STATE OF M.P.versusMOHAN LAL AND ORS.

                           STATE OF M.P.                                        A
                                v.
                        MOHAN LAL AND ORS.

                               MAY 7, 1996

                [G.N. RAY AND G.B. PATTANAIK, JJ.]                              B

      Evidence Act, 1872 : Section 32.

      Dying declaration-Made by deceased in a fit state of mind-Omission
to mention that deceased was dragged and assaulted outside his hut-Held:        C
such omission not fatal to prosecution case-Dying declaration could fonn
sole basis of conviction if it was true and voluntary-In the circumstances of
the case High Court not justified in discarding dying declaration-Order of
acquittal by High Court set aside.

      The respondents were convicted under Section 302 read with Section        D
149 of the Indian Penal Code, 1860 and sentenced to undergo imprison-
ment for life.

      According to the prosecution, the respondents dragged the deceased
out of his hut and assaulted him by sticks and with the butt of a gun and       E
also threw acid on him. The deceased himself lodged First Information
Report and was admitted to the hospital where his dying declaration was
recorded by the Judicial Magistrate.

       On the basis of the evidence adduced on behalf of the prosecntion.
The Additional Sessions Judge came to the conclusion that the charges           F
levelled against the respondents were fully established. However, the High
Court reversed this finding and acquitted all the respondents. Hence the
present appeal.

      Allowing the appeal, this Court
                                                                                G
      HELD: 1.1. A dying declaration can form the sole basis of conviction,
though courts look for corroboration from different circumstances since
the same cannot be tested by cross-examination. Such declaration being
made under a solemn sense of impending death, the deceased is usually
not likely to commit any mistake and therefore, the same is given great         H
                                   489
    490                  SUPREME COURT REPORTS (1996] SUPP. 2 S.C.R.
                                 '
A weight. But at the same time a court bas the duty to scrutinise the same
    since the accused has no right of getting the statement tested by cross-
    examination. [494-C]

          1.2. If the dying decl~ration is found to be true and voluntary and
    was made by a person concerned while he was In a lit condition to make
B   the same then the same can be easily relied upon by the courts in convicting
    the accused persons even without any corroboration. [495-C]

          Kw1du/a Bala Subrahmanyam and Another v. State of Andhra
    Pradesh, [1993) 2 SCC 684 and K Ramachandra Reddy and Another v. The
C   Public Prosecuto1; [1976) 3 SCC 618, relied on.

          2. The deceased was in a lit state of mind to make the statement and
    he made that statement without any influence or rancour. There was
                                                                                   ,
    neither any possibility of tutoring or prompting by any other person. The
    assault as well as throwing of acid on the deceased had taken place outside
D   his hut. Therefore, non-mentioning in his dying declaration that he was
    dr.igged and assaulted outside his hut is not fatal to the prosecution case.
    The High Court w.is wholly in error in discarding the voluntary statement
    of the deceased recorded by the Magistrate on flimsy grounds.
                                                                 [498-B, 499-B)
E        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
    151of1984.

         From the Judgment and Order dated 9.12.83 of the Madhya Pradesh
    High Court in Cr!. A. No. 450 of 1981.

F         Uma Nath Singh for the Appellant.

          A.K. Gambhir for the Respondents.

          The Judgment of the Court was delivered by
G         PA'ITANAIK, J. This appeal by special leave is directed against the
    judgment and order dated 9 .12.1983 passed by the High Court of Madhya
    Pradesh at Gwalior in Criminal Appeal No. 450 of 1980 arising out of
    Sessions Trial No. 96 of 1980.

H         The respondents were charged under Sections 302/149 as well as
                 STATE v. MOHANLAL[PATTANAIK,J.]                          491

under Section 449 I.P.C. The respondents Mohan Lal and Chhagan Lal               A
were further charged under Section 148 I.P.C. and rest of the respondents
stood charged under Section 147 I.P.C. They were convicted under dif-
ferent counts by the learned Additional Sessions Judge, Mandsaur for
having killed the deceased Mangi Lal after dragging him out of his hut and
thereafter assaulting him mercilessly and throwing acid on him. On appeal        B
the High Court acquitted all the respondents and hence the present appeal.


