# [1971] 1 S.C.R. 599

- **Citation:** [1971] 1 S.C.R. 599
- **Court:** Supreme Court of India
- **Decided:** 1970-05-07
- **Case number:** Criminal Appeal No. 244 of 1969
- **Bench:** A. N. Ray, I. D. Dua
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1971-1-s-c-r-599-5101
- **Pages:** 13

## Headnote

Code of Cri111i11a/ Procedure, 1898 .\". 154-F.irJ'I lnfonnation Report,
1rlu1t is-S. 162( I) of Cude 1vht•ther bars adn1ission a/ dying declartltivn
i11to evidence.
Ei·idence Act. 1872-Dying declaration is ad111issible under s. 32(1.)
t111d har of s. 16:2( I) c·r. P. C. does not app/y--Value of dying declaration.
Ballistic expert-If eye-·witnesse.\· are believed the non.exan1ina1ion of
h"llistic expert lost'.\' all i111portance.
The appellant \\'as tried for Jl1Urder on the allegation that he caused
the death of B by firing five shots at him from his pistol. The te;timony
against him consisted of a dying de;::laration made by B, the statements of
three eyewitnesses and some circumstantial evidence.
The trial court
convicted the appellant and sentenced him to death.
The conviction
and sentence "W',,!rc affirmed by the High Court.
ln appeal by special
Jea>e before this Court the appellant con:ended : (i) that the information
relating to the occurrence given to the p91icc by telephone regarding
\\ hich an entry v.·as made in the daily dairy must be treated as the first
information report: (ii) that the. dying declaration of deceased was ina<lmissible because it was hit by s. 162 of the code of Criminal Proce<lure; (iii) that the dying declaration was unreliable; (iv) that the evidence in the case was not sufficient to iustify the conviction of the appellant;
( ,. ) that, amon_g other omissions, the non-examination of the ballistic expert created a lacuna in the prosecution case; and (vi) that in view of the
alle.e:ed motive-the appellant's suspicion that the de:eased ha<l illicit relations with his ,i,.·ifc-the sentence should be reduced.
H) LD : ( i) The telephonic message recorded
in
the daily diary of
the police station IA-·as a cryptic and anonymous oral message which did not
in terms clearly specify a cognizable offence and could not, therefore,
be treated as first information report. The mere fact that this information
,\'as the first in point of time could not by itself clothe it v.·ith the
character of first information report. The question whether or not a particular document constitutes a first information report, has to be detern1ine<l on the relevant facts and circumstances of each case. f605 B-Cl
Iii) Section 162 Criminal Proced.urc Code in expres'i terms excludes
fron1 its purvicv.: statements 'falling within the provisions of s. 32( 1) of
the Indian Evidence Act.
Indisputably, the dying declaration in the present
case fell within s. 3 (I) of the Indian Evidence Act and as such it was
hoth relevant and outside the prohibition contained in s.161(1) Cr. P. C.
1605 D-El
iiii) (a) In view of the evidence of the Judicial Ma.gi:strate -.yho recorded the dving declaration the mere fact that the ori~mal clymg declaration had been stolen from the file, could not destroy its value.
Nor
could the fact that the investigating officer was allowed to make a copy
600
SUPREME COURT REPORTS_
(1971] l S.C.R.
I
of the dying declaration be interpreted to mean that the Magistrate was
subservient to the police. A dying declaration is not a confidential document and can legitim<:.tely serve as a guide in further investigation. [606
D-G]
(b) A dying declaration is not a deposition in court and it is neither
made on oath nor in the presence of the accused.
It is therefore not
tested in cross-examination on behalf of the accused.
But a dying declaration is admitted in evidence by way of an exception to the general
rule against the admissibility of hearsay evidence on the principle of
necessity.
The weak points of the dying declaration merely serve to put
the court on its guard while testing its reliability by imposing on it an
obligation to closely Scrutinise all attendant circumstances. So scrutinised,
the dying declaration in the present case must be accepted as true. [607
D-E]
(iv) If the dying declaration is acceptable as true then even 1n
the
absence of other corroborative evidence it would Oe open to the court
to act upon the dying de

## Text

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599
TAPINDER SIN6h
l'.
STATE OF PUNJAB
May 7, 1970
[A. N. RAY AND I. D. DUA, JJ.]
Code of Cri111i11a/ Procedure, 1898 .\". 154-F.irJ'I lnfonnation Report,
1rlu1t is-S. 162( I) of Cude 1vht•ther bars adn1ission a/ dying declartltivn
i11to evidence.
