STATE OF HARYANAversusMANGE RAM AND ORS.

-.
 •
                                STATE OF HARYANA ·                                    A
                                           v.
                               MANGE RAM AND ORS.

                                  DECEMBER 11, 2002

                [Y.K. SABHARWAL AND K.G. BALAKRISHNAN, JJ.)                           B


             Penal Code, 1860-Sectiotis 302 read with 34 and 325, 326 read with
       34-Accused causing grievous injuries to a person who later succumbed to
       his injuries-Trial Court acquitting them for murder, however convicting for C
 .,'   voluntarily causing grievous hurt-High Court discarding the testimony of
 )     doctors, eye witness and the dying declarations, acquitting the accused-

 '     Appeal-Held· View ofHigh Court is not reasonable and reasons for discarding
       the testimony of eye witness and dying declaration are wholly untenable--
       Hence Trial Court rightly convicted accusedfor the offence ofcausing grievous
       hurt.                                                                         D
            Evidence Act, 1872:

            Dying declaration-Admissibility of-Held· It is not necessary that the
       maker of the statement, at the time of making statement, should be under the
       shadow of death and should entertain the beliefthat his death was imminent.    E
            Natural witness-Evidentiary value-Discussed

             According to the prosecution, on account of previous enmity
       respondents inflicted grievous injuries to a person by weapons and ran
       away. PW-5 and one S witnessed the incident. Injured victim was taken          F
       to the hospital, where Head Constable recorded his statement and on that
       basis FIR was recorded. Injured victim thereafter succumbed to his
       injuries. Respondents were charged under section 302 read with section
       34 IPC. Sessions Judge acquitted them under section 302 read with section
       34, however, convicted and punished them for offence under section 325/        G
       34 and section 326134 IPC. In cross appeals High Court allowed the appeal
       of respondents and acquitted them. Hence the present appeal.

            Appellants contended that respondents deserved to be convicted for
       offence under section 302134 IPC.

                                           35                                         H
    36                       SUPREME COURT REPORTS [2002] SUPP. 5 S.C.R.

A        Allowing the appeal, the Court                                              ·-
         HELD: I.I. Having gone through the testimony of the doctors, PWS
    and PW9 and the dying declaration, the view of High Court is not a
    reasonable view and the reasons for discarding the testimony of eye witness
    PWS a.nd the dying declaration are wholly untenable. (40-DI
B
          1.2. High Court committed basic infirmity in assuming that for a
    dying declaration to. be admissible in evidence, it is necessary that the
    maker of the statement, at the time of making statement, should be under
    the shadow of death and should entertain the belief that his death was           1
                                                                                      \
C   imminent. Section 32 of the Indian Evidence Act does not say this and this
    is not the law in India. High Court further committed infirmity in              "!·
                                                                                     '
    assuming that there was any delay in recording the statement. High Court
    rightly recorded that the deceased was not under shadow of death when
    statement was recorded. Evidently, there was not a great emergency to
    record the statement. Be that as it may, it was fully established that there
D   was no delay at all. Therefore it is not reasonable to conclude that there
    was any delay in recording of the statement and drawing inference
    therefrom that the intervening time was utilized for deliberation and false
    implication on account of previous enmity. (40-F, G, H; 40-A, D, El

          1.3. Undisputedly, the injured was fully conscious. He watched the
E   accused giving injuries on his person. It would be too much to imagine
    that despite seeing these injuries inflicted on him, he would, while making
    the statement, implicate respondents on account of previous enmity leaving
    the real person who had inflicted injuries altogether free. The injured in
    his statement gave a detailed account of the injuries as also the manner
F   in which PWS witnessed the occurrence and tried to intervene in the
    matter and rescue and save him. There was no plausible reason to discard
    the statement of the victim and testimony of PW9. The statement of the
    victim inspires confidence and was rightly relied upon by Sessions Court.
    Also the prosecution had given up S as he had business dealing with the
    accused and had been won over. (41-E, F; GJ
G
          1.4. High Court lost sight of the fact that PWS was a resident of the
    same village as the accqsed and the deceased. The fact that PW8 in his
    police statement failed to mention about the presence of PWS at the place
    of occurrence was an irrelevant circumstance for disbelieving PWS. PWS
    gave details of all the injuries inflicted by the accused. Nothing worthwhile
H   could be extracted in his cross-examination. He was a natural witness. He
       STATEOFHARYANA v. MANGERAM[Y.K. SABHARWAL,J.)                     37

