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Dying declaration – if not died can be considered as sec.164 statement can be used for contradiction etc., under sec.157 ,sec.155- provided – a dying declaration – cum – sec.164 statement can not be called as full statement of witness – after regain, her full sec.161 statement was recorded – Apex court held no wrong = Veer Singh & Ors. .. Appellant(s) versus State of U.P. .. Respondent(s) = Published in / cited in / Reported in judis.nic.in/supremecourt/filename=41065

Dying declaration – if not died can be considered as sec.164 statement can be used for

 

English: The supreme court of india. Taken abo...

English: The supreme court of india. Taken about 170 m from the main building outside the perimeter wall (Photo credit: Wikipedia)

 

contradiction etc., under sec.157 ,sec.155– provided – a dying declaration – cum – sec.164 statement can not be called as full statement of witness  – after regain, her full sec.161 statement was recorded – Apex court held no wrong =

 

In fact PW 4 Harbans  Kaur  in  her

 

           testimony before the Court has clearly stated as to why she  has

 

           given a limited answer to the Magistrate.  Further   it is not a

 

           dying declaration since she survived and it is only a  statement

 

           under Section 164 of the Cr.P.C. which can be used under Section

 

           157 of the  Evidence Act for the purpose  of  corroboration  and

 

           under Section 155 of the Act for the purpose  of  contradiction.

 

           This statement did not relate to the entire occurrence.  It must

 

           be borne in mind that she had witnessed the brutal murder of all

 

           her family members by the appellants and  other  accused  during

 

           the occurrence and when she was in  a  state  of  shock  in  the

 

           hospital she had given  answer  to  the  -question  put  by  the

 

           Magistrate. After regaining her health when she was examined  by

 

           the Investigation Officer, she has stated the entire  occurrence

 

           naming the assailants and the attack made by them with weapons.

 

 

 


Thereafter, the High Court by common  judgment  dated  1.10.2007

 

           commuted death sentence recorded against the  -accused Nos.1  to

 

           5 to one of life imprisonment  and  upheld  the  conviction  and

 

           sentence imposed by the Sessions Court against them for all  the

 

           charges by dismissing the appeals in Criminal Appeal  No.749  of

 

           1996 and Criminal Appeal No.761 of 1996.  It also dismissed  the

 

           State appeal preferred challenging the acquittal of accused Nos.

 

           6 to 8.   Aggrieved by the conviction and sentence accused  Nos.

 

           1 to 5 have preferred the present appeals.

 


Legal system has laid emphasis on value, weight and  quality  of

 

           evidence rather than on quantity multiplicity  or  plurality  of

 

           witnesses.  It is not the number of witnesses  but  -quality  of

 

           their evidence which is important as  there  is  no  requirement

 

           under  the  Law  of  Evidence  that  any  particular  number  of

 

           witnesses is to be examined to prove/disprove a fact.   Evidence

 

           must be weighed and not counted.  It is quality and not quantity

 

           which determines the adequacy of evidence as has  been  provided

 

           under Section 134 of the Evidence Act.  As a  general  rule  the

 

           Court can and may act on  the  testimony  of  a  single  witness

 

           provided he is wholly reliable.

 
REPORTABLE

 
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(S).256-257 OF 2009

 
Veer Singh & Ors. .. Appellant(s)

 

 

 

versus

 

 

 

State of U.P. .. Respondent(s)

 

 

 

J U D G M E N T

 

 

 

C. NAGAPPAN, J.

 

 

 

1. These two appeals are preferred against the common judgment of
the High Court of Judicature at Allahabad in Criminal Appeal
No.749 of 1996 and Criminal Appeal No.761 of 1996 dated
1.10.2007.