Ei·idence Act. 1872-Dying declaration is ad111issible under s. 32(1.)
t111d har of s. 16:2( I) c·r. P. C. does not app/y--Value of dying declaration.
Ballistic expert-If eye-·witnesse.\· are believed the non.exan1ina1ion of
h"llistic expert lost'.\' all i111portance.
The appellant \\'as tried for Jl1Urder on the allegation that he caused
the death of B by firing five shots at him from his pistol. The te;timony
against him consisted of a dying de;::laration made by B, the statements of
three eyewitnesses and some circumstantial evidence.
The trial court
convicted the appellant and sentenced him to death.
The conviction
and sentence "W',,!rc affirmed by the High Court.
ln appeal by special
Jea>e before this Court the appellant con:ended : (i) that the information
relating to the occurrence given to the p91icc by telephone regarding
\\ hich an entry v.·as made in the daily dairy must be treated as the first
information report: (ii) that the. dying declaration of deceased was ina<lmissible because it was hit by s. 162 of the code of Criminal Proce<lure; (iii) that the dying declaration was unreliable; (iv) that the evidence in the case was not sufficient to iustify the conviction of the appellant;
( ,. ) that, amon_g other omissions, the non-examination of the ballistic expert created a lacuna in the prosecution case; and (vi) that in view of the
alle.e:ed motive-the appellant's suspicion that the de:eased ha<l illicit relations with his ,i,.·ifc-the sentence should be reduced.
H) LD : ( i) The telephonic message recorded
in
the daily diary of
the police station IA-·as a cryptic and anonymous oral message which did not
in terms clearly specify a cognizable offence and could not, therefore,
be treated as first information report. The mere fact that this information
,\'as the first in point of time could not by itself clothe it v.·ith the
character of first information report. The question whether or not a particular document constitutes a first information report, has to be detern1ine<l on the relevant facts and circumstances of each case. f605 B-Cl
Iii) Section 162 Criminal Proced.urc Code in expres'i terms excludes
fron1 its purvicv.: statements 'falling within the provisions of s. 32( 1) of
the Indian Evidence Act.
Indisputably, the dying declaration in the present
case fell within s. 3 (I) of the Indian Evidence Act and as such it was
hoth relevant and outside the prohibition contained in s.161(1) Cr. P. C.
1605 D-El
iiii) (a) In view of the evidence of the Judicial Ma.gi:strate -.yho recorded the dving declaration the mere fact that the ori~mal clymg declaration had been stolen from the file, could not destroy its value.
Nor
could the fact that the investigating officer was allowed to make a copy
600
SUPREME COURT REPORTS_
(1971] l S.C.R.
I
of the dying declaration be interpreted to mean that the Magistrate was
subservient to the police. A dying declaration is not a confidential document and can legitim<:.tely serve as a guide in further investigation. [606
D-G]
(b) A dying declaration is not a deposition in court and it is neither
made on oath nor in the presence of the accused.
It is therefore not
tested in cross-examination on behalf of the accused.
But a dying declaration is admitted in evidence by way of an exception to the general
rule against the admissibility of hearsay evidence on the principle of
necessity.
The weak points of the dying declaration merely serve to put
the court on its guard while testing its reliability by imposing on it an
obligation to closely Scrutinise all attendant circumstances. So scrutinised,
the dying declaration in the present case must be accepted as true. [607
D-E]
(iv) If the dying declaration is acceptable as true then even 1n
the
absence of other corroborative evidence it would Oe open to the court
to act upon the dying declaration and com·ict the appellant stated therein
to be the offender.
An accusation in a dyin.Q: c!ectaration comes from the
victim and if it is accepted then in view of its sources che ,court
can
safely act on it.
In the present case not on-ly the dying declaration but
the oth_er evidence including that of three eye-witnesses justified the convic
lion of the appellant. [609 E-F]
(v) When the eye witnesses have been believed minor points such a·
non-production of the ballistic expert lose all" importance. [610 E-Fl
(v1) Jn view of the manner in which five sh9ts were fired at the dr;·
ceased, the
murder was deliberate and pre-planned and the plea for reduction of the sentence could not be accepted. (611 E]
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Samp Singh v. Stace of Punjab, A.LR. 1964 Punjab 508, Brahmin
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Ishwarlal Manila/ v. State of Gujarat, Cr. A. No. 120/63 dt. 10.8-1965.
Kushal Rao v. State of Bqmbay, [1958] S.C.R. 152 at pp. 568-569
and
Harbans Singh v. State of Punjab, [1962] Sup. 1 S.C.R. 104, referred, to.
