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Court No.7

Criminal Appeal No. 3207 of 2007

1. Vidya Ram alias Viddham

2. Dharm Pal alias Dharam Singh

3. Shyam Lal alias Sua Lal ….......Appellants

Vs

State of U.P. …........Respondent

For Appellant : Sri Arvind Kumar Srivastava

For Respondent : Sri Amit Sinha, AGA

Hon'ble Pritinker Diwaker, J.

Hon'ble Ali Zamin, J.

Per: Pritinker Diwaker, J

(7.5.2019)

1.This appeal arises out of impugned judgement and order dated

21.04.2007 passed by the Additional Sessions Judge, Court No.4, Budaun in

Sessions Trial No. 750 of 2004, convicting the appellants under Section

302/34 of IPC and sentencing them to undergo rigorous imprisonment for

life with a fine of Rs. 10,000/- each, in default thereof, to undergo six

months additional rigorous imprisonment.

2.As per prosecution case, deceased Radhey Shyam Maheshwari was a

practising lawyer and was also an active politician. He was also a Secretary

of District Level Committee of Congress Party. Deceased accused Chob

Singh was earlier a Block President of Congress Party and looking to his anti

party activities, he was expelled from the party and since then he was having

inimical relation with the deceased. It is said that on 19.4.2004, when the

deceased was going to the house of Advocate, Rajendra Pal Gupta in relation

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to some political activities, at about 8:15 am, present appellants and the

deceased accused Chob Singh apprehended him and at that time accused

Dharm Pal was having an iron rod with him, whereas the other three

accused persons were carrying country made pistols. It is said that first

blow was given by Dharm Pal with the said rod and then the deceased

accused Chob Singh exhorted for killing the deceased and then the

remaining accused persons caused firearm injuries to the deceased. After

seeing the incident, certain persons reached to place of occurrence and

when they exhorted, accused persons fled away from the spot. Within ten

minutes of the incident written report Ex.Ka.1 was lodged by Rakesh

Kumar Maheshwari (PW-1), nephew of the deceased, based on which FIR

was registered under Section 307 of IPC against four accused persons

including appellants. Injured was taken to Community Health Centre,

Ujhani, District Budaun, from where he was shifted to District Hospital,

Budaun and then he was taken to a private hospital at Bareilly, where he

died at about 2:00 pm during treatment. In the meanwhile, when the injured

was in the District Hospital at Budaun, his dying declaration Ex.Ka.13 was

recorded at 10:50 am by the Executive Magistrate (PW-7).

3.After the death of the deceased, inquest on his dead body was

conducted vide Ex.Ka.2 on 19.4.2004 and the body was sent for post-

mortem which was conducted on the same day vide Ex.Ka.12 by Dr. S.K.

Garg (PW-6).

4.As per Dr.R.K. Agarwal (PW-5) of District Hospital, Budaun, who

did the medical examination of injured, following injuries were found on

his body:

"1) Firearm wound entry on the Rt side of chest 8cm below the

medial end of the Rt clavicle of size 4cm x 1.5cm margins of

wound inverted. No blackening or tattooing present. Depth of

the wound not probed.

2) Firearm wound of exit on the Rt side Lower chest 12cm

below the lower end of scapula of size 4.2cm x 1.6 cm x depth

not probed margin of wound everted. No blacking or tattooing

present.

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5.Autopsy Surgeon has noticed following injuries on the body of the

deceased including one gunshot injury and two lacerated wounds:

"1) Lacerated wound 3cm x 0.5cm x scalp deep on back of Rt

side of head 10cm behind Rt ear.

2) Lacerated wound 4cm x 0.5cm x scalp deep on back of head

6cm above Rt ear.

3) Firearm wound entry 3cm x 2cm chest cavity deep c

tattooing all around of margins of wound present on front of Rt

side chest 5cm from Rt nipple 3 O'clock position margins

straight on the side and c abrasion on that side dissection of

margin is oblique.

4) Firearm wound of exit with everted margin 1cm x 1cm x

abdomen cavity deep not opened on back of Rt side abdomen

16cm lower inferior end of scapula."

According to autopsy surgeon, cause of death of the deceased was

shock and haemorrhage due to ante-mortem firearm injuries.

6.While framing charge, trial judge has framed charge against the

accused appellants and the deceased accused Chob Singh under Section

302/34 of IPC, whereas against accused appellant Shayam Lal, additional

charge was framed under Section 25 of Arms Act and he was tried for the

said offence in Sessions Trial No. 157 of 2006. During the pendency of the

trial, accused Chob Singh expired and the trial court proceeded with the

case of remaining three accused persons.