 

 

 

2. The appellants in Criminal Appeal No. 749 of 1996 are accused
Nos. 1 to 4 and the appellant in Criminal Appeal No.761 of 1996
is the accused No.5, in the Sessions Case No.72 of 1985, on the
file of Third Additional Sessions Judge, Muzafarnagar, and they
were tried along with three other accused for the alleged
offences under Sections 147,148, 307 read with Section 302 read
with Section 149 and Section 452 of Indian Penal Code. Sessions
Court found accused Nos. 6 to 8 not guilty of the charges and
acquitted them and at the same time convicted accused Nos.1 to 5
for the charge under Section 302 read with Section 149 IPC and
sentenced them to death, subject to confirmation by the High
Court; convicted them for the offences under Section 307 read
with Section 149 of IPC and sentenced them to undergo rigorous
imprisonment for a period of 5 years; convicted them for the
offence under Section 452 IPC and sentenced them to undergo
rigorous imprisonment for a period of 4 years, and had also
convicted Veer Singh, A-1, Takal Singh A-2 and Balkar Singh A-
5, for the offence under Section 148 IPC and sentenced them to
undergo RI for a period of 2 years and had convicted Amrik
Singh, A-3 and Kamir Singh, A-4, for the offence under Section
147 IPC and sentenced them to undergo rigorous imprisonment for
a period of one year.

 

 

 

3. Aggrieved by the conviction and sentence accused No.1 to 5
preferred appeals being Criminal Appeal No.749 of 1996 and
Criminal Appeal No. 761of 1996 and a Reference regarding death
penalty was also made to the High Court. Besides the State
also preferred an appeal being Appeal No.1341 of 1996,
challenging the acquittal of accused Nos.6 to 8. The Appeals
and Reference were heard together and the High Court by its
common judgment dated 4.12.1997 allowed the Criminal Appeals
filed by accused Nos.1 to 5 and rejected the Reference and
acquitted them of all the charges. It also dismissed the
Criminal Appeal preferred by the State.

 

 

 

4. Challenging the said judgment the State of U.P. preferred Civil
Appeal Nos.727 – 729 of 1998 and this Court allowed the appeals
and remitted the matter to the High Court for fresh hearing.
Thereafter, the High Court by common judgment dated 1.10.2007
commuted death sentence recorded against the -accused Nos.1 to
5 to one of life imprisonment and upheld the conviction and
sentence imposed by the Sessions Court against them for all the
charges by dismissing the appeals in Criminal Appeal No.749 of
1996 and Criminal Appeal No.761 of 1996. It also dismissed the
State appeal preferred challenging the acquittal of accused Nos.
6 to 8. Aggrieved by the conviction and sentence accused Nos.
1 to 5 have preferred the present appeals.

 

 

 

5. The prosecution case as it discerned from the records is
briefly, as follows :

 

Shisha Singh and Mohar Singh were residents of village Dongpura,
whereas Gurdip Singh was resident of adjacent village Varnau. On
13/14.7.1984, at about midnight Gurdip Singh heard firing and cries from
the houses of Shisha Singh and Mohar Singh and armed with his licensed gun
he along with Jassa Singh and Hazoor Singh moved towards the house of
Shisha Singh. In the moonlight and the light of the torch he saw Kartar
Singh and his son Mahender Singh standing on the roof top of the house of
Shisha Singh holding gun and country made -pistol and Kartar Singh was
shouting aloud to his sons Mahendra Singh, Lakkha Singh, Ginder Singh and
Sinder Singh to eliminate the whole family of Shisha Singh and Mohar Singh
and that none should escape away. They fired several gun shots and Gurdip
Singh withdrew himself back and at that time Harbans Kaur wife of Shisha
Singh escaped from the house with injuries and came and told him that
Kartar Singh and his four sons accompanied by all the four sons of Sampuran
Singh and Balkar Singh had killed all the family members of Shisha Singh
and Mohar Singh and sought help from him. Harbans Kaur was taken to a safer
place and thereafter Gurdip Singh along with Jaswant Singh went to the
Jhinjhana Police Station and gave an oral complaint which was reduced to
writing by PW14 Head-Mouri and First Information Report came to be
registered at about 4.15 a.m. on 14.7.1984. The police party rushed to the
place of occurrence and S.J. Mohd. Akhtar, S.O., Jhinjhana Police Station,
took up the investigation and sent the injured to the hospital. He seized
material objects from the place of occurrence and conducted inquest on the
dead bodies and -prepared inquest reports and sent the bodies for post-
mortem examination.

