Bakhshish Singh vs The State Of Punjab

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No. 205 of 1956

Decision Date: 17 September 1957

Coram: J.L. Kapur, Bhuvneshwar P. Sinha, P. Govinda Menon

In the case styled Bakhshish Singh versus the State of Punjab, the Supreme Court of India issued its decision on 17 September 1957. The opinion was written by Justice J L Kapur, and the judgment was delivered by a bench consisting of Justice J L Kapur, Justice Bhuvneshwar P Sinha, and Justice P Govinda Menon. The petitioner, Bakhshish Singh, challenged his conviction for murder, while the respondent was the State of Punjab. The judgment is reported in the All India Reporter at 1957 AIR 904 and in the Supreme Court Reports at 1958 SCR 409. The principal issues that the Court examined related to the admissibility and reliability of a dying declaration, the language in which that declaration was recorded, the scope of recording statements under the Indian Evidence Act of 1872, and the discretion of the prosecution in calling witnesses, specifically under section 22(1) of that Act.

The Court noted that the appellant had been convicted on the basis, among other evidence, of the dying declaration of the deceased. The Sessions Court had rejected the declaration because it had been recorded in Urdu while the deceased had spoken in Punjabi. The Supreme Court held that, in Punjab, Urdu has historically been the language employed by subordinate courts and by police officers for recording statements, and that the use of Urdu for a dying declaration does not, by itself, demonstrate that the statement fails to reproduce accurately what the declarant said. Consequently, the dying declaration could not have been excluded on that ground. The Court further observed that the declaration in the present case was unusually long, containing a narrative of many incidents that preceded the fatal assault, and that it resembled a First Information Report rather than a concise statement of the cause of death. The Court emphasized that the purpose of a dying declaration is to disclose the cause of death or the circumstances that led to it, and therefore details that are not directly relevant under section 32(1) of the Indian Evidence Act should not be included unless they are necessary to render the statement coherent or complete. The Court expressed the view that it would be desirable for the High Court to formulate specific rules to guide persons who record dying declarations, and to incorporate those rules in the Rules and Orders issued by the High Court.

The Court also addressed the question of whether the prosecution was obliged to examine a witness named in the dying declaration who allegedly had observed the occurrence. The appellant argued that the failure to examine that witness constituted a serious omission warranting an adverse inference. The Supreme Court held that the prosecution is not bound to call every witness who is mentioned in a dying declaration, and that the trial court should not interfere with the prosecutorial discretion in this regard. The Court cited the authorities Abdul Mohammad v. Attorney General of Palestine (AIR 1945 PC 42), Stephen Servaraine v. The King (1926 PC 298), and Habeeb Mohammed v. The State of Hyderabad (1954 SCR 475) in support of this principle. Finally, the judgment recorded that the present appeal was a criminal appeal under the appellate jurisdiction of the Supreme Court, designated as Criminal Appeal No 205 of 1956, filed by special leave against the judgment and order dated 30 November 1955 rendered by the Punjab High Court.

Criminal Appeal No 282 of 1955 arose out of a judgment and order dated 15 February 1955 issued by the Court of the Additional Sessions Judge at Amritsar in Sessions Case No R L Anand, with the appellant represented by counsel for the appellant. The State of Punjab was represented by Kartar Singh Chawla, Assistant Advocate-General, while the respondent was represented by counsel identified as T M Sen. The judgment of the Supreme Court was delivered on 17 September 1957 by Justice Kapur. This appeal challenged the order of the Punjab High Court which had set aside the acquittal granted by the Additional Sessions Judge, Amritsar. The appellant, Bakshish Singh, together with his brother Gurbakshi Singh, had been tried for offences punishable under sections 302 and 34 of the Indian Penal Code, but both were acquitted by the trial court. The State of Punjab, dissatisfied with the acquittal, filed an appeal before the High Court, which ultimately reversed the trial court’s order. Because Gurbakshi Singh was alleged to have absconded, the High Court heard and decided the appeal against Bakshish Singh alone. The factual background of the case concerned an incident that occurred on 1 August 1954, sometime between 7 p.m. and 8 p.m., when Bachhinder Singh, son of Bhagwan Singh of the village Kairon, was shot in the lane in front of his house; the bullet wound proved fatal and he died the following day in a hospital at Amritsar. At the time of the shooting Bachhinder Singh was accompanied by his younger brother, Narvel Singh, a thirteen-year-old boy, and after being injured both brothers returned to their home. Bhagwan Singh later testified that Bachhinder Singh, while still alive, identified the assailants to his father and, at his own request, was carried from the house to a local doctor’s facility at Kairon. The doctor at Kairon administered first aid but, noting the seriousness of the injuries, advised Bhagwan Singh to convey his son to the Victoria Jubilee Hospital in Amritsar. Bhagwan Singh therefore took his wounded son to the railway station; before the train’s arrival he stopped at the police post in Kairon, located approximately one hundred yards from the station, to lodge a report. Because the Assistant Sub-Inspector was away at Sarhali, Bhagwan Singh returned to the railway station and boarded a train at 9 minutes 47 seconds p.m., which carried his son to Amritsar. Accompanying Bhagwan Singh on the train were his younger son Narvel Singh (identified as PW 12) and three other persons named Shamir Singh, Inder Singh and Narinjan Singh. Upon reaching the Amritsar hospital, Bachhinder Singh was examined by Dr Kanwal Kishore (PW 2) at 11 minutes 45 seconds p.m.; finding the wound to be serious, the doctor notified the police. Consequently Head Constable Maya Ram Sharma (PW 4) arrived at the hospital after midnight, and in the presence of Dr Mahavir Sud (PW 17) recorded Bachhinder Singh’s dying declaration, marked as Exhibit P-H, after obtaining a medical certificate confirming that the deceased was fit to give a statement. The Court noted that this dying declaration formed the foundation of the prosecution’s case.

