Holding

The dying declaration was deemed credible and inspiring confidence, warranting the restoration of the conviction.

Summary

The deceased Gokul Singh was brutally assaulted and later died; a dying declaration identifying several assailants was recorded by Dr. A.S. Khan after the victim regained consciousness following glucose and saline administration. The trial court convicted three accused under IPC sections 302 and 34 based on this declaration and corroborative eyewitness testimony. The High Court reversed the conviction, holding that the dying declaration did not inspire confidence because the victim allegedly could not have been in a fit mental state due to excessive hemorrhage and because his son was not mentioned in the statement. The Supreme Court held that the presence or non‑presence of the son is irrelevant to the veracity of the declaration, that the doctor had certified the victim’s fitness, and that the declaration was well corroborated by surrounding circumstances, thereby inspiring confidence. Consequently, the Supreme Court set aside the High Court order, restored the trial court’s conviction and sentence, and directed the respondents to be taken back into custody.

Issues considered

Whether the dying declaration recorded by a medical officer is creditworthy and inspires confidence despite alleged excessive hemorrhage.
Whether the non‑mention of a witness (the victim's son) in the dying declaration affects its reliability.
Whether the victim’s mental capacity at the time of recording, as per medical principles (Samson Wright's Applied Physiology), can be presumed insufficient for a valid dying declaration.
Whether a dying declaration, when corroborated by other evidence, can constitute the sole basis for conviction under IPC sections 302 and 34.

Legislation cited

Indian Penal Code, 1860s. 302, s. 34

Subjects

dying declarationcredibilitymedical evidenceexcessive hemorrhageIPC 302IPC 34forensic medicineevidence lawcriminal conviction

Judgment

HEERALAL YADA V A
v.
STATE OF M.P. AND ORS.

JULY 4, 2006

[H.K. SEMA AND A.K. MATHUR, JJ.] B

Criminal Law :

Evidence-Dying declaration-Recorded by doctor-Veracity of-High
Court setting aside conviction of accused uls 302134 !PC solely on the ground C
that dying declaration did not inspire confidence-Held, High Court did not .
discuss veracity and creditworthiness of dying declaration and testimony of
doctor recording it-As regards the effect of excessive hemorrhage, High
Court was grossly oblivious to the statement of the doctor recording dying
declaration that victim recovered consciousness after medication and was fit
for recording of his dying declaration-Dying declaration being well D
corroborated with other attending .circumstances inspires confidence-High
Court committed grave miscarriage ofjustice by reversing conviction recorded
by trial court-Judgment of High Court set aside and that of trial court
restored-Penal Code-Section 302134-Medical Jurispruden~l--Excessive
hemorrhage.
E
Complainant by the present appeal challenged the judgment of the
High Court setting aside conviction of the three accused-respondents u/s
302/34 IPC, as recorded by the trial court, on the sole ground that the
dying declaration did .not inspire confidence. The High Court rejected the
dying declaration recorded by the doctor (P.W.1) mainly on the grounds
that therein the deceased did not mention that his son (P.W.3) was present F
with him at the scene of occurrence; that according to the nature of the
injuries sustained by the deceased and the post-mortem report, due to
excessive hemorrhage, the deceased might have gone in shock within half
an hour of the incident and the doctor did not state that the deceased was
in a fit mental condition to give dying declaration and throughout G
remained conscious during recording of his statement.

Allowing the appeal, the Court

HELD : 1.1. Presence or non-presence of PW-3 at the scene of
occurrence or for that matter non-mentioning of the name of PW-3 in the
I~ H
148 SUPREME COURT REPORTS [2006) SUPP. 3 S.C.R.