 

 

 

6. PW 6 Dr. N.K. Sharma examined Harbans Kaur at 6.30 a.m. on
14.7.1984 in the Civil Hospital Shamli and found following
injuries:

 

“i) Lacerated wound measuring 11 cms x 1.5 cms x bone deep
slanting on the left side of head 6.5 cms above from the left
ear. Wound had been bleeding.

 

ii) Lacerated wound measuring 1.2 cms x 0.5 cm x bone deep on
the left ear, bleeding.

 

iii) Bluish mark in red colour in the area of 7 cms x 1 cms on
the left cheek in between the injury No.2 and 4

 

iv) Lacerated would measuring 3 cms x 0.7 cms x across through
the right cheek. Lacerated wound measuring 3 cms x 0.3 cms x
bone deep on the portion of jaw opposite to it.

 

v) Red bluish marks in the area of 28 cms x 1.5 cms on the
third upper portion of back on both side of the backbone.

 

vi) Many lacerated wounds in the area of 37 cms x 28 cms of
chest and abdomen on the frontal portion, out of these the large
wound was measured as 3 cms –

 

x 0.7 cm x depth was not measured and the smallest wound was
measuring 0.2 cms x o.2 cm x muscle deep. Some article like hard
pellet felt in the injury. Blackening was present nearby the
injury.

 

vii) Lacerated wound measuring 1 cm x 0.7 cm x muscle deep,
nearby to it, skin has peeled towards the inner side of the left
thigh.

 

viii) Abrasion in the area of 5 cms x 1.5 cm on the frontal
portion and left side of the left knee.”

 

 

 
The Doctor opined that injury No.1 could have been caused by sharp-edged
weapon while injury no.6 could have been caused by a fire arm.

 

 

 

7. Dr. N.K. Taneja (PW 1), Dr. R.K. Vats (PW 2), Dr. B.K. Mishra
(PW 3), Dr. Suresh Chand (PW 10), Dr. R.S. Kasana (PW 11) and
Dr. D.C. Mohar(PW 12) conducted autopsy on thebodies of 12
victims. They opined that the death occurred to all the victims
due to shock of hemorrhage as a result of ante-mortem injuries.
Exh. 1 to 6 and 9 to 14 are the post-mortem certificates issued
by the Doctors.

 

 

 

8. During the investigation the Investigating Officer arrested the
accused and on the information furnished by them made recoveries
of the weapons and other material objects under Mahazar (Fard).
After completing investigation he filed charge-sheet against all
the accused totaling 13. One of the accused died and the
Sessions Court framed charges against the accused persons and
during the trial the prosecution examined 18 witnesses and
marked 93 Exhibits. During trial four accused absconded. The
Sessions Court examined accused Nos.1 to 8 under Section 313
Cr.P.C. All of them denied the testimony of the prosecution
witnesses and stated that they have been falsely implicated due
to enmity. The Sessions Court convicted accused Nos. 1 to 5 for
the charges as indicated above and acquitted accused Nos. 6 to
8. On appeal the High Court acquitted all the accused and on
further appeal by the State this Court remitted the matter back
to the High Court for reconsideration. Thereafter the High
Court has passed the impugned judgment. Aggrieved by the
conviction and sentence of the High Court accused Nos.1 to 5
have preferred these appeals.

 

 

 

9. Mr. R.S.Sodhi, learned senior counsel for the appellants
submitted that Harbans Kaur is the sole eye-witness to the
occurrence and in her earlier statement before the Magistrate
within a few hours of the occurrence, she has told that Surender
Singh has fired gun shots at her and Surender, Mahender, Jinder
who are sons of Kartar Singh were involved and thereafter in her
statement given before the I.O. in addition to the above said
accused persons she named the appellants/accused Nos.1 to 5
amongst the assailants and, therefore, her testimony is not
reliable, and lot of material improvements were introduced and
there is no motive attributable to the present appellants and
it’s a midnight occurrence and in the absence of effective
source of light it is doubtful as to whether the witness could
have recognized the assailants and the appellants have been
falsely implicated in the case.

