Munnu Raja & Anr. v. the State of Madhya Pradesh

Judgment

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 227 of 1972. From the Judgment and Order dated the 8th September, 1972 of the Madhya Pradesh High Court in Criminal Appeal No. 927169. Mohan Behari Lal for the Appellant. Ram Panjwani, Dy. Advocate General for the State of M.P., N. S. Parihar and I. N. Shroff for the Respondent. ORDER· CHANDRACHUD, J.-The appellants, Munmi Raja and Chbuttan, were tried by . the learned Sessions Judge, Chatarpur on the charge th·at at about 10 a.m. on April 30, 1969 they co=itted the murder . of one Bahadur Singh. In support of itS case, the prosecution relied UJl<Y.1 the ·evidence of. Santosh Singh (P.W. 1) and Mst. Gumni (P.W. 4) who claimed to be eye witnesses and on three dying declarations alleged to have been made by the deceased. The two eye witnesses were permitted to be cross-examined by. the Public Prose· cutor a5 they supported the case of the prosecution only partly.

Santosh Singh stated th-at he saw Chhuttan assaulting Bahadur Singh with a spear but that he did not see Munnu Raja at all. On the other .. harul, Mst. Gumni stated that it was Munnu Raja and not Chbuttan who assaulted the deceased. Since the two principal witnesses turned hostile, the learned Sessions Judge thought it unsafe to rely on their testimony and, in our opinion, rightly. The icarned Judge was also . not impressed by any of the dying declarations with the result that he--·· came to the conclusiaa that the prosecution· had failed to establish its case beyond a reasonable doubt. In that view of the matter, the appellants were acquitted by the learned Judge . n Being aggrieved by the order of acquittal, the State Government II filed an appeal in the High Court of Madhya Pradesh, which was allowed by a Division Bench of that Court by its judgment dated September S, 1972.

The Hgh Court did not discard the evidence the eye witnesses but utilised it by way of corroboration to the dying declarations alleged to have been made by the deceased. . Setting aside the order of acquittal, the High Court has convicted the appellants under -s~ 302 read with s. 34 of the Penal Code and has sentenced each· of them to impriSonment for life. The appellants have filed this appeal under s. 2(1) of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 .. We have heard Mr. Mohan Behari Lal on behalf of the appellants at some length and we have considered each of his submissions carefully. It is however unnecessary to discuss every one of the points made by him because, basically, the scope of this appeal-not fcrgetting that the appellants had a right to file this appeal in this Courtlies within a narrow compass.

As we have indicated earlier, no exception ·can be taken to the view taken by tl1e learned Sessions Judge that it is not safe to place reliance on the testimony of Santosh Singh . and Mst. Gumni. They resiled from their police statements and it is evideqt that they have no regard for truth. · Their evidence cannot be used to corroborate the dying declarations either. We are· thus left with the three dying declarations made by · Bahadur Singh and since the prosecution has placed great reliance on them, we thought it necessary to hear the learned counsel fully on the facts ~nd circumstances leading to the dying declarations. In regard to these dyi.1g declarations, the judgment of the Sessions Court suffers from a patent infirmity in that it wholly overlooks the earliest of these dying declarations, which was made by the deceased soon after the incident in the house of one Barjor Singh. The second statement which has been treated by the High Court as a dyiilg declaration is Ex.

P-14, being the first information report which was lodged by the deceased at the police station. The learned Sessions Judge probably assumed that since the statement was recorded as a first information report, it could not be treated as a dyirig declaration. · In this assumption, he was clearly in error. After making the statement before the police, Bahadur Singh succumbed to his ill· juries and therefore the statement can be treated as a dying declaration and is admissible under section 32(1) of the Evidence Act. The maker of the statement is dead and the statement relates to the cause of his death. The High C0urt has held that these statements are essentially true and do not suffer from any i'afirmity.

It is well settled that though a dying declaration must be approached with caution for the reason that the maker of the statement cannot be subject to cross-examination, there is neither a rule of law nor a rule of prudence which has hardened into a rul~ of law that a dying declaration ca'Imot be acted upon unless it is corroborated : [see Khushal Rao v. State of Bom- - bay(')]. The High Court, it is true, has held that the evidence of the two eye witnesses corroborated the dying declarations but it - did not come to the conclusion that the dying declarations suffered from (I) [ 1958 J S.C.R. 552. I MUNNU RAJA v. M. P. STATE (Chandrachud, I.) any infirmity by reason of which it was necessary to look out for carroboraticl'.1.