A dying declaration has no connection with ascertainment of the veracity
and creditworthiness of the dying declaration. In fact the High Court did
not discuss the veracity and creditworthiness of either the dying
declaration recorded by the doctor or his testimony as PW-1, deposed
before the Court. (152-F-G]

B 1.2. The High Court was grossly oblivious to the statement of the
Doctor (P.W.1) when he said that the deceased must have gone in shock
at the place of incident but he recovered consciousness as he was given
glucose saline and medicin~:s. Ex.P-3 is the requisition dated 14.4.1993
sought by the Investigating Officer regarding the condition of the deceased
C for recording dying declaration. There is an endorsement in Ex.P-3 by
P.W.1, the Medical Officer, Primary Health Center that the deceased
would be able to give the statement of dying declaration. Answering the
questions, the deceased clearly stated the names of the accused-respondents
as his assailants, the arms with which he was assaulted and the place where
he was assaulted. The deceased also stated that he was giving the statement
D in full consciousness. He also stated that the dying declaration was not
under any pressure. PW-1 was confronted with the principle of Samson
Wright's Applied Physiology, page 152. He categorically ruled out
application of the principle. (153-C; E-F; 154-B-C]
Lax:man v. State of Maharashtra, [2002( 6 SCC 710, relied on.
E Balak Ram v. State of UP., [1975) 3 sec 219, distinguished.
Paparambaka Rosamma v. State ofA.P., [1999) 7 SCC 695, overruled.
Samson Wright's Applied Physiology, p. 152, referred to.

1.3. The dying declaration of the deceased recorded by PW-1 and
F well corroborated with other attending circumstances inspires confidence,
on the basis of which conviction could be sustained. The High Court
committed grave miscarriage of justice by reversing the conviction
recorded by the trial court. Order of the High Court is set aside. The
sentence and conviction recorded by the trial court is restored. [155-D-E)

G CRIMINAL APPELLATE JURISDICTION : Civil Appeal No. 546 of
2000.

Fro111 the Judgment and Order dated 2.7.1999 of the High Court of
Madhya Pradesh, Bench at Indore, in Cr!. Appeal No. 678 of 1995.

H Niraj Sharma for the Appellant.
HEERALAL YADAV v. STATE OF M.P. [H.K. SEMA, J.] 149

S.K. Gambhir, Anil K. Sharma and R.K. Maheshwari for the A
Respondents.

Siddhartha Dave and Vibha Datta Makhija for the State.

The Judgment of the Court was delivered by
B
H.K. SEMA, J. This appeal by special leave filed by the complainant
(PW-2) is directed against the judgment and order of the High Court dated
2.7.1999 passed in Criminal Appeal No.678 of 1995 whereby the High Court
reversed the conviction and sentence passed by the Trial Court convicting the
respondents for an offence under Section 302/34 IPC and sentenced them to
RI for life and a fine of Rs. I000/- each and in default of payment further six C
months simple imprisonment.

The prosecution case in brief was that on 14.4.1993 at about 8.30 in the
morning the deceased Gokul Singh son ofNirbhay Singh, who was a practicing
advocate and his son Meharban Singh (PW-3) aged about 12 years went to D
their well in village Narval, District Shajapur. When the deceased went to
answer the call of nature in th<: fields of Babula! Teti, all of a sudden, the
accused Gokul Singh son of Amar Singh, Bhawarlal and Babulal anned with
sword, farsi and dhariya and co-accused Lal Singh with knife, Chander Singh,
Man Singh, Kalu Singh, Dhannalal and Lal Singh anned with lathis came on
the spot and surrounded the deceased and assaulted him with their respective E
weapons. PW-3 Meharban Singh on seeing this incident ran to his house and
told his grandfather PW-6 Nirbhay Singh at flour mill and his uncle PW-2
Heeralal Yadav (appellant herein) that his father Gokul Singh was being
assaulted. On being told PW-2 Heeralal Yadav and Devsingh PW-4 went to
the spot. They saw the accused persons assaulting the deceased. PW-6 Nirbhay F
Singh also went there and saw the accused persons running from the spot
with their respective weapons. The deceased Gokul Singh was badly injured.
He was put in a tractor and was taken to P.S. Agar where PW-2 Heeralal
Yadav lodged F.l.R. at 9.05 a.m. which was recorded by A.S.I.

PW-I Dr. A.S. Khan examined the deceased Gokul Singh and found G
the following injuries:

I. Incised wound on the central part of forehead, 2" x V." x V.".
2. Incised wound on the middle side of left orbital, 3" x 'Ii" x 'Ii"
3. Incised wound on the upper part of left eye-lid, I" x y," x V.". H
150 SUPREME COURT REPORTS [2006) SUPP. 3 S.C.R.

