Mohd. Asif v. State of Uttaranchal

that the death of the deceased occurred due to pulmonary embolism as a result of the operation that he had to undergo after the incident and not due to the injury caused to him at the time of the scuffle. This argument has been rightly pointed out F by the lower court is misconceived. Dying declaration in this case has been held to be reliable. The level of reliance to be placed on a dying declaration by a court has now come to be well settled. If it is trustworthy, a judgment of conviction can be based thereupon. In Ranjit Singh & ors. vs. State of Punjab [(2006) 13 SCC 130], this Court held: "13. It is now well settled that conviction can be recorded on the basis of a dying declaration alone, if the same is wholly reliable, but in the event there exists any suspicion t MOHD. ASIF V. STATE OF UTTARANCHAL 21 . [S.B. SINHA J.] as regards correctness or otherwise of the said dying . A declaration, the Courts in arriving at the judgment of conviction shall look for some corroborating evidence. It is also well known that in a case where inconsistencies in the dying'declarations, in relation to the active role played by one or the other accused persons, exist, the Court shall B . lean more towards the first dying declaration than the second one." In Shakuntala (Smt.) vs. State of Haryana [(2007) 10 SCC 168], this Court held: "11. This is a case where the basis of conviction of the accused is the dying declaration. The situation in which a person is on deathbed is so solemn and serene when he is dying that the grave position in which he is placed, is the reason in law to accept veracity of his statement. It is · D + . for this reason the requirements of oath and cross- examination are dispensed with. Besides, should the dying declaration be excluded it wilt result in miscarriage of justice because the victim being generally the only eye-witness in a serious crime, tlie exclusion of the statement would leave E the Court without a scrap of evidence. 12. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused h.as no power of cross-'examination. Such a power is essential for eliciting F the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration · should be of such a nature as to insp.ire full confidence of the Court in its correctness. The Court-hast<;> be on guard that the statement of deceased was not as a result of G either tutoring, or prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can H A base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. This Court has laid down in B several judgments the principles governing dying declaration, which could be summed up as under as indicated in Smt. Paniben v. State of Gujarat [(1992) 2 SCC 474]: (SCC pp.480-81, paras 18-19) (i) There is neither rule of law nor of prudence that dying c declaration cannot be acted upon without corroboration. [See Munnu Raja and Anr. v. The State of Madhya Pradesh (1976) 3 SCC 104] (ii) If the Court is satisfied that the dying declaration is D true and voluntary it can base conviction on it, without corroboration. [See State of Uttar Pradesh v. Ram Sagar Yadav and Ors. (1985) 1 SCC 552, and Ramavati Devi + v. State of Bihar ( 1983) 1 SCC 211] (iii) The Court has to scrutinize the dying declaration E carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. [See K. Ramachandra Reddy and Anr. v. The Public Prosecutor .. F (1976) 3 sec 6181 (iv) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. [See Rasheed Beg v. State of Madhya Pradesh (1974) 4 SCC 264] G Where the deceased was unconscious and could (v) ~ never make any dying declaration the evidence with regard ·" to it is to be rejected. [See Kake Singh v. State of M.P , 1981 Supp. sec 25] H (vi) A dying declaration which suffers from infirmity cannot MOHD. ASIF V. STATE OF UTTARANCHAL 23 [S.B. SINHA J.] form the basis of conviction. [See Ram Manorath and A Ors. v. State of UP (1981) 2 SCC 654] (vii) Merely because a dying declaration does contain the details as to the occurrence, it is not to be rejected. [See State of Maharashtra v. Krishnamurthi Laxmipati Naidu, B 1980 Supp. sec 455] (viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. [See Surajdeo Ojha and Ors. v. State of Bihar, 1980 Supp. SCC 769]. c (ix) Normally the CoL1rt in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye- witness said that the deceased was in a fit and conscious state to make the dying declaration, the medical D ... opinion cannot prevail. [See Nanhau Ram and Anr. v. State of Madhya Pradesh, 1988 Supp SCC 152]. (x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration E cannot be acted upon. [See State of UP v. Madan Mohan and·.Ors. (1989) 3 SCC 390]. (xi) Where there are more than one statement in.the nature of dying declaration, one first in point of time must be pref!'!rred. Of course, if the plurality of dying declaration F . could be held to be trustworthy and reliable, it has to be · accepted. [See Mohan/al Gangaram Gehani v. State of Maharashtra (1982) 1 SCC 700]" In State of Rajasthan vs. Parthu [(2007) 12 SCC 754], this Court held: G tf "13. It is now a well settled principles of law that a judgment of conviction can be recorded on the basis of the dying declaration alone subject of course to the satisfaction of the Court that the same was true and voluntary. For the H A purpose of ascertaining truth or voluntariness of the dying declaration, the Court may look to the other circum- r stances .... " We do not see any reason to differ with the ratio laid down therein. {See also Samadhan Dhudaka Kofi vs. State of Maharashtra 1(2008) 16 SCALE 66]} 9. It is not a case where the death of the deceased had nothing to do with the injury inflicted. The utterances on the part of the appellant that he would not leave the deceased alive ... c indicate the state of mind on the part of the appellant. The doctors tried their best to save his life. They could not do it. 10. Section 299 of the IPC reads as under: "299. Culpable homicide.