Delhi for the chest injury, that despite treatment his condition did not improve, that, therefore, an exploratory operation of the abaomen was done in the hospital, that the lung did collapse on account of injury no. 3 found by Dr. A. K. Uppal, that this injury also created pus in the thoracic cavity, that on this account septicaemia was also set in, that the operational injury did not prove useful, that it also created pus in the abdominal cavity, that this pus also caused septicaemia, that as septicaemia was created by the chest injury and then by the abdominal operational injury. Dr. Bharat Singh clearly expressed the opinion that Ganga Ram died, not on account of peritinitis only, but also on account of generalised septicaemia. In our opinion the septicaemia caused by the abdominal operational injury accelerated the death of Ganga Ram. In these circumstances it is evident beyond any shadow of doubt that the chest injury of Ganga Ram was the real cause of his death. Therefore, injury no. 3 found by Dr. A. K. Uppal was the cause causans of the death of Ganga Ram. It is not correct to say that this injury was not the root cause of the death of Ganga Ram and that the abdominal operation injury was the only cause of his death.

We may here advert to the case of Jageshwar Singh v. State of Bihar, (1968 C.A.R. 1973 (S.C.)) In this case, on 28.4. 1960, a pharsa blow was given on the right hand of Rajgirhi Upadhya by Basant Singh and Sheo Shanker Singh and Surat Singh gave him blows on the head with lathis. Rajgirhi Upadhya was examined on 29.4.1960 at 11.30 A. M. at Colgong State Dispensary. After the examination of the injuries, his injuries were attended to and he was allowed to go away from the dispensary. On 30.4.1960 he appeared as an outdoor patient at Bhagalpur Sadar Hospital. On 3rd May, 1960, he was admitted in the said hospital as an indoor patient for treatment of his injuries. He also developed tetanus. He died on 9.5. 1960 at 8.20 A. M. Dr. K. P. Verma, who performed autopsy on his dead body, expressed the opinion the death was due to injuries specified, in his report complicated with tetanus.

On 28.4.1960 a subInspector recorded the statement of Rajgirhi at 3.15P.M. on its basis a formal check report was drawn up. The question was whether his statement recorded by the SubInspector was admissible as a dying declaration under Sec. 32 of the Indian Evidence Act.

Dr. K. P. Verma stated that tetanus was not the sole cause of the death of Rajgirhi, nor he stated that it was the principal cause. According to him tetanus could have been caused due to any minor accident, like pinprick occurring after Rajgirhi's admission and it was possible that pinprick may not have been reported to the medical attendant. It Was observed, "His evidence did not, thus exclude the possibility that the development of tetanus in the case of Rajgirhi was not connected with the injuries at all and was due to some independent source It is true that, in the evidence in this case, it is not possible to hold that Tetanus was caused by the injuries which had been received by Rajgirhi in the incident to which his statement in the Fardhbayan related : but we cannot lose singht of the fact that, according to Dr. K. P Verma, the death was not primarily due to tetanus, but was in fact caused by injuries complicated with Tetanus. In his opinion, therefore, the injuries were at least partially the direct cause of the death, though he was of the opinion that these injuries by themselves would not have caused the death without being complicated with Tetanus. "Even if the injuries caused the death combined with the complication of Tetanus, it must be held that those injuries were the cause of death, or that, in any case, the circumstances, in which those injuries were received, would be circumstances of the transaction which resulted in his death."

It was held that Fard Beyan of Rajgirhi was admissible as a dying declaration.

In our opinion the case before us stands on a better footing than the case of Rajgirhi dealt with above.

The position that follows from the above discussion is that the dying declaration, Ex. Ka. 11 was admissible in evidence under Sec. 32 (1) of the Evidence Act. We answer the first point in the affirmative.

With regard to the second point, it is now settled law that dying declaration alone can be made basis of conviction. However, each case has to be considered on its own facts. Sri Jagdish Singh, learned counsel for the appellants contended that the trial Judge found that Fateh Chand, and Suraj Pal, P. Ws. 1 and 2 were not present at the time of occurrence, that Fatheh Chand lodged report on the date of occurrence, that thereafter Fateh Chand remained through out with his injured son, Ganga Ram in Ghaziabad hospital upto the time of recording of dying declaration on the next day at 1.15 P. M. and that as such the possibility of tutoring Ganga Ram by his father, Fateh Chand cannot be ruled out. He referred to the case of Balak Ram v. State of Uttar Pradesh (A I.R. 1974 S. C. 2165.).

