PETITIONER:
BAKHSHISH SINGH
Vs.
RESPONDENT:
THE STATE OF PUNJAB
DATE OF JUDGMENT:
17/09/1957
BENCH:
KAPUR, J.L.
SINHA, BHUVNESHWAR P.
MENON, P. GOVINDA
CITATION:
1957 AIR 904 1958 SCR 409
ACT
Criminal law-Dying declaration-Scope of -Recording statement
in Urdu, while deceased spoke in Punjabi-Reliability Discre-
tion of the prosecutor in calling witnesses-Indian Evidence
Act, 1872 (1 Of 1872), S. 22 (1).
HEADNOTE
The appellant was convicted for murder on the basis inter
alia of the dying declaration of the deceased. The Sessions
Court rejected it on the ground that though the deceased
gave the narrative of events in Punjabi the statement was
taken down in Urdu.
Held, that in view of the fact that in the Punjab the lan-
guage used in the subordinate courts and by the Police for
recording statements has always been Urdu, the recording of
dying declarations in Urdu cannot be a ground for saying
that the statement does not correctly reproduce what was
stated by the declarant. Accordingly, the dying declaration
should not have been rejected.
The dying declaration in the instant case was a long docu-
ment containing a narrative of a large number of incidents
which happened before the actual assault, which was more in
the nature of the First Information Report :-
Held, that the object of a dying declaration being to get
from the person making the statement the cause of his death
or the circumstances of the transaction which resulted in
his death, persons who record such declaration should not
include in that statement details which are not relevant
under S. 32(1) of the Indian Evidence Act, 1872, unless they
are necessary to make the statement coherent or complete.
It is desirable that rules should be framed for the guidance
of persons recording dying declarations, and included in the
Rules and Orders made by the High Court.
Where a person who was stated in the dying declaration to
have witnessed the occurrence was not examined by the prose-
cution at the trial on the ground that he had been won over
and it was contended that this was a serious omission and an
adverse inference should be drawn:-
Held, that there was no obligation on the part of the prose-
cution to examine this witness and that the court would not
interfere with the discretion of the prosecutor,
410
Abdul Mohammad v. Attorney General of Palestine, A.I.R.
1945 P. C. 42, Stephen Servaraine v. The King, A. 1. R.
1936 P. C. 298,and Habeeb Mohammed v. The State of Hydera-
bad, 1954 S.C.R. 475, referred to.
JUDGMENT
CRIMINAL APPFLLATE JURISDICTION: Criminal Appeal No. 205 of
1956.
Appeal by special leave from the judgment and order dated
the 30th November, 1955, of the Punjab High Court in Crimi-
nal Appeal No. 282 of 1955, arising out of the judgment and
order dated the 15th February, 1955, of the Court of the
Additional Sessions Judge at Amritsar in Sessions Case No.
64 of Trial No. 6 of 1955.
R. L. Anand, and S. N. Anand, for the appellant.
Kartar Singh Chawla, Assistant Advocate-General, for the
State of Punjab and T. M. Sen, for the respondent.
1957. September 17. The following Judgment of the Court
was delivered by
KAPUR J.-This is an appeal against the judgment and order of
the Punjab High Court reversing an order of acquittal by the
Additional Sessions Judge, Amritsar. The appellant Bakshish
Singh and his brother Gurbakshi Singh were tried for an
offence under ss. 302/34 of the Indian Penal Code but were
acquitted. Against this judgment the State took an appeal
to the High Court. As Gurbaksh Singh was said to be ab-
sconding the appeal against the appellant alone was heard
and decided by the High Court.
On August 1, 1954, sometime between 7 and 8 p.m Bachhinder
Singh son of Bhagwan Singh of village Kairon was shot in the
lane in front of their house and as a result of bullet
injuries be died the next day in the hospital at Amritsar.
He was at the time of shooting accompanied by his younger
brother Narvel Singh, a boy of 13, and after getting injured
Bachhinder Singh and his brother returned to the house.
Bhagwan Singh states that he was informed of the identity of
the assailants by Bachhinder Singh who was, at his own
request, carried from the house to the hospital at Kairon
but as the injuries were serious
411
the doctor at Kairon rendered " first aid " and advised the
father to take his son to V. J. Hospital at Amritsar.