 

 

 

10. Per contra Mr. Ratnakar Das, Senior Advocate appearing for the
respondent contended that Harbans Kaur was seriously injured in
the occurrence and only one question was asked by the Magistrate
as to who caused injury to her and in her reply -she named
Surender Singh and the other sons of Kartar Singh and it related
to a part of occurrence so far as the injured is concerned and
did not in any way relate to rest of the occurrence and after
gaining full consciousness in her statement given before the
Investigation Officer she has narrated the entire occurrence and
the names of all the accused, and in the FIR which came into
being immediately after the occurrence based on the complaint
given by Sardar Gurdip Singh, the names of all the accused
persons are found mentioned and there was also motive for the
occurrence.

 

 

 

11. Harbans Kaur is the wife of Shisha Singh and the dwelling house
of Mohar Singh was adjacent to her house. PW 4 Harbans Kaur in
her testimony has stated that on the fateful night she along
with her sons Joginder Singh and Jassa Singh and her daughter
Rano, Joginder’s wife Bhajan Kaur and her three children Bagga
Singh, Phulvender and Gurmit Singh were sleeping in her house
and her husband was sleeping in the tubewell and a lantern was
burning in the house and on hearing the barking of dogs they
woke-up and saw group of people at the -gate including Kartar
Singh and his four sons namely Mahendra Singh, Lakkha Singh,
Ginder Singh and Sindar Singh and they were carrying gun,
country made pistol, axe and spade. She also noticed among them
the four sons of Sampuran Singh namely appellants Veer Singh,
Tahal Singh, Amreek Singh and Kamir Singh along with Balkar
Singh armed with weapons and lathi in the assembly, and out of
fear she and her family members went into a room and bolted the
door from inside. Kartar Singh and Mahender Singh climbed up
the roof and started demolishing the roof and threw burning
wood from the roof. Kartar Singh was shouting aloud to his sons
to finish off all the members of family of Shisha Singh and
Mohar Singh and not to allow anybody to escape alive. It is her
further testimony that when she and the other family members
tried to escape, accused Kartar Singh, Mahender Singh, Balkar
Singh and Amreek Singh let loose killing spree and initially
killed her daughter Rano, her daughter-in-law Bhajan Kaur, her
sons Kulvendra and Gurpreet Singh and they fired gun-shots on
her which struck on her chest and accused Sinder attacked her
with an axe on her hand and mouth and her sons Jassa Singh and
Joginder Singh were killed outside their -house when they tried
to run away. She heard cries emanating from the house of Mohar
Singh and five persons of their family were also killed and she
ran to the field of paddy hiding herself where she met Gurdip
Singh, Hazoor Singh and Jaswant Singh and narrated the
occurrence to them and sought their help to lodge the complaint
and Gurdip Singh along with Jaswant Singh proceeded to the
Police Station. She has further testified that she asked Hazoor
Singh to go to the tubewell and inform her husband about the
occurrence. Hazoor Singh came back and told her that Shisha
Singh and Mohar Singh were also hacked to death.

 

 

 

12. From the above testimony it becomes evident that PW 4 Harbans
Kaur has witnessed the occurrence and also sustained grievous
injuries. Immediately after the occurrence in the morning
itself Harbans Kaur was admitted in the hospital for treatment
and information was sent to Magistrate for recording her dying
declaration. In the hospital she was examined by PW 6 Dr. N.K.
Sharma and he noticed 8 injuries on her body and he has
expressed opinion that the lacerated wounds could have -been
caused by sharp-edged weapons and injury No.6 could have been
caused by firearm. The injuries sustained by her were serious in
nature. The SDM Shamli reached the hospital at 12.45 p.m. and
recorded her statement in question-answer form and only one
question was asked as to how she sustained the injuries and she
told that she was shot by Surender Singh in the presence of
other sons of Kartar Singh. In other words the reply pertained
only to that part of the occurrence in which she was injured and
not the entire occurrence. In fact PW 4 Harbans Kaur in her
testimony before the Court has clearly stated as to why she has
given a limited answer to the Magistrate. Further it is not a
dying declaration since she survived and it is only a statement
under Section 164 of the Cr.P.C. which can be used under Section
157 of the Evidence Act for the purpose of corroboration and
under Section 155 of the Act for the purpose of contradiction.
This statement did not relate to the entire occurrence. It must
be borne in mind that she had witnessed the brutal murder of all
her family members by the appellants and other accused during
the occurrence and when she was in a state of shock in the
hospital she had given answer to the -question put by the
Magistrate. After regaining her health when she was examined by
the Investigation Officer, she has stated the entire occurrence
naming the assailants and the attack made by them with weapons.