It was contended by the learned cQunsel for the appel1'ants that the oral statement which Bahadur Singh made cannot, in the eye of law, constitute a dying declaration because he did not give a full account of the incident or of the transaction which resulted in his death. There is no substance in this contention because in order that the Court may be in a position to assess the evidentiary value of a dying declaration, wlrat is necessary is that the whole of the statement made by the deceased must be laid before the Court, without tampering with its terms or its tenor. Law does not require that the maker of the dying declaration must cover the whole r.icidcnt or narrate the case history. Indeed, quite often, all that the victim may be able to say is that he was beaten by a certain person or persons.

That may either be due' to the suddenness of the attack or the conditions of \'isibility or because the victim is not in a physical condition to re· capitulate the entire incident or to 11arrate it at length. In fact, many a time, dying declarations which are copiously worded or neatly structured excite snspicion for· the re-ason that they bear traces of tutoring. It was urged by the learned counsel that after the attack, the deceased was all along accompanied by a large number of persons and one crutaot therefore exclude the possibility that he was tutored into in\'olving the appellants falsely. We see no basis for this submission because not even a suggestion was m;ide to any of the witnesses that the deceased was tutored into making the statement. The deceased, on his own, did not bear any enmity or hostility to the appellants and had therefore no reason to implicate them falsely.

Indeed, none of the persons who were in the company of the deceased after he was assaulted, is shown to have any particular animus for. implicating the appellants falsely. In regard to the second .dying declaration, Ex. P-14, the main objection of the learned counsel is that it was made to the investigating officer himself and ought therefore be treated as suspect. Jn sup· port of this submission, reliance was placed on a jud~ent of this Court iu Balak Ram v. State of U.P.('). The error of this argument consists in the assumption that the dyiug~declaration was made to an investigating officer. The statement, Ex. P.14, was made by Bahadur Singh at the police station by way of a first information .. report. It is after the information was recorded, and indeed because of it, that the investigatiQll commenced and therefore it is wrong to say that the statement was made to an investigating officer.

The Station House Officer who recorded the statement did not possess the capacity of an investigating officer at the time when he recorded the statement. The judgment on which the counsel relies has therefore no application. (I) A.T.R. 1974. S.C. 2165 at 2175. II [1976] 2 s.c.R, We arc in full agreement with the High Court that both of these dyinl!. declarations are true. We :ire further of the opinion that considering the facts and circumstances of the case, these two statements can be accepted without corroboration. Bahadur Singh was assaulted in broad day light and he knew the appellants. He did not bear any grudge towards them and had therefore no reason to implicate them falsely. Those who were .in the constant company of Bahadur. Singh after the assault, had also no reason to implicate the appellants falsely. They bore no ill-will or malice towards the appellants.

We sec no infirmity attaching to the two dying declarations which . would make it necessary to look out for corroboration. We~might, however, mention before we close that the High Court ought not' to have placed any relrance on the third dying declaration. Ex. P-2, which is said to have been made by the deceased in the hospital. The investigating officer who recorded t~at statement had undoubtedly taken the precaution of keeping a doctor present and . it appears that some of the friends and relations of the deceased were also present at the time when the statement was recorded. But, if the investigating officer thought that Ilahadur Singh was in, a precarious condition, he ought to have requisitioned the services of a Magistrate for recording the dying declaration.

Investigating officers arc naturally interested in the success of the investigation and the practice·of the investigating officer himself recording a dying declaration during the course of investigation ought not to be encouraged. We have therefore excluded from our consideration the dying dcclara- . lion, Ex. P-2, recorded in the hospital. The High Court was, therefore, justified in reversing tl1c order of acquittal passed by the Sessions· Court and in convicting the appellants of the offence of which they were charged. In so doing, the High Court did not violate any of the principles governing appeals against acquittal, to which our attention was drawn by the appellants' counsel from time to time. In the result, we confirni the judgment of !lie High Cocrt and dismiss the appeal. P.H.P. Appeal dismissed.