HEERALAL YADAV v. STATE OF M.P. AND ORS

Citation: [2006] SUPP. 3 S.C.R. 147

Court: Supreme Court of India

Bench: H.K. SEMA, A.K. MATHUR

Case summary

HEERALAL YADAV v. STATE OF M.P. AND ORS.pdf

Judgment text

HEERALAL YADAV v. STATE OF M. P. AND ORS. JULY 4, 2006 [H. K. SEMA AND A. K. MATHUR, JJ. ] Criminal Law : Evidence-Dying declaration-Recorded by doctor-Veracity of-High Court setting aside conviction ofaccused uls 302134 ! PC solely on the ground that dying declaration did not inspire confidence-Held, High Court did not . discuss veracity and creditworthiness of dying declaration and testimony of doctor recording it-As regards the effect of excessive hemorrhage, High Court was grossly oblivious to the statement of the doctor recording dying declaration that victim recovered consciousness after medication and was fit for recording of his dying declaration-Dying declaration being well corroborated with other attending . circumstances inspires confidence-High Court committed grave miscarriage ofjustice by reversing conviction recorded by trial court-Judgment of High Court set aside and that of trial court restored-Penal Code-Section 302134-Medical Jurispruden~l--Excessive hemorrhage.

Complainant by the present appeal challenged the judgment of the High Court setting aside conviction of the three accused-respondents u/s 302/34 IPC, as recorded by the trial court, on the sole ground that the dying declaration did . not inspire confidence. The High Court rejected the dying declaration recorded by the doctor (P. W. 1) mainly on the grounds that therein the deceased did not mention that his son (P. W. 3) was present with him at the scene of occurrence; that according to the nature of the injuries sustained by the deceased and the post-mortem report, due to excessive hemorrhage, the deceased might have gone in shock within half an hour of the incident and the doctor did not state that the deceased was in a fit mental condition to give dying declaration and throughout remained conscious during recording of his statement. Allowing the appeal, the Court HELD : 1. 1.

Presence or non-presence of PW-3 at the scene of occurrence or for that matter non-mentioning of the name of PW-3 in the I~ dying declaration has no connection with ascertainment of the veracity and creditworthiness of the dying declaration. In fact the High Court did not discuss the veracity and creditworthiness of either the dying declaration recorded by the doctor or his testimony as PW-1, deposed before the Court. (152-F-G] 1. 2. The High Court was grossly oblivious to the statement of the Doctor (P. W. 1) when he said that the deceased must have gone in shock at the place of incident but he recovered consciousness as he was given glucose saline and medicin~:s. Ex. P-3 is the requisition dated 14. 4. 1993 sought by the Investigating Officer regarding the condition of the deceased for recording dying declaration. There is an endorsement in Ex. P-3 by P. W. 1, the Medical Officer, Primary Health Center that the deceased would be able to give the statement of dying declaration.

Answering the questions, the deceased clearly stated the names of the accused-respondents as his assailants, the arms with which he was assaulted and the place where he was assaulted. The deceased also stated that he was giving the statement in full consciousness. He also stated that the dying declaration was not under any pressure. PW-1 was confronted with the principle of Samson Wright's Applied Physiology, page 152. He categorically ruled out application of the principle. (153-C; E-F; 154-B-C] Lax:man v. State ofMaharashtra, [2002( 6 SCC 710, relied on. Balak Ram v. State of UP. , [1975) 3 sec 219, distinguished. Paparambaka Rosamma v. State ofA. P. , [1999) 7 SCC 695, overruled. Samson Wright's Applied Physiology, p. 152, referred to. 1. 3. The dying declaration of the deceased recorded by PW-1 and well corroborated with other attending circumstances inspires confidence, on the basis of which conviction could be sustained.

The High Court committed grave miscarriage of justice by reversing the conviction recorded by the trial court. Order of the High Court is set aside. The sentence and conviction recorded by the trial court is restored. [155-D-E) CRIMINAL APPELLATE JURISDICTION : Civil Appeal No. 546 of 2000. Fro111 the Judgment and Order dated 2. 7. 1999 of the High Court of Madhya Pradesh, Bench at Indore, in Cr!. Appeal No. 678 of 1995. Niraj Sharma for the Appellant. S. K. Gambhir, Anil K. Sharma and R. K. Maheshwari for the Respondents. Siddhartha Dave and Vibha Datta Makhija for the State. The Judgment of the Court was delivered by H. K. SEMA, J. This appeal by special leave filed by the complainant (PW-2) is directed against the judgment and order of the High Court dated 2. 7. 1999 passed in Criminal Appeal No.