7.So as to hold accused appellants guilty, prosecution has examined

nine witnesses. Statement of accused persons were recorded under Section

313 of Cr.P.C., in which they pleaded their innocence and false

implication.

8.By the impugned judgment, the trial judge has convicted accused

appellants under Section 302/34 of IPC and sentenced them as mentioned

in paragraph 1 of this judgment. However, the trial court has acquitted

accused Shyam Lal @ Sua Lal of the offence under Section 25 of the Arms

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Act. Hence this appeal.

9.Learned counsel for the appellants submits:

(i)that as per FIR and the statement of Rakesh Kumar

Maheshwari (PW-1) and Jamshed Sadik (PW-2), the so called

eye-witnesses, first blow was given by accused Dharm Pal

with an iron rod, but no such injury has been found on the

body of the deceased.

(ii)that lacerated wound, found on the body of the deceased, could

have been sustained by him while he was being shifted to

District Hospital, Budaun or while he was being taken to

Bareilly in a private hospital.

(iii)that statements of Rakesh Kumar Maheshwari (PW-1) and

Jamshed Sadik (PW-2) are not trustworthy.

(iv)that language of dying declaration prima facie shows that the

same is nothing but a concocted piece of evidence. Learned

counsel submits that no one in his dying declaration would say

that he is making statement on oath.

(v)that considering the nature of injuries sustained by the

deceased, he would not have been in a position to make a

dying declaration and this fact is evident from the medical

report of the deceased.

(vi)that once in the police station the deceased was present at the

time of lodging the FIR, at that place itself either his 161

Cr.P.C. statement could have been recorded, or FIR itself could

have been registered at the behest of the deceased.

(vii)that in support of his contention, learned counsel has placed

reliance on the judgments of the Supreme Court in the cases of

Darshan Singh and Ors. vs. State of Punjab.

1

and Bijoy Das

1AIR 1983 Supreme Court 554

5

vs. State of West Bengal

2

.

10.On the other hand, supporting the impugned judgment, it has been

argued by the State counsel that:

(i) that conviction of the appellants is in accordance with law.

(ii)that dying declaration Ex.Ka.13 of the deceased appears to

be fully reliable and trustworthy; the same has been duly

certified by the Doctor and most importantly, recorder of

dying declaration i.e. the Executive Magistrate, has duly

supported the prosecution case. State counsel has further

argued that 161 Cr.P.C. statement of the deceased was

recorded at 9:00 am at CHC, Ujhani, Budaun and after his

death, the said statement is to be treated as his dying

declaration.

(iii)that Rakesh Kumar Maheshwari (PW-1) and Jamshed Sadik

(PW-2), two eye-witnesses to the incident, have duly

supported the prosecution case and the statement of these two

eye-witnesses have been duly supported by the injury/medical

report of the deceased vide Ex.Ka.11 and his post-mortem

report vide Ex.Ka.12.

11.We have heard learned counsel for the parties and perused the record.

12.Rakesh Kumar Maheshwari (PW-1) is a nephew of the deceased and

the informant, while supporting the prosecution case, he has stated that on

the date of incident, at about 8:00 am, deceased had gone to the house of

Advocate, Rajendra Pal Gupta and on the way, he was apprehended by four

accused persons including the appellants. He states that accused Dharm Pal

was carrying an iron rod with him, whereas other accused persons were

carrying country-made pistols. After abusing the deceased, first blow was

given by accused Dharm Pal with an iron rod and then other accused

persons caused firearm injuries to him. He states that after hue and cry

2(2008) 4 SCC 511

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raised by us, other persons came there and when they exhorted them,

accused persons fled away from the spot. He has further stated that on an

earlier occasion, deceased accused Chob Singh was expelled from the party

on account of his anti party activities and, therefore, he was having inimical

relation with the deceased. He states that he took injured Radhey Shyam

Maheshwari to police station and lodged the FIR. Considering the medical

condition of the deceased, he was sent to CHC, Ujhani, Budaun along with

two police constables from where he was referred to District Hospital,

Budaun and in the hospital diary statement of his uncle was recorded. From

Budaun deceased was taken to Bareilly in a private hospital, where he

succumbed to his injuries. In lengthy cross-examination, this witness

remained firm and nothing could be elicited from him. He has reiterated as

to the manner in which deceased was done to death by the accused persons.

13.Jamshed Sadik (PW-2) is another eye-witness to the incident, while

supporting the prosecution case, he has stated that accused Dharm Pal was

carrying an iron rod with him, whereas other accused persons were having

country-made pistols, first blow was given by Dharm Pal as a result of

which deceased fell down and then all the accused persons caused firearm

injuries to him resulting his death. This witness was also subjected to

lengthy cross-examination but he remained firm and nothing could be

elicited from him.