- Whoever causes death by D doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide." Explanation-2 appended thereto may also be noticed: E "Explanation 2.-Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment the death might have been prevented." The operation of the deceased was necessitated because of the injury inflicted upon him at the time of the incident and there would have been no question of.subjecting him to such an operation had he not been so seriously injured in the incident. G The operation of the deceased became necessary on account of the injury. It can hardly be argued that his death did not take place due to the aforesaid injury. 11. The question which now arises for consideration is as to whether a case for converting the sentence from Section 300 H IPC to Section 304 IPC has been made out. t MOHD. ASIF V. STATE OF UTIARANCHAL 25 [S.8. SINHA J.] Section 300 of the IPC reads as under: A 1' "300. Murder.- Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or-;- Secondly.-If it is done with the intention of causing such 8 bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or- Thirdly.- If it is done with the intention of causing bodily .,,__ injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to c cause death, or- Fourthly.-If the person committing the act knows that it is so imminently dangerous that it must, in all probability, ca.use death or such _bodily injury as is likely to cause D ~ death, and commits such act without any excuse for incurring the risk of causing· death or such injury as aforesaid." Exception 4 thereof reads as under: E "Exception 4. - Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the ...... • offender having taken undue advantage or acted in a cruel . or-unusual manner. F Exception 4 of Section 300 in this case would not arise. 12. Indisputably, commission of offence has been proved by the witnesses Kanhaiya Lal (PW-1), Hem Raj (PW-2) and Shakeel Ahmad (PW-3). The facts do not disclose any sudden G provocation. Indisputably, the doctor has noticed that left lung was infract and collapsed. A big blood clot in the left pulmonary artery was ( also noticed. There was thus no adequate blood supply. H A 13. There may be a scuffle but it occurred because of the overt acts on the part of the appellant and Iqbal. We have noticed hereinbefore the manner in which the assault had taken place as well as the manner in which the force was applied in inflicting the assault is evident. It ruptured the kidney. The wound was B therefore deep. Profused bleeding was noticed. And that IS the reason he had to be operated upon. 14. The question with regard to finding out the intention on the part of the accused to cause death depends upon the facts C and circumstances of each case. No hard and fast rule can be laid down therefor. Section 300 of the Code provides that subject to the exceptions contained therein culpable homicide would be murder if the act by which the death is caused is done with the intention of causing death. Exception 1 thereto providing for 0 a situation when culpable homicide is not murder. In terms of Exception 1, culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake E or accident. The said provision is, however, subject to the following : "First - That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person. Secondly.-That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant. Thirdly. - That the provocation is not given by anything done in the lawful exercise of the right of private defence." The Explanation appended thereto states that whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact. It is not H a case of exercise of right of private defence. The provocation - MOHD. ASIF V. STATE OF UTTARANCHAL 27 [S.B. SINHA~-) was not given by a thing done in obedience to the law, or by a A public servant in the lawful exercise of the powers of such public servant. The provocation, if any, was sought for by the offenders. In this case, appellant and Iqbal must be held to have known that it was so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause B death. What is meant by 'imminently dangerous' which, in all probability, cause death or such bodily injury as is likely to cause death came up for consideration before this Court in Virsa Singh C vs. State of Punjab [AIR 1958 SC 465], wherein it was held: "(15) ..... We quote a few sentences earlier from the same learned judgment : "No doubt, if the prosecution prove and act the natural 0 consequences of which would be a certain result and no evidence or explanation is given, then a jury may, on a proper direction, find that the prisoner is guilty of doing the act with intent alleged." That is exactly the position here. No evidence or . E explanation is given about why the appellant thrust a spear into the abdomen of the deceased with such force that if penetrated the bowels and three coils of the intestines came out of the would and that digested food oozed out from cuts in three places. In the absence of evidence, or F reasonable explanation, that the prisoner did not intend to stab in the stomach with degree of force sufficient to penetrate that far into the body, or to indicate that his act was regrettable accident and that he intended otherwise, it would be perverse tb conclude that he did not intend to G inflict the injury