678 of 1995 whereby the High Court reversed the conviction and sentence passed by the Trial Court convicting the respondents for an offence under Section 302/34 IPC and sentenced them to RI for life and a fine of Rs. I000/- each and in default of payment further six months simple imprisonment. The prosecution case in brief was that on 14. 4. 1993 at about 8. 30 in the morning the deceased Gokul Singh son ofNirbhay Singh, who was a practicing advocate and his son Meharban Singh (PW-3) aged about 12 years went to their well in village Narval, District Shajapur. When the deceased went to answer the call of nature in th • denied a suggestion that the condition of the injured further deteriorated. He has stated that the dying declaration was recorded in the operation theatre in the presence of staff and inspector (SJ) and the policemen. He further stated that the relatives of the patient Gokul Singh were not inside the operation theatre.

PW-I was confronted with the principle of Samson Wright's Applied Physiology, pa! ':e 152. He categorically ruled out the application of the principle: Mr. S. K. Gambhir, learned senior counsel for the respondents, however, brought to our notice the statement of PW-2 Heeralal Yadav when he stated that when Dr. Khan took the statement of my brother I was there. According to the counsel for the respondents, this statement contradicted with the statement of PW-I Dr. Khan that the statement was recorded in the operation theatre and the relatives of the deceased were outside the theatre. We do not see any contradiction. PW-2 only stated his presence at the hospital at the time when the dying declaration was recorded. He never stated that he was ... inside the operation theatre when the statement of his brother was recorded. One of the grounds on which the High Court disbelieved the dying declaration was that Dr.

Khan did not state that the deceased was in a fit mental condition to give dying declaration and throughout remained conscious when his statement was recorded. This reasoning of the High Court, in our view, is also fallacious. In the instant case, the doctor himself recorded the dying declaration (Ex. P-2). He has given the fitness certificate vide Ex. P-3 as referred to above stating that the patient was fit for recording dying declaration. Even if it is assumed that was not there, in view of the decision of the Constitution Bench of this Court in Laxman v. State ofMaharashtra, (2002] 6 sec 710, these would be no impediment to the creditworthiness of the dying declaration.

Counsel for the respondents referred to the Samson Wright's Applied Physiology, thirteenth edition and strenuously urged that ifthe same principle is applied and considering the nature of injuries sustained by the deceased and due: to excessive hemorrhage the patient must have gone in shock within half an hour after the incident and since no blood transfusion could be given the patient was not conscious and was not in a position to give the statement. As already noted PW-I was confronted with this principle in cross-examination and he completely ruled out the application of the principle in the present case. Counsel also referred to the decision of this Court in Balak Ram v. State of U. P. , [1975] 3 sec 219. In that case this Court did not rely upon the dying declaration because the condition of the patient was critical when he reached the hospital.

Before the dying declaration was recorded an attempt was made to give him saline but even after making incisions on the hands and a leg, the attempt did not succeed. In the present case saline and glucose was administered and the deceased regained consciousness. Counsel also referred to the case of Paparambaka Rosamma v. State of A. P. , [1999] 7 SCC 695. This decision has been expressly over-ruled by Constitution Bench in the case of Lai:man v. State ofMaharashtra, [2002] 6 sec 110. In the view we have taken, we are clearly of the opinion, that the dying declaration of the deceased recorded by PW-I Dr. A. S. Khan and well corroborated with other attending circumstances inspires confidence, on the basis of which conviction could be sustained. The High Court committed grave miscarriage ofjustice by reversing the conviction recorded by the Trial Court. The impugned order of the High Court is set aside. The sentence and conviction recorded by the Trial Court is restored.

The appeal is allowed. Respondents are directed to be taken back into custody forthwith to serve out the remaining period of sentence. Compliance report within one month. R. P. Appeal allowed. ·'