Sudershan Kumar v. State of H.P.

District Kangra, H.P. (Learned Trial Court) for disposal as per law.

3. Learned Trial Court charged the accused with the commission of offences punishable under Sections 323, 302, 341, 504 and 506 read with Section 34 of the IPC, to which he pleaded not guilty and claimed to be tried.

4. The prosecution examined twenty-three witnesses to prove its case. Rajesh Kumar (PW-1), Shivam (PW-2) and Paramjit (PW-3) are the eyewitnesses. Amit Sharma (PW-4) prepared the Aks Shajra. Mohidner Singh 9 (PW-5) witnessed the recovery. Shashank Sahi (PW-6) produced the record regarding the date of birth of the juvenile. Rajeshwar Singh (PW-7) and Raj Kumar (PW-8) proved that a compromise had taken place between the accused and the deceased. C. Inder Singh (PW-9) witnessed the disclosure statement made by the accused. HASI Mohinder Singh (PW-10) had accompanied Sarwan Kumar to the hospital and carried the informant’s statement to the police Station. Dr Talvinder Singh (PW- 11) conducted the initial examination of the injured. Constables Neeraj Kumar (PW-12) and Rajinder Singh (PW-16) proved the entries in the daily diary. Dr Savita (PW-13) conducted the autopsy. ASI Joginder Singh (PW- 14) was posted as MHC with whom the case property was deposited. Inspector Kuldeep Singh (PW-15) and ASI Sarwan Kumar (PW-18) investigated the matter. HC Vikas Kumar (PW-17) carried the case property to RFSL, Dharamshala, H.P. Dr Ajay Kumar Sehgal (PW-19) is the Forensic Expert who examined the samples in the laboratory. HC Ram Kumar (PW-20) received the report of analysis. Inspector Sandeep Pathania (PW-21) prepared the supplementary challan. ASI Joginder Singh (PW-22) 10 had received the result of the analysis. HASI Jasbir Singh (PW-23) brought the report of analysis and the samples.

5. The accused, in his statement recorded under Section 313 of Cr.P.C., denied the prosecution's case. He stated that his brother Shakti Chand and Rajesh were raising lavatories on his land. Pardhan Gram Panchayat had told them to give land to him at some other place. He was sleeping in his home and had not visited the spot. A false case was made against him. He claimed that he was innocent but did not produce any evidence in his defence.

6. The learned Trial Court held statements of the eyewitnesses corroborated each other. The incident had taken place during Covid Pandemic times, and the possibility of the presence of some independent person was remote. The initial statement made by the informant to the police would be admissible as a dying declaration. As per the opinion of the Medical Officer, the injuries noticed by them could have been caused by means of a brick. Both the accused shared the common intention because both of them came together, the accused pushed the deceased, and the juvenile 11 inflicted a blow by means of a brick. Both the accused had left together. The juvenile had only inflicted one injury, and the intention to cause death could not be inferred. The brick was not used to cause any other injury. Therefore, an offence punishable under Section 304 Part II of the IPC was made out, which is a minor offence as compared to Section 302 of the IPC. The prosecution had also established that simple hurt was caused to the deceased. The informant was prevented from moving further, and the accused had hurled filthy abuses at the informant and intimidated him. All the ingredients of the commission of offences punishable under Section 341, 323, 304 Part II, 504 and 506 read with Section 34 of IPC were satisfied. Hence, the learned Trial Court convicted and sentenced the accused as mentioned above.

7. Being aggrieved by the judgment and order passed by the learned Trial Court, the accused has filed the present appeal, asserting that the prosecution has examined the interested witnesses. The injuries could have been caused by a fall, and the accused had no role in the commission of the crime. Learned Trial Court had not properly appreciated the material on record. Hence, it was 12 prayed that the present appeal be allowed and the judgment and order passed by the learned Trial Court be set aside.

