1997 JTR(SC) 41
1997 1 AICLR 1 ; 1997 34 AllCriC 438 ; 1997 1 ALT(Cri)(SC) 588 ; 1997 CriLR 148 ; 1997 CriR(SC) 355 ; 1997 1 EastCrC(SC) 518 ; 1997 1 JT 479 ; 1997 1 KLT(SN) 31 ; 1997 1 RCR(Cri) 760 ; 1997 2 RLW(Raj) 252 ; 1997 1 Scale 274 ; 1997 10 SCC 675 ; 1997 SCC(Cri) 1032 ; 1997 1 SCR 190 ; 1997 KHC 216 ; 1997 1 Supreme 405
1997(1) Supreme 405
SUPREME COURT OF INDIA
Dr. A.S. Anand and K.T. Thomas, JJ.
State of Rajasthan -Appellant
versus
Bhup Ram -Respondent
Criminal Appeal No. 377 of 1996
Decided on 13-1-1997
Counsel for the Parties :
For the Appellant : Ms. Alka Agrawal, Advocate for Aruneshwar Gupta, Advocate.
For the Respondent : Doonger Singh, V.J. Francis and P.I. Jose, Advocates.
IMPORTANT POINT
If the dying declaration recorded by judicial magistrate is reliable, there is no legal hurdle in basing a conviction on it even without any supporting material and dying declaration would not go bad merely because the Magistrate did not record it in the form of questions and answers as what matters is the substance and not the form.
Act
Referred
:CRIMINAL PROCEDURE CODE : S.293, S.164
EVIDENCE ACT : S.26, S.27, S.32, S.25
(A) The Evidence Act provisions govern the admissibility and evaluation of evidence in this criminal case. Section 26 addresses statements against interest, while Section 27 provides an exception allowing admission of a statement made by an accused that would incriminate them, if the statement leads to the discovery of a relevant fact, with the discovery being the crucial element rather than the statement itself. Section 25 and Section 26 relate to the exclusion of unreliable confessions and statements, whereas Section 32 covers statements by persons unavailable as witnesses. Section 27 of the Evidence Act is directly applied to validate the recovery of the pistol, as the accuseds disclosure of the burial location constituted a discovery of a fact. The Criminal Procedure Code Sections 164 and 293 are relevant to the recording of evidence and expert examination, where Section 164 deals with recording of statements and Section 293 with the summoning of experts for examination of seized objects. The dying declaration recorded under Section 27 and evaluated under Sections 25 and 26 forms a critical pillar, with its admissibility hinging on the reliability of the statement and the fulfillment of conditions under Section 27 for discovery evidence.
(B) Key legal principles include the admissibility of dying declarations as substantive evidence even without corroboration, the principle that substance over form prevails over pedantic requirements of recording style, and the exception under Section 27 of the Evidence Act for statements leading to discovery of facts. The case underscores that the language of the statement or the form of recording does not invalidate a dying declaration if the content is clear and the declarant was conscious. It also highlights that recovery of evidence in a different case does not bar admissibility if the discovery of the concealment fact is through the accuseds own statement.
Facts of the case:
The respondents wife was shot dead at her house. The prosecution alleged the respondent as the perpetrator. The deceased gave a dying declaration at a hospital identifying her husband as the shooter. A pistol was recovered from a location disclosed by the respondent during police investigation in connection with another case, and a ballistic report linked the bullet to the pistol. The trial court convicted the respondent, but the High Court acquitted him, giving weight to the hostility of witnesses and questioning the admissibility of the dying declaration and the recovery of the pistol.
Findings of Court:
The Supreme Court held the dying declaration to be clear and reliable, rejecting the High Courts pedantic objections regarding language and recording form. It emphasized that the declaration was conscious and consistent. The Court also held that the pistols recovery was admissible under Section 27 of the Evidence Act, as the respondents statement about the burial location constituted a discoverable fact, irrespective of the unrelated case context. The errors by the High Court in disregarding these evidentiary elements necessitated interference.
Issues:
Whether a dying declaration recorded in a language different from the courts language and not in question-answer form is admissible? Whether the recovery of the pistol, effected during investigation of another case, is admissible under Section 27 of the Evidence Act? Whether the High Court was justified in disregarding the dying declaration and the recovery of the pistol?
