(J.L. Kapur, M. Hidayatullah and J.C. Shah, JJ.)
Chinta and Others _________________________________ Appellant(s);
v.
State of Madhya Pradesh ___________________________ Respondent.
Criminal Appeal No. 178 of 1959†, decided on November 18, 1960
The Judgment of the Court was delivered by
J.C. Shah, J.:—
1. Chinta son of Adhar, Jhaggar son of Baje and Banwali son of Mangan—who will hereinafter be collectively referred to as the appellants—all Thethwars of Village Kathia, District Durg, have appealed to this Court with special leave under Article 136 of the Constitution against the order of conviction and sentence passed by the High Court of Madhya Pradesh.
2. The Court of Session, Durg, tried eighteen persons (including the appellants) on the charges that they had on 6-10-1956, in furtherance of their common intention caused the death of one Sheikh Itbar by causing him injuries with stick-blows, and that they had committed rioting armed with deadly weapons with the common object of committing an assault on one Jabbar and had thereby committed offences punishable under Section 302 read with Section 34 and Section 148 of the Penal Code, 1860. The trial Judge acquitted all the eighteen persons. Against the order of acquittal, the State of Madhya Pradesh appealed to the High Court of Madhya Pradesh at Jabalpur. In appeal, the High Court set aside the order of acquittal passed in favour of the appellants and convicted them of offences punishable under Section 324 read with Section 34 and 148 of the Penal Code and for the former offence sentenced each of them to suffer rigorous imprisonment for two years and for the latter offence to rigorous imprisonment for one year and directed the sentences to run concurrently. The appeal filed by the State against the other accused was dismissed. Against the orders of conviction and sentence, the appellants have appealed to this Court with special leave under Article 136 of the Constitution.
3. Sheikh Itbar who was one of the victims of the assault had suffered as many as 37 injuries caused by stick-blows. He submitted an information at Police Station Bemetara, against a large number of persons including the appellants. Sheikh Itbar was removed to the Bemetara Hospital for treatment and his dying declaration was recorded by Murarilal Dubey, a Magistrate of the First Class. Shortly thereafter, Sheikh Itbar died. Jabbar, nephew of Sheikh Itbar also suffered fifteen injuries caused by stick-blows and he was treated at the Bemetara Hospital. It was the case for the prosecution that on 4-10-1956, there was a meeting in Village Kathia of the Panchas and the tenants for collecting subscriptions for constructing a school building. Sheikh Itbar refused to subscribe. On October 5, Khedu son of Adhar (who was one of the accused at the trial) was beaten by Sahabuddin son of Sheikh Itbar, and on the same day, Chinta (appellant) and one Ramanuj beat Sahabuddin. Thereafter, there ensued a quarrel between Sheikh Itbar on the one hand and Chinta and Ramanuj on the other, and Sheikh Itbar threatened to beat the latter. On the night of October 6, several persons who met in the house of one Jhumaklal conspired to kill Sheikh Itbar. Early in the morning of 6-10-1956, more than twenty persons assembled in a field on the outskirts of Village Kathia and beat Sheikh Itbar with sticks causing him serious injuries and the appellants also beat with sticks Jabbar, nephew of Sheikh Itbar who came to the scene sometime after Sheikh Itbar was injured. The defence of the accused was one of complete denial of participation in the assault upon Sheikh Itbar and Jabbar.
4. The prosecution case primarily rested upon the testimony of witnesses, Rahmat Bi, Sahabuddin son of Sheikh Itbar, Jabbar his nephew, and Gourishankar and Purshottam two villagers of Kathia, and upon the contents of the first information report and the dying declaration of Sheikh Itbar recorded by Magistrate Murarilal Dubey.
