NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1660 OF 2010

HARI SINGH & ANOTHER                        APPELLANT(S)

                           VERSUS

THE STATE OF MADHYA PRADESH                 RESPONDENT(S)

J U D G M E N T

DEEPAK GUPTA, J.

An FIR (Ext.P17) was allegedly lodged by the victim

Shyam with the Police Station Ujjain to the effect that

he  was  working  in  the  Malaria  Department  and  on

17.10.1997 he was standing near his shanty behind Ashok

Talkies. He was attacked by Rupa, Hari 'the Tempowala'

and the son of Nathu. These three people surrounded him

and started beating him. They alleged that he had taken

some money from them which he did not return, which he

denied. Then Hari 'the Tempowala' and the son of Nathu

took out knives and both of them attacked him with knives

on the left side near the spine on the back and below the

ribs. The son of Nathu gave knife blows on the waist and

two  other  places.  In  the  meantime,  Ramchander  Dholi

(PW.12) reached the spot. According to the informant, the

occurrence was witnessed by his son and daughter, Kallu

and Kallo.  

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On the basis of this oral complaint, initially a

case was registered under Sections 341, 294, 323, 506,

307 read with 34 IPC but in the original FIR it appears

that there is overwriting in respect of Section 307. The

informant was taken to hospital where he was admitted.

The bed head ticket (Ext.D1) shows that the informant was

admitted in hospital on 18.10.1997 at about 12.30 a.m.

The bed head ticket also shows that at about 1 am the

condition of the Shyam was not good and he had presumably

ingested some alcohol; he had multiple stabs on his back;

his general condition was poor; his pulse was 60 beats

per minute and his blood pressure was not recordable. His

condition  kept  deteriorating  and  at  3.30  a.m.  it  is

recorded that his general condition was poor and blood be

arranged for transfusion and he died soon thereafter.  

After his death, the FIR was converted to one of

murder and Section 302 IPC was added. During the course

of investigation, the weapons of offence were allegedly

recovered from the accused and thereafter report under

Section 173 Cr.P.C. was filed and the accused were put to

trial. The accused pleaded not guilty and claimed trial.

During the course of trial, all the material witnesses

turned hostile. The son was not examined and from the

record it is not forthcoming what is the reason for not

examining him. The daughter who was examined was only a

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child  witness,  aged  about  10  years,  and  she  did  not

support  the  prosecution  at  all.  She  has  been  cross-

examined with her statement, recorded under Section 161

Cr.P.C. by the police, but in our view a 10 years old

child  cannot  understand  what  is  the  effect  of  such

contradiction and will never be able to explain them.  

That leads us with the statement of the injured

eye-witness Ramchander (PW-12). As far as the incident is

concerned, he does not deny the incident. He does state

that occurrence took place. He also states that in this

occurrence he was attacked with a sword and that sword

caused injuries to him running from the cheeks to eye.

However,  his  statement  is  that  immediately  after  the

occurrence  he  and  Shyam  were  taken  to  the  hospital.

Further, according to this witness, it was dark and he

could not identify who had attacked him. He denied having

given the names of the accused in the statement under

Section 161 Cr.P.C.  

The accused have been convicted by the Trial Court

which  conviction  has  been  upheld  by  the  High  Court

basically  on  two  dying  declarations.  The  first  dying

declaration being in the nature of the FIR and the second

dying  declaration  being  the  statement  of  the  deceased

Shyam  recorded  under  Section  161  Cr.P.C.  by  the

Investigating Officer (PW-14).  

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We  shall  deal  with  the  second  dying  declaration

first and see what reliance can be placed in that. This

so  called  dying  declaration  is  Ext.P20  and  it  is  a

statement recorded by PW-14 under Section 161 Cr.P.C. It

is stated to have been recorded on 18.10.1997 but the

time of recording the same is not mentioned anywhere in

the statement. This statement gives details of how the

deceased allegedly told the investigating officer that he

was attacked by the three accused and injured by them.

The issue is what reliance can be placed in this regard.

As pointed out above the bed head ticket (Ext.D1) showed

that at 1 am the condition of Shyam was very poor and his

blood pressure was not recordable. Unfortunately, in the

bed head ticket it is not mentioned whether the patient

was conscious or unconscious.  

We shall now deal with the statement of PW-14. The

relevant portion of the statement of PW14 is that he met

the injured Shyam, for the first time in the hospital on

18.10.1997 between 1.15 to 1.25 am. He also states that

the condition of Shyam was serious. He then asked the

doctor about the condition of the deceased for recording

his statement.  The Doctor said that Shyam is not in a

position to make a statement. He then stated that this

happened  at  about  2.30  a.m.  He  then  says  that  he

submitted  an  application  in  writing  to  the  doctor

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presumably about the condition of the deceased. However,

such  application  has  not  been  placed  on  record.

Therefore, it is not clear at what time this application

was sent to the doctor, whether immediately after 1.15

a.m. or after 2.30 a.m. This witness also states that he

deputed  Sub-Inspector  Sharma  to  record  the  dying

declaration of the deceased. After having said this, he

says that he himself felt at about 1.15 a.m. that the

deceased  was  in  a  position  to  make  a  statement  and

therefore  recorded  his  statement  under  Section  161

Cr.P.C.

The  statement  of  this  witness  does  not  inspire

confidence as far as the recording of statement under

Section 161 Cr.P.C, which is now sought to be treated as

dying declaration. He first states that when he reached

the hospital the condition of injured was serious and

when he asked the doctor, the doctor replied that injured

was not in a position to make a statement. In the later

half  of  his  statement,  he  says  that  he  recorded  the

statement at 1.15 a.m. This means that he recorded the

statement of Shyam immediately on reaching the hospital.