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
244 of 1969.
Appeal by special le;tve from the judgment and order dated
F
July 23, 1969 of the Punjab and Haryana High C0urt in Criminal
Appeal No. 302 of 1969 and Murder Reference No. 25 of 1969.
Nur-ud-din Ahmad and R. L. Kohli, for the appellant.
R. N. Sachthe.v, for respondent No. 1.
Frqnk Anthony, S. R. Agarwal and E. C. Agarwala, for
respondent No. 2.
The Jud~ent of the Court was delivered by
Dua, J.
In this 'appeal by special leave the appellant challenges· his conviction and sentence under .s. 302, I.P.C. for the
murder of his brother-in-law (husband of his wife's sister). The
-occurrence is stated- to bave taken place on Sunday October 8,
1968 at about 4.45 p.m\near the clock tower in Ludhiana City.
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TAP!NDER SINGH V. PUNJ;\ll (Dua, J.)
601
It is not disputed that on August 13, 1968 the appellant Tapinder
Singh, a business man and a Municipal Commissioner, had lodged
a first information report (Ex. PR) with the police station, Sadar,.
Ludhiana against Kulwant Singh, deceased whom he described
as his Sandhu (his wife's sister's husband) and one Ajit Singh,
alleging that on the pretext of consulting him they had taken him
in their car to the canal near the Agricultural College and after
getting down from the car, when they had walked about 150
paces on the banks of the canal, the deceased Kulwant Singh, say·
ing that he would teach the appellant a lesson, whipped out aclasp-knife and attacked him.
Ajit Singh also shouted that the
appellant should not be allowed to escape. The appellant raised
alarm and tried to run away.
While endeavouring to ward off
with his right hand the knife blow by Kulwant Singh the appel·
lant's right hand palm got wounded and started bleeding .. Just
at that moment Gurmel Singh, Sarpanch and Shamsher Singh,
Lambardar, happened to pass that way in a car. They stopped
the car. In the meantime Kulwant Singh and Ajit Singh got into·
their car and went away.
Pursuant to this report admittedly a
criminal case was pending against the deceased when the occurrence in question took place.
Kulwant Singh, deceased, who
had been arrested pursuant to that report, in a case. under s. 307 /
324; I.P.C., was actually on bail on the date of the occurrence.
Accprding to the prosecution Gurdial Singh (P.W. 7), father of
the deceased Kulwant Singh is employed as Works Manager in the
Ludhiana Transport Company, which is a private concern and
which plies buses on different routes in Ludhiana Dis!rict. Gurdial
Singh is also a share-holder of tpis Company.
The workshop,
the office and the taxi stand of this Company are located in Sarai
Bansidhar which faces the clock tower.
Gurdial Singh, in addition, owns two taxis which he runs on hire. He also owns two
private cars which are used both for personal requirements and
as taxis.
The deceased used to look after these four vehicles.
The father and the son used to live together in Model Town. The
two taxis used to remain at the Taxi Stand about 100 yards away
f, om the clock tower whereas the other two cars used to be
parked at Gurdial Singh's business premises. On August 8, 1968
at about 4.45 p.m. the deceased was sitting on a Takhat posh at
the Taxi Stand.
It being a Sunday the shops in the neighbou.rhood were closed.
Sher Singh (P.W. 9) was standing close to
the Takhat posh.
Harnek Singh, the driver of one of the taxis
and Gurdial Singh were also present.
At the taxi stand Jhe~
was at that time only ·one taxi belonging to Gurdial Singh. The
appellant came from the side of the railway station and fired at
the deceased five shots from his pistol.
After receiving th~ee
shots the deceased dropped down and the remaining two s~ots hit
him when he was lying.
The persons peresent there raised an-
602
SUPREME COURT REPORTS
(1971] I S.C.R.
·alarm, shouting 'Don't kill; don't kill'. The appellant, after firing
the shots, bris)dy walked back towards the railway station. The
deceased who was bleeding profusely w_as taken in the taxi by
Gurdial Singh, his father and Harnek Singh, the driver, to Dayanaiid Hospital where they were advised to take the injured to
Brown's Hospital because his condition was serious.
It is
in
evidence :hat some person had telephoned to the City Kotwali,
Ludhiana on the day of the occurrence at about 5-30 p.m. informing the poliice authorities that firing had taken place at Taxi Stand,
Ludhiana. The person, giving the information on telephone, did
not disclose his identity; nor did he give any ftuther particulars.
When the police officer receiving the telephone message made
further enquiries from him he disconnected the telephone.
