Himachal Pradesh High Court
Gopal Singh vs State Of H.P on 14 December, 2017
Bench: Tarlok Singh Chauhan, Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 567 of 2016 Reserved on: 02.12.2017 Decided on: 14. 12.2017 Gopal Singh ...Appellant .
Versus
State of H.P. ...Respondent
Coram
The Hon'ble Mr.Justice Tarlok Singh Chauhan, Judge The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge Whether approved for reporting? No. For the Appellant: Mr. Lovneesh Kanwar, Advocate, as Legal-aid-Counsel.
For the respondent: Mr. V.S. Chauhan, Addl. A.G. with Mr. Rajat Chauhan, Law Officer.
Justice Tarlok Singh Chauhan, Judge The appellant has been convicted and sentenced to undergo life imprisonment and to pay a fine of ` 2,000/- under Section 302 of Indian Penal Code (for short 'Code') and in default of payment of fine to further undergo simple imprisonment of one month. Aggrieved thereby the appellant preferred the instant appeal.
2. As per the prosecution story deceased Seema Devi was married to the accused as per marriage certificate Ex.PW4/A. As per PW-2 Kalu Ram and PW-3 Sheela Devi parents of the deceased, the accused kept deceased nicely for about one year, however, thereafter she was given beatings by the accused under the ::: Downloaded on - 15/12/2017 23:03:54 :::HCHP 2 influence of liquor. Even though accused was requested to mend his behavior but he did not do so.
3. Eventually, on 12.09.2012, at about 8:00 p.m. the .
accused not only gave beatings to the deceased but also poured kerosene oil on her and set her ablaze. The deceased was initially taken to Civil Hospital, Sundernagar, where she was attended by PW14 Dr. Ankat Kaushal. However, looking to the seriousness of the burn injuries, she was referred to IGMC, Shimla. The deceased disclosed to her parents that she was set ablaze by the accused by pouring kerosene oil.
4. PW15 ASI Jagdish Kumar visited IGMC, Shimla on 14-09- 2012 and recorded the statement of deceased Ex.PW12/A. It is on the basis of such statement, the FIR Ex.PW12/B came to be registered. The deceased was thereafter shifted to PGI, Chandigarh and when there was no hope of recovery, she was brought back to home by her parents.
5. PW1 Ved Parkash, Executive Magistrate, recorded the statement of the victim Ex.PW1/A on 15.09.2012. Deceased ultimately succumbed to her burn injuries on 22.09.2012 in her parental house. The Investigating Officer, after preparing the spot map Ex.PW15/A, recorded statements of witnesses, took into possession various articles from the spot and also obtained the post-
mortem report. The articles so collected were deposited in the ::: Downloaded on - 15/12/2017 23:03:54 :::HCHP 3 Malkhana and were delivered in the Forensic Science Laboratory and after obtaining the report, it was annexed with the final report.
6. Finding a prima facie case, charges came to be framed .
to which the appellant pleaded not guilty and claimed trial.
7. The prosecution examined 16 witnesses and on completion of prosecution evidence, entire incriminating circumstances and evidence were put to the accused in his statement under Section 313 Cr.P.C., wherein he denied the prosecution case in toto and pleaded innocence. He further stated that all the witnesses examined by the prosecution were near relatives of the deceased and no offence has been committed by him.
8. After hearing arguments under Section 232 of the Code, accused was given opportunity to lead evidence. The accused examined one Uma Devi in order to substantiate or corroborate the plea taken in his defence.
9. It is vehemently argued by Mr. Lovneesh Kanwar, learned counsel for the appellant that the judgment rendered by the Court below suffers from grave illegality and procedural irregularities as the same is based entirely upon the testimonies of the interested witnesses and even the dying declaration has not been recorded in accordance with law, therefore, no reliance could ::: Downloaded on - 15/12/2017 23:03:54 :::HCHP 4 have been placed by the Court to convict the appellant on the basis of such statement.
10. While on the other hand, Mr. V.S. Chauhan, learned .
Addl. A.G. would support the judgment as the same according to him is based on correct appreciation of the facts, evidence and law.