        The prosecution case briefly staled is that, on 18.9.1980 during night
 all the accused respondents being armed with gun, sticks and a.cid entered
 into the hut inside the field of Mangi Lal where Mangi Lal was sleeping.        C
 Respondents ihen dragged him out of the hut and some of them assaulted
 him by sticks and respondent Chhagan Lal who was carrying a gun as-
 saulted him with the butt of the gun. Respondent - Mohan Lal threw asid
 on him. Deceased - Mangi Lal shouted for help. Having heard the noise,
 Abdul Rehman, PW. 1 who was staying at a distance of 100 yards, woke
 up and ran towards the place from where Mohan. Lal's voice was coming.          D
 Reaching at the place of occurrence, when PW. 1 asked Mangi Lal about
 the incident, he told the names of the accused and told him that they have
 killed him by throwing acid. Said PW. 1 then "informed Mangi Lal's family
 members and soon Mangi L&i's son Ram Gopal PW. 4 arrived at the place
 of occurrence. Mangi Lal was then brought to the village in the injured         E
 condition and was carried on a tractor to Manasa Police Station. Mangi
 Lal himself lodged the report, which was treated as F.I.R., Exhibit P-32. It
 was recorded by the Head Constable. PW. 14. After registering the case
 the police sent Mangi Lal to the hospital at Manasa where he was treated
 by doctor PW. 9. As the doctor was of the opimon that the condition of          F
 Mangi Lal was serious, the sub-inspector of Police, PW. 15 requisitioned
 the sef\ices of the Judicial Magistrate, !st Class, Manasa, PW. 10 and
 requested him to record the dying declaration of said Mangi Lal. The said
 Magistrate immediately came to the hospital and on being satisfied by
 questioning the doctor that Mangi Lal was in a fit condition to make his
·statement, enquired from Mangi Lal about the incident and recorded his          G
 statement which was exhibited in the case as Exhibit P-15. The said
 statement was read out to Mangi Lal and thereafter Mangi Lal gave his
 thumb impression. Doctor PW. 9 then advised that Mangi Lal should be
 shifted to Mandsaur Hospi.tal. In accordance with the said advice, while
 Mangi Lal was carried to Mandsaur hospital he died on the way. Post-mor-        H
    492                   SUPREME COURT REPORTS (1996] SUPP. 2 S.C.R.

A   tcm examination on his dead body was, however, conducted by the doctor
    PW. 2 and Post-mortem report was exhibited as Exhibit P·-3. The inves-
    tigating officer in the meantime proceeded to the place of occurrence,
    made some seizure at the spot and finally on completion of investigation,
    subn1itted the charge sheet. On being con1n1itted, the accused persons were
    tried by the Learned Additional Sessions Judge. The prosecution examined
B
    as many as 15 witnesses of \Vhotn the n1ust in1portant \Vitnesses are J:>\V.1,
    Abdul Rehman, who was the first person to arrived at the place of
    occurrence on hearing the sholll of Mangi Lal and before whom Mangi Lal
    narrated the names of all the accused persons; PW. 14, the Head Constable
    at the Police Station who recorded the F.l.R.; report having been given by
c   Mangi Lal himself; PW. 15, the Investigating Officer who had visited the
    place of occurrence and made several seizure; the doctor PW. 9 who had
    first examined the injured Mangi Lal at the hospital at Manasa; the
    Magistrate PW. 10 who recorded the dying declaration of the deceased at
    5.00 A.M. on 19.9.1990 and the doctor PW. 2 who conducted the Post-
D   mortem examination on the dead body of the deceased. The prqsecution
    also examined PWs. l2, 13 and 14 lo establish the animosity between
    deceased and Mohan Lal over the field for which police had taken action
    against them under Sections 107 and 116(3) of Code of Criminal Proce-
    dore. The plea of the accused persons was one of denial. The learned
    Additional Sessions Judge on thorough scrutiny of the evidence on record
E
    and relying upon dying declaration recorded by the Magistrate, which was
    exhibited as Exhibit P-15 and finding out corroboration thereto from the
    oral declaration made by the deceased to PW. 1 as deposed to by PW. I.,
    as well as the.medical evidence, came to the conclusion that the prosecu-
    tion has been able to establish the charge against the accused persons
F   beyond reasonable doubt and accordingly convicted them and sentenced
     them differently. All the accused person were convicted under Sections
    302/149 i.P.C. and were sentenced to imprisonment for life. Accused
     Mohan Lal and Chhagan Lal were further convicted under Section 148 and
    were sentenced to undergo rigorous in1prisonn1ent for two years. The rest
G   of the accused persons were convicted under Section 147 and were sen-
     tenced to undergo rigorous imprisonment for one year. All the accused
     persons were further convicted under Section 449 and were sentenced to
     undergo rigorous imprisonment for seven years and it was directed that the
     sentences shall run concurrently. Being aggrieved by their conviction and
     sentence the accused persons moved the High Court in appeal. The High
H
                STATE v. MOHAN LAL [PATTANAIK, J.]                      493