8. I have heard Mr Arush Matlotia, learned counsel for the appellant/accused, and Mr Jitender K Sharma, learned Additional Advocate General for the respondent/State.

9. Mr Arush Matlotia, learned counsel for the appellant/accused, submitted that the learned Trial Court erred in convicting and sentencing the accused. It is an admitted version that there was a dispute over the land. Therefore, the possibility of false implication cannot be ruled out. The accused had only pushed the deceased as per the prosecution's case, and he cannot be held liable for the commission of an offence punishable under Section 304, Part II of the IPC. Learned Trial Court had imposed an excessive sentence. Therefore, he prayed that the present appeal be allowed and the judgment and order passed by the learned Trial Court be set aside.

10. Mr Jitender K. Sharma, learned Additional Advocate General for the respondent/State, submitted that 13 the prosecution witnesses corroborated each other's statements. The Medical evidence also proved that the deceased had sustained injury to the head, which could have been caused by means of the brick recovered by the police. This corroborated the ocular version. The trial court had already taken a lenient view by converting the offence from 302 to 304, Part II of the IPC and no further leniency is required in the present case. Hence, he prayed that the appeal be dismissed.

11. I have given considerable thought to the submissions made at the bar and have gone through the records carefully.

12. ASI Sarwan Kumar (PW-18) stated that he went to the hospital and recorded the informant’s statement (Ext. P-2/PW-10). He read over and explained the statement to Shakti Chand. It was suggested to ASI Sarwan Kumar (PW-18) that the statement was recorded at the instance of Rajesh Kumar, and Shakti Chand had signed the same. He denied this suggestion. A denied suggestion does not amount to any proof and cannot be used to doubt his testimony. 14

13. The statement of ASI Sarwan Kumar (PW-18) was corroborated by HASI Mohinder Singh (PW-10), who stated that Shakti Chand got his statement recorded under Section 154 of Cr.P.C. (Ext. P-2/PW-10) before ASI Sarwan Kumar. ASI Sarwan Kumar (PW-18) made endorsement on the statement and sent it to the police station for the registration of the F.I.R. His testimony that the statement of Shakti Chand was recorded in his presence was not disputed in the cross-examination, and only the fact that he had carried the rukka to the Police Station was challenged.

14. Therefore, it was duly proved on record that ASI Sarawan Kumar (PW-18) had recorded the statement of injured Shakti Chand (Ext.P-2/PW-10) as per his version. The learned Trial Court had rightly held that the statement made by informant Shakti Chand would be admissible as a dying declaration. It was laid down by the Hon’ble Supreme Court in Dayaram v. State of M.P., (2020) 13 SCC 382, that a report made by a person related to the circumstances of his death to the police and registered as F.I.R. is admissible as a dying declaration. It was observed: - 15

10.9. As per Section 32(1) of the Evidence Act, the FIR should be treated as a dying declaration. This Court in Dharam Pal v. State of U.P. [Dharam Pal v. State of U.P., (2008) 17 SCC 337: (2010) 4 SCC (Cri) 534] held that: (SCC p. 345, paras 17-18 & 20) “17. … the report dictated by the deceased fully satisfied all the ingredients for being made admissible as a dying declaration. To ascertain this aspect, we may refer to some of the general propositions relating to a dying declaration. Section 32(1) of the Evidence Act deals with dying declarations and lays down that when a statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, such a statement is relevant in every case or proceeding in which the cause of the person's death comes into question. Further, such statements are relevant whether the person who made them was or was not at the time when they were made under the expectation of death and whatever may be the nature of the proceedings in which the cause of his death comes into question.