This
report was entered in the daily diary at 5.35 p.m. The Assistant
Sub'.Inspector, Hari Singh, along with Assistant Sub-Inspectors
Amrik Singh, Jagat Singh and Brahm Dev and constables Prakash
Singh,. Har~hajan Singh and Harbans Lal, left the police station
in a government jeep for the Taxi Stand, Ludhiana near Jagraon
Bus Stand on the Grand 'frunk Road, about a furlong and a half
away from the City Kotwali Police Station.
From there Hari
Singh learnt that . the injured man had been removed by some
persons to Dayanand Hospital.
As it was rumoured at the place
of the occurrence that the appellant Tapinder Singh had sho, at
the deceased, Hari Singh deputed Amrik Singh and Brahm Dev to
search for him.
Hari Singh himself, along with Sub-'Inspector
Jagat Singh and the police constables left for D~yanand Hospital.
Frorn there they went to the Civil Hospital and then they proceeded to C.M.C. Hospital at about 6-30 p.m. On enquiry they
were informed that Kulwant Singh had been admitted there as an
indoor patient.
Hari Singh went upstairs in the Surgiqil Ward
and obtained the report (Ex. PH/ 13) prepared by Dr. E. Pothan
who was in the Surgical Ward where Kulwant Singh was lying.
The statement of Kulwant Singh (Ex. PMl was also recorded by
him at about 6.50 p.m. in that ward and the same after being
read out _by him was thumb marked by Kulwant Singh as token
of its correctness.
That statement was forwarded tq the police
station. City Kotwali for registration of the case under s. 307,
I.P'.C. Exhibit PM was also attested by Dr. ' Sandhu,
House
S~rgeon. Hari Singh deputed Assistant Sub-Inspector; Jagat
Singh to arrange for a Magistrate for recording Kulwan~ Singh's
dying declaration in the hospital.
The statement of Gurdial
Singh. father of the deceased was also recorded there at about'
7.20 p.m. Jagat Singh, AS.I. brought Shri Sukhdev Singh.
P.C:S., Judicial Magistrate, First Class, to the Hospital at about
7.30 p.m. The dying declaration was, however, recorded at about
8.30 p.m.
because Kulwant Singh was not found to be in a fit
cstate of health to make the statement earlier. Kulwant Singh died
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TAPINDER SINGH I'. PUNJAB (Dua, J.)
603
at the operation theatre the same midnight. Pursuant to Ex. PH/
13 first inforination report was registered and the appellant committed to stand his trial for an offence under s. 302, 1.P.C.
The learned Additional Sessions Judge, believing Gurdial
Singh (P.W. 7), Sukhdev Singh, Judicial Magistrate (P,W. 10)
and Mukhtiar Singh, H. C. (P.W. 6) held proved the motive for
the crime viz.. that the appellant suspected illici~ intimacy between his wife and the deceased who was married to her elder
sister. According to the trial Judge the appellant for this reason
bore a itrudge against the deceased.
The three eye
witnesse>,
Gur~ial Singh, (P.W. 7), Harnek Singh (P.W. 8) and Sher Singh
(P.W. 9) were held to have given a true and correct account of
the occurrence and being witnesses whose presence at the place
0f occurrence was natural their evidence was considered trustworthy, which fully proved the case against the accused.
The
dying declaration was also found to be free from infirmity and
being categorical and natural t!1e court considered it sufficient by
itself to sustain the conviction.·, The circumstantial evidence, in·
eluding that of the recovery of blood stained earth from the plac~
of occurrence, the recovery of \llood stained
clothes
of the
deceased, the fact of the accuse4 having
absconded
and
the
recovery of the pistol and cartridgi:s were also held to corroborate
the prosecution story. Omission dyi the part of the prosecution to
produce a ballistic export was considered to be immaterial and it
was held not to weaken or cast a i!oubt on the prosecution case
because the oral evidence of eye witnesses to the commission of
the offence impressed the court to be trustworthy and acceptable.
The trial court also took into consideration the allegations conthe course of the committal proceedings in the court of Shri Mewa
Singh. Magistrate, on November 20, 1968 to the effect, inter alia,
tained in an application presented by Gurdial Singh (P.W. 7) in
that an attempt was being made on behalf of the
accused
to
tamper with the prosecution witnesses. 'The trial court convicted
the accused under s. 302, I.P.C. and imposed capital sentence.
On appeal the High Court rejected the criticism on behalf of
the accused that the occurrence had noMaken place at the spot and
in the manner deposed to by the eye witnesses.