Court though accepted the prosecution case that the judicial Magistrate, A
PW. 10 recorded the dying declaration of deceased Mangi Lal, when said
M angi Lal was in a fit state of mind but since it had not been stated in the
said dying declaration that the ae_cused persons dragged M angi lal out of
his house an<l assaulted, came to the conclusion that the occurrence having
been taken place in mid-night inside the hut of the deceased, it was not
                                                                                B
possible for the deceased to _identify the assailants and, therefore, the dying
declaration does not inspire confidence. The High court also lightly
brushed aside the statement of PW. 1, Abdul Rehman to whom the
deceased had not only slated the names of all the accused persons but had
also stated that he was dragged out ofthe hut and was beaten and acid
was thrown on him. With these conclusions the High Court set aside the        c
conviction and sentences passed by the Learned Additional Sessions Judge
and acquitted all the accused persons.

       Mr. Shukla, learned senior counsel appearing for the State-appellant
contended that the High Court erred in law in discarding the dying            D
declaration recorded by the Judicial Magistrate, PW. 10, on very flimsy
grounds and thereby erred in law in acquitting the accused persons. Mr.
Shukla, further contended that the deceased having given out the names of
all the accused persons to PW. 1 who reached the place of occurrence
while deceased was crying for help and further the deceased himself having    E
gone to the Police Station and lodged the report giving a brief narration
of the incident and the medical evidence being corroborative of the same,
the conclusion is irresistible that the prosecution has been able to establish
the charge beyond reasonable doubt, and therefore, the order of acquittal
is wholly illegal. Mr. Sushi) Kumar, learned senior counsel appearing for
the respondents on the other hand contented that the dying declaration
                                                                               F
being the sole basis of conviction and for justifiable reasons the High Court
having discarded the same and having acquitted the accused persons, said
order of acquittal should not be interfered with by this Court. In support
of the conclusion of the High Court that the dying declaration, Exhibit
P-15, recorded by the Magistrate does not inspire confidence, Mr. Sushi! G
Kumar submitted that the very fact that the deceased has not stated that
he was brought outside being dragged and was assaulted and acid was
thrown on him, could lead to the only conclusion that the assault was
committed inside the hut and therefore under such circumstances, the
occurrence having taken place in the mid-night, it will be wholly impossible H
    494                    SUPREME COURT REPORTS [1996] SUPP. 2 S.C.R.

A   to identify the assailants and consequently the said dying declaration has
    rightly been discarded by the High Court.

           In view of the rival submissions at the bar the sole question that arises
    for consideration is whether the dying declaration made by the deceased
B   and recorded by the Magistrate can be accepted and form the basis of
    conviction of the accused respondents? There cannot be any dispute with
    the proposition that a dying declaration can form the sole basis of convic-
    tion, though courts look for corroboration from different circumstances
    since the same cannot be tested by cross-examination. Such declaration
    being made under a solemn sense of impending death, the deceased is
c   usually not likely to commit any mistake and therefore the same is given
    great weight. But al the same time a court has the duty to scrutinsc the
    same since the accused has no right of getting the statement tested by
    cross-examination. In the case of Kundula Bala Subral11nanyan1 and
    Another v. State of Andhra Pradesh, [1993] 2 SCC.684, it has been held by
D   this Court :