18. The principle on which a dying declaration is admissible in evidence is indicated in the maxim “nemo moriturus praesumitur mentire”, which means that a man will not meet his maker with a lie in his mouth. Thus, it is clear that a dying declaration may be relating to— (a) as to the cause of death of the deceased; (b) as to “any of the circumstances of the transaction” which resulted in the death of the deceased. ***

20. If we look at the report dictated by the the aforesaid deceased light of propositions, it emerges that the names of the accused and the important features of the case have been clearly mentioned in the report. It contains a 16 finds complete corroboration narrative by the deceased as to the cause of his death, testimony of eyewitnesses and the medical evidence on record.” (emphasis supplied)

15. Thus, the learned Trial Court had rightly relied upon the statement of the injured Shakti Chand as a dying declaration.

16. It was submitted that the statement was recorded at 5:30 p.m. on 14.08.2021, and the death had taken place on 14.08.2021 before 6:53 p.m. because the police were informed by BBMB Talwara on 14.08.2021 at 6:53 p.m. as per the post-mortem report. Therefore, the injured had succumbed to his injuries within one hour of examination, and there is no evidence of the mental capacity of the deceased. This submission cannot be accepted. Dr Talvinder Singh (PW-11) examined the injured on 14.08.2021, at 2:00 p.m. and found that the patient was conscious, cooperative and well-oriented to time, place and person. No question was asked from him in the cross-examination that the injured was not fit to make the statement. It was held by the Hon’ble Supreme Court in Sk. Nagoor v. State of A.P., (2008) 15 SCC 471, where no suggestion was given to the person writing the dying 17 declaration or the doctor that the deceased was not fit to make a dying declaration, the dying declaration cannot be doubted; therefore, the submission that the injured was not fit to make the statement cannot be accepted.

17. It was submitted that the deceased was not under any apprehension of death when he had made the statement, and the dying declaration is admissible. This submission is not acceptable. In Pakala Narayana Swami v. King-Emperor (1938-39) 66 IA 66 = 1939 SCC OnLine PC 1, the deceased made a statement that he was going to Behrampur as the wife of the accused had written a letter to him asking him to receive payment. It was contended that the statement is not admissible as the deceased was not under any apprehension of death when he had made the statement. Repelling this contention, the judicial committee of the Privy Council observed: - “A variety of questions have been mooted in the Indian Courts as to the effect of this section. It has been suggested that the statement must be made after the transaction has taken place, that the person making it must be at any rate near death, and that the “circumstances” can only include the acts done when and where the death was caused. Their Lordships are of the opinion that the natural meaning of the words used does not convey any of these limitations. The statement may be made 18 before the cause of death has arisen, or before the deceased has any reason to anticipate being killed. The circumstances must be circumstances of the transaction; general expressions indicating fear or suspicion, whether of a particular individual or otherwise and not directly related to the occasion of the death, will not be admissible. But statements made by the deceased that he was proceeding to the spot where he was in fact killed, or as to his reasons for so proceeding, or that he was going to meet a particular person, or that he had been invited by such person to meet him would each of them be circumstances of the transaction and would be so whether the person was unknown, or was not the person accused. Such a statement might indeed be exculpatory of the person accused. “Circumstances of the transaction” is a phrase that no doubt conveys some limitations. It is not as broad as the analogous use in “circumstantial evidence”, which includes evidence of all relevant facts. It is, on the other hand, narrower than “res gestæ.” Circumstances must have some proximate relation to the actual occurrence, though, for instance, in a case of prolonged poisoning, they may be related to dates at a considerable distance from the date of the actual fatal dose. It will be observed that “the circumstances” are of the transaction which resulted in the death of the declarant. It is not necessary that there should be a known transaction other than that the death of the declarant has ultimately been caused, for the condition of the admissibility of the evidence is that “the cause of [the declarant's] death comes into question.” In the present case, the cause of the deceased's death comes into question. The transaction is one in which the deceased was murdered on 21st March or 22nd March, and his body was found in a trunk proved to have been bought on behalf of the accused. The statement made by the deceased on 20th or 21st March that 19 he was setting out to the place where the accused lived and to meet a person, the wife of the accused, who lived in the accused's house, appears clearly to be a statement as to some of the circumstances of the transaction which resulted in his death. The statement was rightly admitted.”