If  that  be  true  then  he  has  recorded  the  statement

without even asking the doctor whether the injured was in

a fit position to make a statement.  

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No doubt, in a statement recorded under Section 161

Cr.P.C. signatures of the witness are not to be affixed.

In fact, that would make such a statement inadmissible

under Section 161 Cr.P.C. However, in a case like the

present  one  where  the  condition  of  the  injured  was

serious  and  his  blood  pressure  was  not  recordable,

without  getting  the  opinion  of  the  doctor  that  the

patient was in a fit condition for making statement his

statement should not have been recorded. The manner in

which the statement has been recorded casts a grave doubt

with regard to the admissibility and evidentiary value of

the statement. We make it clear that we are not in any

way indicating that such a statement cannot be read as a

dying declaration.  However, we are of the opinion that

this so-called dying declaration does not meet the test

of a verifiable dying declaration on which reliance can

be placed to convict the accused.

The first dying declaration is the so-called FIR

which has also been proved by scribe of the FIR (Ext.P17)

who states that he recorded the statement verbatim, as

told  to  him  by  the  injured  Shyam.  There  are  some

signatures in the portion marked 'B' to 'B' of Annexure

P-17. In cross-examination a suggestion was put to this

witness that these are not signatures of the deceased.

He, obviously, has denied the suggestion. The fact of the

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matter is that the deceased was a Government employee.

His  signatures  would  have  been  available  in  the

Government  records.  The  prosecution  made  no  effort  to

compare the signatures on the FIR, with the signatures in

the official records to prove that both are by the same

person.  This  is  total  lapse  on  the  part  of  the

prosecution.  

The manner in which the FIR has been lodged casts a

doubt with regard to the veracity thereof. As per the

FIR,  the  incident  took  place  at  about  10  p.m.  on

17.10.1997.  The FIR was recorded at about 11.35 p.m.

From the facts proved on record by PW-13 as well as the

investigating officer, the distance of the police station

from the place of occurrence is one kilometer and it will

not take more than 10-15 minutes to reach the police

station. There is no explanation why the FIR was not

recorded immediately thereafter at 10.30 p.m. or 10.45

p.m. and why it took more than an hour for the injured to

reach the police station. We make it clear that we are

not indicating that the delay is fatal to this case, but

in the peculiar facts of the case delay becomes important

because here the informant is an injured who had received

four  pierced  wounds  and  one  lacerated  wound.  Natural

course of events would have been to take such seriously

injured person straight to the hospital or to get medical

attention from the nearest dispensary or hospital. Even

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if he had to go to the police station first, it should

not have taken so much time.

Another  aspect  of  the  matter  is  that  the

descriptions given of the accused are (1) Rupa, (2) Hari

'the Tempowala' and (3) son of Nathu. We are constrained

to observe that both the Trial Court as well as the High

Court have gravely in holding that the burden was on the

defence to prove that there were no other persons of this

name in the locality. This is totally contrary to the

settled principle of criminal jurisprudence. It is for

the prosecution to prove who is Rupa; who is Hari 'the

Tempowala' and who is son of Nathu. No evidence has been

led  in  this  regard  except  the  second  so-called  dying

declaration in which details of all these three persons

are given. It is indeed surprising that when the injured

was not in so serious a condition and he could go to the

hospital he did not give the details of the persons but

when he was in a condition which was described to be poor

and when his blood pressure was not recordable he gives

details and the names of the persons. This casts doubt on

the fairness of the investigation also.

In this view of the matter, we are clearly of the

view that there is a reasonable doubt as to the identity

of  the  persons  and  the  accused  have  not  been  linked

clearly with the offence and the benefit of doubt has to

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be  given  to  them.  We  may  also  note  that  the  other

witness, who turned hostile, is an injured witness. Why

should  a  person  who  is  injured  by  the  same  set  of

assailants turn hostile unless some evidence was led to

show that he has been pressurized.  The mere suggestion

that he was pressurized is not sufficient to come to this

conclusion. As far as the non-examination of the son is

concerned,  we  are  not  saying  anything  in  this  regard

because from the record we cannot make out what was the

age of the son.  The appellants are on bail. Their bail

bonds stand discharged.

In  view  of  the  above  discussion,  we  allow  the

appeal, set aside the judgments of the High Court and the

Trial Court and acquit the accused.  

...................J.  (DEEPAK GUPTA)

...................J.  (ANIRUDDHA BOSE)

New Delhi September 05, 2019

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ITEM NO.117               COURT NO.13               SECTION II-A

              S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS

Criminal Appeal No(s).1660/2010

HARI SINGH & ANR.                                  Appellant(s)

                               VERSUS

THE STATE OF MADHYA PRADESH                        Respondent(s)

Date : 05-09-2019 This appeal was called on for hearing today.

CORAM :           HON'BLE MR. JUSTICE DEEPAK GUPTA          HON'BLE MR. JUSTICE ANIRUDDHA BOSE

For Appellant(s) Mr. Chanchal Kumar Ganguli, AOR

                   For Respondent(s)

Mr. Harsh Parashar, AOR Ms. Tanvi Bhatnagar, Adv.

Mrs. Swarupama Chaturvedi, AOR                                UPON hearing the counsel the Court made the following                              O R D E R

The appeal is allowed in terms of the signed non-reportable

judgment.

Pending application(s), if any, stands disposed of.

(ARJUN BISHT)                                   (RENU KAPOOR) COURT MASTER (SH)                            BRANCH OFFICER

(signed non-reportable judgment is placed on the file)

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