On a detailed and
exhaustive discussion of the arguments urged before the High·
Court it came to this conclusion :
". . . . . . that there was motive on the part of the
appellant to commit this crime, that the three eyewitneses produced by the prosecution are reliable, they
were present at the time of the occurrence and have given
a correct version of the incident and that the medical
604
SUPREME COURT REPORTS
(1971] l S.C.R.
evidence fully supports the prosecution an.d no suspicion
is attached to it.
The deceased made more than one
dyjng declaration and we are satisfied that they were not
induced and that the deceased gave a correct version of
the incident. The suggestion made that Tapinder Singh
has been roped in on suspicion in ·not correct because
implicit in such an argument is the suggestion that the
crime was tommitted by somebody else·.
It wa~ broad
day light, the. assailant. must have been identified and
consequently we are satisfied that the offence has been
fully brought home to· the appellant. _The place of the
occurrence does not admit of any doubt because there is
good deal of evidence on the record that blood was
recovered from where the Takhat posh was kept by
GurJial Singh and there is no suggestion that the blood
was found from anywhere else.
The learned counsel has then urged that the. offence
does not fall under section 302, Indian Penal Code, but
no reasons have been given as to why this is not an
offence punishable under section 302, Indian Penal
Code.
Learned counsel urged that something must have
happened which induced Tapinder Singh to commit this
crime. There is nothing on the record, not even a suggestion, that anything happened. Tapinder Singh came
armed with a pistol and fired as many as five snots at
Kulwant Singh, two of which he fired on his back when
Kulwant Singh had falled on the ground.
The appellant, therefore, does not deserve the lesser penalty
contemplated by law.
Consequenily, we uphold the
conviction and sentence imposed upon Tapinder, Singh.
The appeal is dismissed and tfie sentence of death is
confirmed."
On appeal in this Court under Art. 136 of the Constitution,
Mr. Nuruddin Ahmed, learned advocate for the appellant. 3'1dressed elaborate arguments challenging the conclusions of the
courts below on whi£h they have sustained the al?pellant's conviction.
He started with an attack on the F.I.R. based on the
dying declaration. According to the counsel, the information in
regard to the offence had already been conveyed to the police by
means of a telephone message and the police had actually started
investigation on the basis of that information. This argument was,
however, not seriously persisted in and was .countered by the
respondents on the al!thority of the decision in Sarup Singh v.
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TAP!NDER SINGH v. PUNJAB (Dua, J.)
605
State of Punjab('). The te_lcphone message was received by Hari
Singh, A.S.l., Police St~tion, City Kot~~li at. 5-35
p.m.
on
September 8, J 969.
The person conveyini: the information did
not disclose his identity, nor did; he give any other particulars and
all that is said to have been conveyed was that firing had taken
place at the taxi stand,_ Ludhiana. Th_is was, of course, recorded
in the daily diary of the police station by the police officer responding to the telephone call. But prim51 facie this cryptic and
annoymous oral message which did not in terms clearly specify a
cognizable offence cannot be treated as first information report
The mere fact that this inform'ation was the first in point of time
does not by itself. clothe it with the character of first information
report. The question whether or not a particular document constitutes a first information report has, broadly speaking, to be
determined on the relevant facts and circumstances of each case.
The appellant's submission is that since the police authorities had
actually proceeded to the spot pursuant to this information, however exiguous it may appear to the court, the dying declaration is
hit by s. J 62. Cr. P.C.
This submission is unacceptable on the
short ground that s. 162(2), Cr. P.C. in express terms excludes
from its purview statements falling within the provisions of s.'.\2
(I), Indian Evidence Act.
Indisputably the dying declaration
before us falls within s. 32( I), Indian Evidence Act and as such
it is both relevant and outside the prohibition contained in s. 162
(1 ), Cr. P.C. The counsel next contended that the dying declaration does not contain a truthfu, version of the circu'histances ln
which Kulwant Singh had met with his death and, therefore, it
should not be acted upon. This ~rgument is founded on the suomission that the deceased did noi meet with his death at the spot
sworn by the prosecution witnesses and that none of these witnesses actually saw the occurrence because they were not present
a1 the place and time where and when the deceased was shot at
We are far from impressed by this contention.
The trial court
and the High Court have both believed the three eye witnesses
and have also relied on the dying declaration. Normally, when
the High Court believes the evidence given by the eye witnesses
this Court accepts the appraisal of the evidence by that Olurt
and does not examine the evidence afresh for itself unless, as
observed by this G:ourt in Brahmin !sharia/ Manila/ v. The State
of Gujarat. (1)
"It is made to appear that justice has failed for
reason of some misapprehension or mistake in the reading of the evidence by the High Court."