 

 

 

13. There is intrinsic evidence available on record which lends
credence to her testimony. The occurrence took place in the
midnight and the complaint was lodged in Jhinjhana Police
Station at 4.15 a.m. on 14.7.1984 without any loss of time. The
complainant Gurdip Singh was also murdered before the trial. In
the complaint Gurdip Singh has stated that during midnight on
the occurrence day he heard loud noise and screaming from the
house of Shisha Singh and Mohar Singh. He took up his licensed
gun and moved towards the house of Shisha Singh with Jassa Singh
and Hajoor Singh and saw in the moon lit night and also in the
light shed by the torch, Kartar Singh and his son Mahender
Singh standing on the roof of Shisha Singh’s house and Kartar
Singh loudly directed his sons to wipe off all the family
members of Shisha Singh and Mohar Singh and when he and his
fellows challenged, all of a sudden the assailants opened -fire
on them and he stepped back and it was at that time injured
Harbans Kaur who escaped from the occurrence place met him and
told him that Kartar Singh and his sons along with other
accused have killed all the members of her family and also the
family of Mohar Singh, and pleaded for help and to inform the
police. After providing her safety he went to the Police
Station and gave oral complaint which was reduced to writing and
he appended his signature on it.

 

 

 

14. The Head-Mouri of the Police Station Shri Inder Pal Sharma, PW14
has recorded the oral complaint of Gurdip Singh and registered
the FIR, Exh.Ka-18. The extract of G.D. is Exh.Ka-19. The
names of assailants including the names of the present
appellants are found mentioned in the complaint lodged by Gurdip
Singh. It is also relevant to point out that no enmity is
attributed to Gurdip Singh against the assailants and there is
no reason for him to falsely implicate the appellants in the
case.

 

 

 

15. Hazoor Singh has been examined as PW 5 and in his examination-in-
chief he has stated that on the occurrence night he heard the
noise of firing coupled with screaming cries from the house of
Shisha Singh and Mohar Singh and he went to the house of Jassa
Singh and both of them went to the house of Gurdip Singh who
accompanied them by taking gun and torch and when they went near
the house of Shisha Singh they saw several men and he could not
identify any of them and Harbans Kaur met them there and told
them that Kartar Singh and other assailants have attacked them.
At this point of time he was declared hostile by the
prosecution and in the cross-examination he stated that Gurdip
Singh had lodged the complaint about the occurrence in the
Police Station and when Harbans Kaur narrated the occurrence, he
was also present at the place and on the request of Harbans Kaur
he went to the tubewell and found Shisha Singh and Mohar Singh
lying dead and he informed Harbans Kaur about the same and she
became unconscious. It is settled law that the testimony of
the hostile witness need not be discarded in toto and that
portion of testimony in the chief-examination which supports the
prosecution case can be taken for consideration. In the present
case, in the examination-in-chief itself PW 5 Hazoor Singh has
admitted about his going to -the place of occurrence along with
Gurdip Singh and Jaswant Singh on hearing the noise of firing
and cries emanating from the house of Shisha Singh and Mohar
Singh and the narration of the occurrence by Harbans Kaur to
them which led to lodging of the complaint. The above
testimony of PW 5 lends credence to the testimony of PW 4.

 

 

 

16. The Investigation Officer PW 18 S.J. Mohd. Akhtar, after
taking up the investigation went to the occurrence place and
seized blood-stained materials and also went to the roof of the
house of Shisha Singh and took brick from the damaged roof and
also ashes from the room, which have been marked as Exh. Ka 40
and 41, respectively. This also lends credence to the testimony
of PW 4 Harbans Kaur that the assailants damaged the roof and
threw burning wood inside the room during the occurrence.