18. This position was reiterated in Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116, wherein it was observed: “18. Before closing this chapter, we might state that the Indian law on the question of the nature and scope of dying declaration has made a distinct departure from the English law, where only the statements which directly relate to the cause of death are admissible. The second part of clause (1) of Section 32, viz., “the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question”, is not to be found in the English Law. This distinction has been clearly pointed out in the case of Rajindra Kumar v. State [AIR 1960 Punj 310: 1960 Cri LJ 851], where the following observations were made: “clause (1) of Section 32 of the Indian Evidence Act provides that statements, written or verbal, of relevant facts made by a person who is dead,... are themselves relevant facts when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question... It is well settled by now that there is a difference between the Indian Rule and the English Rule with regard to the necessity of the declaration having been made under the expectation of death. 20 In English Law, the declaration should have been made under the sense of impending death, whereas under Indian Law it is not necessary for the admissibility of a dying declaration that the deceased at the time of making it should have been under the expectation of death.”

19. And in the case of State v. Kanchan Singh [AIR 1954 All 153: 1953 All LJ 615: 1954 Cri LJ 264] it was observed thus: “The law in India does not make the admissibility of a dying declaration dependent upon the person's having a consciousness of the approach of death. Even if the person did not apprehend that he would die, a statement made by him about the circumstances of his death would be admissible under Section 32, Evidence Act.”

20. In these circumstances, therefore, it is futile to refer to English cases on the subject.

21. Thus, from a review of the authorities mentioned above and the clear language of Section 32(1) of following propositions emerge: the Evidence Act, (1) Section 32 is an exception to the rule of hearsay and makes admissible the statement of a person who dies, whether the death is a homicide or a suicide, provided the statement relates to the cause of death or exhibits circumstances leading to the death. In this respect, as indicated above, the Indian Evidence Act, in view of the peculiar conditions of our society and the diverse nature and character of our people, has thought it necessary to widen the sphere of Section 32 to avoid injustice. (2) The test of proximity cannot be too literally construed and practically reduced to a cut-and-dried formula of universal application so as to be confined in a straitjacket. The distance of time would depend on or vary with 21 the circumstances of each case. For instance, where death is a logical culmination of a continuous drama long in process and is, as it were, a finale of the story, the statement regarding each step directly connected with the end of the drama would be admissible because the entire statement would have to be read as an organic whole and not torn from the context. Sometimes statements relevant to or furnishing an immediate motive may also be admissible as being a part of the transaction of death. It is manifest that all these statements come to light only after the death of the deceased, who speaks from death. For instance, where the death takes place within a very short time of the marriage or the distance of time is not spread over more than 3-4 months, the statement may be admissible under Section 32. (3) The second part of clause (1) of Section 32 is yet another exception to the rule that in criminal law the evidence of a person who was not being subjected to or given an opportunity of being cross-examined by the accused, would be valueless because the place of cross- examination is taken by the solemnity and sanctity of oath for the simple reason that a person on the verge of death is not likely to make a false statement unless there is strong evidence to show that the statement was secured either by prompting or tutoring. (4) It may be important to note that Section 32 does not speak of homicide alone but includes also, circumstances which may be relevant to prove a case of homicide would be equally relevant to prove a case of suicide. suicide (5) Where the main evidence consists of statements and letters written by the deceased which are directly connected with or related to her death and which reveal a tell-tale story, the 22 said statement would clearly fall within the four corners of Section 32 and, therefore, be admissible. The distance of time alone in such cases would not make the statement irrelevant.

19. Therefore, it is not essential that the deceased should have been under the apprehension of death at the time of making the statement, and it is sufficient that the statement pertained to the circumstances related to the death.