We have heard learned counsel for the parties and have gone through the records of the case.
11. Even though the learned Court below has examined the prosecution case in detail, however, in order to satisfy our judicial conscious, we would undertake such exercise once again.
12. PW2 and PW3, the parents of the deceased have clearly stated that their daughter was married to accused and such fact has not been denied. They have further stated that their daughter was kept nicely for about one year and thereafter she was subjected to beatings, more particularly, when the accused was under the influence of liquor. The accused was asked to mend his ways but to no avail. Eventually, on 12.09.2012, at about 8:00 p.m., accused under the influence of liquor sprinkled kerosene oil on the deceased and set her ablaze.
13. PW2 Kalu Ram was informed telephonically about this fact by the accused that deceased was shifted to Civil Hospital, Sundernagar. Thereafter, he went to the hospital and found that the ::: Downloaded on - 15/12/2017 23:03:54 :::HCHP 5 deceased had sustained serious burn injuries and was accordingly referred to IGMC, Shimla. The deceased disclosed that she was set ablaze by the accused by pouring kerosene oil. On account of .
seriousness of the burn injuries, she was referred to PGI, Chandigarh, where doctors gave up and eventually deceased was brought back to the home. The deceased succumbed to burn injuries on 22.09.2012. Her statement was recorded by Naib Tehsildar, Sundernagar, when she was fit to make such statement.
14. PW9 Tek Chand, is the one who reached the hospital on 12.09.2012 after receipt of telephonic information and moved an application Ex.PW9/A for recording her statement. However, the medical officer opined that the deceased was not fit to make statement and was referred to IGMC, Shimla for further treatment.
15. PW 14 Dr. Ankat Kaushal, is the one who examined the deceased on 12.09.2012 at about 9:00 p.m. and found the deceased to have sustained burn injuries, however, she was not found fit for making statement and was referred to IGMC, Shimla after giving first-aid. He issued MLC Ex.PW14/A and Ex.PW14/B.
16. PW12 Inspector Bahadur Singh stated that on 14.09.2012, on receipt of rukka Ex.PW12/A, FIR Ex.PW12/B was registered in the police station. The dead body was sent for post-
mortem examination alongwith application Ex. PW11/A. The post-
mortem report was obtained and handed over to the Investigating ::: Downloaded on - 15/12/2017 23:03:54 :::HCHP 6 Officer. On receipt of report Ex.PW12/G from the Forensic Science Laboratory, challan was prepared.
17. PW1 Ved Parkash, Naib Tehsildar stated that on .
15.09.2012 at about 9:00 p.m. he on the direction of SDM, Sundernagar, recorded the statement of deceased Ex.PW1/A. The statement so recorded as per the version of the deceased and also read over to her who affixed her thumb impression upon the statement admitting the contents of the same. He then made endorsements Ex.PW1/B and Ex.PW1/C on it.
18. PW4 HHC Kashmir Singh proved marriage certificate Ex.PW4/A, which was taken into possession vide memo Ex.PW4/B.
19. PW5 HHC Milkhi Ram has proved the FIR which was registered in the police station after receipt of rukka.
20. PW6 Rajinder Singh stated that certificate Ex.PW4/A was issued by him which was taken into possession vide memo Ex.PW4/B.
21. PW7 Vijay Singh Guleria stated that spot map Ex.PW7/A was prepared by him and the same was handed over to the police.
22. PW10 HHC Raj Kumar stated that the case property was deposited with him in Malkhana and has proved entries to this effect. Entries made by him in the Malkhana register to this effect are at Ex.PW10/A, Ex.PW10/B, Ex.PW10/C. He has further proved RC Ex.PW8/A vide which the case property was sent to the Forensic Science Laboratory through C. Subhash Chand.
::: Downloaded on - 15/12/2017 23:03:54 :::HCHP 723. PW8 C. Subhash Chand has stated that vide R.C. Ex.PW8/A, the case property was safely delivered at Regional Forensic Science Laboratory, Gutkar.
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24. PW16 Dr. Vardan Kulshreshtha has proved the application filed by the police vide Ex.PW16/A, upon receipt of which he had opined that the patient was fit to give statement.