5. Rahmat Bi in her evidence stated that on hearing the shouts of her husband, she proceeded towards the field where he was belaboured and she saw from a distance a crowd of about twenty persons beating her husband, but she was unable to identify those persons: but when the assailants came on the road and some of them including the appellants returned to beat Sheikh Itbar she identified them. Witness Jabbar stated that on coming to learn that his uncle Sheikh Itbar was being beaten, he ran towards the enbankment of the tank, and saw the accused on the road from a distance of about 60 yards, that he went and saw Sheikh Itbar who was lying seriously injured, that Sheikh Itbar told him that a crowd of Thethwars had beaten him, that in the meanwhile, the Thethwars came over and surrounded them and that he was beaten by the appellants Jhaggar and Chinta and that the appellant Banwali caught him. This story (except as to the actual beating of Jabbar) was substantially corroborated by witness Sahabuddin. The witness stated that apprehending injury to himself, when the Thethwars chased Jabbar, he ran away. Witness Purshottam stated that when he saw Sheikh Itbar lying injured in the field and Sabahuddin and Jabbar went near him, the Thethwars came over and beat Jabbar, and that he— the witness—recognised the three appellants and three others as the assailants of Jabbar. Witness Gourishankar stated that he was riding his bicycle along the road near the field where Sheikh Itbar was lying injured, and on seeing a large crowd of Thethwars, he enquired of them as to what the matter was, but the appellant Banwali asked him to mind his business and that thereafter he saw one Muslim boy being assaulted by the accused amongst whom were the three appellants. In the first imformation, Sheikh Itbar had stated that the three appellants and nine other Thethwars (whose names were given by him) and others had beaten him with sticks. This information was recorded at about 10 a.m. at Police Station Bemetara. In the dying declaration recorded by Murarilal Dubey at about 1.30 p.m., in the Bemetara Hospital Sheikh Itbar named sixteen persons including the appellants as his assailants.
6. The learned Sessions Judge did not accept the evidence of the witnesses— Rahmat Bi, Jabbar, Sahabuddin, Gourishankar and Purshottam and others. In dealing with the first information and the dying declaration, the Judge observed that since the time Sheikh Itbar was injured and till he died, Sheikh Itbar was surrounded by his relatives, and other interested persons and there was “enough time for collaboration” and therefore the dying declaration was unreliable. It was also observed that Rahmat Bi was the first person to reach Sheikh Itbar after he received injuries, but he did not tell her as to why he was beaten, and that it was improbable that he would not have disclosed to her the cause of beating. The trial Judge summarised his conclusion as follows:
“The prosecution evidence of the alleged eyewitnesses is thus false and made-up. The dying declaration and FIR are also the results of influence exercised upon Sheikh Itbar by his relatives and friends.”
7. In appeal, the High Court examined the evidence of witnesses—Rahmat Bi, Sahabuddin, Jabbar, Gourishankar and Purshottam—and also the dying declaration and held that to the extent to which the dying declaration was corroborated by oral evidence it was reliable, and that the evidence was sufficient to justify the conviction of the appellants for offences under Section 324 read with Sections 34 and 148 of the Penal Code.
8. In this appeal, the counsel for the appellants contended that there was no direct evidence about the assault made upon Sheikh Itbar by any eyewitness, and that even on the prosecution evidence, there were two separate incidents, one the assault upon Sheikh Itbar and the other, the assault upon Jabbar. The fact that some persons are shown to have participated in the assault upon Jabbar, says the counsel, did not justify the inference that the same persons had participated in the assault upon Sheikh Itbar. He further contended that the trial court had declined to place any reliance upon the dying declaration and the High Court after treating the dying declaration as unreliable erred in basing the conviction upon that dying declaration and the oral evidence which was unworthy of belief.