A 4. Incised wound on middle part of right leg, 3" x Yi" x Yi".
,,,. ,
5. Incised wound, l" below injury no.4, 4" x Yi" x Yi"
6. Incised wound, l" below injury no.5, 4" x Yi" x Yi".
7. Incised wound on the upper I/3rd part of right leg, !" x Yi" x
B W'.
8. . Incised wound on the middle part of left leg, 2" x Yi" x Yi".
9. Incised wound, 2" below injury no.8, 3" x Yi" x Yi".
ID. Incised wound on the lower I/3rd part of left leg, 3" x Yi" x Yi".
c 11. Incised wound on the lower I/3rd part of left leg, 3" x I" x 'h".
12. Incised wound on the middle part of left forearm, 2" x Yi' x Yi".
13. Incised wound I'' middle from the injury no.12, 2" x Yi" x Yi".
14. Incised wound on the lower I/3rd part of right forearm, 3" x I"
D x 1h".
15. Incised wound on the metacarpal bones of all fingers and thumb
of right hand, 11" x 3" x I Yz".
16. Bruise on the middle part of left thigh, 5" x Yi".
E 17. Incised wound on right parietal bone, 2" x Yi" x Yz".
18. Bruise on left parietal bone, 5" x Yi" x Yi".

PW-12 S.R.Parihar, then requested PW-I Dr.A.S.Khan to record the dying
declaration of the deceased as the Executive Magistrate was not available.
p PW-I Dr.Khan recorded the dying declaration of the deceased at 10.30 a.m.
(Ex.P.2). As the condition of the deceased was serious he was referred to
District hospital, Ujjain, where he succumbed to his injuries.

On the basis of the FIR, 9 accused faced the trial for an offence under
Section 302/34 before the Trial Court. The Trial Court after examining the
G evidence on record particularly the evidence of eyewitnesses PW-2 Heeralal
Yadav, PW-3 Meharban Singh, PW-6 Nirbhay Singh along with the dying
declaration recorded by PW-I Dr.Khan convicted three accused respondents
namely A-I Gokul Singh son of Amar Singh, A-2 Bhawarlal son of Ram
Singh and A-9 Badulal son of Lal Singh for an offence under Section 302/
H 34 IPC and acquitted six oth1~r accused by giving them benefit of doubt. The
High Court on appeal by the accused persons reversed the conviction of the
HEERALAL YADAV v. ST ATE OF M.P. [H.K. SEMA, J.] 151

Trial Court and recorded acquittal. Hence this appeal by special leave by the A
complainant, permission for which was granted by this Court.

The High Court reversed the conviction recorded by the Trial Court on
the sole ground that the dying declaration does not inspire confidence. The
sole question, therefore, to be determined in this appeal is as to whether the
dying declaration of the deceased recorded by PW-I Dr.Khan, inspires B
confidence or not?

The principle that "no man at the point of his death is presumed to lie.
A man will not meet his maker with lie in his mouth" is based on sound
public policy. No doubt, as the dead man would not be available for cross-
examination, a duty is cast upon the Court to examine the dying declaration C
with care and caution as to whether the dying declaration is creditworthy for
acceptance. In other words whether it inspires confidence on the basis of
which alone conviction can be recorded. Similarly, it is also an accepted
principle of law that the dying declaration, keeping in view the above principles
in mind, if inspiring confidence could be the sole basis for conviction. D
The High Court rejected the dying declaration of the deceased recorded
by PW-I Dr.Khan. Reasoning of High Court in paragraph 8 of the judgment
reads:-

"First and the foremost thing is that in the dying-declaration Ex.P-2 E
of the deceased recorded by Dr. Khan (PW-I) and police statement
Ex.P-38 recorded by sub-inspector S.R. Parihar (PW-12) which became
dying declaration after his death the deceased did not mention that he
had gone with his son Meharban singh to his well and Meharban
singh was present at the time of incident. The non-mentionin.g of the
name of this witness in dying declaration and police statement which F
were recorded in detail creates great suspicion about the presence of
this witness on the spot. His conduct also appears to be abnormal. He
saw his father Gokul singh being assaulted by the accused persons
with sword, farsi and Dhariya, he went running to his grandfather
Nirbhaysingh and uncle Heeralal and told them that his father was G
being beaten. But it is surprising that he did not mention the names
of the assailants nor these witnesses asked their names. Had this
witness seen the occurrence, he would have mentioned the names of
the assailants. After giving information, he did not go to the spot as
to what had happened to his father. A normal man, in the above
H
152 SUPREME COURT REPORTS [2006) SUPP. 3 S.C.R.