25. PW11 Dr. Suraj Bhardwaj has proved on record the post-
mortem conducted by him on receipt of application Ex.PW11/A, wherein he found the dead body to be having 90% burn (superficial with deep infected and slough present over the burn area) and the cause of death was septicemia with multiple organ dis-function syndrome and he issued post-mortem report Ex.PW11/B.
26. PW13 HHC Dalip Singh proved rapats Ex.PW13/A to Ex.PW13/C.
27. PW 15 ASI Jagdish Kumar stated that information was received in the police station on 12.09.2012 that a lady in a burnt condition was brought to Civil Hospital, Sundernagar and was referred to IGMC, Shimla. He entered rapat Ex.PW13/A in the police station and thereafter went to IGMC, Shimla on 13.09.2012 and on 14.09.2012, the doctor attending on deceased at IGMC, Shimla certified that the deceased was fit to make statement. He, accordingly, recorded the statement of the deceased under Section 154 Cr.P.C. Ex.PW12/A in the presence of her parents and ::: Downloaded on - 15/12/2017 23:03:54 :::HCHP 8 uncle. The statement was sent to the police station upon which FIR Ex.PW12/B came to be registered. He also recorded the statements of the parents of the deceased and prepared spot map Ex.PW15/A. .
He clicked photographs Ex.PW12/D-3 to Ex.PW12/D-6 and Ex.PW12/D-9 to Ex.PW12/D-13. On 14.09.2012 vide memo Ex.PW15/B he took into possession plastic canny and one match box and recorded statements of witnesses as per their versions.
28. Noticeably the case of the prosecution mainly rests upon dying declaration and statements of the parents of the deceased Ex.PW2 and Ex.PW3.
29. Now, adverting to the contention of the learned counsel for the appellant that the dying declaration is not admissible and that the conviction could not have been based on the basis of dying declaration. We find ourselves to be unable to appreciate this argument because dying declaration itself has been made admissible under Section 32 of the Evidence Act and is an exception to the hearsay rule when it is made by the declarant at the time when it is believed that the declarant's death was near or certain.
30. The law on the subject is well settled that truthful dying declaration may form sole basis of conviction, even though it is not corroborated, however, reliability of dying declaration should be subjected to close scrutiny and Court must be satisfied that the declaration is truthful and we need only refer to decision of the ::: Downloaded on - 15/12/2017 23:03:54 :::HCHP 9 Hon'ble Supreme Court in Sudhakar vs. State of Madya Pradesh (2012) 7 SCC 569, wherein it was held that dying declaration is the last statement made by a person at a stage when he is in serious .
apprehension of his death and expects no chances of his survival, it is expected that a person will speak truth and only the truth, and it was held as under:-
"[16] We may, now, refer to some of the judgments of this Court in regard to the admissibility and evidentiary value of a dying declaration. In the case of Bhajju @ Karan v. State of M.P., 2012 4 SCC 327, this Court clearly stated that Section 32 of the Evidence Act was an exception to the general rule against admissibility of hearsay evidence. Clause (1) of Section 32 makes statement of the deceased admissible, which has been generally described as dying declaration. The court, in no uncertain terms, held that:
"24.it cannot be laid down as an absolute rule of law that dying declaration cannot form the sole basis of conviction unless it is corroborated by other evidence.
The dying declaration, if found reliable, could form the basis of conviction. This principle has also earlier been stated by this Court in the case of Surinder Kumar v. State of Haryana, 2011 10 SCC 173 wherein the Court, while stating the above principle, on facts and because of the fact that the dying declaration in the said case was found to be shrouded by suspicious circumstances and no witness in support thereof had been examined, acquitted the accused. However, the Court observed that when a dying declaration is true and voluntary, there is no impediment in basing the conviction on such a declaration, without corroboration.::: Downloaded on - 15/12/2017 23:03:54 :::HCHP 10
[17] In the case of Chirra Shivraj v. State of Andhra Pradesh, 2010 14 SCC 444, the Court expressed a caution that a mechanical approach in relying upon the dying declaration just because it is there, is extremely dangerous. The court has to examine a dying .
declaration scrupulously with a microscopic eye to find out whether the dying declaration is voluntary, truthful, made in a conscious state of mind and without being influenced by other persons and where these ingredients are satisfied, the Court expressed the view that it cannot be said that on the sole basis of a dying declaration, the order of conviction could not be passed.