Bhagwan Singh then took Bachhinder Singh to the Railway
Station but before the arrival of the train he went to the
Police Post at Kairon which is at a distance of about 100
yds. from the Railway Station in order to make a report. As
the Assistant Sub Inspector was away at Sarhali, he returned
to the Railway Station and took his son to the Amritsar
hospital by the train leaving Kairon at 9-47 p.m. Bhagwan
Singh was accompanied at that time by his younger son,
Narvel Singh, P.W. 12, and by Shamir Singh, Inder Singh and
Narinjan Singh. Soon after their arrival at the Amritsar
hospital Bachhinder Singh was examined by Dr. Kanwal Ki-
shore, P.W. 2, at 11-45 p.m. and finding the injury to be of
a serious nature the doctor sent information to the Police
as a result of which Head Constable Maya Ram Sharma, P.W. 4,
arrived at the hospital sometime after midnight and, in the
presence of Dr. Mahavir Sud, P.W. 17, recorded the dying
declaration of Bachhinder Singh, Exhibit P-H, after getting
a certificate from the doctor that the injured person was in
a fit state to make a statement. This statement is the
basis of the First Information Report, Exhibit P-H. 1, which
is a copy of Exhibit P-H. This report was recorded on
August 2, 1954, at 7-50 a.m. at Police Station Sarhali
which, we were told, is about 20 miles or so away from
Amritsar. In the early hours of the morning Dr. K. C.
Saronwala P.W. I performed an operation on Bachhinder Singh
and extracted a bullet from the left abdominal wall which
was handed over to the Police. But Bachhinder Singh died at
1-35 p.m. on August 2, 1954. An inquest report Exhibit P-K
was prepared at 2-30 p.m. by Head Constable Maya Ram, P.W.
4.
The case for the prosecution rests on the dying declaration
of Bachhinder Singh, Ex. P-H, and on the statement of
Narvel Singh, P.W. 12, who was an eye witness to the occur-
rence and on the statement made by the deceased to his
father as to his assailant as soon as he (Bachhinder Singh)
was brought to the house after receiving the injuries. The
prosecution
53
412
also relied on an extra-judicial confession made to Teja
Singh, P.W. 13, but both the courts below have rejected this
piece of evidence and it is unnecessary to consider it any
further.
The learned Additional Sessions Judge rejected the dying
declaration made by Bachhinder Singh on two grounds; that at
the time of recording the dying declaration not only Bhagwan
Singh, the father, and Narvel Singh, the brother of Bachhin-
der Singh, were
" present but the police officer had actually made
enquiries from them about the occurrence before he proceeded
to record the dying declaration of Bachhinder Singh de-
ceased. Head Constable Maya Ram, P.W. 4, has admitted in
cross-examination that Bachhinder Singh gave his statement
in Punjabi but the form and the detailed account given in
the statement, Exhibit P-H, would show that it was not the
product of Bachhinder Singh’s creation alone but it was a
touched up’ declaration of the deceased. It is laid down in
1954 Lahore 805 that a dying declaration which records the
very words of the dying man unassisted by interested persons
is most valuable evidence but the value of a dying declara-
tion altogether disappears when parts of it had obviously
been supplied to the dead man by other persons whether
interested or Police Officer. As the dying declaration,
Exhibit P-H, in this case cannot be regarded as the creation
of Bachhinder Singh deceased, no reliance whatsoever can be
placed on it and it could not form the basis for the convic-
tion of any of the accused."
The learned Judges of the High Court did not agree with this
criticism. Birhan Narain J., who delivered the main judg-
ment, said:
" This criticism appears to me to be without any substance.
The statement was recorded by Head Constable Maya Ram who
was posted in Amritsar and was not posted in village Kairon
and therefore had no knowledge of the parties nor had any
interest in them Thus there was no reason why he should
record the statement falsely or irregularly. Throughout the
time that the statement was recorded Dr. Mahavir Sud of the
Amritsar hospital was present. He has appeared
413
as P.W. 17 in the present case. He is a respectable and
disinterested person and he ’is positive in his testimony
before the court that the statement was made by the deceased
voluntarily and that there was nobody present to prompt him.
He has further stated that he did not allow any person to be
present at that time. There is absolutely no reason for
doubting the correctness of this statement.................
...........................................................