9. There is no doubt that Sheikh Itbar had suffered a large number of injuries on the morning of 6-10-1956, in a field in the outskirts of Village Kathia, and those injuries were, in the opinion of Dr Sheohare, caused by stick-blows. Rahamat Bi stated that she had seen the first assault upon her husband from a distance, but she was unable to identify the assailants from that distance; she however stated that when she went near, she recognised amongst others, the appellants who were going to beat her husband again. The testimony of Jabbar, Sahabuddin, Gourishankar and Purshottam establishes the presence of the appellants armed with sticks in the crowd near the scene of offence shortly after the assault upon Sheikh Itbar. It is true that Rahmat Bi did not speak about the assault upon Jabbar. The evidence however clearly disclosed that there were not two separate incidents, but one continuous incident: in the first instance, Sheikh Itbar was assaulted by a crowd of persons who were armed with sticks and when on hearing about this assault, his son Sahabuddin and his nephew Jabbar went over to the scene of offence, they were met by a large number of persons amongst whom were the appellants who threatened Jabbar and Sahabuddin and beat Jabbar. This testimony read in the light of the evidence of Rahmat Bi leaves little room for doubt that the same crowd of assailants who beat Sheikh Itbar also beat Jabbar. If the testimony of Rahmat Bi, Jabbar, Sahabuddin, Purshottam and Gourishankar be accepted, the presence of the appellants at the scene of offence and their participation in the unlawful assembly and rioting would not be open to question. In his statement recorded as a first information Sheikh Itbar stated that among his assailants were the three appellants. He also stated in his dying declaration that the three appellants and others were his assailants. The first information recorded at the police station could in law be treated as a dying declaration, because, it was a statement made by him as to the circumstances of the transaction which resulted in his death within the meaning of Section 32(1) of the Evidence Act.
10. This Court has in Khushal Rao v. State of Bombay1 held that there is no absolute rule of law, not even a rule of prudence which has ripened into a rule of law that a dying declaration unless corroborated by other independent evidence is not fit to be acted upon and made the basis of a conviction. The statement covered by Section 32(1) of the Evidence Act is relevant evidence and the value to be attached to it must be judged on its own facts keeping in view the circumstances in which it was made. There is no presumption that a dying declaration is inherently a weaker type of evidence than other evidence; the weight to be attached to a dying declaration in a given case must depend upon the facts and circumstances of that case. A dying declaration recorded by a competent Magistrate in the manner provided by law has greater evidentiary value than the dying declaration, proof of which depends upon oral testimony. In testing the reliability of a dying declaration, the court must consider whether the capacity of the injured person to remember the incidents related had not been impaired at the time he was making the statement, whether the statement has been consistent if there were several opportunities of making statements relating to the transaction resulting in death, and whether the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties.
11. The High Court regarded the dying declaration and the first information as incorporating a substantially true version, but proceeded to rely upon only those parts which were corroborated by other evidence. The High Court pointed out that in the dying declaration not only the persons who were named in the first information, but also two other persons were named and during the interval, Sheikh Itbar had met his relatives and therefore the possibility that some part of his statement was induced by the information given by them could not be excluded. But relying upon the corroboration afforded by the testimony of the witnesses whose testimony we have already referred, they relied upon the dying declaration and the first information and proceeded to convict the appellants.
12. In our view, no case for interference with the order of conviction recorded by the High Court is made out. The High Court has carefully appraised the evidence of the witnesses bearing in mind the principles laid down by this Court in Balbir Singh v. State of Punjab2 that in an appeal against an order of acquittal, the initial presumption of innocence is strengthened and interference with the order of acquittal is not called for unless there are strong reasons justifying interference with the order. On a review of the evidence, the High Court has accepted the formal dying declaration and the first information (which was also treated as a dying declaration) as substantially true and has relied upon the same to convict the appellants to the extent to which the same were corroborated by direct evidence and we do not think that we would be justified in interfering with the conclusion of the High Court on what is essentially a question of fact in an appeal with special leave under Article 136 of the Constitution.
13. The appeal therefore fails and is dismissed.
———
† Appeal by special leave from the Judgment and Order dated 22-1-1959, of the Madhya Pradesh in Criminal Appeal No. 423 of 1957, arising out of the Judgment and Order dated 12-8-1957, of the Additional Sessions Judge, Durg, in Sessions Trial No. 48 of 1957
1 Khushal Rao v. State of Bombay, 1958 SCR 552
2 Balbir Singh v. State of Punjab, AIR 1957 SC 216