[18] In the case of Laxman, the Court while dealing with the argument that the dying declaration must be recorded by a Magistrate and the certificate of fitness was an essential feature, made the following observations. The court answered both these questions as follows:
"3. The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on the deathbed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the courts insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor ::: Downloaded on - 15/12/2017 23:03:54 :::HCHP 11 can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In .
most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a Magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a Magistrate absolutely necessary, although to assure authenticity it is usual to call a Magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even r without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise."
[19] In Govindaraju @ Govinda v. State of Sriramapuram P.S. & Anr., 2012 4 SCC 722, the court inter alia discussed the law related to dying declaration with some elaboration: -
"23. Now, we come to the second submission raised on behalf of the appellant that the material witness has not been examined and the reliance cannot be placed upon the sole testimony of the police witness (eyewitness).
24. It is a settled proposition of law of evidence that it is not the number of witnesses that matters but it is the substance. It is also not necessary to examine a large number of witnesses if the prosecution can bring home the guilt of the accused even with a limited number of witnesses. In Lallu Manjhi v. State of Jharkhand, 2003 2 SCC 401, this Court had classified the oral testimony of the witnesses into three categories:
(a) wholly reliable;
(b) wholly unreliable; and ::: Downloaded on - 15/12/2017 23:03:54 :::HCHP 12
(c) neither wholly reliable nor wholly unreliable.
In the third category of witnesses, the court has to be cautious and see if the statement of such witness is corroborated, either by the other witnesses or by other documentary or expert evidence.
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25. Equally well settled is the proposition of law that where there is a sole witness to the incident, his evidence has to be accepted with caution and after testing it on the touchstone of evidence tendered by other witnesses or evidence otherwise recorded. The evidence of a sole witness should be cogent, reliable and must essentially fit into the chain of events that have been stated by the prosecution. When the prosecution relies upon the testimony of a sole eyewitness, then such evidence has to be wholly reliable and trustworthy. Presence of such witness at the occurrence should not be doubtful. If the evidence of the sole witness is in conflict with the other witnesses, it may not be safe to make such a statement as a foundation of the conviction of the accused. These are the few principles which the Court has stated consistently and with certainty.
26. Reference in this regard can be made to Joseph v. State of Kerala, 2003 1 SCC 465 and Tika Ram v. State of M.P., 2007 15 SCC 760. Even in Jhapsa Kabari v. State of Bihar, 2001 10 SCC 94, this Court took the view that if the presence of a witness is doubtful, it becomes a case of conviction based on the testimony of a solitary witness. There is, however, no bar in basing the conviction on the testimony of a solitary witness so long as the said witness is reliable and trustworthy.
27. In Jhapsa Kabari , this Court noted the fact that simply because one of the witnesses (a fourteen-year-old boy) did not name the wife of the deceased in the fardbeyan, it would not in any way affect the testimony of the eyewitness i.e. the wife of the deceased, who had given a graphic account of the attack on her husband and her brother-in- law by the accused persons. Where the statement of an eyewitness is found to be reliable, trustworthy and consistent with the course of events, the conviction can be based on her sole testimony. There is no bar in basing the conviction of an accused on the testimony of a solitary witness as long as the said witness is reliable and trustworthy.
28. In the present case, the sole eyewitness is stated to be a police officer i.e. PW 1. The entire case hinges upon the trustworthiness, reliability or otherwise of the testimony of this witness. The contention raised on behalf of the appellant is that the police officer, being the sole eyewitness, would be an interested witness, and in that situation, the possibility of ::: Downloaded on - 15/12/2017 23:03:54 :::HCHP 13 a police officer falsely implicating innocent persons cannot be ruled out.
29. Therefore, the first question that arises for consideration is whether a police officer can be a sole witness. If so, then with particular reference to the facts of the present case, .
where he alone had witnessed the occurrence as per the case of the prosecution.