14.Shakti Singh (PW-3) conducted the inquest on the body of the

deceased. R.L. Yadav (PW-4) prepared a check FIR.

15.Dr. R.K. Agarwal (PW-5) medically examined the deceased Radhey

Shyam Maheshwari vide Ex.Ka.11 at District Hospital, Budaun and he

found injuries on the body of the deceased as mentioned at paragraph no. 4

of this judgment.

16.Dr. S.K. Garg (PW-6) conducted post-mortem on the body of the

deceased and found number of injuries as mentioned in paragraph 5 of this

judgement.

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17.Ram Gopal (PW-7), is the Executive Magistrate, who recorded the

dying declaration vide Ex.Ka.13 of the deceased. He has stated that before

recording dying declaration of the deceased, he obtained a certificate from

the Doctor that the deceased was in a fit state of mind to make the

statement and then whatever was stated by the deceased, he recorded the

same. The dying declaration reads as under:

"e`R;q iwoZ c;ku

eS jk/ks';ke egs'ojh s/o Jh jke pju fu0 oktkj dyk m>kuh

rg0 cnk;wa ftyk cnk;wa cgyQ c;ku djrk gaw fd eS pkj lkfFk;ksa ds

lkFk jktsUnz iky odhy lkgc ds ?kj tk jgk FkkA dy 'kke dks gh ;g

ok;nk gqvk Fkk fd vk<r ij 8 ½ cts nQrj [kksysxs rks pkoh ysus tk

jgk Fkk fd jkLrs esa pksc flag] fo|kjke o lqvk o /keZiky fey x;s vkSj

eq>s MaMs ls ekjus yxs xksyh Hkh ekjh vkSj Hkkx x;sA xksyh lqvk vkSj

/keZiky us ekjhA c;ku lqudj rLnhd fd;k "

This witness has further stated that before recording the dying

declaration of the deceased, he administered an oath to him.

18.Vijai Singh Tyagi (PW-8) is the Investigating Officer. In his cross-

examination when he was confronted with 161 Cr.P.C. statement of the

deceased, he has stated that at Community Health Centre, Ujhani at about

9:00 am, he recorded the diary statement of the deceased, wherein he

informed him as to the manner in which he was subjected to injury by all

the four accused persons. He states that after completion of statement,

deceased told him that he was not in a position to make any further

statement and, therefore, he stopped the same.

19.Daya Ram Gangwar (PW-9) is a Police Constable, who assisted

during investigation.

20.Close scrutiny of the evidence makes it clear that on 19.4.2004 when

the deceased was going to the house of Advocate, Rajendra Pal Gupta in

relation to some political activities, at about 8:15 am, present accused

appellants and the deceased accused Chob Singh apprehended him and at

that time accused Dharm Pal was having an iron rod with him, whereas

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other three accused persons were carrying country made pistols. It is said

that first blow was given by Dharm Pal with the iron rod and then

deceased accused Chob Singh exhorted for killing the deceased and then

remaining accused persons caused firearm injuries to the deceased. Rakesh

Kumar Maheshwari (PW-1), an eye-witness to the incident immediately

took the injured to police station which was just about one and half kms.

away from the place of occurrence. On the basis of written report lodged by

him, FIR Ex.Ka.8 was registered and considering the serious condition of

the deceased, he was referred to CHC, Ujhani where his diary statement

was recorded at 9:00 am. From CHC, Ujhani, the deceased was referred to

District Hospital Budaun where he was medically examined vide Ex.Ka.11

by Dr. R.K. Agarwal (PW-5) and thereafter the Executive Magistrate was

called and dying declaration of the deceased Ex.Ka.13 was recorded. From

District Hospital, Budaun, the deceased was shifted to a private hospital,

Bareilly, where he succumbed to his injuries.

Incident has been witnessed by Rakesh Kumar Maheshwari (PW-1),

nephew of the deceased and Jamshed Sadik (PW-2), an independent

witness. Both these witnesses have duly supported the prosecution case and

have deposed as to the manner in which deceased was done to death by the

accused persons. We have no reason to disbelieve the statement of these

two eye-witnesses, who despite their lengthy cross-examination, remained

firm in the court. Minor contradictions in the statements of the witnesses

are required to be ignored considering the fact that those contradictions do

not go to the root of the matter and do not affect their version otherwise.

Law in this respect is very clear.

21.In Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat, (1983) 3

SCC 217, the Supreme Court, while considering the minor contradictions

in the statement of the witnesses, held as under:

"5 … … … We do not consider it appropriate or permissible to enter upon a

reappraisal or re-appreciation of the evidence in the context of the minor

discrepancies painstakingly highlighted by the learned counsel for the appellant.