tried to intervene and save the deceased. He went to the house of the          A
deceased to inform his family members about the incident PWS was an
independent witness. Despite the fact that he did not go to the hospital
but independently the injured in his statement stated about the presence
of PWS at the time of occurrence and his efforts to save the deceased.
Therefore, PWS is a natural, truthful and credible witness and his
testimony was rightly relied upon by Sessions Judge in convicting the          B
respondents. (42-A, B; CJ

      1.5. Sessions Judge concluded that the possibility of the injured
having died because of blood reaction cannot be ruled out though doctor
conducting post mortem had deposed the cause of death as rupture of liver      C
on account of injuries. The view taken by Se~sions Judge is a plausible
view and, therefore, respondents were rightly convicted for offence under
sections 325 and 326 read with section 34 IPC by Sessions Judge.
                                                         [42-G, H; 43-AI

      1.6. Having regard to the facts of the case, the ends of justice would   D
be met if each of the respondents is sentenced to rigorous imprisonment
for a period of four years instead of seven years and five years as directed
by Sessions Court. (43-B; q

     CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
538 of 1994.                                                                   E
     From the Judgment and Order dated 10.7.1986 of the Punjab and
Haryana Court in Crl. A. No. 530 of 1985.

     Praveen Kumar Rai and Ranbir Yadav, for the Appellant.
                                                                               F
     Rajiv Dutta, Brijender Chahar, Ms. Jyoti Chahar, Vinay Garg, for the
Respondents.

     The Judgment of the Court was delivered by

        Y.K. SABHARWAL, J. The father, his two sons and a brother-in-          G
law, respondents herein, were charged for causing grievous injuries to the
deceased on 7th June, 1984 at 8.00 p.m. The deceased succumbed to the
injuries at a hospital at Rohtak on 10th June, 1984 at 6.30 a.m.

     All the four accused were charged for offence pu:iishable under Section   H
    38                        SUPREME COURT REPORTS (2002) SUPP. 5 S.C.R.

A 302 read with Section 34 of the Indian Penal Code (!PC). The Sessions
    Judge, Rohtak, acquitted all the four accused for the offence under Section
    302/34 IPC. They were, however, found guilty of having committed offences
    punishable under Sections 325/34 and 326/34 IPC. All were sentenced to
    seven years' rigorous imprisonment for offence under Section 326/34 IPC
B   and five years for offence under Section 325/34 !PC.

          The aforesaid conviction and sentence was challenged by the prosecution
    as well as the respondents by filing appeals in the High Court the State
    contending that the respondents were liable to be convicted for offence under
    Section 302/34 IPC and the respondents contending that they were wrongly
C   convicted for the offences as aforesaid and deserved to be acquitted. The
    High Court, by the impugned judgment, allowing the appeal of the respondents,
    acquitted them altogether and resultantly the State appeal was dismissed.

          The State has filed this appeal on grant of leave.

