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TMI Blog1961 (10) TMI 111X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 P.M. on July 23, 1956, shortly after Munshi Singh had returned home and complained to his father Hira Singh about the conduct of Harbans Singh and Bant Singh in abusing him. Munshi Singh ran out of his house on hearing some cries; but when he reached the Dharamshala not far from his house these two appellants, along with their father Bhag Singh and their brothers Bant Singh, Gian Singh and Gursi fell upon him and caused numerous injuries with the weapons which they carried. Harbans Singh, it is said, struck Munshi Singh on the abdomen with a Sela in his hand. Munshi Singh's brother Hazura Singh and his father Hira Singh also had followed Munshi Singh when he ran out of the house. On seeing this attack on Munshi Singh, Hazura Singh tried to intervene, but he too was attacked and received several injuries. Harbans Singh, it is said, gave him a Sela thrust in the abdomen. Munshi Singh died on the spot; Hazura Singh was brought to the hospital at Gidderbha the following morning and received some treatment but he also died of his injuries the following day, that is, the 24th July. 3. All the accused pleaded not guilty, the defence being that they had been falsely implicated out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pointing out these errors in the reasoning of the learned Trial Judge the High Court said :- We have no hesitation in concluding that for the said reasons the judgment of the learned Additional Sessions Judge is wholly erroneous resulting in complete miscarriage of justice. After having gone through the testimony of both of the eye-witnesses and examining the other material, particularly the two dying declarations, we are of the view that the prosecution case was substantially true and have been proved. As regards complicity of Harbans Singh and Major Singh, there appears to be no doubt. Both of them had been assigned participation and were responsible for the fatal blow on each of the deceased. In this respect the testimony of both of the witnesses and the dying declarations are consistent. They are accordingly held guilty under section 302, Indian Penal Code. 7. The main contention raised by Mr. Chatterjee on behalf of the appellants is that the High Court had no sufficient reasons for interfering with the order of acquittal made by the Additional Sessions Judge and that the High Court itself had been guilty of errors , especially as the High Court has misread th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourts the importance of bestowing special care in the sifting of evidence in appeal against acquittals. As has already been pointed out less emphasis is being given in the more recent pronouncements of this Court on compelling reasons . But, on close analysis, it is clear that the principles laid down by the Court in this matter have remained the same. What may be called the golden thread running through all these decisions is the rule that in deciding appeals against acquittal the Court of Appeal must examine the evidence with particular care, must examine also the reasons on which the order of acquittal was based and should interfere with the order only when satisfied that the view taken by the acquitting Judge is clearly unreasonable. Once the appellate court comes to the conclusion that the view taken by the lower court is clearly an unreasonable one that itself is a compelling reason for interference. For, it is a court's duty to convict a guilty person when the guilt is established beyond reasonable doubt, no less than it is its duty to acquit the accused when such guilt is not so established. 10. When the High Court's judgment shows clearly that the matter h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ower court that the guilt of the accused has not been proved was clearly unreasonable, the order of acquittal would be restored. 12. The judgment of the High Court in the present case does not contain much discussion of the evidence in the case. All the discussion of the evidence is confined to the few sentences which we have quoted earlier in this judgment. We also notice that the learned judges of the High Court were under some misapprehension in thinking that the Additional Sessions Judge had held that Bhag Singh was not mentioned as a witness in the Inquest Report. What the Additional Sessions Judge had pointed out was that Bhag Singh's statement had not been recorded in the Inquest Report. The Additional Sessions Judge was certainly right in this. While the High Court might have well thought that no doubt against the credibility of Bhag Singh should be based on this fact that his statement was not recorded, the High Court was not justified in attributing to the Trial Judge something which he did not say. 13. It is also not quite clear how the learned Judges said about the appellant Major Singh that he had been assigned participation and was responsible for the fatal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s saying that he could not say why the Constable did not deliver it to the Magistrate till 8.45 P.M. When this statement in cross-examination is considered along with the recording of the time in Ex. PPI itself there is no escape from the conclusion that 4.30 P.M. as stated in Narender Nath's Examination-in-Chief was a slip of tongue and the correct time of the record was 4.30 A.M. and that the fact that it reached the Magistrate at 8.45 P.M. that day may well be due to the fact that the Constable was negligent and took his own time about going to the Magistrate or to some other reason not clear from the record. The reasoning of the Trial Judge based on his wrong view about the time of recording of the formal First Information Report that the complainant party was not able to say who the assailants were and so delay was made, therefore falls to the ground. 