Overmuch importance cannot be attached to minor discrepancies. The reasons

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are obvious:

(1) By and large a witness cannot be expected to possess a photographic

memory and to recall the details of an incident. It is not as if a video tape

is replayed in the mental screen.

(2) Ordinarily, it so happens that a witness is overtaken by events. The

witness could not have anticipated the occurrence which so often has an

element of surprise. The mental faculties therefore cannot be expected to

be attuned to absorb the details.

(3) The powers of observation defer from person to person. What one

may notice, another may not. An object or movement might emboss its

image on one person's mind, whereas it might go unnoticed on the part of

another.

(4) By and large people cannot accurately recall a conversation and

reproduce the very words used by them or heard by them. They can only

recall the main purport of the conversation. It is unrealistic to expect a

witness to be a human tape-recorder.

(5) In regard to exact time of an incident, or the time duration of an

occurrence, usually, people make their estimates by guess work on the

spur of the moment at the time of interrogation. And one cannot expect

people to make very precise or reliable estimates in such matters. Again,

it depends on the time-sense of individuals which varies from person to

person.

(6) Ordinarily, a witness cannot be expected to recall accurately the

sequence of events which takes place in rapid succession or in short time

span. A witness is liable to get confused or mixed up when interrogated

later on.

(7) A witness, though wholly truthful, is liable to be overawed by the

court atmosphere and the piercing cross-examination made by the

counsel and out nervousness mix up facts, get confused regarding

sequence of events, or fill up details from imagination on the spur of the

moment. The subconscious mind of the witness sometimes so operates

on account of the fear of looking foolish or being disbelieved though the

witness is giving a truthful and honest account of the occurrence

witnessed by him – perhaps it is a sort of a psychological defence

mechanism activated on the spur of the moment."

22.Before we consider the authenticity and genuineness of the dying

declaration made by the deceased, it would be apposite to consider the legal

position in respect of dying declaration.

23.In State of Gujarat v. Jayrajbhai Punjabhai Varu

3

, the Supreme

Court held as under:

"15. The courts below have to be extremely careful when they deal with

a dying declaration as the maker thereof is not available for the cross-

examination which poses a great difficulty to the accused person. A

3(2016) 14 SCC 151

10

mechanical approach in relying upon a dying declaration just because it is

there is extremely dangerous. The court has to examine a dying declaration

scrupulously with a microscopic eye to find out whether the dying

declaration is voluntary, truthful, made in a conscious state of mind and

without being influenced by the relatives present or by the investigating

agency who may be interested in the success of investigation or which may

be negligent while recording the dying declaration.

16.In the case on hand, there are two sets of evidence, one is the

statement/declaration made before the police officer and the Executive

Magistrate and the other is the oral dying declaration made by the deceased

before her father who was examined as PW-1. On a careful scrutiny of the

materials on record, it cannot be said that there were contradictions in the

statements made before the police officer and the Executive Magistrate as

to the role of the respondent herein in the commission of the offence and in

such circumstances, one set of evidence which is more consistent and

reliable, which in the present case being one in favour of the respondent

herein, requires to be accepted and conviction could not be placed on the

sole testimony of PW-1.

17.A number of times the relatives influence the investigating agency

and bring about a dying declaration. The dying declarations recorded by

the investigating agencies have to be very scrupulously examined and the

court must remain alive to all the attendant circumstances at the time when

the dying declaration comes into being. In case of more than one dying

declaration, the intrinsic contradictions in those dying declarations are

extremely important. It cannot be that a dying declaration which supports

the prosecution alone can be accepted while the other innocent dying

declarations have to be rejected. Such a trend will be extremely dangerous.

However, the courts below are fully entitled to act on the dying

declarations and make them the basis of conviction, where the dying

declarations pass all the above tests.

18. The court has to weigh all the attendant circumstances and come to

the independent finding whether the dying declaration was properly

recorded and whether it was voluntary and truthful. Once the court is

convinced that the dying declaration is so recorded, it may be acted upon

and can be made a basis of conviction. The courts must bear in mind that

each criminal trial is an individual aspect. It may differ from the other trials

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in some or the other respect and, therefore, a mechanical approach to the

law of dying declaration has to be shunned.