D          According to the prosecution, on the date of occurrence, Mange Ram,
    who at that time was about 58 years of age attacked the deceased by giving
    a lathi blow on his left calf, his son Krishan gave a pharsa blow on his right
    foot and the other son Joginder Singh hit him with ballam on the right calf
    and Kaptan Singh, brother-in-law of Mange Ram, gave him a lathi blow on
    the left wrist. Joginder also gave ballam blow on left elbow of the deceased
E   felling him on the ground whereafter all the four accused inflicted more
    injuries on the deceased while he was lying on the ground. After inflicting
    these injuries, they ran away from the place of occurrence which was witnessed
    by PW5 Bhim Singh and one Sant Ram, in front of whose house the deceased
    was smoking hukka. Information regarding the occurrence was given by
F   PW5 to the Sube Singh (PW8), father of the deceased. PW8 came to the spot.
    The deceased was removed to Civil Hospital, Bahadurgarh and was medically
    examined by PW4 Dr. D.S. Rana who discovered the following injuries on
    his person :

            I.    A swelling covering whole upper two-third left leg, crepitus
G                 present. Movements were restricted and tenderness was present.
                  Advised X-ray of the left leg, upper two-third A.P. and lateral
                  view.
           2.      A stab incised wound 1.5 cm x I cm x muscles cut on anterior
                 . aspect of right leg, 7 ems below right knee joint, blood clots
H                  were removed from the wound. Bleeding was present with a
      STATE OF HARYANA v. MANGE RAM [Y.K. SABHARWAL, J.)                   39
            swelling around the wound. X-ray was also advised.                   A
      3.    Incised wound 7 cm x 3 ems x muscle deep. Bleeding was present
            on the lateral aspect of the right ankle and foi:it. Wound was
            curved in shape.

      4.    Contusion 12 ems x 2.5 ems reddish in colour, on lower lateral
            aspect right side of chest.                                          B
      5.    A lacerated wound 1.2 cm x 0.5 cm x skin deep on lateral aspect
            of right arm, 6 ems above right elbow joint. Bleeding was present.
            Advised X-ray of right arm, lower one-third A.P. and lateral
            view.

      6.    An abrasion 1.5 cm x I cm on posterior lateral aspect right thigh,
                                                                                 c
            3 ems above mid point.

       7.   A lacerated wound 3 cm x 0.75 cm on lateral side of left elbow
            joint. Bleeding was present. Advised X-ray.

       8.   A swelling 5 ems x 3 ems on medial and lower aspect of left          D
            forearm. Advised X-ray.

       9.   A contusion 10 cm x 2.5 cm reddish, on posterior aspect ofright
            side of the chest scapular region.
       10. A contusion 8 cm x 1.5 cm reddish in colour, on posterior aspect
           of right side of che.<>t at right angle to injury No. 9.
                                                                                 E

       Injuries 1, 2 and 8 were declared grievous. After the medical
examination, the deceased, on the advise of the doctor, was removed from
Civil Hospital, Bahadurgarh to Medical College and Hospital, Rohtak. As
already noticed, the deceased succumbed to injuries on 10th June, 1984. The      F
autopsy of the dead body was performed by PW3 (Dr. Veena Bansal). PW3
also noticed the aforesaid injuries. On opening of the chest, PW3 found that
the ribs at the deceased had been fractured from both sides and the liver was
ruptured. In the opinion of PW3, rupture of liver was sufficient to cause
death in the ordinary course.
                                                                                 G
     While in hospital, the statement of the deceased was recorded by Head
Constable Dharamvir (PW9) at 10.30 a.m. on 8th June, 1984, on the basis
whereof, fonnal first information was recorded under Sections 324 and 323
read with Section 34 !PC.

     Relying upon the prosecution evidence, in particular, the statement of H
    40                         SUPREME COURT REPORTS [2002) SUPP. 5 S.C.R.

A   PW5 and PW9 and the statement of the deceased recorded by PW9 which,
    after the death, was treated as dying declaration, the Sessions Judge convicted
    all the four accused in the manner aforestated. The dying declaration is
    Exhibited PQ.

          The motive of the crime', as established by the prosecution according
B to the judgment of the Sessions Judge, is that the deceased who was a Police
    Constable in Delhi Police was helping the parents of wife of accused Krishan
    who was being tried for the offence of his wife's murder. That finding has
    not been disturbed by the High Court in judgment under appeal. The trial
    court, as also the High Court did not rely upon the testimony of PW8. His
C   presence at the scene of occurrence was considered doubtful. We would also
    keep out ·of consideration the testimony of PW8.