Coming to the other objection of the Additional Sessions
Judge, it is difficult to understand the significance at-
tached by him to the fact that the deceased spoke in Punjabi
while the statement was recorded by Maya Ram in Urdu. The
court language is Urdu and the Police generally records
statements in Urdu even if they are made in the Punjabi
language. I have no doubt in my mind that the dying decla-
ration recorded in the present case is a voluntary one and
was made without any prompting from anybody.
The High Court in our opinion correctly appreciated the
evidence and was right in accepting the authenticity of the
dying declaration. The statement of Maya Ram, P. W. 4, does
not support the criticism of the learned trial judge. And
he had read more in the statement of Narvel Singh, P. W. 12,
made before the Committing Magistrate, than it really con-
tains. It is unfortunate that the criticism has proceeded
on the English record of the Magistrate’s Court which does
not appear to have been correctly recorded as the Urdu
record is in many parts materially different. The fact that
the statement contained in Exhibit P-H was made without any
prompting is also supported by the testimony of a wholly
disinterested witness, Dr. Mahavir Sud, whose statement made
before the Committing Magistrate was transferred at the
trial stage under s. 33 of the Evidence Act. He stated:
" The statement of Bachhinder Singh was voluntary and there
was none to prompt it. I did not allow any attendant on
Bachhinder Singh then. "
In cross-examination he made it clearer that there was no
relation or friend of the deceased person when
414
the statement was recorded. Some criticism was levelled
against the dying declaration based on a sentence in the
statement of Dr. Mahavir Sud P. W. 17 that the Head Consta-
ble put certain questions to clarify the ambiguities and
these questions and answers do not find place in Exhibit P-
H, the record of the dying declaration. No such question
was put to the Head Constable who recorded the statement.
The Head Constable stated that the dying declaration was
written at the declarant’s own dictation without any addi-
tion or omission. In/ cross-examination nothing was asked
as to any questions having been put to the deceased by this
witness. Therein the witness also stated :
" It is not correct that I first made the inquiry from the
father of the deceased and other persons before I proceeded
to record his statement ".
He also made it clear that before he allowed the statement
to be made he satisfied himself that Bachhinder Singh was in
a fit state to make the statement. We are of the opinion
that the High Court rightly held the dying declaration to be
a statement made by the deceased unaided by any outside
agency and without prompting by anybody. The declarant was
free from any outside influence in making his statement.
Another reason given by the Additional Sessions Judge for
rejecting the dying declaration was that the deceased gave
the narrative of events in Punjabi and the statement was
taken down in urdu. In the Punjab that is how the dying
declarations are taken down and that has been so ever since
the courts were established and judicial authority has never
held that to be an infirmity in dying declarations making
them inefficacious. As a matter of fact in the Punjab the
language used in the subordinate courts and that employed by
the Police for recording of statements has always been Urdu
and the recording of the dying declaration in Urdu cannot be
a ground for saying that the statement does not correctly
reproduce what was stated by the declarant. This, in our
opinion, was a wholly in. adequate reason for-rejecting the
dying declaration.
415
Exhibit P-H, the dying declaration, is a long document and
is a narrative of a large number of incidents which happened
before the actual assault. Such long statements which are
more in the nature of First Information Reports than recital
of the cause of death or circumstances resulting in it are
likely to give the impression of their being not genuine or
not having been made unaided and without prompting. The
dying declaration is the statement 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 and such details
which fall outside the ambit of this are not strictly within
the permissible limits laid down by s. 32 (1) of the Evi-
dence Act and unless absolutely necessary to make a state-
ment coherent or complete should not be included in the
statement. We are informed that, in the Punjab, no rules
have been made in regard to the recording of dying declara-
tions which, we are told, has been done in several other
States. We think it would be desirable if some such rules
were framed and included in the Rules and Orders made by the
High Court for the guidance of persons recording dying
declarations. Of course the authenticity of the dying
declaration has to be judged in accordance with the circum-
stances of each case depending upon many factors which would
vary with each case but those recording such statements
would be well advised to keep in view the fact that the
object of a dying declaration is to get from the person
making the statement the cause of death or the circumstances
of the transaction which resulted in death.