19. On appreciation of evidence on record, we are of the considered

view that the dying declarations of the deceased recorded by the police

officer as well as the Executive Magistrate are fully corroborated and there

is no inconsistency as regards the role of the respondent herein in the

commission of offence. From a perusal of the statement recorded by Bhiku

Karsanbhai, P.S.O., the thumb impression of Rekhaben (since deceased)

which had been identified by her father-Sri Vala Jaskubhai Suragbhai as

also his cross-examination in which he admitted that police had already

come there and he had identified her thumb impression and Mamlatdar had

gone inside to record statement, there is no reason as to why Rekhaben

would give names of her husband and her in- laws in the alleged statement

given to her father. A dying declaration is entitled to great weight. The

conviction basing reliance upon the oral dying declaration made to the

father of the deceased is not reliable and such a declaration can be a result

of afterthought. This is the reason the Court also insists that the dying

declaration should be of such a nature as to inspire full confidence of the

Court in its correctness. The Court has to be on guard that the statement of

deceased was not as a result of tutoring, prompting or a product of

imagination. The Court must be further satisfied that the deceased was in a

fit state of mind after a clear opportunity to observe and identify the

assailants. Once the Court is satisfied that the declaration was true and

voluntary, undoubtedly, it can base its conviction without any further

corroboration. It cannot be laid down as an absolute rule of law that the

dying declaration cannot form the sole basis of conviction unless it is

corroborated. The rule requiring corroboration is merely a rule of

prudence.

20. The burden of proof in criminal law is beyond all reasonable doubt.

The prosecution has to prove the guilt of the accused beyond all reasonable

doubt and it is also the rule of justice in criminal law that if two views are

possible on the evidence adduced in the case, one pointing to the guilt of

the accused and the other towards his innocence, the view which is

favourable to the accused should be adopted."

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24. In Gaffar Badshaha Pathan v. State of Maharashtra

4

,it was held

as under:

"5. Dr. A.U. Masurkar was the Chief Medical Officer of the hospital at

the relevant time. The High Court has held that the recording of the dying

declaration and story stated therein apparently appears to be false and

concocted for the various reasons noticed in the impugned judgment. It has

to be borne in mind that the fact whether the dying declaration is false and

concocted has to be established by the prosecution. It is not for the accused

to prove conclusively that the dying declaration was correct and the story

therein was not concocted. The fact that the statement of the deceased was

recorded at about 9.00 p.m. by the Head Constable cannot be doubted

though an attempt to the contrary seems to have been made by the

prosecution. The statements of the prosecution witnesses (PW 5 and PW

11) also show that the statement was recorded by the Head Constable.

According to PW 5, it was only a show made by the Head Constable of

recording statement, since according to the said witness, the deceased was

not in a position to speak at that time. Even PW 11, a doctor in the

hospital, has deposed about the recording of the statement by the Head

Constable though he has not formally proved the dying declaration but has

certified the correctness of the endorsement of Dr. A.U. Masurkar on the

dying declaration. PW 11 was shown the dying declaration. He has

deposed that the certificate recorded on the dying declaration is in the

handwriting of Dr. Masurkar, Chief Medical Officer of the hospital. He has

further deposed that Dr. Masurkar is in the hospital since the last 12 to 15

years and that he had degree in MS and was estimated to be an honest and

expert surgeon of the area. One of the reasons which had strongly weighed

with the High Court in rejecting the dying declaration is that the

endorsement of the doctor is only about the deceased lady being conscious

and not that she was in a fit condition to make the statement. The High

Court went into distinction between consciousness and fitness to make

statement. On the facts of the present case, we are unable to sustain the

approach adopted by the High Court. It is one thing for an accused to

attack a dying declaration in a case where the prosecution seeks to rely on

a dying declaration against an accused but it is altogether different where

an accused relies upon a dying declaration in support of the defence of

4(2004) 10 SCC 589

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accidental death. The burden on the accused is much lighter. He has only

to prove reasonable probability. Under these circumstances, the dying

declaration could not have been rejected on the ground that it does not

contain the endorsement of the doctor of the fitness of the lady to make the

statement as the certificate of the doctor only shows that she was in a

conscious state. The endorsement of the doctor aforequoted is not only

about the conscious state of the lady but is that she made the statement in a

conscious state."

25.In P. Mani v State of Tamilnadu

5

, while considering the suspicious dying

declaration, it has been held by the Apex Court that the conviction can be based

solely on the basis of dying declaration alone, but the same must be wholly

reliable and trustworthy. Para 14 of the said judgment reads thus:

"14. Indisputably conviction can be recorded on the basis of dying

declaration alone but therefore the same must be wholly reliable. In a

case where suspicion can be raised as regard the correctness of the dying

declaration, the court before convicting an accused on the basis thereof

would look for some corroborative evidence. Suspicion, it is trite, is no

substitute for proof. If evidence brought on records suggests that such

dying declaration does not reveal the entire truth, it may be considered

only as a piece of evidence in which event conviction may not be rested

only on the basis thereof. The question as to whether a dying declaration

is of impeccable character would depend upon several factors; physical

and mental condition of the deceased is one of them. In this case the

circumstances which have been brought on records clearly point out that

what might have been stated in the dying declaration may not be correct.