          The High Court discarded the testimony of eye-witness PW5 as also
    the dying declaration (Exhibit PQ) and consequently the conviction and
    sentence of the respondents was set aside. We have gone through the evidence
D   on record, in particular, the testimony of the doctors, that of Bhim Singh and
    the head constable (PW5 and PW9) and the dying declaration (Exhibit PQ).
    In our opinion, the view of the High Court is not a reasonable view of the
    evidence and the reasons for discarding PW5 and the dying declaration (Exhibit
    PQ) are wholly untenable.

E          The main reason for discarding Exhibit PQ is that when the statement
    was recorded by the Police, the deceased was not under the shadow of death
    and the injuries received by him were not even considered dangerous to his
    life. The other reason given is delay in recording Exhibit PQ with the result
    that there was ample intervening time for deliberation and false implication
F   of the accused on account of previous enmity as also the non-examination of
    Sant Ram by the prosecution and introduction of PW5 as a false witness in
    the dying declaration. The basic infirmity committed by the High Court is in
    assuming that for a dying declaration to be admissible in evidence, it is
    necessary that the maker of the statement, at the time of making statement,
    should be under the shadow of death. That is not what Section 32 of the
G   Indian Evidence Act says. That is not the law in India. Under Indian Law,
    for dying declaration to be admissible in evidence, it is not necessary that the
    maker of the statement at the time of making the statement should be under
    shadow of death and should entertain the belief that his death was imminent.
    The expectation of imminent death is not the requirement of law. The further
H   infirmity committed by the High Court in reversing a well considered judgment
             STATEOFHARYANA v.MANGERAM[Y.K.SABHARWAL,J.)                         41
      of the Sessions Court is in assuming that there was any delay in recording of     A
      Exhibit PQ. The High Court has rightly recorded that the deceased was not
      under shadow of death when Exhibit PQ was recorded. Evidently, there was
      not a great emergency, on the facts and circumstances of the case, to record
      the statement. Be that as it may, it was fully established that there was no
      delay at all. Firstly, the High Court committed an error in holding that the      B
      statement was recorded at 12.30 p.m. on 8th June, 1984. It can neither be
      disputed nor has been disputed that the statement, in fact, was recorded at
      10.30 a.m. on 8th June. The incident had taken place at 8.00 p.m. on 7th
      June. The injured reached Bahadurgarh Hospital at 11.50 p.m. He was
      examined by PW4 (Dr. D.S. Rana). The injuries were considered serious. He
      was referred to Medical College and Hospital, Rohtak. PW9 received Rukka          C
      (Exhibit PE) along with copy of medico legal report of the deceased from
      Civil Hospital, Bahadurgarh at about 2.00 a.m. on 8th June. He went to the
      Hospital but found that the injured had been removed to hospital at Rohtak.
      He returned to the police station and went to Hospital at Rohtak next day
      morning at about 9-9.30 a.m., presented an application (Exhibit PN) to the
      doctor to find out if the deceased was fit to make statement. Doctor (PW7)        D
      gave opinion (Exhibit PN/1) to the effect that injured was fit to make a
      statement. After receipt of the opinion, PW9 recorded the statement of injured
      which was completed at 10.30 a.m. Under these circumstances, it is not
      reasonable to conclude that there was any delay in recording of the statement
      and drawing inference therefrom that the intervening time was utilized for        E
      deliberation and false implication on account of the previous enmity. On the
      facts and circumstances of the case, the question of any deliberation and false
      implication would not arise. Undisputedly, injured was fully conscious. He
      watched the accused giving injuries on his person. It would be too much to
      imagine that despite seeing these injuries inflicted on him, he would, while
      making statement, implicate the respondents on account of previous enmity         F
      leaving the real person who had inflicted injuries altogether free. The injured
      in his statement had given a detailed account of the injuries as also the
      manner in which PW5 Bhim Singh witnessed the occurrence and tried to
      intervene in the matter and rescue and save him. There was no plausible
      reason whatsoever to discard Exhibit PQ and testimony of PW9. The                 G
      prosecution had given up Sant Ram as he had business dealing with the
      accused and, according to the prosecution, had been won over. The statement
      Exhibit PQ inspires confidence and was rightly relied upon by the Sessions
      Court. The High Court committed serious illegality in concluding that Exhibit
...   PQ was inadequate to connect the accused with the crime .
                                                                                        H
    42                        SUPREME COURT REPORTS [2002] SUPP. 5 S.C.R.