30. It cannot be stated as a rule that a police officer can or cannot be a sole eyewitness in a criminal case. It will always depend upon the facts of a given case. If the testimony of such a witness is reliable, trustworthy, cogent and duly corroborated by other witnesses or admissible evidence, then the statement of such witness cannot be discarded only on the ground that he is a police officer and may have some interest in success of the case. It is only when his interest in the success of the case is motivated by overzealousness to an extent of his involving innocent people; in that event, no credibility can be attached to the statement of such witness.
31. This Court in Girja Prasad, 2007 7 SCC 625 while r particularly referring to the evidence of a police officer said that it is not the law that police witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. The presumption applies as much in favour of a police officer as any other person. There is also no rule of law which lays down that no conviction can be [pic]recorded on the testimony of a police officer even if such evidence is otherwise reliable and trustworthy. The rule of prudence may require more careful scrutiny of their evidence. If such a presumption is raised against the police officers without exception, it will be an attitude which could neither do credit to the magistracy nor good to the public, it can only bring down the prestige of the police administration."
[20] The 'dying declaration' is the last statement made by a person at a stage when he in serious apprehension of his death and expects no chances of his survival. At such time, it is expected that a person will speak the truth and only the truth. Normally in such situations the courts attach the intrinsic value of truthfulness to such statement. Once such statement has been made voluntarily, it is reliable and is not an attempt by the deceased to cover up the truth or falsely implicate a person, then the courts can safely rely on such dying declaration and it can form the basis of conviction. More so, where the version ::: Downloaded on - 15/12/2017 23:03:54 :::HCHP 14 given by the deceased as dying declaration is supported and corroborated by other prosecution evidence, there is no reason for the courts to doubt the truthfulness of such dying declaration."
.
31. Tested on the touchstone of the exposition of law as propounded in the aforesaid case, it would be noticed that PW2 Kalu Ram, PW3 Sheela Devi have stated that the deceased disclosed to them that the accused had poured kerosene oil on her and thereafter set her ablaze. She was initially taken to Civil Hospital, Sundernagar, where she was administered first-aid and then referred to IGMC, Shimla and thereafter to PGI, Chandigarh on account of the seriousness of the burn injuries suffered by her. Thereafter, the statement Ex.PW12/A of victim was recorded under Section 154 Cr.P.C. by PW15 ASI Jagdish Kumar at IGMC, Shimla on 14.09.2012.
The deceased was fit to make statement as has been proved by PW16 Dr. Vardan Kulshreshtha, as per opinion given by her on the application moved by the prosecution Ex.PW16/A. Even PW15 has clearly stated that the victim was fit to make statement at the relevant time. It is, thereafter, that PW1 Executive Magistrate recorded the statement of the deceased Ex.PW1/A and the deceased put her thumb impression on it. PW1 has in clear terms stated that victim was conscious and fit to make statement at the relevant time and stated that accused/appellant used to give her beatings under the influence of liquor and, on 12.09.2012, had ::: Downloaded on - 15/12/2017 23:03:54 :::HCHP 15 poured kerosene oil on her and, thereafter, set her ablaze. The statement of deceased was recorded in the presence of her parents as also before the Investigating Officer Ex.PW15.
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32. Therefore, there is no reason for this Court to doubt or discard such statement. It is also proved on record that at the time of making such statement there was very bleak chances of the victim surviving as she otherwise also succumbed to such burn injuries on 22.09.2012. The burn injuries sustained by the deceased have been duly proved by PW11 Dr. Suraj Bhardwaj, PW 14 Dr. Ankat Kaushal and PW16 Dr. Vardna Kulshreshtha. It has been duly proved on record the deceased had sustained 90% burn (superficial with deep) infected and slough present over the burn area and the cause of death was septicemia with multiple organ dis-function syndrome. Therefore, it is established beyond reasonable doubt that the deceased was set ablaze by the accused after pouring kerosene oil.