(I) A.l.R. 1964 Punjab 508.
(1) Crl. A. No. 120 of 1963 decided on August 10, 1965.
606
SUPREME COURT REPORTS
[1971] l S.C.R.
It was added in that judgment :
"There must ordinarily be a substantial error of
law or procedure or a gross failure of justice by reason
of mis-apprehension or mistake in reading the evidence
or the appeal must involve a question of principfe of
general importance before this Court will allow the oral
evidence to be discussed."
In the present case it was contended that the original document
embodying the dying declaration is missing from tlte judicial
record and it is suggested that the mysterious disappearance of
.this important document during the committal proceedings was
intended to remove from the record the evidence which would
have shown that this dying declaration could not legally constitute
the basis of the F.I.)l. and thereby frustrate the
ple'a
of the
accused that s. 162;> Cr. P.C. operated as a bar to its admissibility. The bar created bys. 162(1), Cr. P.C., as already noticed,
is inapplicable to dying declarations.
But', as the original dying
declaration has somehow disappeared from the Judicial record
artd the case is of a serious nature, we undertook to examine the
evidence in respect of the dying declaration.
The evidence of
Shri Sukhdev Singh, Judicial Magistrate, as P.W. 10, is clear on
the point. The witness has repeated in court the statement made
to him by Kulwant Singh which was ·recorded by the witness in
Punjabi in his own hand. An attempt was made by Mr. Nuruddin to persuade us to hold that Shri Sukhdev Singh's statement is
not trustworthy.
It was argued that there was no cogent reason
for the Magistrate to permit the police officers to make a copy of
the dying declaration.
This, according to the counsel, shows
that the Magistrate acted in a manner subservient to the demands
of the police officers and, therefore, his statement should not be
taken on its face value.
We do not agree.
The Magisirate, as
observed by the High Court, is quite clear as to what the deceased
had told him.
He ltas repeated" the· same in his statement in
court. Exhibit PJ has been proved by him as a correct account
of the dying declaration recorded by .. him.
It is not understood
how the fact that the Investigating Officer was allowed to make a
copy of the dying declaration could go against the Magistrate.
The dying declaration could legitimately serve ·as a guide in further investigation.
It was not argued that the dying declitration
being a confidential document had to be kept secret from the
Investigating Officer.
Our attention was drawn by the respondents to the application dated November 20. 1968 (Ex. PZ) Ried
1'y Gurdial Singh in the court of Shri Mewa Singh, Magistrate.
for expeditious disposal t)f the commitment proceedingi;.
In
that application it was suggested that the defence had got removed
the dying declaration and statements under s. 164. Cr. P.C. which
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TAP!NDER SINGH v. PUNJAB (Dua, J.)
607
had presumably been destroyed.
Accord.ing to the. respondent's·
suggestion it was the accused who was mterested m the disappearance of the original dying declaration from the record. I~
this connection yie may point out that. on October 27, 1968 S~n
Mewa Singh, Magistrate, had lodged a report with the pohce
under ss. 379/409/201, I.P.C., alleging theft of the F.I.R., the
dying declaration and statements of witnesses recorded under s.
164, Cr. P.C. in the case State v. Tapinder Singh. For the disposal of this appeal it is unnecessary for us to express any opinion
as to who is responsible for the disappearance of the dying declaration. That question was the subject matter of a criminal proceeding and we have not been informed about its fate.
The dying declaration is a statement b~ a person as to the
cause of his death or as to any of the circumstances of the transaction which resulted in his death and it becomes relevant undc1
s. 32 ( 1) of the Indian Evidence Act in a case in which the cause
of that person's death comes into question. It is true that a dying
declaration is not a deposition in court and it is neither made on
oath nor in the presence of the accused.
It is, therefore. not
tested by cross-examination on behalf of the a~cused.
But a
dying declaration is admitted in evidence by way of an exception
to the general rule against the admissibility of hearsay evidence,
on the principle of necessity. The weak points of a dying declaration just mentioned merely serve to put the court on its guard
while testing its reliability, by imposing on it an obligation to
closely scrutinise all the relevant attendant circumstances.
This
Court in Kushal Rao v. The State of Bombay(') laid dowm the test
of reliability of a dying declaration as follows :
"On a review of the relevant
provisions of
the
Evidence Act and of the decided cases in the different
High Courts in India and in this Court, we have come
to the conclusion, in agreement with the ·opinion of the
Full Bench of the Madras High Court, aforesaid, ( 1)
that it cannot be laid down as an absolute rule of law
that a dying declaration cannot form the sole basis of
conviction unless it is corroborated; (2l that each case
must be determined on its own facts keeping in view the
circumstances in which the dying declaration was ma<!e;
( 3) that it cannot be laid down as a general proposition
that a dying declaration is a weaker kind of evidence
than other pieces of evidence; ( 4) that a dying declaration stands on the same footing as another piece of
evidence and has to be judged in the light of surrounding circumstances and with reference to the principles
governing the weighing of evidevce: (5) that a dying
lll[\9581 S.C.R. 55~ at pp. 568-569.
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SUPREME COURT REPORTS
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declaration which has been recorded by a competent
magistrate in the proper manner, that is to say, in the
form 'of questions and answers, and, as far as practicable, in the words of the maker of the declaration,
stands on a much higher footing than a dying declaration which depends upon oral testimony which
may
suffer from all the infirmities of human memory and
human character, and ( 6) that in order to test the
reliability of a dying declaration, the Court has to keep
i.n view the circumstances like the opportunity of the
dying man for observation, for example, whether
there was sufficient light if the crime was committed at
night; whether the capacity of the man to remember the
facts stated had not been impaired at the time he was
making the statement, by circumstances beyond his control; that the statement has been consistent throughout
If he had several opportunities of making a dying declaration apart from the official record of it; and that the
statement had been made at the earliest opportunity and
was not 'the result of tutoring by interested parties.
Hence in order to pass the test of reliability, a dying
declaration has to be subjected to a very close scrutiny,
keeping in view the fact that the statement has been
made in the absence of the accused who had no opportunity of testing the veracity of the statement by crossexamination. But once the court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of
the
death and
the
assailants of the victim, there is no question of further
corroboration. If, on the other hand, the court, after
examining the dying declaration in an its aspects, and
testing its veracity, has come to the conclusion that it
is not reliable by itself, and that it suffers from an infirmity, then, without corrob'Jration it cannot form the
basis of a conviction.
Thus, the necessity for corroboration arises not from any inherent weakness of a dying
declaration as a piece of evidence, as held in some of
the reported cases, but from the fact that the court, in a
given case, has come to the conclusion that that particular dying declaration was not free from the infirmities
referred to above or from such other infirmities as may
be disclosed in evidence in that case."
This view was approved by a Bench of five Judges in Harbans
Singh v. State of Punjab.(')
Examining the evidence in this
IJ) [1962] Supp. 1 S.C.R. 104.
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TAPINDER SINGH V. PUNJAB (Dua, /,)
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case in the light of the legal position as settled by this Coun we
find that the dying declaration was recorded by the Magistrate
within four hours of the occurrence. It is clear and concise and
sounds convincing. It records :
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"Today at 4.45 p.m. my Sandhu
(wife's sister's
husband) Tapinder Singh fired shots with his pistol at
me in the presence of Harnek Singh, Sher Singh and
Gurdial Singh at the taxi stand. He suspected that I
had illicit relations with his wife.
Tapinder Singh
injured me with these fire shots."
Considering the nature and the number of injuries suffered by the
deceased and the naturalanxiety of his father and others present
at the spot to focus. their attention on efforts to save his life we
are unable to hold that he had within· the short span of time
between the occurrence and th~- making of the dying declaration
been tutored to falsely name the -appellant as his assailant in
place of the real culprit and also to concoct a non-existent
motive for the crime. It is unnecessary for us to refer to the
earlier declaratioru;,contained in EX. PM, Ex. DC and Ex. PH/13
because the one recorded ·and proved by the Magistrate seems to
us to be acceptable and free from infirmity. tf the dying declaration is acceptable as truthful then even i!n the absence of other
corroborative evidence it would be open to the court to act upon
the dyi\ng decl.aration and convict the appellant stated therein to
be the offender.
An accusation in a dying declaration comes
from the victim himself and if it is worthy of_ acceptance then
in view of its source the court can safely act upon it. In this
case, however, we have also the evidence of eye witnesses Gurdial
Singh, (P.W. 7), Hamek Singh (P.W. 8) and Sher S~gh (P. W.
9) whose testimony appears to us to be trustworth:- and\':1nshaken.