             "Section 132(1) of the Evideuce Act is an exception to the general
             rule that hearsay evidence is not admissible evidence and unless
             evidence is tested by cross-examination, it is not credit worthy.
E            Under Section 32, \Vhen a slaten1cnt is made by a person, as to
             the cause of death or as to any of the circumstances which result
             in his death, in cases in which the cause of that person's death
             comes into question, such a statement, oral or in \Vriting, made by
             the deceased to the witness is a relevant fact and is admissible in
F            evidence. The statement made by the deceased, called the dying
             declaration, falls in that category provided it has been made by the
             deceased while in a lit meot.tl condition. A lying declaration made
             by person on the verge of his Jcath has a special sanctity as at lhe
             solemn mornent, a person 1~ n1usl unlikely to make any untrue
G            statement. The shadow of impcmling death is by itself the guaran-
             tee of the truth of the statement made by the deceased regarding
             the causes or circumstances leading to his death. A dying decla-
             ration, therefore, enjoys almost a sacrosanct status, as a piece of
             evidence, coming as it does from the mouth of the deceased victim.
H            Once a statement of the dying person and the evidence of the
                STATE v. MOHAN LAL[PATTANAIK,J.]                         495

        witnesses testifying to the same passes the test of careful scrutiny A
        of the courts, it becomes a very important and, a reliable piece of
        evidence and if the court is satisfied that the dying declaration is
        true and free frorn any embellishment such a dying declaration, by
        itself, can be sufficient for recording conviction even without look-
        ing for any corroboration."                                           B
If the dying declaration is found to be true and voluntary and was made
by a person concerned while he was in a fit condition to make the same
then the same can be easily relied upon by the courts in convicting the
accused persoris even without any corroboration as has been held by this
Court in K. Ramachandra Reddy and Another v. The Public prosecutor;             c
[1976] 3 sec 618.

   •!;) Bearing in mind the aforesaid legal principles let us now examine the
dying declaration recorded by the Magistrate, Exhibit P-15, in the case in
hand. But before focussing our attention on the same it would be ap-            D
propriate to notice the injuries found on the deceased by the doctor, PW.
9, who treated deceased Mangi Lal al the hospital at Manasa as well as
the injuries found by the Doctor PW. 2, who had conducted the autopsy
over the dead body of the deceased. PW. 9, found the following 12 injuries:

        "(1) On the left side of the skull 2" above the ear on the parietal     E
        region one open wound llh" long 1/8" wide and bone deep ..There
        was slight scrapping on the bone in this wound. He had recom-
        mended X-Raying for this injury.

        (2) On the left arm 2" above the elbow on the outside, one lacerated    F
        wound, in which there was fracture of lower part of the humerus
        bone. Open wound was 1" long 1/4" wide and 1/2" deep. For this
        injury also he had recommended X-Ray examination.

        (3) One more lacerated wound, about 3/4" above the injury No. 2         G
        on the left arm, which was 1/2" long, 1/8" wide and /18" deep.

        (4) On the back side of the left shoulder one contusion 4" x 1".

        (5) One contusion 4" x l" on left side of the back about 3" below
        the shoulder injury No. (4).                                            H
    496                    SUPREME COURT REPORTS [1996] SUPP. 2 S.C.R.

A           (6) 3" below the injury No. 5, one more contusion on the back 4"
            x 3/4", the inner part of this injury reaching upto the back bone.

            (7) About 3" below the shoulder bone on the left side of the back,
            one more contusion 6n x 1/21'.

B           (8) On the left hip, one oblique contusion 6" x 1".

            (9) On the letl thigh, outwards, about 12" above the knee, one
                              11
            contusion 3 11 x 2 •

            (10) On the left thigh also, 1" above injury No. 9, in the side, one
c           more contusion 41' x 3\ in which a number of injuries appear to
            have been caused by stick blows.

            (ll) on the right side of the back, one contusion 6" x 2" going
            towards from the shoulder hone.
D           (12) One oblique contusion 5" x 1" on the back going outward
            from the backbone.''

           The said doctor had observed that all the injuries could be caused
    by hard and blunt weapon and the injuries were recent and there were
E   about 42% burn injuries and due lo burn the wounded had lost sight in the
    left eye. the doctor who conducted the autopsy over the dead body of the
    deceased had found the following injuries :

            "1. Compound fracture lower 1/3rd of left humerus.