A          The reasons for not believing PW5 are also wholly unsustainable. Main
    reason for disbelieving him was that he was a chance witness. The High
    Court lost sight of the fact that PW5 was a resident of the same village as the
    accused and the deceased. The fact that PWS in his police statement failed
    to mention about the presence of PW5 at the place of occurrence, in the facts
    of the case, was an irrelevant circumstance for disbelieving PW5. PW5 had
B   given details of all the injuries inflicted by the accused. Nothing worthwhile
    could be extracted in his cross-examination. He was a natural witness. He
    tried to intervene and save the deceased. He went to the house of the deceased
    to inform his family members about the incident. PW5 was an independent
    witness. Despite the fact that he did not go to the hospital but independently
C   the injured in his statement Exhibit PQ stated about the presence of PW5 at
    the time of occurrence and his efforts to save the deceased. We are of the
    view that PW5 is a natural, truthful and creditable witness and his testimony
    was rightly relied upon by the Sessions Judge in convicting the respondents.
    On irrelevant considerations, his testimony was discarded by the High Court.

D         The next question is the nature of offence the respondents had
    committed. As already noticed, the Sessions Court acquitted them of charge
    under Section 302/34 !PC. The High Court did not go into the nature of
    offence in view of acquittal of the respondents. The Sessions Judge, for
    coming to the conclusion that the respondents could not be convicted for
E   offence under Section 302, had relied upon the medical.evidence of PW4.
    PW4 was the first doctor who had examined the deceased in Bahadurgarh
    Hospital. He had deposed in cross-examination that none of the injuries,
    either individually or collectively, appeared to be dangerous to life. The
    injured was last attended by Dr. A.N. Gupta (PW7) in the Medical College
    and Hospital, Rohtak. According to him, the injured was initially given blood
F   of 'A' group but subsequently blood of that group went out of stock and,
    therefore, he was given blood of 'O+' group. The witness further deposed
    that he could not say if the patient died because of blood reaction or because
    of injuries suffered by him but he did depose that there was fear in his mind
    about bfood reaction and, therefore, he gave medicines to prevent it. Under
G   these circumstances, the Sessions Judge concluded that the possibility of the
    injured having died because of blood reaction cannot be ruled out though
    doctor conducting post mortem had deposed the cause of death as rupture of
    liver on account of injuries. The view taken by the Sessions Judge is a
    plausible view and, therefore, we are unable to accept the contention of the
    learned counsel for the State that the respondents deserved to be convicted ·
H   for offence under Section 302/341PC. In our view, they were rightly convicted
       STATEOFHARYANA v. MANGERAM[Y.K.SABHARWAL,J.)                          43
for offence under Sections 325 and 326 read with Section 34 IPC by the A
Sessions Judge, Rohtak.

     The impugned judgment of the High Court is set aside and the
conviction, as directed by the Sessions Judge, Rohtak is restored.

      The sentences awarded by the Sessions Judge on the respondents have B
been noticed in the earlier part of the judgment. Having regard to the facts
of the case, in our view, the ends of justice would be met if each of the
respondents sentenced for rigorous imprisonment. for a period of four years
instead of seven years and five years as directed by the Sessions Court. We
order accordingly.
                                                                                   c
       The appeal is accordingly allowed in above terms. The respondents
shall be taken into custody forthwith to undergo remaining part of the sentence.

N.J.                                                          Appeal allowed.