33. At this stage, a faint attempt is made by the learned counsel for the appellant to canvass that the dying declaration is not admissible as no doctor was called to prove the fitness of the deceased at the relevant time. It is further urged that the dying declaration is otherwise not admissible as the same is not recorded in the question-answer form by the police officer or the Executive Magistrate and, therefore, cannot be termed to be the language of ::: Downloaded on - 15/12/2017 23:03:54 :::HCHP 16 the deceased. It is also argued that the deceased could not have put her thumb impression on Ex.PW1/A since, there were bandages applied on the entire body. It is also argued that the doctors .
examined in this case have not been able to prove the mental status of the deceased at the time of the recording of the statement, hence, the statement is not admissible.
34. We have considered the aforesaid contention and find no reason for doubting the dying declaration made by the deceased as there is no cogent evidence to establish any material discrepancies.
35. Somewhat similar question came up before the Hon'ble Supreme Court in Deepak Verma vs. State of H.P., (2011) 10 SCC 129, wherein, it was observed as under:
"39. We have considered the last submission advanced at the hands of the learned counsel for the appellants. There can be no doubt that there are certain discrepancies in the time recorded in the dying declaration. Additionally, there can also be no doubt that certain words which are not in common use have found place in the dying declaration made by Kamini Verma. Despite the aforesaid, we find no merit in the submission advanced at the hands of the learned counsel for the appellant. It is not possible for us to accept that Kamini Verma was not fit to make her statement when she actually recorded the same in the presence of ASI Jog Raj, PW26 and Dr. D.P. Dogra, PW11.. The very medical report, relied upon by the learned counsel for the appellants, which depicted tha the pulse rate and blood pressure of Kamini Verma was nor recordable, also reveals that on having been given treatment ::: Downloaded on - 15/12/2017 23:03:54 :::HCHP 17 her blood pressure improved to 140/70 and her pulse rate improved to 120 per minute. This aspect of the medical report is not the subject-matter of challenge."
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36. It is then vehemently argued by learned counsel for the appellant that the so called dying declaration alleged to have been recorded only in presence of the parents of the deceased without associating any independent witness and, therefore, the same is not admissible. He further argued that, in fact, the entire story of the prosecution being based upon the testimony of the partisan and interested witnesses ought to have been disbelieved and could not have formed the basis of conviction.
37. We are afraid that even this contention cannot be accepted as it is more than settled that the Court has to judge the substratum of the story narrated by the witness and if the same is consistent with other witnesses on record, the natural course of human events, the surrounding circumstances and inherent probabilities of the case. It is also to judge whether it will carry conviction with a prudent person. If the answer to these questions is being affirmative and the evidence of the witness appears to the court to be almost flawless and free from suspicion, it may accept it, even without seeking corroboration from any other source. It is clearly settled that evidence of witness cannot be discarded merely on the ground that he is related witness, even though in such cases, it is the paramount duty of the Court to be more careful while ::: Downloaded on - 15/12/2017 23:03:54 :::HCHP 18 scrutinizing their testimonies, however, if on scrutiny, it is found that the evidence on record of such interested person is worth credence, the same would not be discarded merely on the ground that the .
witness is an interested witness.
38. It would be unreasonable to contend that the evidence given by witnesses should be discarded only on the ground that it is the evidence of partisan or interested witnesses. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how many evidence should be appreciated. The judicial approach has to be cautious in dealing with such evidence, but the plea of such evidence that such evidence should be rejected because it is partisan, cannot be accepted as correct.
39. At this stage, it shall be apposite to refer to a recent judgment of the Hon'ble Supreme Court in Yogesh Singh vs. Mahabeer Singh & others, AIR (2016) 5160, wherein the law on the subject has been succinctly laid down in the following manners:-
"Testimony of Interested/Inimical Witnesses
24. On the issue of appreciation of evidence of interested witnesses, Dalip Singh Vs. State of Punjab, AIR 1953 SC 364 = 1954 SCR 145, is one of the earliest cases on the point. In that case, it was held as follows:
"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to ::: Downloaded on - 15/12/2017 23:03:54 :::HCHP 19 screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a .
foundation is often a sure guarantee of truth."