We are in agreement with the trial Judge that Surajpal and Fateh Chand were not present at the time of occurrence. The name of Surajpal does not find place as a witness of the occurrence in the first information report as well as in the dying declaration of Ganga Ram. His house is about 2 miles from the scene of occurrence. On the date and time of occurrence he was not following his usual profession of selling DahiBara on Thela. He has given no good reasons for visiting his nephew Cahatrapal whose shop is at a distance of about 50 yards from the scene of occurrence. The trial judge has, therefore, rightly held that Surajpal was not present at the time of occurrence. As respects Fateh Chand, it is evident from the dying declaration of Ganga Ram that he reached the spot later on. Fateh Chand purported to state that he was sitting at the shop of Jugal betelseller along with one Munni and that on hearing the cries of his son, he rushed. According to him Munni also reached the scene of occurrence. But the first information report does not indicate that Munni was also at the shop of Jugal and that he also rushed towards the scene of occurrence. We fuither find that Fateh Chand stated that when Naresh wanted to give a 3rd blow to his son Ganga Ram with his knife, he caught his hand. He clearly stated that Shilo, appellant, assaulted his son with an iron rod. In the first information report, it was not mentioned that he caught the hand of Naresh. In corssexamination he admitted that Shilo did not assault Ganga Ram with a Sariya in his seeing. He added that Shilo was standing there with an iron rod in attacking posture. No blunt weapon injury was found by Dr. A. K. Uppal. House of Fateh Chand is 50 yards from the scene of occurrence. In all these circumstance the learned trial judge has rightly fouud that Fateh Chand also had not seen the accurrence.

The question now is on what basis Fateh Chand mentioned facts in the report. His statement shows that about 30 persons reached the scene of occurrence before his reaching the scene of occurrence. One Kameshwar whose house is at 10 steps away from the scene of occurrence was amongat those persons. Kameshwar undisputedly met Fateh Chand in the hospital. Kameshwar wrote the first information report in the hospital. Fateh Chand clearly stated that Kameshwar told him that he had seen the entire occurrence. But we find that in the first information report Kameshwar has not been cited as an eyewitness of the occurrence. Therefore.it appears that Fateh Chand gathered facts from whatever he heard from various mouths at the place of occurrence and on that basis he got the report written by Kameshwar.

The appellants have asserted that they had been falsely implicated in the case by Kameshwar on account of enmity. Naresh, appellant stated that Kameshwar got a case under Sec. 107 Cr. P. C. started against them. Patch Chand was questioned that Kameshwar had litigation with the appellants'' father. He showed ignorance about it. The appellants could easily file a document to show that Kameshwar got proceedings under Sec. 107 Cr. P. C. started against them. But they have not filed a single paper. Therefore, it does not appear correct that the appellants had been falsely implicated in the report at the instance of Kameshwar. We have indicated above that the persons who had reached the scene of occurrence prior to to Fateh Chand told him the names of the persons who had assaulted Ganga Ram.

At this state it is useful to remark that Fateh Chand and Ganga Ram had absolutely no enmity whatsoever with the appellants from before the occurrence. It is evidence that the occurrence took place simply because Ganga Ram asked Naresh not to indulge in gambling in the open market.

It is true that Fateh Chand remained with his son from the time of the lodging of the report upto the time of the recording of the dying declaration by Sri S. R. Yadav, P.W. 6. But this does not necessarily mean that he tutored his son to falsely implicate the appellants. Had there been any enmity from before, Fateh Chand would have thought of could be presumed that Fateh Chand would have tutored his of falsely implicating the appellants.

In the case of Balak Ram v. State of U. P. relied on by the learned counsel for the appellants, Dharampal and Balak Ram were rival candidates for the office of the Chairman, Town Area Committes,Dataganj Dharampal reached the scene of occurrence in his car. Tribeni Sahai who received fatal firearm injuries was alleged to have told Daharampal that Balak Ram had fired a shot towards him at the instigation of 3 persons, Banne Kjan, Pyare Mian and Dr. Kohli. Dharampal remained throughout in the company of Tribeni Sahai up to the time of the recording of verbal dying declaration by Tribeni Sahai to Dharampal was not believed. Thus it was aparent that Dharampal wanted to implicate his rivals falsely. Dr. R. C. Bansal Medical Officer, who saw Tribeni Sahai in the hospital, stated that he was in a critical condition and that he was in severe pain and under a great shock. In these circumstances it was held that it was not possible that Tribeni Sahai was in a fit mental and physical condition to make a volitional statement. Then it was observed.