16. The learned Judge has also misdirected himself in thinking that the dying declaration had very little probative value because as many as six accused persons had been named and that no conviction could in law be based on such dying declaration without corroboration. The law does not make any distinction between a dying ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is corroborated; (2) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; (3) that the cannot be laid down as a general position that a dying declaration is a weaker kind of evidence than other pieces of evidence; (4) that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; (5) that a dying declaration which has been recorded by a competent magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character, and (6) that in order to test the reliability of a dying declaration, the Court has to keep in view the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is often a difficult task, specially where the statement had not been put into writing. In the second place, the court has to be certain about the identity of the persons named in the dying declaration - a difficulty which does not arise where a person gives his depositions in Court and identifies the person who is present in court as the person whom he has named. Other special considerations which arise in assessing the value of dying declarations have been mentioned by this Court in Khushal Rao v. State of Bombay 1958CriLJ106 and need not be repeated here. 20. In view of this latest pronouncement of this Court on the question of need of corroboration of a dying declaration by other evidence, it must be held that the Trial Judge was wrong in thinking that he could not act on the dying declaration of Hazura Singh unless it was corroborated by other evidence. 21. In view of the several defects in the reasoning of the Trial Judge, it is necessary for us to examine the evidence on the record to see whether the High Court was right in thinking that the view taken by the learned Judge was clearly unreasonable. The most important evidence in the case is furnished by the dying decla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her than the real assailant. The several injuries on Hazura Singh and the numerous injuries on Munshi Singh justify the conclusion that there was more than one assailant in the attacking party. Whether or not Hazura Singh could have made a mistake about the identity of the other assailants or could have implicated some of them at least falsely, it will be unreasonable to think that he would substitute another person for the one assailant who gave him the fatal blow. On a consideration of these circumstances we are therefore satisfied that it would be unreasonable to doubt or disbelieve the truth of Hazura Singh's statement when he said that Harbans Singh struck him with the Sela in his hand which hit him on the abdomen. Even if there was no other evidence on the records as regards the part taken by the appellant Harbans Singh this dying declaration of Hazura Singh is so clearly true that the only reasonable view for a judge of facts to take is that Harbans Singh caused the death of Hazura Singh by striking him with a Sela. 23. As has already been noticed Hazura Singh in this statement mentioned Harbans Singh as the person who gave the first blow to Munshi Singh, the blow whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has offered no explanation for this rather unusual conduct. In view of all this, we are not prepared to say that the Trial Judge acted unreasonably in doubting his testimony. 26. We are unable however to discover any valid reason for doubting the presence of Hira Singh at the place of occurrence. It seems to us that the main reason for the Trial Judge to doubt the truth of Hira Singh's evidence was that he considered the great delay in lodging the formal First Information Report. That reason, as we have already pointed out, does not exist. 27. On an examination, it seems to us quite likely that Hira Singh also accompanied Hazura Singh when the latter followed Munshi Singh towards the Dharamshala and it also seems to us improbable that he would give the main part in the assault falsely to Harbans Singh if somebody else was responsible for the blow which caused Hazura Singh's death. In our view the learned Trial Judge acted unreasonably in doubting the truth of Hira Singh's evidence against Harbans Singh. 28. On a consideration of the evidence we are therefore satisfied that the conclusion reached by the High Court that the view taken by the Trial Court as regar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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