Ratio Decidendi:
A dying declaration is reliable and admissible if the declarant was conscious and the content is clear, irrespective of language or formal recording style. Under Section 27 of the Evidence Act, a statement by an accused leading to the discovery of a fact is admissible, even if the discovery pertains to a different case, provided the conditions of the section are satisfied. The court must consider such evidence holistically rather than in isolation.
Result:
The appeal is allowed. The conviction of the respondent is restored, and he is directed to be taken into custody to serve the sentence.
(A) The Evidence Act provisions govern the admissibility and evaluation of evidence in this criminal case. Section 26 addresses statements against interest, while Section 27 provides an exception allowing admission of a statement made by an accused that would incriminate them, if the statement leads to the discovery of a relevant fact, with the discovery being the crucial element rather than the statement itself. Section 25 and Section 26 relate to the exclusion of unreliable confessions and statements, whereas Section 32 covers statements by persons unavailable as witnesses. Section 27 of the Evidence Act is directly applied to validate the recovery of the pistol, as the accuseds disclosure of the burial location constituted a discovery of a fact. The Criminal Procedure Code Sections 164 and 293 are relevant to the recording of evidence and expert examination, where Section 164 deals with recording of statements and Section 293 with the summoning of experts for examination of seized objects. The dying declaration recorded under Section 27 and evaluated under Sections 25 and 26 forms a critical pillar, with its admissibility hinging on the reliability of the statement and the fulfillment of conditions under Section 27 for discovery evidence.
(B) Key legal principles include the admissibility of dying declarations as substantive evidence even without corroboration, the principle that substance over form prevails over pedantic requirements of recording style, and the exception under Section 27 of the Evidence Act for statements leading to discovery of facts. The case underscores that the language of the statement or the form of recording does not invalidate a dying declaration if the content is clear and the declarant was conscious. It also highlights that recovery of evidence in a different case does not bar admissibility if the discovery of the concealment fact is through the accuseds own statement.
Facts of the case:
The respondents wife was shot dead at her house. The prosecution alleged the respondent as the perpetrator. The deceased gave a dying declaration at a hospital identifying her husband as the shooter. A pistol was recovered from a location disclosed by the respondent during police investigation in connection with another case, and a ballistic report linked the bullet to the pistol. The trial court convicted the respondent, but the High Court acquitted him, giving weight to the hostility of witnesses and questioning the admissibility of the dying declaration and the recovery of the pistol.
Findings of Court:
The Supreme Court held the dying declaration to be clear and reliable, rejecting the High Courts pedantic objections regarding language and recording form. It emphasized that the declaration was conscious and consistent. The Court also held that the pistols recovery was admissible under Section 27 of the Evidence Act, as the respondents statement about the burial location constituted a discoverable fact, irrespective of the unrelated case context. The errors by the High Court in disregarding these evidentiary elements necessitated interference.
Issues:
Whether a dying declaration recorded in a language different from the courts language and not in question-answer form is admissible? Whether the recovery of the pistol, effected during investigation of another case, is admissible under Section 27 of the Evidence Act? Whether the High Court was justified in disregarding the dying declaration and the recovery of the pistol?
Ratio Decidendi:
A dying declaration is reliable and admissible if the declarant was conscious and the content is clear, irrespective of language or formal recording style. Under Section 27 of the Evidence Act, a statement by an accused leading to the discovery of a fact is admissible, even if the discovery pertains to a different case, provided the conditions of the section are satisfied. The court must consider such evidence holistically rather than in isolation.
Result:
The appeal is allowed. The conviction of the respondent is restored, and he is directed to be taken into custody to serve the sentence.
JUDGMENT
Thomas J.-Respondent s wife (Mst. Chawli) was shot dead on 20.7.1985 while she was sleeping in her house. Respondent Bhup Singh was alleged to be the killer. Police, after investigation, upheld the allegation and challanned him. Though the Sessions Court convicted him of murder, the High Court of Rajasthan acquitted him. This appeal has been filed by special leave by the State of Rajasthan in challenge of the aforesaid acquittal.