20. In the present case, the informant had described in the statement (Ext.P-2/PW-10) that the accused had abused, pushed and hurt him with a brick. The cause of death, according to the post-mortem examination, was ante mortem injuries, and as per Dr Savita (PW-13), the injury could have been caused by means of a brick shown to her. Therefore, statement (Ext.P-2/PW-10) relates to the circumstances related to the death and is admissible even if the deceased was not under apprehension of death.

21. The law relating to dying declaration was considered by the Hon’ble Supreme Court in Ifran vs State of UP 2023 SCC OnLine SC1016, and it was observed: 23 “48. The justification for the sanctity/presumption attached to a dying declaration is two-fold: (i) ethically and religiously, it is presumed that a person, while at the brink of death, will not lie, whereas (ii) from a public policy perspective, it is to tackle a situation where the only witness to the crime is not available.

49. One of the earliest judicial pronouncements where the rule as above can be traced is the King's Bench decision of the King v. William Woodcock, (1789) 1 Leach 500: 168 ER 352, where a dying woman blamed her husband for her mortal injuries, wherein Judge Eyre held this declaration to be admissible by observing:— “…the general principle on which this species of evidence is admitted is that they are declarations 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 silent, and the mind is induced by the most powerful consideration to speak the truth; a situation so solemn, and so awful, is considered by the law as creating obligation equal to that which is imposed by a positive oath administered in a Court of Justice. (b) But a difficulty also arises with respect to these declarations, for it has not appeared, and it seems impossible to find out whether herself apprehended that she was in such a state of morality as would inevitably oblige her soon to answer before her Maker for the truth or falsehood of her assertions. …. Declarations so made are certainly entitled to credit; they ought, therefore, to be received in evidence, but the degree of credit to which they are entitled must always be a matter for the sober consideration of the Jury, under all the circumstances of the case.” (Emphasis supplied) deceased 24

50. Interestingly, the last observation of Judge Eyre showcases, even at the inception of this principle, that the Courts were wary of the inherent weakness of dying declarations and cautioned that great care be adopted.

51. It is significant to note the observations made by Taylor that “Though these declarations, when deliberately made under a solemn sense of impending death, and concerning circumstances wherein the deceased is not likely to be mistaken, are entitled to great weight, if precisely identified, it should always be recollected that the accused has not the power of cross-examination, a power quite as essential to the eliciting of the truth as the obligation of an oath can be, and that, where a witness has not a deep sense of accountability to his Maker, feelings of anger or revenge, or, in the case of mutual conflict, the natural desire of screening his own misconduct, may affect the accuracy of his statements and give a false colouring to the whole transaction. …“. [See: Taylor on “Treatise on the Law of Evidence”, 1931, 12th Edition Pg. 462]

52. It is observed in Corpus Juris Secundum Vol XL, Page 1283 that: contradictory “In weighing dying declarations, the jury may consider the circumstances under which they were made, as whether they were due to outside influence or were made in a spirit of revenge, or when declarant was unable or unwilling to state the facts, the inconsistent declarations, and the fact that deceased has not appeared and accused has been deprived of the opportunity to cross-examine him and may give to them the credit and weight to circumstances, they are fairly and reasonably entitled.” character believe, 25

53. In India, in the relevant provision of Section 32 of the Act, 1872, the first exception to the rule against admissibility of hearsay evidence is as under: “32(1). When it relates to the cause of death.— When the statement is made by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under the expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.” intrinsic

54. Jon R. Waltz, American Jurist, observed that “It has been thought, rightly or wrongly, that Dying assurances Declarations have trustworthiness, making cross-examination unnecessary. The notion is that a person who is in the process of dying and knows it will be truthful immediately before departing to meet his Maker. (Of course, the validity of these hearsay exceptions is open to some debate. What about the person who is not deeply religious? What of the person who, as his last act, seeks revenge by falsely naming a lifelong enemy as his killer? How reliable is the perception and memory of a person who is dying? [See Waltz, J.R. (1975) Criminal Evidence, Chicago: Nelson-Hall. pp.75-76]