If the deceased had been nurturing a grudge against her husband for a

long time, she while committing suicide herself may try to implicate him

so as to make his life miserable. In the present case where the Appellant

has been charged under Section 302 of the Indian Penal Code, the

presumption in terms of Section 113A of the Evidence Act is not

available. In absence of such a presumption, the conviction and sentence

of the accused must be based on cogent and reliable evidence brought on

record by the prosecution. In this case, we find that the evidences are not

such which point out only to the guilt of the accused."

52006 (3) SCC 161

14

26.In Lakhan v. State of MP

6

, the Supreme Court after discussing number of

judgments on the point of dying declarations summarized the law in this regard,

as under:

"20.In view of the above, the law on the issue of dying declaration

can be summarized to the effect that in case, the Court comes to the

conclusion that the dying declaration is true and reliable, has been

recorded by a person at a time when the deceased was fit physically and

mentally to make the declaration and it has not been made under any

tutoring/duress/prompting; it can be the sole basis for recording

conviction. In such an eventuality no corroboration is required. In case,

there are multiple dying declarations and there are inconsistencies

between them, generally, the dying declaration recorded by the higher

officer like a Magistrate can be relied upon, provided that there is no

circumstance giving rise to any suspicion about its truthfulness. In case,

there are circumstances wherein the declaration had been made, not

voluntarily and even otherwise, it is not supported by the other evidence,

the Court has to scrutinize the facts of an individual case very carefully

and take a decision as to which of the declarations is worth reliance."

27.In Shudhakar v. State of MP

7

, the Supreme Court held as under:

"18.In the case of Laxman (supra), the Court while dealing with the

argument that the dying declaration must be recorded by a Magistrate and

the certificate of fitness was an essential feature, made the following

observations. The court answered both these questions as follows:

“3.The juristic theory regarding acceptability of a

dying declaration is that such declaration is made in

extremity, when the party is at the point of death and when

every hope of this world is gone, when every motive to

falsehood is silenced, and the man is induced by the most

powerful consideration to speak only the truth.

Notwithstanding the same, great caution must be exercised

in considering the weight to be given to this species of

evidence on account of the existence of many

circumstances which may affect their truth. The situation in

6(2010) 8 SCC 514

7(2012) 7 SCC 569

15

which a man is on the deathbed is so solemn and serene, is

the reason in law to accept the veracity of his statement. It

is for this reason the requirements of oath and cross-

examination are dispensed with. Since the accused has no

power of cross-examination, the courts insist that the dying

declaration should be of such a nature as to inspire full

confidence of the court in its truthfulness and correctness.

The court, however, has always to be on guard to see that

the statement of the deceased was not as a result of either

tutoring or prompting or a product of imagination. The

court also must further decide that the deceased was in a fit

state of mind and had the opportunity to observe and

identify the assailant. Normally, therefore, the court in order

to satisfy whether the deceased was in a fit mental

condition to make the dying declaration looks up to the

medical opinion. But where the eyewitnesses state that the

deceased was in a fit and conscious state to make the

declaration, the medical opinion will not prevail, nor can it

be said that since there is no certification of the doctor as to

the fitness of the mind of the declarant, the dying

declaration is not acceptable. A dying declaration can be

oral or in writing and any adequate method of

communication whether by words or by signs or otherwise

will suffice provided the indication is positive and definite.

In most cases, however, such statements are made orally

before death ensues and is reduced to writing by someone

like a Magistrate or a doctor or a police officer. When it is

recorded, no oath is necessary nor is the presence of a

Magistrate absolutely necessary, although to assure

authenticity it is usual to call a Magistrate, if available for

recording the statement of a man about to die. There is no

requirement of law that a dying declaration must

necessarily be made to a Magistrate and when such

statement is recorded by a Magistrate there is no specified

statutory form for such recording. Consequently, what

evidential value or weight has to be attached to such

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statement necessarily depends on the facts and

circumstances of each particular case. 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 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.”

28.In Ramakant Mishra v. State of UP

8

, the Supreme Court observed as

under:

"9.Definition of this legal concept found in Black's Law Dictionary

(5th Edition) justifies reproduction:

"Dying Declarations - Statements made by a person who is lying at the

point of death, and is conscious of his approaching death, in reference to

the manner in which he received the injuries of which he is dying, or

other immediate cause of his death, and in reference to the person who

inflicted such injuries or the connection with such injuries of a person

who is charged or suspected of having committed them; which

statements are admissible in evidence in a trial for homicide (and

occasionally, at least in some jurisdictions, in other cases) where the

killing of the declarant is the crime charged to the defendant. Shepard v.

