Supreme Court: In an appeal filed by the appellant against his conviction and sentence, the three-Judges Bench of Vivian Bose, N.H. Bhagwati* and B. Jagannadhadas, JJ., stated that the testimony of one Khachar and one Tirmal was sufficient to corroborate the statement in dying declaration of the deceased regarding participation of the appellant. Both these witnesses were natural witnesses and did not suffer from any disability so far as their motives or credibility were concerned.
The Supreme Court stated that the cries of the deceased heard by one Khachar were spontaneous utterances made immediately after the shooting. This evidence fell squarely within Illustration (a) to Section 6 of the Evidence Act, 1872. It was quite different from a dying declaration and because of its spontaneity was accepted as evidence and, if believed, could be acted upon without the necessity of corroboration. Therefore, the Supreme Court concluded the decision of the High Court confirming the conviction and death sentence passed by the Sessions Judge was correct and there were no grounds for interfering with the same.
Background
In the present case, the appellant along with two others, were charged with committing murder of one Ram Prasad, at Bhopal-ka-Nagla village on the night between 29-8-1952 and 30-8-1952. The prosecution’s story was that the deceased in the company of one Jangali and one Khachar left for the village at noon on 28-8-1952. They met the appellant on the way and the deceased demanded from him the sum of Rs. 2,634 that was due from him. This led to an altercation and the appellant then gave a threat that “one day he will pay him in full”.
Thereafter, the deceased and one Khachar proceeded and arrived at the village on 29-8-1952. The deceased, one Khachar and one Jangali along with some others slept at the chaupal of their hosts. At about midnight, the deceased went to urinate and returned to his cot. Subsequently, 10 or 15 minutes later, the appellant along with two others came to the chaupal. The appellant was armed with a gun and the rest two persons were armed with lathis. The appellant shot at the deceased from close range with the gun. The deceased recognised the appellant in the light of the lantern that was burning there. The report of the gunshot aroused others from their slumbers and they also saw three persons running away from the scene of occurrence and one Jangali recognised the appellant with his gun.
Thereafter, the FIR was filed by the deceased on the same night at about 4 a.m. and the events that had happened, and the occurrence were reported therein. The deceased was medically examined and two gunshot injuries, one contusion were noticed by the Medical Officer. The condition of the deceased was serious, and his dying declaration was recorded on 30-8-1952. Later, the deceased died at the hospital at about 10 or 11 a.m. The appellant was absconding for some time along with his two companions and the charge-sheet was submitted treating them as absconders. The appellant later surrendered himself in court.
The Sessions Judge convicted the appellant of the offence under Section 3021 of the Penal Code, 1860 and sentenced him to death subject to confirmation by the High Court. However, the two companions of the appellant were acquitted, and the benefit of doubt was given to them. The High Court concurred with the findings of the Sessions Judge and confirmed the conviction, and the sentence passed upon the appellant.
Analysis, Law, and Decision
The Supreme Court referred to Ram Nath Madhoprasad v. State of M.P., (1953) 1 SCC 178, wherein it was held that, it was not safe to convict an accused person merely on the evidence furnished by a dying declaration without further corroboration because such a statement was not made on oath and was not subject to cross-examination. Therefore, the Supreme Court stated that it was necessary to consider whether the statement in the dying declaration of the deceased regarding the participation of the appellant in the affair was corroborated by any independent testimony.
The Supreme Court stated that the direct testimony of one Jangali, even though it was relied upon by the Sessions Judge and the High Court was not sufficient to corroborate this statement. The Supreme Court stated that one Jangali had too strong motive to falsely implicate the appellant in the affair. Jangali went to the length of making a false FIR against the appellant, when his uncle was murdered, two months after the murder of the deceased. Thus, if he was capable of falsely implicating the appellant in the subsequent affair no reliance could be placed upon his testimony as corroborative of the statement of the deceased in his dying declaration.
However, the Supreme Court stated that the testimony of one Khachar and one Tirmal was sufficient to corroborate the statement in dying declaration of the deceased regarding participation of the appellant. Both these witnesses were natural witnesses and did not suffer from any disability so far as their motives or credibility were concerned. The Supreme Court stated that one Jangali certainly had no hand in the tutoring of the deceased and the only conclusion was that the deceased gave out the names of the appellant and his two companions as his assailants because he in fact saw them and identified them. Therefore, this was corroborative of the statement in the dying declaration of the deceased regarding the participation of the appellant in the affair and was sufficient to sustain the conviction of the appellant.
The Supreme Court stated that the cries of the deceased heard by one Khachar were spontaneous utterances made immediately after the shooting. This evidence fell squarely within Illustration(a) to Section 6 of the EVIDENCE ACT. It was quite different from a dying declaration and because of its spontaneity was accepted as evidence and, if believed, could be acted upon without the necessity of corroboration.
Therefore, the Supreme Court concluded the decision of the High Court confirming the conviction and death sentence passed by the Sessions Judge was correct and there were no grounds for interfering with the same.
[Sardar v. State of U.P., (1954) 2 SCC 214, decided on 04-08-1954]
*Judgment authored by: Justice N.H. Bhagwati
Advocates who appeared in this case :
For the Appellant: Jai Gopal Sethi, Senior Advocate (R.L. Kohli and K.N. Agarwala, Advocates, with him);
For the Respondent: C.P. Lal, Advocate.
*Note: Section 6 of Evidence Act, 1872
Section 62 of the Evidence Act deals with relevancy of facts forming part of same transaction. The provision states that the facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places. Illustration (a) of the provision states that A is accused of the murder of B by beating him. Whatever was said or done by A or B or the by-standers at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact.
In Javed Alam v. State of Chhattisgarh, (2009) 6 SCC 450, it was held that, Section 6 of the Evidence Act is an exception to the rule of evidence that hearsay evidence is not admissible. The test for applying the rule of res gestae is that the statement should be spontaneous and should form part of the same transaction ruling out any possibility of concoction.
Buy Penal Code, 1860 HERE
1. Section 103 of Nyaya Sanhita, 2023
2. Corresponding Section 4 of the Sakshya Adhiniyam, 2023