55. The Privy Council in Neville Nembhard v. The Queen, [1982] 1 All ER 183, on Section 32(1) of the Act, 1872, opined that the evidence of dying declaration under the Indian law lacks the special quality as in Common Law and hence, the weight to be attached to a dying declaration admitted under Section 32 of the Act, 1872 would necessarily be less than that attached to a dying declaration admitted under the common law rules. 26

56. The below-cited observations from the decision of Nembhard (supra) are of significant importance: should observation be made “final concerning the cases already mentioned that have been decided in the Court of Appeal for Eastern Africa. It appears that a rule of practice has been developed that when a dying declaration has been the only evidence implicating an accused person a conviction usually cannot be allowed to stand where there had been a failure to give a warning on the necessity for corroboration: see for example Pius Jasunga s/o Akumu v. The Queen (1954) 21 E.A.C.A. 331 and Terikabi v. Uganda [1975] E.A. 60. But it is important to notice admissibility of a dying declaration does not depend upon the common law test: upon the deceased having at the time a settled hopeless expectation of impending death. Instead, there is a very different statutory provision contained in section 32 (1) of the Indian Evidence Act 1872. That section provides that statements of relevant facts made by a person who is dead are themselves relevant facts: the countries concerned, “When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, the expectation of death, and whatever may be proceeding in which the cause of his death comes into question.” (emphasis added). the nature of In Pius Jasunga s/o Akumu v. The Queen, it was pointed out (for the reason associated with 27 the italicised words in the subsection) that the weight to be attached to a dying declaration admitted by reference to section 32 of the Indian Evidence Act, 1872, would necessarily be less than that attached to a dying declaration admitted under first kind of law rules. The common statement would lack that special quality that is thought to surround a declaration made by a dying man who was conscious of his condition and who had given up all hope of survival. Accordingly, it may not seem surprising that the courts dealing with such statements have felt the need to exercise even more caution in the use to be made of them than is the case where the common law test is applied.”

57. This Court in Muthu Kutty v. State by Inspector of Police, T.N., (2005) 9 SCC 113, while discussing the decision in Woodcock (supra) referred to above, had cautioned the courts to ensure that a dying declaration is reliable before relying on it, with the following observations: - “13. … The general principle on which this species of evidence is admitted is that they are declarations 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 mind is induced by the most powerful considerations to speak the truth; a situation so solemn and so lawful is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a court of justice. These aspects have been eloquently stated by Eyre, L.C.B. in R. v. Woodcock (1789) 1 Leah 500: 168 ER 352). Shakespeare makes the wounded Melun, finding himself disbelieved while announcing the intended treachery of the Dauphin Lewis, explain: 28 “Have I met hideous death within my view, Retaining but a quantity of life, Which bleeds away even as a form of wax, Resolveth from his figure ‘gainst the fire? What the world should make me now deceive, Since I must lose the use of all deceit? Why should I then be false since it is true That I must die here and live hence by truth?” (See King John, Act V, Scene IV) The principle on which a dying declaration is admitted in evidence is indicated in the legal maxim “nemo moriturus praesumitur mentire — a man will not meet his Maker with a lie in his mouth”.

14. … The situation in which a person is on the deathbed is so solemn and serene when he is dying that the grave position in which he is placed is the reason in law to accept the veracity of his statement. It is for this reason that the requirements of oath and cross- examination are dispensed with. Besides, should the dying declaration be excluded, it will result in a miscarriage of justice because the victim is generally the only eyewitness in a serious crime, and the exclusion of the statement would leave the court without a scrap of evidence.

15. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth, as an obligation of oath could be. This is the reason the court also insists that the dying declaration should be of such a nature as to 29 inspire the full confidence of the court in its correctness. The court has to be on guard that the statement of the deceased was not a result of either tutoring or 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 assailant. Once the court is satisfied that the declaration was 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. …” (Emphasis supplied)