U.S., Kan., 290 U.S. 96, 54 S.Ct. 22, 78 L.Ed. 196.

Generally, the admissibility of such declarations is limited to use in

prosecutions for homicide; but is admissible on behalf of accused as well

as for prosecution. In a prosecution for homicide or in a civil action or

proceeding, a statement made by a declarant while believing that his

death was imminent, concerning the cause or circumstances of what he

believed to be his impending death is not excluded by the hearsay rule.

Fed. Evid.R. 804 (b) (2).

8(2015) 8 SCC 299

17

10.When a person makes a statement while being aware of the

prospect that his death is imminent and proximate, such a statement

assumes a probative value which is almost unassailable, unlike other

statements which he may have made earlier, when death was not lurking

around, indicating the cause of his death. That is to say that a person

might be quite willing to implicate an innocent person but would not do

so when death is knocking at his door. That is why a Dying Declaration,

to conform to this unique specie, should have been made when death was

in the contemplation of the person making the statement/declaration."

29.If the above principles are applied in the present case, dying

declaration made by the deceased appears to be fully reliable and

trustworthy. There was absolutely no occasion for the deceased to falsely

implicate anyone. Mere fact that in the dying declaration, a sort of oath has

been administered to the deceased before recording the same, this itself

would not doubt the credibility of the dying declaration and would not

nullify the same. Dying declaration has been recorded by the Executive

Magistrate and, if he chose the particular language for recording the same,

neither the deceased can be blamed nor any fault can be attributed to the

prosecution. It is again important to mention here that deceased was a

practising lawyer and the Executive Magistrate might have thought using a

particular language at the time of recording the dying declaration. The

judgements relied upon by the learned counsel for the appellants in support

of his contention in the cases of Darshan Singh (supra) and Bijoy Das

(supra) are of no help to the defence as those judgments are not applicable

in the facts and circumstances of the present case.

30.Apart from dying declaration recorded by the Executive Magistrate

vide Ex.Ka.13, there is 161 Cr.P.C. statement of the deceased recorded on

19.4.2004 at 10.50 am by the Investigation Officer (PW-8), which is not

even disputed and the Investigating Officer has been duly confronted by the

defence. After the death of the deceased, his 161 Cr.P.C. statement is to be

treated as his dying declaration and the same is an additional evidence

against the appellants. Law in this respect is very clear.

18

31.In Rafique alias Rauf and Ors. Vs. State of Uttar Pradesh

9

, the

Apex Court held as under:

"16.The important question for consideration, therefore, is whether the

said statement made by the deceased can be taken as a dying declaration

and reliance can be placed upon the same.

17.The High Court while relying upon the said statement has noted

certain circumstances, namely, the evidence of P.W.6, Investigating Officer,

who deposed that the deceased was fully conscious when he was brought to

the police station with injuries on his face, chest and other parts of the body

and that he recorded his statement. It was also noted that after recording his

statement the Investigating Officer referred him to the hospital for medical

examination and treatment. The High Court, thereafter, noted the evidence

of P.W.5 the postmortem doctor who categorically stated in his cross-

examination that the injured was also in a position to speak and that it was

not necessary that in all cases after sustaining injury in the brain a person

cannot retain his conscience or will not be in a position to speak. The High

Court noted the further statement of the doctor that it is not necessary that

in every such case the patient would immediately go to a coma stage.

18.The High Court, therefore, reached a conclusion that the deceased

Zahiruddin, was in a position to speak and that the statement under Ext.Ka-

9 was given by him who expired on the next day evening. It further stated

that since it was the last statement of the deceased to the Investigating

Officer it can very well be treated as a dying declaration. The High Court

was conscious of the fact that the trial Court did not place any reliance on

the said statement which in the opinion of the High Court was erroneous.

19.In this context when we make reference to the statutory provisions

concerning the extent of reliance that can be placed upon the dying

declaration and also the implication of Section 162(2) Cr.P.C. vis-à-vis

Section 32(1) of the Evidence Act, 1872, we feel that it will be appropriate

to make a reference to the decision of this Court reported in Khushal Rao

vs. State of Bombay - AIR 1958 SC 22. Justice Sinha speaking for the

Bench after making further reference to a Full Bench decision of the High

Court of Madras headed by Sir Lionel Leach, C.J., a decision of the Judicial

Committee of the Privy Council and ‘Phipson on Evidence’ – 9th Ed.,

formulated certain principles to be applied to place any reliance upon such

statements. We feel that the substance of the principles stated in the Full

Bench decision and the Judicial Committee of the Privy Council and the

9(2013) 12 SCC 121

19

author Phipson’s view point on accepting a statement as dying declaration

can also be noted in order to understand the principles ultimately laid down

by this Court in paragraph 16.