F           2. Stitched wound 2", slightly oblique on left parietal region.

            3. Lacerated wound 1" x l/6", bone deep, on centre of frontal
            region.

            4. Lacerated wound 1/4" x 1/8" x 1/10" middle phalanx left middle
G           finger.

            5. Contusion 4 11 x 111 oblique, left scapular region.

            6. Contusion 3-1/2" x l" oblique, left infra-scapular region.

H           7. Contusion 10" x 1" slightly oblique, left Thoracolumbar region.
                  STATE v. MOHAN LAL [PATfANAIK,J.]                        497

        8. Contusion 5" x l" oblique, centre of lower back.                       A

        9. Contusion 12" x 1/2" oblique, right scapular an infra-scapular
        region.

        JO. Contusion 7" x 1-1/4" on left lower back.
                                                                                  B
        11. Contusion 3-1/2" x l" left deltoid region.

        12. Contusions. 3" x l" and 3-1/2" x 1" cross, middle of left upper
        arm.

        13. Contusion 2-l/2" x 1-1/2" left elbow region.                          c
        14. Contusion 3" x l" oblique, middle of left leg posterior aspect.

        15. Contusion 3-l/2" x 1-1/2" upper third of left leg posterior aspect.

        16. Contusions 2" x l" and 2-1/2" x l" oblique, lower l/3rd of Right      D
                                   11
        thigh postcri later aspect.

       The said doctor had opined that the injuries had been inflicted
before death and the death was caused by shock resulting from the various
injuries and acid burns inflicted on the body. He also further opined that
the death of the deceased could not possibly be caused by any single E
specific injury but the death could possibly result from the cumulative
effect of all the injuries. Coming now to Exhibit P-15, the dying declaration
recorded by the Magistrate, PW, 1.0, it is crystal clear from the prosecution
evidence that when the injured reached the hospital at Manosa, the doctor
PW. 9 noticed the condition of Mangi Lal to be serious. To the querry of F
Balwant Singh Yadav, PW. 15, the doctor also stated that Mangi Lal was
in a fit slate of mind and fully capable of making any statement. PW. 15,
therefore, took imn1ediate steps, requisitioned the services of the Judicial
Magistrate, !st Class and the said Magistrate came to the hospital soon
thereafter. The evidence of Magistrate, PW. 10 further indicates that he G
enquired fron1 the deceased about his name) fa~hcr's name, residential
address and his age and then enquired from him about the incident and
whatever he stated he recorded the same as per Exhibit P-15. The doctor
who was present during recording of the statement of deceased by the
Magistrate, gave the certificate that Mangi Lal \Vas fu!Iy conscious and was
in his sense after completing his declaration. The prosecution evidence also H
    498                   SUPREME COURT REPORTS [1996] SUPP. 2 S.C.R.

A   clearly establishes the fact that Mangi Lal was taken to the Police Station
    where he gave his statement immediately after the occurrence, which was
    treated as F.I.R. and was then taken to the hospital and shortly after
    reaching the hospital his statement was recorded by the Magistrate as
    stated earlier. In the aforesaid state of affairs the conclusion becomes
    irresistible that the deceased was in a fit state of mind to make the
B
    statement and he was making that statement without any influence or
    rancour. There was neither any possibility of tutoring or prompting by any
    other person. In this connection we will examine the contention of Mr.
    Sushi! Kumar appearing for the respondents about the non-mentioning of
    the accused being dragged and assaulted outside which according to him
C   would logically lead to the conclusion tharthe assault took place inside the
    hut and therefore the deceased could not have the opportunity of observing
    and identifying his assailants. It is no doubt true that in Exhibit P-15, the
    deceased has not stated about the accused persons dragging him out of hut
    and assaulting. But if the evidence of PW. 1, Abdul Rehman is examined
D   it would appear that while the deceased was shouting for help after being
    assaulted by the accused persons when PW. 1 reached him, deceased had
    told him that Mohan Lal threw acid on him and along with Mohan Lal his
    son Ghanshyam, Bhanwar Singh Banjara, Chhagan Telli, Sambhu Pattedar,
    Shambhu Bachera, Sanjay Bachera and Ramchander Bachera assaulted
    him and thereafter assailaats threw acid. Though said PW. 1 has been
E   cross-examined at great length but nothing has been elicited from him so
    as to impeach his testimony. He appears to us to be a truthful witness who
    has narrated whatever he heard from the deceased and whatever he saw
    at the place of occurrence. His evidence unequivocally indicates that place
    of assault was not inside the hut but was outside, after the deceased had
F   been dragged from the hut. He has also stated in his evidence that it was
    a moonlit night. That apart the evidence of Investigating Officer, PW. 15
    gives sufficient corroboration that the place of assault was not inside the
    hut but outside, after the accused dragged the deceased from his But.
    When PW. 15 reached the place of occurrence he found marks of a person
    being dragged on the ground from the hut upto the Mirch filed. He also
G   found some scoreped plants which seemed to have been scorched by some
    acidic article and further he found burnt papers including a half burnt two
    rupee note. A glass bottle was also seen floating in the well containing some
    fluid.