A circumstances, would not stay at home, but immediately would run to
see his father. We may assume that he was panicky and in a confused
state of mind, when he came from the spot and narrated the incident
to these witnesses, but thereafter, when he stayed. at home, he must
have composed and re:gained normalcy, even then he did not mention
the names of the assailants to the house ladies."
B
The fallacy of the High Court, in our view, is that the High Court has
not at all considered the creditworthiness of the dying declaration of the
deceased recorded by PW- I Dr.Khan. On the contrary, the dying declaration
of the deceased was disbelieved on the ground that the deceased did not
C mention the presence of PW-3. The High Court also doubted the presence of
PW-3 at the place of occ:mence on the· ground that he (PW-3) saw his father
being assaulted by the accused with sword, farsi and dhariya but did not
mention the names of the assailants nor these witnesses asked their names
from him. Had he been present at the scene of occurrence he would have
mentioned the names of the assailants. The High Court was further of the
D view that he did not accompany them to the spot to see as to what happened
to his father. According to the High Court, the conduct of PW-3 was unnatural
and, therefore, the dying declaration of the deceased recorded by PW- I
Dr.Khan was disbelieved.

From the above quoted reasoning of the High Court, we are unable to
E discern the logic of the High Court's reasoning. Presence or non-presence of
PW-3 at the scene of occurrence or for that matter non-mentioning of the
name of PW-3 in the dying declaration has no connection with ascertainment
of the veracity and creditworthiness of the dying declaration. In fact, the
High Court did not discuss the veracity and creditworthiness of either the
p dying declaration recorded by PW-I or the testimony of PW- I Dr.Khan
deposed before the Court.

The other ground on the basis of which the High Court rejected the
dying declaration (Ex.P-2) as doubtful and unreliable is that PW- I Dr.Khan
did not state that the deceased was in a fit mental condition to give dying
G declaration and throughout remained conscious when his statement was
recorded. According to the High Court as is evident from PW. I Dr. Khan
that the deceased was in semi conscious condition and his blood pressure had .tt
·gone down to 90/60. The High Court has also referred to Dr. Pramod Kaushik
PW-10 who conducted autopsy on the dead body and stated that due to
H excessive hemorrhage the deceased must have gone in shock within half an
HEERALAL YADAV v. STATEOFM.P. [H.K. SEMA,J.] 153
hour after the incident. PW- I0 also stated that blood transfusion could not be A
given, as the facility was not available at Agar. Accordingly, the High Court
held that in such mental condition, the recording of dying declaration by PW-
1 could not be possible.

In our view, the High Court was grossly oblivious to the statement of
Dr. Khan when he said that the deceased must have gone in shock at the B
place of incident but he recovered consciousness as he was given glucose
saline and medicines.

The main attack on the dying declaration by the counsel for the accused
is that considering the nature of the injury suffered by the deceased there was C
excessive hemorrhage and the deceased must have gone in shock within half
an hour after the incident and since blood transfusion could not be given, the
so called dying declaration recorded by Dr.Khan (Ex.P.2) is not reliable.
According to the counsel, the High Court was justified in not relying on the
said dying declaration. We are unable to countenance such submission.
D
Ex.P-3 is the requisition dated 14.4.1993 sought by the Investigating
Officer regarding the condition of the deceased Gokul Singh son of Nirbhay
Singh for recording dying declaration. There is an endorsement in Ex.P-3 by
the Medical Officer Primary Health Center by PW-I Dr. A.S. Khan that the
deceased Gokul Singh son ofNirbhay Singh aged 35 years would be able to
give the statement of dying declaration. Jn the dying declaration (Ex.P-2) the E
deceased in an answer to the question "who has beaten you" clearly stated
that accused Gokul Singh s/o Amar Singh, Bhawar Singh s/o Ram Singh,
Babula! son of Lal Singh and there were many others whose names he did
not remember. He further stated that he was beaten with farsi, dhariya and
lathis and badly beaten up with weapons. He further stated that he was beaten F
near his well and field itself. In an answer to a question "what were you
doing", he stated, "I was answering call of nature there. All the people beat
me with dharia, sword and farsi etc. weapons." The deceased also stated that
he was giving the statement in full consciousness. He also stated that the
dying declaration was not under any pressure.
G
Dr. A.S. Khan was examined as PW-I. He has stated that on 14.4.1993
he was posted as Medical Officer at Primary Health Centre, Agar. On that
day he recorded the dying declaration (Ex.P-2). He has also admitted that he
has given the fitness certificate (Ex.P-3). In cross-examination he has stated
that after 9.30 a.m. his treatment started, glucose and antibiotic medicines
had been given, therefore, after 9.30 a.m. he had become conscious. He H
154 SUPREME COURT REPORTS [2006] SUPP. 3 S.C.R.
>