2. Prosecution case is a very short story: Chawli was first married to respondent s brother who died after a brief marital life. Thereafter, Chawli was given in marriage to the respondent, but the new alliance was married by frequent skirmishes and bickerings between the spouses. Chawli was residing in the house of her parents. The estrangement between the couple reached a point of no return and the respondent wished to get rid of her. So he went to her house on the night of occurrence and shot at her with a pistol. When he tried to use the firearm again, Chawli s father who heard the sound of the first shot rushed towards him and caught him but the killer escaped with the pistol.
3. Chawli told everybody present in the house that she was shot at by her husband Bhup Singh. She was taken to the hospital and the doctor who attended on her thought it necessary to inform a judicial magistrate that her dying declaration could be recorded. Pursuant to it PW5 - Bhagwan Singh who was judicial magistrate of first class, Alwar, went to the hospital and recorded her dying declaration. At 2.30 P.M. she breathed her last. Police registered the case on the basis of a statement recorded from Bhajan Lal, a neighbour. On 22.7.1985, respondent was arrested in connection with another criminal case and on the strength of the information elicited from him the police recovered Article 4 - pistol.
4. The bullet recovered from the body of Chawli as well as Article 4 - pistol were sent to the ballistic expert. In his report, the said expert affirmed the possibility of the bullet having been fired from the said pistol.
5. During trial Chawli s father (Ram Ratan - PW1) her sister (Rameshwari - PW2) and Bhajan Lal - PW3 who gave the first information statement have been declared hostile as they all supported the respondent. His version was that somebody else had shot her dead and respondent was falsely implicated. Chawli s mother Smt. Mangli was examined by the respondent as defence witness No. 2 to support his plea. However, the trial court, after rejecting the evidence of PW1, PW2 and PW3 and also DW2, placed full reliance on the dying declaration proved by PW5 - judicial magistrate and also on the evidence pertaining to the recovery of Article 4 - pistol and convicted the respondent and sentenced him to imprisonment for life.
6. The Division Bench of the High Court of Rajasthan, which heard the appeal filed by the respondent, declined to act on the dying declaration. The High Court held that the evidence relating to recovery of pistol was outside the scope of Section 27 of the Evidence Act inasmuch as the recovery was effected during investigation of another case. As nothing else remained for the prosecution to embark upon, the Division Bench acquitted the respondent.
7. If the dying declaration recorded by PW5 judicial magistrate is reliable, there is no legal hurdle in basing a conviction on it even without supporting material.
8. The statement in Ex. P-8 dying declaration is unmistakably clear that her husband Bhup Singh shot her with a pistol. But learned Judges of the High Court highlighted two features in Ex. P-8 dying declaration as infirmities, vitiating its evidentiary value. First is, deceased answered the questions put to her by the magistrate in Bagri language whereas PW5 recorded it in Hindi in a narrative form. According to the Division Bench the magistrate should have recorded the dying declaration in the form of questions and answers. Second is, PW5 magistrate had not ascertained from the doctor whether deceased was in a position to give a conscious dying declaration.
9. Dr. Naresh Kumar (PW7) who attended the deceased first when she was brought to the hospital with bullet injury has given evidence that he sent a requisition to the magistrate as he felt that a dying declaration from Chawli could be recorded. PW5 - judicial magistrate has deposed that he recorded in Hindi what the deceased told him. The doctor and the judicial magistrate have said in one accord that deceased was conscious when the statement was made. In the above situation there was no justification for the High Court to assume that the deceased would not have been conscious when she gave the statement to the judicial magistrate. Similarly, it was a wrong assumption that deceased would not have spoken in Hindi because PW5 has stated in his evidence positively that deceased gave her answers in Hindi. Even otherwise, it is too much to think that judicial magistrate would have recorded differently from what the deceased had said to him.
10. Assuming that the deceased gave her statement in her own language, the dying declaration would not vitiate merely because it was recorded in a different language. We bear in mind that it is not unusual that courts record evidence in the language of the court even when witnesses depose in their own language. Judicial officers are used to the practice of translating the statements from the language of the parties to the language of the court. Such translation process would not upset either the admissibility of the statement or its reliability, unless there are other reasons to doubt the truth of it.