that he did. Once that intend is established (and no other conclusion is reasonably possible in this case, and in any case it is a question of fact), the rest is a matter for objective determination from the medical and 28 other evidence about the nature and seriousness of the injury." A bench of this Court in Kesar Singh & Anr vs. State of Haryana [2008 (6) SCALE 433] applied the standard laid down 8 in Virsa Singh (supra) to hold: 'To put it shortly, the prosecution must prove the followin9 facts before it can bring a case under Section 300, "3rdly": First, it must establish, quite objectively, that a bodily injury is present; Secondly, the nature of the injury must be proved; These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has ,nothing to do with the intention of the offender. Once these four elements are established by the prosecution (and, indisputably, the burden is on the prosecution througho4t). the offence is murder under Section 300, "3rdly". It does not matter that there was no intention to cause death. It does not matter that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any real distinction between the two). It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury is actually found to be ll MOHD. ASIF V. STATE OF UTTARANCHAL . 29 [S.B. SINHA J.] . proved, the rest of the enquiry is purely objective and the A only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death .... " Applying the aforementioned principles, we have no doubt 8 in our mind that it is not a case which attracts the provisions of-­ Section 304 Part II of the IPC or Section 326 thereof. 15. Mr. Viswanathan relied upon a decision of this Court in Chowa Manda/ & anr. vs. State of Bihar (Now Jharkhand) [(2004) 13 sec 231]. In that case it was found that there was c no motive, intention or knowledge on the part of the offenders as to their act which led to the death of the deceased. It was found that the incident had occurred on the spur of the moment without there being any intention of causing death or of causiAg such injury as they knew was likely to cause death. 0 In State of Rajasthan vs. Jara Ram [(2005) 10 SCC 591] whereupon again Mr. Viswanathan placed reliance, the High Court itself found that medical evidence on record did not make out a case of murder as it disclosed that the injuries found on the person of the deceased were simple injuries and furthermore E it was found that they were not sufficient in ordinary course of nature to cause death as merely a bruise was found. Even that injury was not attributed to the respondent therein. In Goku/ Parashram Patil vs. State of Maharashtra [(1981) 3 SCC 331), relied upon by Mr. Viswanathan, distinguishing F Virsa Singh (supra), this Court held: " ... The question thus is whether the particular injury which was found to be sufficient in the ordinary course of nature to cause death, in the present case, was an injury intended G -+- · by the appellant. Our answer to the question is an emphatic No. The solitary blow given by the appellant to the deceased was on the left clavicle-a non-vital part-and it would be too much to say that the appellant knew that the superior venacava would be cut as a result of that wound. H 30 SUPREME COURT REPORTS [2009) 4 S.C.R. Even a medical man perhaps may not have been able to judge the location of the superior venacava with any precision of that type. The fact that the venacava was cut must, therefore, be ascribed to a non-intentional or accidental circumstance." Such is not the case here. Reliance has also been placed by Mr. Viswanathan on Dashrath Singh vs. State of UP [(2004) 7 SCC 408) wherein it was held: C "29. The medical evidence however does not establish beyond reasonable doubt that the ultimate cause of death was the aforesaid injury. From the date of the surgery, the victim was alive for 23 days and undergoing treatment in H case. the hospital. He survived for 38 days after the injury was received. Not a word has been said and no report or case-sheet has been filed to indicate the condition of the patient after the surgery. No doubt, there was no crass examination of the Doctor (PW8) on this aspect. Yet, it was the primary duty of the prosecution to adduce evidence in regard to the post-operative condition of the patient so that the scope for any intervening ailment unconnected with the injury is ruled out. This becomes ail the more important because of the long time lag and the omission to hold post-mortem. Apparently, there was a callous indifference or lack of vigilance on the part of the Investigating Officer in failing to ensure the post-mortem examination in a case of this nature. PW 8 came forward with the explanation that the post-mortem is not absolutely necessary to ascertain the cause of death. But, then, the prosecution has to establish beyond reasonable doubt that the eventual cause of death was only the injury inflicted by the appellant and nothing else, but it has failed to do so." The said ciecisi...in also has no application in the present MOHD. ASIF V. STATE OF UTTARANCHAL 31 [S.B. SINHA J.] 16. It is not a case where the intervening ailment was wholly A unconnected with the injury. On the other hand, in Manubhai Atabhai vs. State of Gujarat [(2007) 10 SCC 358], this court clea(ly held: "Merely because a single blow was given that does not automatically bring in application of Section 304 Part I 8 IPC.'' We, therefore, are of the opinion that the appellant has rightly been found guilty of commission of an offence under Section 302 of the IPC. 17. For the reasons aforementioned, there is no merit in the appeal. It is dismissed accordingly. G.N. Appeal dismissed .