A denied a suggestion that the condition of the injured further deteriorated. He •
has stated that the dying declaration was recorded in the operation theatre in
the presence of staff and inspector (SJ) and the policemen. He further stated
that the relatives of the patient Gokul Singh were not inside the operation
theatre. PW-I was confronted with the principle of Samson Wright's Applied
B Physiology, pa!':e 152. He categorically ruled out the application of the
principle:

Mr. S.K. Gambhir, learned senior counsel for the respondents, however,
brought to our notice the statement of PW-2 Heeralal Yadav when he stated
that when Dr.Khan took the statement of my brother I was there. According
C to the counsel for the respondents, this statement contradicted with the
statement of PW-I Dr.Khan that the statement was recorded in the operation
theatre and the relatives of the deceased were outside the theatre. We do not
see any contradiction. PW-2 only stated his presence at the hospital at the
time when the dying declaration was recorded. He never stated that he was ...
inside the operation theatre when the statement of his brother was recorded.
D
One of the grounds on which the High Court disbelieved the dying
declaration was that Dr. Khan did not state that the deceased was in a fit
mental condition to give dying declaration and throughout remained conscious
when his statement was recorded. This reasoning of the High Court, in our
view, is also fallacious. In the instant case, the doctor himself recorded the
E dying declaration (Ex.P-2). He has given the fitness certificate vide Ex.P-3
as referred to above stating that the patient was fit for recording dying
declaration. Even if it is assumed that was not there, in view of the decision
of the Constitution Bench of this Court in Laxman v. State of Maharashtra,
(2002] 6 sec 710, these would be no impediment to the creditworthiness of
F the dying declaration.
Counsel for the respondents referred to the Samson Wright's Applied
Physiology, thirteenth edition and strenuously urged that ifthe same principle
is applied and considering the nature of injuries sustained by the deceased
and due: to excessive hemorrhage the patient must have gone in shock within
G half an hour after the incident and since no blood transfusion could be given
the patient was not conscious and was not in a position to give the statement.
As already noted PW-I was confronted with this principle in cross-examination
and he completely ruled out the application of the principle in the present
case.

H Counsel also referred to the decision of this Court in Balak Ram v.
HEERALAL Y ADAV v. STA TE OF M.P. [H.K. SEMA,J.] 155

State of U.P., [ 1975] 3 sec 219. In that case this Court did not rely upon A
the dying declaration because the condition of the patient was critical when
he reached the hospital. Before the dying declaration was recorded an attempt
was made to give him saline but even after making incisions on the hands
and a leg, the attempt did not succeed. In the present case saline and glucose
was administered and the deceased regained consciousness.
B
Counsel also referred to the case of Paparambaka Rosamma v. State of
A.P., [1999] 7 SCC 695. This decision has been expressly over-ruled by a
Constitution Bench in the case of Lai:man v. State of Maharashtra, [2002] 6
sec 110.
In the view we have taken, we are clearly of the opinion, that the dying
c
declaration of the deceased recorded by PW-I Dr.A.S.Khan and well
corroborated with other attending circumstances inspires confidence, on the
basis of which conviction could be sustained. The High Court committed
grave miscarriage of justice by reversing the conviction recorded by the Trial
Court. The impugned order of the High Court is set aside. The sentence and D
conviction recorded by the Trial Court is restored. The appeal is allowed.
Respondents are directed to be taken back into custody forthwith to serve out
the remaining period of sentence. Compliance report within one month.

R.P. Appeal allowed.
E

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