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CASE NO.:

Appeal (crl.) 727-729 of 1998

PETITIONER:

State of U.P.

RESPONDENT:

Veer Singh and Ors.

DATE OF JUDGMENT: 28/04/2004

BENCH:

DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT:

J U D G M E N T

ARIJIT PASAYAT, J.

The State of Uttar Pradesh questions legality of

the judgment rendered by a Division Bench of the

Allahabad High Court directing acquittal of the

respondents (hereinafter referred to as 'the accused').

13 persons were claimed to be responsible for the death

of large number of persons including small children. Of

them, one namely, Mahendra died during trial. After

commitment, they faced trial in the Court of Third

Additional Sessions Judge, Muzaffarnagar. While the

trial was in progress, 4 of them absconded and 8 persons

have been tried. Three of them namely, Hardeep, Sinder

Singh and Nishan Singh were acquitted by the Trial

Court, while the rest five who are respondents herein

were convicted for the offences punishable under Section

302 read with Section 149 of the Indian Penal Code 1860

(in short 'IPC). They were also found guilty under

Section 307 read with Section 149 IPC, and under Section

452 IPC. For the offence relatable to Section 307 read

with Section 149 IPC they were sentenced five years RI

and for the offence relatable to Section 452 they were

sentenced four years RI. Respondent Veer Singh, Tahal

Singh, Balkar Singh were also found guilty of offences

punishable under Section 148 IPC and sentenced to three

years RI while Kameer Singh and Amreek Singh were found

guilty of offence punishable under Section 147 IPC and

were sentenced to one year RI. In appeal by the

convicted accused persons, the conviction has been set

aside by the impugned judgment.

Prosecution version in essential is as follows:

Information was lodged by Sardar Gurdip Singh at

about 4.00 a.m. on 14.7.1984 at P.S. Chhinjhava,

District Muzzaffarnagar stating that he heard shots and

cries coming from the deras of Sardar and Mohan Singh in

village Dompura near village Barnan. He took his

licensed gun and came secretly with Jassa Singh S/o

Harbans Singh and Huzoor Singh (PW-5) towards the dera

of Gopa Singh. They saw in the moonlight and torch light

that Kartar Singh, standing on his roof and was loudly

calling out his son Sinder Singh, Ginder Singh, Mahendra

and Lakkha loudly and asking them to wipe out the whole

family and Mohar Singh, leaving none of them alive, and

that the account is to be settled that day. When the

complainant and his companion challenged them, many

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shots were fired immediately. The complainant retreated

out of fear. At the same time Harbhajan Kaur (PW-4)

wife of Sheesa Singh came towards near him and told him

that Kartar Singh and his four sons and 10-12 more men

with them, including Amrik Singh, Tahal Singh, Kamir

Singh, Veer Singh sons of Sampurna Singh Balkar Singh of

Usarpur have killed all the members of her family and

all the members of Mahar Singh's family. The complainant

said that he came to give this information to the police

station after hiding Harbhajan Kaur, and requested the

police to go immediately to the site to help her because

shots were being fired when he left the site. His above

statement was recorded and chic report was prepared and

he signed the report to confirm that it was read over to

him and was written correctly as dictated by him. A case

was registered on the basis of said report and Mod.

Akhtar, who was present at the police station when

report was written, took up the case immediately and

went immediately to the site with the complainant.

After reaching the site, he sent injured Harbans Kaur

and her child Bachu by jeep with a constable to Shanti

for medical examination. Thereafter, the investigating

officer started investigation. On completion of

investigation, charge sheet was placed. The Trial Court

placed reliance on the evidence of PW-4 and the

statement purported to be the dying declaration. As

noted above, the Trial Court acquitted some and

convicted the present respondents. The High Court was

of the view that though in the FIR names of present

respondents were indicated, in the dying declaration

they were not named and, therefore, they were to be

acquitted. That is how the present judgment of

acquittal is recorded.

Mr. N.S. Gahlot, learned counsel appearing for the

appellant-State submitted that the approach of the High

Court is clearly erroneous. The so-called dying

declaration which was recorded with the belief that

there was no chance of survival of PW-4 is in essence a

statement recorded under Section 164 of the Code of

Criminal Procedure, 1973 (in short 'the Code') having

been recorded by the Executive Magistrate, since she has

survived. It related to a part of the incident so far as

the assailants on her are concerned and did not in any

way related to the rest of the occurrence. Therefore,

the High Court was not justified in directing acquittal

of respondents.

Learned counsel for the respondents-accused

submitted that there are four sets of accused persons.

The first set comprises of accused Kartar and his four

sons who had absconded during trial. The second consists

of the present respondents, the third consists of

Hardeep and Sinder and the last Nishan and Balbir. So

far as the first three sets of accused are concerned,

they have some relations with each other, while they are

not related to each other. But Nishan and Balbir are

not related to each other. As in the FIR the names of

Hardeep, Sinder and Nishan were not mentioned they have

been acquitted. They were also not named in the dying

declaration which was treated as the statement under

Section 164 of the Code. It was urged that informant

Gurdeep was not examined at the time of trial as he died

during trial. An FIR was registered on the basis of PW-

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4's version in the presence of PW-5, who made departure

from the statement given during investigation.

Similarly, PW-7 who was stated to have significant role

for the prosecution did not support the prosecution

version. The evidence of PW-4 is also not reliable as

lot of material improvements were introduced. No motive

for the alleged crime was attributed so far as present

respondents are concerned. Dying declaration is not

reliable as it only stated that she was conscious when

the statement was recorded. Since the High Court

considered the relevant material on record and the view

taken by the High Court is a possible view, no

interference is called for. We find that the High Court

has not really applied its mind to the evidence on

record objectively.

It is trite law that when maker of purported dying

declaration survives the same is not statement under

Section 32 of the Indian Evidence Act, 1872 (for short

the 'Evidence Act') but is a statement in terms of

Section 164 of the Code. It can be used under Section

157 of the Evidence Act for the purpose of corroboration

and under Section 155 for the purpose of contradiction.

This position was highlighted in Ramprasad v. State of

Maharashtra (1999 (5) SCC 30), Sunil Kumar & Ors. v.

State of Madhya Pradesh (JT 1997 (2) SC 1), and Gentela

Vijayavardhan Rao v. State of A.P. (1996 (6) Supreme

356).

A bare reading of the statement of PW-4 shows that

the same did not relate to the entire incident. Only one

question was asked about who had caused injury to the

maker of the statement i.e. PW-4. There was no occasion

for the High Court to hold that because respondents were

not named in the so-called dying declaration, accusation

against them has not been established. PW-4 in her

evidence in Court has clearly stated as to why she had

given a limited answer. The High Court has not even

considered the effect thereof. It has disposed of the

appeals so far as present respondents are concerned only

on that ground, which as noticed above was not a correct

analysis of the evidence and was rendered on misreading

of the evidence. The conclusion is, therefore,

indefensible. Since the High Court has disposed of the

appeal only on the basis of the aforesaid erroneous

conclusion and has not considered other evidence on

record, we consider it appropriate to direct re-hearing

by the High Court. We, therefore, remit the matter back

to the High Court to hear the matter afresh and decide

in accordance with law. Any observation made by us,

except to the extent it relates to the erroneous

conclusion of the High Court regarding purported dying

declaration which has to be treated under Section 164 of

the Code, shall not be considered to be expression of

opinion on the merits of the case.

The appeals are allowed to the aforesaid

observations.