"Quite apart from this consideration, the dying declaration have hardly any evidentiary value because Tribeni Sahai was in the midst of friends and admirers right since the time of the incident until the dying declaration was recorded. Dharam Pal was in his constant company and it is not unlikely that names of political opponents like Balak Ram, Dr. Kohli and Bannsy Khan were freely bandied about. The dying declaration could then be naturally influenced by the opinion and inferences of close friends like Dharam Pal".

It was further found that Tribeni Sahai was not a person of questioned rectitude. In all these circumstances the dying declaration recorded by the Magistrate was not acted upon.

The ciicumstances which clearly appear in the case of Balak Ram do not at all appear in the present case. We have mentioned above that Fateh Chand and Ganga Ram had no enmity with the appellants from before the occurrence. Fateh Chand must be anxious about the condition of his son. He must not be anxious to implicate the assailants falsely. In these cirsumstances it is not a case in which we may assume that Fateh Chand would have tutored his son to implicate the appellants falsely. Crossexamination to Fateh Chand clearly shows that he did not tell his son about the contents of the report lodged by him. Statement of Fateh Chand no doubt shows that Ganga Ram was bound down once for a year. It does not appear if he was bound down under Sec. 107 Cr. P. C. or under Sec. 109 Cr. P. C. However, on a count of this fact it cannot he said that Ganga Ram was a person of questionable integrity.

In view of the above, the case of Balak Ram does not go the support the contention of the appellants'' counsel. There is also nothing to show that Ganga Ram was in a state of shock prior to the recording of his dying declaration.

The record shows that on receiving injuiies, Ganga Ram had become unconscious. On reaching the hospital his condition was low, about two hours after the incident he was found in a state of coma. Bedhead ticket simply shows that his condition was low even on the next day. It does not indicate at what time the coma ended. It, however, appears that Fateh Chand was anxious to take the injured for better treatment at Delhi, Therefore, Ganga Ram was discharged from the Ghaziabad hospital. Just a little later Sri S. R. Yadav, Magistrate, reached the hospital. Dr. A. K. Uppal certified that Ganga Ram was in a fit state of mind to give statement. Consequently, Sri Yadav recorded his dying declaration. These facts clearly indicate that Fateh Chand was hardly interested in tutoring his son to implicate false persons.

At this stage we consider it appropriate to refer to the case of Khushal Rao v. State of Bombay (A I.R. 1974 S. C. 2165.), the principle of which has been followed in subsequent cases. In the case there were 2 rival factions in the mill area, Nagpur. Khushal Rao was one of the leaders of one of the factions. Ram Gopal, P. W. 4, was one of the leaders of the opposite faction. Khushal Rao, appellant, was on bad terms with Babu Lal, who was on very friendly terms with the leaders of the opposite faction. On 1221956 at about 9 P. M, Khushal Rao and 3 other persons attacked Babu Lal with swords and spears in a Narrow lane. Babu Lal received injuries on different parts of his body. He was taken to the Hospital where he reached at about 9.25 P. M. Dr. Kanik Bale questioned him at once about the incident and recorded his statement in bedhead ticket. He stated that Khushal and Tuka Ram had assaulted him with swords and spears. The Doctor gave information to the police station on telephone. Thereupon A. K. Khan, S.I. reached the hospital, and found Babu Lal in a serious condition. The Doctor advised him to have his dymg declaracioa recorded dy u AfagtsCraCe. The Su6Inspector decided that it would be more advisable for him to record the dying declaration without any delay. Hence at 1015 P.M., he recorded the statement of Babu Lal in answer to the questions put by him. In the meantime a Magistrate came up and recorded dying declaration between 1115 and 135 P.M. in the presence of a Doctor who certified that he was in a mentally fit condition to give statement. Babu Lal died next morning at about 10 A.M. in the hospital. A question arose whether the dying declaration alone, without any corroboration can be made basis of conviction. On considering the relevant provisions of the Evidence Act and various decided cases, it was observed :

"On a review of the relevant provisions of the Evidence Act and of the decided cases in the different High Courts in India and in this court, we have come to the conclusion, in agreement with the opinion of the Full Bench of the Madras High Court, aforesaid, (1) that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated ; (2) that each Case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made : (3) that it cannot laid down as a general proposition that a dying declaration is as weaker kind of evidence than other pieces of evidence (4) that a dying declaration stands on the same footing a another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence ; (5) that a dying declaration which has been recorded by a competent magistrate in the proper manner, that is to say, in the form of questions and answers, and as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the intirmities of human memory and human character, and (6) that in order to test the reliability of a dying declaration the court has to keep in view; the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated, had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it, and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties.

Hence, in order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny,