# _- - , ,__,, 688 SUPREME COURT REPORTS [1~64] VOL. :MOTI SINGH AND--ANOTHEif v. STATE OF UTTAR PRADESH

- **Citation:** [1964] 1 S.C.R. 688
- **Court:** Supreme Court of India
- **Decided:** 1962-02-02
- **Case number:** CRIMINAL APPELLATE JumsDICTION : Criminal Appeals Nos. 146 and 147 of 1962
- **Bench:** S.J. Imam, K. Subba 'Rao, Raghubar Day.Al, J. R. l\1umIOLKAR
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/688-supreme-court-reports-1-64-vol-moti-singh-and-anotheif-v-state-of-uttar-2806
- **Pages:** 9

## Headnote

Criminal Trial-Dyin(J Declaratian-Aclmissibi/ity ofOause of_ death of_ cleclarant not established-Indian Evidence
Act, 1872 (1of1872), s. 32 (1).
' Seven pe~sons including the appellants were convicted
for murder. Relying upon the dying declaration :or one G,
the High Court acquitted 'five of the accused. but convicted the
. appellants. G had been injured during the occurrence and
·had been taken to the hospital where his dying declaration was
recorded. He left the hospital and died 20 days later. Before
any . post-mortem examination could be held, his body was
cremated. The appellants contended that· the dying declaration was inadmissible and that . they were entitled to an
acquittal.
lleld,, that the dying decfaration
was
inadmissible
in evidence. There was no evidence on the record as to what
caused the death of G. The mere fact that G had received
two gun shot injuries during the occurrence which in the
opinion of the doctor were dangerous to life was not sufficient
for holding that G must have died on ac:ount of these injuries.
Under s. 32 (1) of the Evidence Act the Statement of a person
who has died is relevant only when it relates to the cause of
his death or to any of the circumstances of. the transaction
which resulted in his death. When it was not established that
G had died as a result of the injuries received at the incident,
his statement did not relate to the cause of his death or to the
circumstances of the transaction wh.lch resulted in his death and·
did not fall within s. 32 (1).
CRIMINAL APPELLATE JumsDICTION : Criminal
Appeals Nos. 146 and 147 of 1962.
Appeals by .special leave from the judgment
and order dated February 2, 1962, of the Allahabad
High Court in Criminal .Appeals Nos. 157 and 158 ·
of 1961 and Criminal Revision No. 384 of 1961.
· ·
l S.C.R.
SUPREME COURT REPORTS
689
A. S. R. Chari, Ravinder
Narain, J. B.
Dadachnnji and 0. 0. Mathur, for the appellants.
G .. O. Mathur and 0. P. Lal, for the respondent.
1963. January 23. The Judgment of the Court
was delivered by
1963
Moti Sin1h
v.
Sta11 ef U.P.
RAoHUBAR
DAYAL, J.-Moti
Singh and
&,ltublr D~. J.
J agdamba Prasad, appellants, together with five
other persons, were convicted by the Sessions Judge
of Unnao of offences under s. 148, 302 read with
149 and 307 read with 149 I. P. C. Each of them
was sentenced to life imprisonment undrr s. 302 read
withs. 149 I. P. C.
On appeal, the High Court acquitted the other
five persons of the various offences. The conviction .
of th~ appellants under s. 148 I. P. C., was also set
aside, but their cc.nviction for the offences under
ss. 302 and 307 read with s. 149 were altered to
conviction for offences under ss. 302 and 307 read
with s. 34 I. P. C .. On the application of Krishaa
Kumar, brother of one of the persons who had been
murdered, the High Court enhanced the sentence of
the appellants for the offem:e of murder to death.
Moti Singh and Jagdamba Prasad have preferred
these appeals respectively, after obtaining special
lea \'e from this Court.
It is not necessary to detail the facts of the
incident in which several persons lost ~heir lives and
for participation in which incident the appellants
were convicted, as we are of opinion that the convic·
tion cannot be maintained on the basis of the
evidence on record as appreciated by the High Court.
All the eye witnesses of the incident deposed in
practically identical terms about the progress of the
incident in which it was alleged that the members of
1903
Moti .)ingh
v.
S<au qf U.P.
Rdthubar Dayal, .I.
690 SUPREME COURT REPORTS (1964] VOL.
the accused party fired with guns and pistols both
from inside and outside the room on one side of the
passage and also from the seori (cattle shed) on the
other side of the passage when the victim party
passed along the passage. The High Court felt
doubtful about the firing of the shots from the cattle
shed, and consequently acquitted Sheo Shankar,
Jagjiwan and Shankar Dayal who were said to be
mainly the persons who had fi

## Text

"-...... .'
1963
Jan.u~y, 23.
·-
---..
,_- -..
, ,__,,
688 SUPREME COURT REPORTS [1~64] VOL.
:MOTI SINGH AND--ANOTHEif
v.
STATE OF UTTAR PRADESH
(S.J. IMAM, K. SUBBA 'RAO, RAGHUBAR DAY.AL,
and J. R. l\1umIOLKAR, JJ.)
Criminal Trial-Dyin(J Declaratian-Aclmissibi/ity ofOause of_ death of_ cleclarant not established-Indian Evidence
Act, 1872 (1of1872), s. 32 (1).
' Seven pe~sons including the appellants were convicted
for murder. Relying upon the dying declaration :or one G,
the High Court acquitted 'five of the accused. but convicted the
. appellants. G had been injured during the occurrence and
·had been taken to the hospital where his dying declaration was
recorded. He left the hospital and died 20 days later. Before
any . post-mortem examination could be held, his body was
cremated. The appellants contended that· the dying declaration was inadmissible and that . they were entitled to an
acquittal.
lleld,, that the dying decfaration
was
inadmissible
in evidence. There was no evidence on the record as to what
caused the death of G. The mere fact that G had received
two gun shot injuries during the occurrence which in the
opinion of the doctor were dangerous to life was not sufficient
for holding that G must have died on ac:ount of these injuries.
Under s. 32 (1) of the Evidence Act the Statement of a person
who has died is relevant only when it relates to the cause of
his death or to any of the circumstances of. the transaction
which resulted in his death. When it was not established that
G had died as a result of the injuries received at the incident,
his statement did not relate to the cause of his death or to the
circumstances of the transaction wh.lch resulted in his death and·
did not fall within s. 32 (1).
CRIMINAL APPELLATE JumsDICTION : Criminal
Appeals Nos. 146 and 147 of 1962.
Appeals by .special leave from the judgment
and order dated February 2, 1962, of the Allahabad
High Court in Criminal .Appeals Nos. 157 and 158 ·
of 1961 and Criminal Revision No. 384 of 1961.
· ·
l S.C.R.
SUPREME COURT REPORTS
689
A. S. R. Chari, Ravinder
Narain, J. B.
Dadachnnji and 0. 0. Mathur, for the appellants.
G .. O. Mathur and 0. P. Lal, for the respondent.
1963. January 23. The Judgment of the Court
was delivered by
1963
Moti Sin1h
v.
Sta11 ef U.P.
RAoHUBAR
DAYAL, J.-Moti
Singh and
&,ltublr D~. J.
J agdamba Prasad, appellants, together with five
other persons, were convicted by the Sessions Judge
of Unnao of offences under s. 148, 302 read with
149 and 307 read with 149 I. P. C. Each of them
was sentenced to life imprisonment undrr s. 302 read
withs. 149 I. P. C.
On appeal, the High Court acquitted the other
five persons of the various offences. The conviction .
of th~ appellants under s. 148 I. P. C., was also set
aside, but their cc.nviction for the offences under
ss. 302 and 307 read with s. 149 were altered to
conviction for offences under ss. 302 and 307 read
with s. 34 I. P. C .. On the application of Krishaa
Kumar, brother of one of the persons who had been
murdered, the High Court enhanced the sentence of
the appellants for the offem:e of murder to death.
Moti Singh and Jagdamba Prasad have preferred
these appeals respectively, after obtaining special
lea \'e from this Court.
It is not necessary to detail the facts of the
incident in which several persons lost ~heir lives and
for participation in which incident the appellants
were convicted, as we are of opinion that the convic·
tion cannot be maintained on the basis of the
evidence on record as appreciated by the High Court.
All the eye witnesses of the incident deposed in
practically identical terms about the progress of the
incident in which it was alleged that the members of
1903
Moti .)ingh
v.
S<au qf U.P.
Rdthubar Dayal, .I.
690 SUPREME COURT REPORTS (1964] VOL.
the accused party fired with guns and pistols both
from inside and outside the room on one side of the
passage and also from the seori (cattle shed) on the
other side of the passage when the victim party
passed along the passage. The High Court felt
doubtful about the firing of the shots from the cattle
shed, and consequently acquitted Sheo Shankar,
Jagjiwan and Shankar Dayal who were said to be
mainly the persons who had fired from that place.
The High Court, however, believed the prosecution version of the firing from the room and later
from the platform. It appears that the High Court
believed this version because the prosecution witnesses
stated so and because the statements exhibits Kha 5,
Kha 8 and Kha 75 mentioned about the shots being
fired from those places. Statement ex. Kha 75 does
not say so.
It says that firing took place from the
front and that these people fired shots with guns.
Statements exs. Kha 5 and Kha 8 were made by
Ram Shankar and Jageshwar, who were examined as
Court.witnesses 1 and 2 respectively.
Ram Shankar
and Jageshwar have been disbelieved by the Sessions
Judge and it appears that the High Court did not take
any more favourable view of their deposition in
Court. It however seems to have relied on their
statements exs. Kha 5 and
Kha 8 respectively,
recorded by a Magistrate at the hospital.
In this it
was in error. Those
statements could have been
used only in either corroborating or contradicting
the statements of these witnesses in Court. If those
witnesses were not to be believed, their previous
statements could not be used as independent evidence
in support of the other prosecution evidence.
In considering the complicity of individual
accused in the firing from the room and later from
the chabutra, the High Court said that Raj Kumar,
P. W. 11 and Chandra Kumar, P. W. 15, were
partisan witnesses whose evidence had to be examined
l S.C.R.
SUPREME COURT REPORTS
691
with caution, that Shyam Lal, P. W. 12 and Gopi
Singh, P. W. 14, were not quite independent witnes'
ses, and that there was nothing particular against
Lal Singh, P. W. 17, and Sardar (P. W. 16) who had
received gun shot injuries. It further said :
"While considering the evidence of the prostcution witnesse!-. we have to bear in mind the
rule that the evidence has to be examined with
caution".
It abo considered it necessary to refer to the statements exs. Kha 5 and Kha 8 which, as already
stated, could not be med as suhstantive evidence,
and the statement ex. Kha 75 of Gaya Charan,
deceased.
The High Court fully relied on the alleged
dying declaration ex. Kha 75 of Ga"ya Charan and
considered it to be a complete account of the
occurrence and the assailants as seen by him.
The
view of the High Court about this statement of Gaya
Charan may be quoted :
"The dying declaration Ex. Ka-75 (Kha 75)
of Gaya Charan appears to be a complete
account of the occurrence and the assailants as
seen by him, for he stated : 'Lallan, Chandu,
Raj Narain, Sardar, Sri Prakash were going to
the bazar. Shots
were fired
from
front,
Jagdamba, Phunnar, Moti and one man whom
I kno1v by face fired gunshots on us'.
The
statement does not show that Gaya Charan did
not see all the assailants who fired
gunshots~· It
is therefore not possible to hold that any
accused not mentioned in the dying decl;;iration
of Gaya Charan had also fired shots. .At the
same time we see no reason to hold that the
dying declaration of Gaya Charan is not true.
J ageshwar identified the accused .T aP'rlamba
1963
Moti Singh
v.
State of U.P.
Raghubar Dtl}al, J.
•
1963
Moli SU.,l
••
Slolo of U.P.
ht""""' o,,,.i, J.
692
SUPREME COURT REPORTS (1964] VOL.
among the assailants. The evidence of the
eye-witnesses has therefore to be judged in the
light of the statements Exs. Kha 5 am;! Kha-8
of Ram Shankar and .Jageshwar and the dying
declaration Ex. Kha 75 of Ga ya Charan.''
Now, the evidence relied
on by the High
Court for the conviction of Jagdamba Prasad consists
of the statements of the prosecution witnesses, the
statement of Jageshwar E~. Kha 8 and the alleged
dying declaration of Caya Charan Ex. Kha 75. It
also took into consideration the fact that he remained
absconding till his arre<;t on September 3'l, 1960, the
incident having taken place on February 9, 1960.
The evidence relied on fur the. conviction of
~Ioti Singh consi~ts of thr dying declaration Ex.
Kha 75 of Caya Charan and, presumably, also of
the statements of the prosecution witnesses, as the
High Court has not specifically stated so.
It has
said
"We have also no doubt about the participation
of the accused :Moti in the firing of shots from
the east of the galiara. He is named in the dying
declaration Ex. Kha. i5, of Caya Charan."
With
regard to the criticism for the accused
about the indefiniteness of the description of Moti
in the dying declaration of Ga ya C'iaran when there
were three persom by the name of Moti in the village,
the High Court said :
'•We have no doubt that h~ is mentioned in the
dying declaration."
How they arrived at that conclusion is not clear
from the judgment. The three persons with the
name of Moti bclon~cd to different castes. The ca>te
of Moti is not mentioned in the dying declaration
1 S.C.R.
SUPREME COURT REPORTS
693
of Gaya Charan. It is therefore not possible to
state with any confidence that Gaya Charan must
have referred to Moti Singh, the appellant, by the
name Moti.
In acquitting Sheo Darshan Singh, the High
Court said that though there were strong circumstances against him, he was not mentioned in the
dying declaration of Gaya Charan and that therefore
his presence among the assailants became doubtful.
In acquitting A vadh Behari it again said that his
name was not mentioned in the dying declaration of
Gaya Charan.
Again, in fixing the number of persons who
had taken part in the firing from the room and the
platform, the High Court relied on Exhibit Kha 75,
the alleged dying declarat,ion of Gay a Char11n as the
deciding factor. It said ,
"The number of assailants mentioned in the
dying declaration Ex. Kha. 75 is only four.
It
is doubtful if the assailants were more than
four in number.
No offence under section 148
was therefore committed and section 149 l.P.C.
is not applicable."
It is clear from the above that the High Court
mainly relied on the alleged dying declaration of
Gaya Charan for determining that Moti Singh and
Jagdamba Prasad, appellants, fired from the room
and the platform and that if their names had not
been mentioned in this statement of Gaya Charan,
they too would have got the benefit of doubt just
--as Sheo Darshan Singh and Avadh Behari have
got. There is no other factor for making a
distinction · between the cases of these two appellants
and those two accused as all the prosecution wit11esses
had named all the accu~d as assailants of the victim
1963
MotiSingA
v •.
Sta11qf U.P.
Ra1/iubor D410l, J.
/96:J
Mali f;.,.I
..
Slalt 'If U. P,
R.,truW Doy.J, I.
694 SUPREME COURT REPORTS [1964) VOL.
party. It follows that if this alleged d>ing declara·
tion of Ga ya Charan be inadmissible in evidence as
urged for the appellants, the appeals have to be
allowed and the conviction of the aμpellants set
aside.
The incident took place on February 9, 1960.
Gaya Charan's injuries were examined by Dr.
Bhatnagar the same day.
He found two gun shot
wounds of entry }"x!" up to the deptli of abdomen
and considered 1hoce injuries to be caused by gun
shot ar;d to be dangerous to life.
Gaya Charan left
the hospital. He was either discharged on the injuries
healding up or he left the hospital before 1hJy healed
up.
There is nothing on record to sliow in what
circumstances he left the hospital.
He died on
March I, 1960.
Sub-Inspector Puttu Lal, P.W. 24, has deposed
that it was known on March I, I 960 that Gay a
Charan had died in Kanpur and that when he
reached the Bhairon Ghat he learnt that the dead
body of Gaya Charan had been burnt a couple of
hours before.
There is no evidence on record as to
what caused Gaya Charan's death. In this state of
evidence the finding of the Ses~ions Judge that Gaya
Charan must have died on account of the injuries
received in the incident cannot be held to be a good
finding.
What he says in this connection is :
"Gaya Charan had a gunshot wound of entry
on the left hypochondrium region and one
gunshot wound of entry on the right lumbar
region.
Both the injuries were dangerous to
life, according to the Doctor. Gaya Charan
must have died of these injuries and the mere
fact, that no post mortem could be conducted
on his dead body before his cremation, does
not show that we cannot rely on his dying
declaration."
The mere fact that the
two gun-shot injuries
1 S.C.R.
SUPREME COURt .RE:t>o.Rts 695
were dangerous
to life
is not sufficient
for
holding that Gaya Charan's death which took place
about three weeks after the incident must have been
on account of those in juries.
In this connection our attention was drawn to
the fact that Ram Shankar who was also injured in
that incident had received one gun shot wound
!" x !" up to the depth of his abdomen !" above the
right end of upper border of Syihphysis Pubes, and
that in jury was also considered by the Doctor to be
dangerous to life, but fortunately Ram Shankar did
not succumb to the injury. The High Court did not
refer to this question as it appears the admissibility
of the alleged dying declaration of Gaya Charan
was not raised before it. That however does not
mean that we cannot '.iook into the findi11g gf fact
about Ga ya C~aran having died ,on accouht, of ,the
injuries received in the incident. It is nesessary for
proving the charge of murder of Ga ya Charan that he
had died on account of the injuries received and any
finding to that effect, in the absence, of evidence can
be looked into by this Court even though the Courts
below have confirmed that finding. We find that there
is no evidence to support that finding and hold that
Gaya Charan is not proved to have died due to the
injuries received in the incident.
The effect of this finding is that the alleged
dying declaration of Gaya Charan, Ex. Kha 75,
cannot be admissible in evidence. Clause (I) of s. 32
of the evidence Act makes a statement of a person
who has died relevant only when that statement is
made by a person as to the cause of his death or as
to any of the circumstances of the transaction which
resulted in his death, in cases in which the cause of
that person's death comes into question. When
Gaya Charan is not proved to have died as a result
of the injuries received in the incident, his statement
1963
Mali Singh
v.
Stau of U.P.
--
Roghabar DuJ.1l, J,
1163
Mt11i Si•gA
••
Slolqf U.P.
Rq•h• Dqol, /.
696 SUPREME COURT REPORTS[I964] VOL.
cannot be said to be the statement as to the cause of
his death or as to any of the circumstances of the
transaction which resulted in his death. This is
obvious and is not di~puted for the respondent State.
The result thtn is that the statement of Gaya
Charan Ex. Kha .75 is inadmissible in evidence.
It was the mainsray of the judgrncnt of the High
•
Court upholding the finding of the Sessions Judge
that Moti Singh and Jagdamba Prasad, appellanrs,
were among the persons who had fired from the
room and the platform. When this evidence is
to be ignored as inadmissible, the remaining evidence
on the record according to the view of the High
Court, was insufficienr to establish beyond reasonable
doubt that these two prrsons were among the assailants.
The appellants de:ierve the benefit of that doubt. They
would have got it if the High Court had not
erroneously relied on the statement Ex. Kha 75.
We
therefore hold
that
Moti Singh and
Jagdamba Prasad have not bren proved to have taken
part in that incident on February 9, 1960, which
led to the deaths of Lallan and Matrumal and the
causing of hurt to several other persons.
We accord·
ingly allow the appeals, set aside the order of the
High Court and acquit Moti Singh and Jagdamba
Prasad of the offences they were convicted of.
We
direct that they be released forthwith, if not required
to be detained under any other process of law.
Appeal allowed.