20.The Full Bench of the Madras High Court in Guruswami Tevar - AIR

1940 Mad 196 in its unanimous opinion stated that no hard-and-fast rule

can be laid down as to when a dying declaration should be accepted, except

stating that each case must be decided in the light of its own facts and other

circumstances. What all the Court has to ultimately conclude is whether the

Court is convinced of the truthfulness of the statement, notwithstanding that

there was no corroboration in the true sense. The thrust was to the position

that the Court must be fully convinced of the truth of the statement and that

it should not give any scope for suspicion as to its credibility. This Court

noted that the High Court of Patna and Nagpur also expressed the same

view in the decisions reported in Mohd. Arif v. Emperor – AIR 1941 Pat.

409 and Gulabrao Krishnajee v. Emperor – AIR 1945 Nag. 153.

26.In a recent decision of this Court reported in Sri Bhagwan v. State of

U.P. – (2013) 12 SCC 137, to which one of us was a party, the Court dealt

with more or less an identical situation and held as under in paras 21 and

22:

“21. As far as the implication of 162(2) CrPC is concerned, as a

proposition of law, unlike the excepted circumstances under

which 161 statement could be relied upon, as rightly contended

by learned Senior Counsel for the respondent, once the said

statement though recorded under Section 161 CrPC assumes

the character of dying declaration falling within the four

corners of Section 32(1) of Evidence Act, then whatever

credence that would apply to a declaration governed by Section

32(1) should automatically deemed to apply in all force to such

a statement though was once recorded under Section 161 CrPC.

The above statement of law would result in a position that a

purported recorded statement under Section 161 of a victim

having regard to the subsequent event of the death of the

person making the statement who was a victim would enable

the prosecuting authority to rely upon the said statement having

regard to the nature and content of the said statement as one of

dying declaration as deeming it and falling under Section

32(1) of Evidence Act and thereby commend all the credence

that would be applicable to a dying declaration recorded and

claimed as such.

20

22. Keeping the above principle in mind, it can be stated

without any scope for contradiction that when we examine the

claim made on the statement recorded by PW-4 of the deceased

by applying Section 162(2), we have no hesitation in holding

that the said statement as relied upon by the trial Court as an

acceptable dying declaration in all force was perfectly justified.

We say so because no other conflicting circumstance was either

pointed out or demonstrated before the trial Court or the High

Court or before us in order to exclude the said document from

being relied upon as a dying declaration of the deceased. We

reiterate that having regard to the manner in which the said

statement was recorded at the time when the crime was

registered originally under Section 326 IPC within the shortest

time possible within which it could be recorded by PW-4 in

order to provide proper medical treatment to the deceased by

sending him to the hospital, with no other intention pointed out

at the instance of the appellant to discredit contents of the said

statement, we hold that the reliance placed upon the said

statement as the dying declaration of the deceased was

perfectly justified. Having regard to our above conclusion, the

said submission of the learned counsel for the appellant also

stands rejected.”

32.We find no substance in the argument of the defence that as the

physical condition of the deceased was bad, he was not in a position to

make any such dying declaration. As per prosecution case, before recording

dying declaration of the deceased, the Executive Magistrate has obtained a

certificate from the Doctor that the deceased was in a fit state of mind to

make the statement and whatever was stated by the deceased, he recorded

the same and most importantly, recorder of the dying declaration i.e. the

Executive Magistrate, has duly supported the prosecution case.

We further find no substance in the argument of the defence that

injuries found on the body of the deceased could have been caused to him

while he was being shifted to various hospitals. The fact remains that the

deceased suffered gunshot injuries and his medical and postmortem report

support the prosecution case. We further find no substance in the argument

21

of the defence that when the deceased himself was present in the police

station at the time of lodging the FIR by Rakesh Kumar Maheshwari (PW-

1), FIR ought to have been registered at the dictate of the deceased. If FIR

has been recorded at the instance of PW-1, no fault can be attributed to the

prosecution.

33.Taking cumulative effect of the evidence, we are of the considered

view that the trial judge was justified in convicting the appellants under

Section 302/34 of IPC.

34.Appeal has no substance, the same is accordingly dismissed. As all

the accused appellants are in jail, no further order is required in their

respect.

Date: 7.5.2019

RK/

(Ali Zamin, J) (Pritinker Diwaker, J)