 

 

 

17. Legal system has laid emphasis on value, weight and quality of
evidence rather than on quantity multiplicity or plurality of
witnesses. It is not the number of witnesses but -quality of
their evidence which is important as there is no requirement
under the Law of Evidence that any particular number of
witnesses is to be examined to prove/disprove a fact. Evidence
must be weighed and not counted. It is quality and not quantity
which determines the adequacy of evidence as has been provided
under Section 134 of the Evidence Act. As a general rule the
Court can and may act on the testimony of a single witness
provided he is wholly reliable. (Vide: Vadivelu Thevar and Anr.
vs. State of Madras AIR 1957 SC 614; Kunju @ Balachandran vs.
State of Tamil Nadu AIR 2008 SC 1381; Bipin Kumar Mondal vs.
State of West Bengal AIR 2010 SC 3638; Mahesh and Another vs.
State of Madhya Pradesh (2011) 9 SCC 626; Prithipal Singh and
ors. vs. State of Punjab and anr. (2012) 1 SCC 10; Kishan Chand
vs. State of Haryana JT 2013 (1) SC 222 and Gulam Sarbar vs.
State of Bihar (Now Jharkhand) – 2013 (12) SCALE 504).

 

 

 

18. In the present case we are left with the sole testimony of
injured eye-witness PW4 Harbans Kaur. She has lost all the
members of her family in the attack during the occurrence.
-There is no reason for her to falsely implicate any of the
accused in the case. On the contrary she would only point out
the correct assailants who are responsible for killing her
family members. We are of the considered view that the
testimony of PW4 Harbans Kaur is cogent, credible and
trustworthy and has a ring of truth and deserves acceptance.
All the 12 victims of the occurrence died of homicidal
violence is established by the oral testimony of the doctors who
conducted autopsies on their bodies and the certificates issued
by them to that effect.

 

 

 

19. There was also motive for the occurrence. It is the testimony
of the PW4 Harbans Kaur that her husband lent a sum of Rs.8000/-
to Mahender Singh son of Kartar Singh 8 years prior to the
occurrence and he was avoiding to pay back which created
bitterness. Besides the above, it is also indicated in her
testimony that Mahender Singh suspected that family members of
Harbans Kaur had tipped the police about the activities of
Mahender Singh which led to his arrest twice by the Jhinjhana
and Kairana Police. It is her further testimony that Mohar Singh
has also lent some money to Mahender Singh and this testimony
-also finds support from the evidence of PW 9 Mukhtiyar Singh
son of Mohar Singh to the effect that Lakka Singh had taken
Rs.1600/- from Mohar Singh about 5 years prior to occurrence
which he had declined to pay despite repeated demands. Both the
above witnesses namely PW4 Harbans Kaur and PW9 Mukhtiyar Singh
have testified that Mahendro sister of Mahender Singh had
developed illicit intimacy with Avtar Singh @ Pappu son of
Mohar Singh and had once outraged her modesty which led to
convening of a Panchayat and decision thereof. Enraged by
this Mahender Singh wanted to take revenge and that has resulted
in the occurrence. In this context it is relevant to point out
that the appellants in their answers to the questions put to
them during proceedings under Section 313 Cr.P.C.in the trial
have alleged that they have been falsely implicated in the case
on account of enmity.

 

 

 

20. From the evidence on record we are inclined to hold that
appellants along with other accused armed with weapons had
committed trespass into the dwelling houses of Shisha Singh and
Mohar Singh during mid-night with a view to commit murder of
-the family members of Shisha Singh and Mohar Singh and carried
out the same. The High Court has rightly sustained the
conviction on the appellants and the sentence awarded to them
are also proper.

 

 

 

21. We find no merit in the appeals and the same are dismissed.

 

 

 
……………..………………………….J.
(Sudhansu Jyoti Mukhopadhaya)

 

 

 
…………….……………………………J.
(C. Nagappan)

 

New Delhi;
December 10 , 2013.

 

 

 

 

 

 

 

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