No convincing reason has been urged on behalf of the appellant
why these three witnesses and particularly the father of the
deceased should falsely implicate the appellant substituting him
for the real assailant. It is not a case in which, along with the
real culprit, someone else, with whom the complainant has some
scores to settle, has been added as a co-accused. The only argument advanced on behalf of the appellant was that the deceased
' was shot at somewhere else and not at the place where the prosecution witnesses allege he was shot at. It was emphasised that
these three witnesses were not presen~ at the. place and time where
the occurrence actually took place. This su~mission is, in our
view, wholly unfounded ,and there is absolutely no material in
supp0rt of it on the existing record. Tlte probabilites are clearly
against it. The fact that Hari Singh, .A.S.I. (P.W. 2) went to .
the place of occurrence and from there he learnt from someont
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[1971] l S.C.R.
that the· injured person had been taken to Dayanand Hospital
clearly negatives the appellant's suggestion.
The fact th.at the
A.SJ. did not remember the name of the person who gave this
information would not detract from its truth.
On the contrary
it appears to us to be perfectly natural for the A.SJ. in those
circumstances not to attach much importance ti 1 the person who
gave him this information.
And then, the short duration within
which the injured person reached the hospital also shows
that
those who carried him to the hospital were closeby at the time
of the occurrence and the suggestion that Gurdia; Singh (P,W'. 7),
Harnek Singh (P.W. 3) and Sher Singh (P.W. 9) must have
been informed by someone after the occurrence does not seem to
us to fit in with the rest of the picture. We are, therefore. unat)le
io accept the appellant's suggestion that the deceased was shot at
somewhere else away from the place of the occurrence as deposed
by the eye witnesses.
Some minor points were also sought to be raised by Mr.
Nuruddin. He said that the pair of shoes belonging to the deceased were Jett at the spot but they have not been traced.
The
.takhat posh on which the deceased was sitting has also not been
proved to bear the marks of blood nor a~ the blood marks proved
on the seats of the car in. which the deceased was taken to the
hospital. The counsel also tried to make a point out of the omission by the prosecution to prove blood stains on the clothes of
Gurdial Singh (P.W. 7) and Harnek Singh (P.W. 8) who had
·carried Kulwaht Singh fr«;im the place of the occurrenc~ to the
hospital.
Omission to produce a ballistic expert was
also
adversely criticised. These, according to the coumrel, are serious
infirmities ·and these omissions militate against the prosecution
story. In our opinion, the criticism of the counsel assuming it to
be legitimate. which we do not hold, relates to mat\ers which are
both insignificant and immaterial on the facts and circumstances
of this case. They do not in any way affect the truth of the main
elements of the prosecution story.
On appeal under Art. 136
' -of the Constitution we do not think it is open to this •Court to
allow such minor points to be raised for the purpose of ·showing
<lelects in appraisal of the evidence by the High Court 3*l for
evaluating the evidence for ourselves so as to anive at conclulions
~ilfereat from. those of the High Court. The eye witnesses hmng
been believed, these points lose all importance and cannot be
p1used in this Court.
Considerable stress was laid on behalf of the appellant. on the
submission that according to the -f6fder Ex. DC one Trilochan
Sinllt was present iii the hospital ,as a friend or Itlation of the
illjuftd person. From this it was sought to be inferred that Gur·
dial Singh, father of Kulwant Singh, had not accompanied his
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son to the hospital and that this would show that the eye witnesses are not telling the tt'Uth. The argument seems to us to be
without any basis and is misconceived. In the first instance the
name of Trilochan Singh on the folder has not been proved. It is
the contents of Ex. DC which have been proved by Dr. E. Pothan
(P.W. 1 at the trial) who had appeared as P.W. 10 in the court
of the Committing Magistrate. Secondly in this document, as
we have verified from the original recordGurdial Singh is actually
mentioned as the father of the injured person. We are, therefore,
not impressed by the submission that Ex. DC goes against the
testimony of the eye witnesses. Incidentally, Ex. DC also contains
the precise information which was the subject matter of the dying
declaration.
It appears that in order to discredit Ex. DC with
respect to the information about the appellant being the assailant,
the name of one Trilochan Singh (whose identity still remains
unknown) was somehow made to appear on the folder but as it
has not been legally proved and not referred to by any witness
we need say nothing more about it.
This argument thus also
fails.
The submission that the medical evidence contradicts the
version given by eye witnesess also remains unsubstantiated on
the record.
·
As a last resort it was contended that if the motive alleged by
the prosecution is accepted then the sentence imposed would
appear to be excessive.
In our view, the manner in which the
five shots were fired at the deceased clearly shows that the offence
committed was deliberate and pre-planned.
We are unable to
find any cogent ground for interference with the sentence. The
appeal accordingly fails and is dismissed.
G.C.
Appeal dismissed,