11. Nor would dying declaration go bad merely because the magistrate did not record it in the form of questions and answers. It is axiomatic that what matter is the substance and not the form. Questions put to the dying man would have been formal and hence the answers given are material. Criminal courts may evince interest in knowing the contents of what the dying person said and the questions put to him are not very important normally. That part of the statement which relates to the circumstances of the transaction which resulted in his death gets the sanction of admissibility. Here it is improper to throw such statement overboard on a pediantic premise that it was not recorded in the form of questions and answers. (vide Ganpat Mahadeo Mani v. State of Maharashtra1.
12. We find Ext. P-8 dying declaration as a clear and unambiguous statement. The infirmities pointed out by the High Court are too tenuous to knock off such a very valuable and sturdy item of substantive evidence.
13. The High Court sidestepped the evidence regarding recovery of pistol and the statement of the accused which led to it on the mere ground that the pistol was recovered in connection with another case. That other case was registered on 9.7.1985 as Crime 116 of 1985 against the respondent and he was arrested on 22.7.1985 in connection therewith. PW12 - SHO of Raising Nagar Police Station has deposed in this case that when respondent was questioned he told him that the pistol was wrapped in a bag and was buried near his house. When respondent was taken to that place he disinterred Article 4 - pistol and handed it over to the police.
14. It is clear from the above evidence that PW12 discovered the fact that respondent had buried Article 4 - pistol. His statement to the police that he had buried the pistol in the ground near his house, therefore, gets extricated from the ban contained in Sections 25 & 26 of the Evidence Act as it became admissible under Section 27. The conditions prescribed in Section 27 for unwrapping the cover of ban against admissibility of statement of the accused to the police have been satisfied. They are: (1) A fact should have been discovered in consequence of information received from the accused; (2) He should have been accused of an offence; (3) He should have been in the custody of a police officer when he supplied the information; (4) The fact so discovered should have been deposed to by the witness. If those conditions are satisfied, that part of the information given by the accused which led to such discovery gets denuded of the wrapper of prohibition and it becomes admissible in evidence. It is immaterial whether the information was supplied in connection with the same crime or a different crime. Here the fact discovered by the police is not Article 4 - pistol, but that the accused had buried the said pistol and he knew where it was buried. Of course, discovery of said fact became complete only when the pistol was recovered by the police.
15. In this context, we think it appropriate to quote the celebrated words of Sir John Beaumont in Pulukuri Kottaya v. Emperor2:
"In their Lordships view it is fallacious to treat the fact discovered within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this and the information given must relate distinctly to this fact.... Information supplied by a person in custody that "I will produce a knife concealed in the roof of my house" does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant".
(emphasis supplied)
The ratio therein has become locus classious and even the lapse of half a century after its pronouncement has not eroded its forensic worth. We may point out that this court has approvingly referred to the said ratio in a number of decisions, [e.g. Jaffer Husain Dastagir v. The State of Maharashtra3; K. Chinnaswamy Reddy v. State of Andhra Pradesh & Anr.4; Earabhadrappa alias Krishnappa v. State of Karnataka5; Ranbir Yadav v. State of Bihar6; Shamshul Kanwar v. State of U.P.7.
16. Ext.P-14 is the report dated 8.4.86, submitted by Dr. P.S. Manocha, (Assistant Director of State Forensic Science Laboratory, Rajasthan). The said report which is evidence under Section 293 of the Code of Criminal Procedure proves that the bullet and pistol (involved in this case) were microscopically examined and the expert expressed the opinion that the bullet could have been fired from the said pistol. This is yet another circumstance which though overlooked by the High Court, we bear in mind while considering the legal implication of the evidence relating to the recovery of Article 4 - pistol.
17. For the aforesaid reasons we are of the firm view that the High Court was clearly wrong in marginalising the evidence of PW12 that respondent told him about concealment of Article 4 - pistol which is clearly admissible under Section 27 of the Evidence Act.
18. As the High Court committed serious error in discarding the aforesaid two very valuable items of evidence, we are constrained to interfere with the order of acquittal. We, therefore, upset the impugned judgment and restore the conviction and sentence passed on the respondent by the trial court. We direct the Sessions Judge, Alwar, to take immediate steps to put the respondent in jail for undergoing the sentence.
Appeal allowed.
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