25. Similarly, in Piara Singh and Ors. Vs. State of Punjab, AIR 1977 SC 2274 = (1977) 4 SCC 452, this Court held:
"It is well settled that the evidence of interested or inimical witnesses is to be scrutinised with care but cannot be rejected merely on the ground of being a partisan evidence. If on a perusal of the evidence the Court is satisfied that the evidence is creditworthy there is no bar in the Court relying on the said evidence."
26. In Hari Obula Reddy and Ors. Vs. The State of Andhra Pradesh, (1981) 3 SCC 675, a three-judge Bench of this Court observed:
".. it is well settled that interested evidence is not necessarily unreliable evidence. Even partisanship by itself is not a valid ground for discrediting or rejecting sworn testimony. Nor can it be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon."
27. Again, in Ramashish Rai Vs. Jagdish Singh, (2005) 10 SCC 498, the following observations were made by this Court:
"The requirement of law is that the testimony of inimical witnesses has to be considered with caution. If otherwise the witnesses are true and reliable their testimony cannot be thrown out on the threshold by branding them as inimical witnesses. By now, it is well-settled principle of law that enmity is a double- edged sword. It can be a ground for false implication. It also can be a ground for assault. Therefore, a duty is cast upon the court to examine the testimony of inimical witnesses with due caution and diligence."::: Downloaded on - 15/12/2017 23:03:54 :::HCHP 20
28. A survey of the judicial pronouncements of this Court on this point leads to the inescapable conclusion that the evidence of a closely related witnesses is required to be carefully scrutinised and appreciated before any conclusion is made to rest upon it, .
regarding the convict/accused in a given case. Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are related to each other or to the deceased. In case the evidence has a ring of truth to it, is cogent, credible and trustworthy, it can, and certainly should, be relied upon. (See Anil Rai Vs. State of Bihar, (2001) 7 SCC 318; State of U.P. Vs. Jagdeo Singh, (2003) 1 SCC 456; Bhagalool Lodh & Anr. Vs. State of U.P., (2011) 13 SCC 206; Dahari & Ors. Vs. State of U. P., (2012) 10 SCC 256; Raju @ Balachandran & Ors. Vs. State of Tamil Nadu, (2012) 12 SCC 701; Gangabhavani Vs. Rayapati Venkat Reddy & Ors., (2013) 15 SCC 298; Jodhan Vs. State of M.P., (2015) 11 SCC 52).
40. Learned counsel for the petitioner would then argue that since the dying declaration is not in the question-answer form, therefore, it cannot be said to be the correct version of the deceased or even the language of the deceased.
41. Even this argument is devoid of any merit in view of the authoritative pronouncement of the Hon'ble Supreme Court in Prem Kumar Gulati vs. State of Haryana and another (2014) 14 SCC 646, wherein it has been laid down that merely because the dying declaration was not in question-answer form sanctity attached to the same cannot be brushed aside and its reliability cannot be doubted as it comes from the mouth of a dying person. It is apt to reproduce the following observations:-
::: Downloaded on - 15/12/2017 23:03:54 :::HCHP 21"16. The submission of Ms. Meenakshi Arora, learned Senior Counsel appearing for the appellant that the dying declaration is untenable being without mentioning the time when the statement was recorded as also not in the question-answer form, .
cannot be sustained. Merely because dying declaration was not in question-answer form, the sanctity attached to a dying declaration as it comes from the mouth of a dying person cannot be brushed aside and its reliability cannot be doubted.?
42. We may note that learned Sessions Judge while convicting the appellant has taken into consideration the relevant evidence and after analysing the same has given detailed reasons for arriving at such conclusion. The analysis and findings arrived at by the learned Sessions Judge cannot be said to be perverse so as to call for interference by this Court.
43. Even otherwise, we ourselves have undertaken to evaluate the evidence led by the prosecution, more particularly, the dying declaration and see no reason to differ with the conclusion so arrived at by the learned Sessions Judge.
44. In view of the above detailed discussion, we find no merit in this appeal and the same is accordingly dismissed.
(Tarlok Singh Chauhan), Judge.
(Chander Bhusan Barowalia), Judge.
December 14, 2017 Sanjeev ::: Downloaded on - 15/12/2017 23:03:54 :::HCHP