The admissibility of the statement of Dr. Mahavir Sud was
assailed by counsel for the appellant on the ground that the
conditions laid down for the admissibility of statements
under s. 33 had not been complied with and several decided
cases were relied upon. This question does not seem to have
been raised at any previous stage of the proceedings, nei-
ther before the Additional Sessions Judge nor before the
High Court, and this criticism seems to be without much
substance. At the trial the prosecution produced Foot
Constable Kartar Singh, P. W. 14, who deposed that he took
the
416
summons for this witness to the hospital where he was previ-
ously employed and the Superintendent of the hospital made a
report that he was no longer in service and it was not known
where he was. This witness also stated that " from the
inquiries made by me, I learnt that his whereabouts are not
known. " In cross-examination he again stated that he made
inquiries but he could not discover the whereabouts of this
witness. After the statement of Kartar Singh, P. W. 14, the
Public Prosecutor made a statement that Dr. Mahavir Sud’s
whereabouts were not known’ and prayed that his statement be
transferred under s. 33 of the Evidence Act on the ground
that there was no likelihood of the witness being available
without unreasonable delay and expense and no objection is
shown to have been taken by the defence at that stage.
Thereupon the learned trial judge ordered the statement to
be transferred under s. 33 of the Evidence Act. He might
have been well advised to give fuller reasons for making the
order transferring the statement. It appears to us that the
learned judge transferred it on the ground of unreasonable
delay and expense and we do not find any infirmity in this
order of transfer.
Counsel then contended that for the efficacy of the dying
declaration, corroboration was essential. In the present
case there is the statement of Narvel Singh, P. W. 12, who
is an eye witness to the occurrence which is relied upon by
the prosecution as corroboration of the dying declaration.
The learned Additional Sessions Judge rejected the testimony
of this witness on the ground that there were discrepancies
between his statement made in the commitment proceedings and
at the trial. We have already pointed out that the cross-
examination of this witness was based on somewhat inaccurate
English record of his statement in the Committing Court, the
statement in Urdu record puts a different complexion on it.
But even if this were not so the High Court, in our opinion,
has taken a correct view of the testimony of this witness
and has accepted it for cogent reasons. Besides Narvel
Singh there is the statement of Bhagwan Singh, the father,
who stated that as soon as Bachhinder Singh
417
came into the house he mentioned the names of his assailants
to him. The incident took place just outside the house of
Bhagwan Singh and it was never disputed that he was present
in the house when the incident took place. It is only
natural that as soon as the injured son came into the house
he would be asked as to who had injured him or would himself
state who had caused him the injury. He was in his senses
at that time and no reason has been suggested why the son
would not disclose to his father the names of his assail-
ants. There is no adequate reason for rejecting this por-
tion of the testimony of Bhagwan Singh and merely because
the dying declaration does not mention it, is hardly a
reason for not accepting it.
The non-production of Sucha Singh who is stated in the dying
declaration and in the statement of Narvel Singh, P.W. 12,
to have witnessed the occurrence was commented upon by
counsel as a very serious omission. The Public Prosecutor
stated at the trial that he was giving up Sucha Singh as he
had been won over. Therefore, if produced, Sucha Singh
would have been no better than a suborned. witnesss. He was
not a witness "essential to the unfolding of the narrative
on which the prosecution was based" and if examined the
result would have been confusion, because the prosecution
would have automatically proceeded to discredit him by
cross-examination. No oblique reason for his non-production
was alleged, least of all proved. There was, therefore, no
obligation on the part of the prosecution to examine this
witness: See Abdul Moham. mad v. Attorney General of Pales-
tine (1) ; Stephen Servaratne v. The King (1); Habeeb Moham-
mad v. The State, of Hyderabad (3). In the circumstances
the court would not interfere with the discretion of the
prosecutor as to what witnesses should be called for the
prosecution and no adverse inference under s. 114 of the
Evidence Act can be drawn against the State.
The High Court, in our opinion, have kept in view correct
principles governing appeals against acquittals and have
rightly applied them to the circumstances
(i) A.I.R. 1945 P.C. 42
(2) A.I.R. 1936 P.C. 289.
(3) [1954] S.C.R. 475.
418
of this case. The erroneous view that the learned Sessions
Judge took of the dying declaration and of the oral evidence
were compelling enough reasons for the reversal of that
judgment.
We therefore dismiss this appeal.
Appeal dismissed.