H         The aforesaid evidence of PW. 15 clinches the matter that the assault
                STATE v. MOHANLAL[PATTANAIK,J.]                      499

as well as throwing of acid on Mangi Lal had taken place outside the hut A
in the Mirch filed of Mangi Lal after he was dragged from his hut. The
F.I.R. which had been lodged by the deceased himself also indicates the
state of affairs. Therefore, non-mentioning of being dragged and assaulted
outside in Exhibit P-15 had rightly been appreciated by the Learned
Additional Sessions Judge that due to the deteriorating condition of the
                                                                            B
deceased the omission might have taken place and the said omission is not
fatal. In our opinion the High Court was wholly in error in discarding the
voluntary statement of the deceased recorded by the Magistrate on flimsy
grounds which cannot be sustained. Having examined the dying decfaration
made by the deceased and recorded by the Magistrate, PW. 10 as well as
the F.I.R. which had been lodged by the deceased prior to his death and     c
the evidence of PW. l, Abdul Rehman, to whom the deceased had narrated
the incident immediately after the occurrence, we have no doubt in our
mind that Exhibit P-15 is true and voluntary and had been made by the
deceased while he was in a fit state of mind and there was no opportunity
of either tutoring or promoting and as such the same can be easily pressed D
into service by the prosecution in proving the charges against the accused
persons. That apart, the number of injuries found on the deceased as well
as the acid injury on him corroborates the said dying declaration.

       Mr. Sushi! Kumar in course of his submissions had raised a conten-
tion that three of the accused persons namely Ramchandra, Chhagan alias E
Sajan and Shambhu belong to a different village and there can be no
justifiable reason for them to assault the deceased. But this submission in
our considered opinion is devoid of any force, inasmuch as while discussing
the evidence about the motive the Learned Additional Sessions Judge in
paragraphs 59 to 62 of his judgment has clearly found out that all the F
accused persons belong to the rival group and had strained relations with
the deceased on account of land cultivation and in the case that had been
filed in the Court in Manasa, Ramachandra, Chhagan alias Sajan and
Shambhu have been arrayed as accused along with Mohan Lal. It is no
doubt true that the High Court has recorded the order of acquittal of the
respondents but it would be travesty of justice, if this court does not G
interfere with such order of acquital, where a gruesome murder has taken
place and the High Court rejects a true and voluntary dying declaration
recorded by a Judicial Magistrate by entering intu realm of conjectures.
We have gone through the ~vidence on record and for the reasons already
stated we unhesitatingly come to the conclusion that the order of acquital H
    500                  SUPREME COURT REPORTS (1996] SUPP. 2 S.C.R.

A recorded by the High Court is wholly unwarranted and unjustified. The
     prosecution has proved the case against the accused-respondents beyond
     reasonable doubt. We accordingly set aside the judgment passed by the
    High Court and confirm the conv;ction and sentences recorded by the
     Learned Additional Sessions Judge. The accused - respondents who are
     on bail are directed to surrender to receive the balance period of sentence
B   .and if they fail to surrender, appropriate steps be taken for their arrest.
    This appeal is accordingly allowed.

    V.S.S.                                                     Appeal allowed.