In this case the First Information Report designated as Exhibit P-H 1, which is a copy of Exhibit P-H, was entered on 2 August 1954 at 7:50 a.m. at the Sarhali Police Station, a location reported to be about twenty miles from Amritsar. In the early hours of that morning Dr K. C. Saronwala, identified as PW I, performed surgery on the deceased, Bachhinder Singh, and removed a bullet from his left abdominal wall; the extracted bullet was subsequently handed over to the police. Despite the operation, Bachhinder Singh died at 1:35 p.m. on the same day. An inquest report, Exhibit P-K, was prepared at 2:30 p.m. by Head Constable Maya Ram, PW 4. The prosecution’s case relied principally on three pieces of testimony: the dying declaration of Bachhinder Singh recorded as Exhibit P-H, the eyewitness account of Narvel Singh, PW 12, who was the brother of the deceased, and a statement made by the deceased to his father shortly after being brought home with his injuries. The prosecution also sought to introduce an extra-judicial confession made to Teja Singh, PW 13, but both lower courts rejected that confession and the matter was not pursued further.

The learned Additional Sessions Judge rejected the admissibility of the dying declaration on two grounds. First, he observed that at the time the declaration was recorded, both the father, Bhagwan Singh, and the brother, Narvel Singh, were present, and the police officer had already questioned them about the incident before proceeding to record the declaration of Bachhinder Singh. Second, Head Constable Maya Ram admitted under cross-examination that the declaration was given in Punjabi, yet the recorded statement appeared to have been “touched up,” suggesting that it was not solely the creation of the deceased. Citing the precedent of Lahore 805 (1954), the judge noted that while a dying declaration that records the exact words of the dying person without assistance is highly valuable, its value is destroyed when portions are supplied by interested persons or a police officer. Consequently, the judge concluded that the declaration could not be considered the independent statement of Bachhinder Singh and therefore could not serve as the basis for convicting any of the accused.

The High Court judges did not accept this criticism. Justice Birhan Narain, delivering the principal judgment, remarked that the objection seemed unsubstantial. He explained that the statement had been recorded by Head Constable Maya Ram, who was stationed in Amritsar and not in the village of Kairon; consequently, the constable had no personal knowledge of the parties involved nor any interest in them. Accordingly, there was no motive for him to record the declaration falsely or irregularly. This reasoning formed part of the High Court’s rejection of the Additional Sessions Judge’s objection to the dying declaration.

The Court observed that there was no reason for the police constable to record the statement falsely or irregularly because Dr. Mahavir Sud of the Amritsar hospital was present throughout the recording. The doctor, who appears as plaintiff witness seventeen in the present case, is described as a respectable and disinterested person. He testified positively before the court that the deceased made the statement voluntarily and that no one was present to prompt him. He further affirmed that he did not permit any person to be present at the time of recording, and the Court found no basis for doubting the correctness of his testimony.

The Court then turned to the other objection raised by the Additional Sessions Judge, namely the significance attached to the fact that the deceased spoke in Punjabi while the constable Maya Ram recorded the statement in Urdu. The Court explained that Urdu is the language of the court and that police ordinarily record statements in Urdu even when they are made in Punjabi. Accordingly, the Court expressed no doubt that the dying declaration was voluntary and free of any prompting. In its view, the High Court correctly appreciated the evidence and was justified in accepting the authenticity of the dying declaration. The statement of Maya Ram, who appears as plaintiff witness four, does not support the criticism advanced by the learned trial judge.

The Court noted that the trial judge had read more into the statement of Narvel Singh, plaintiff witness twelve, made before the Committing Magistrate than the statement actually contained. The Court considered it unfortunate that the criticism was based on the English record of the Magistrate’s Court, which appeared to be incorrectly recorded, whereas the Urdu record differed materially in many parts. The Court further emphasized that the fact that the statement in Exhibit P-H was made without any prompting is corroborated by the testimony of the wholly disinterested witness, Dr. Mahavir Sud. His statement, originally made before the Committing Magistrate and later transferred at the trial stage under section thirty-three of the Evidence Act, declared that the statement of Bachhinder Singh was voluntary and that no one prompted it, and that he did not allow any attendant to be present.

In cross-examination, Dr. Sud clarified that no relative or friend of the deceased was present when the statement was recorded. Some criticism was based on a sentence in Dr. Sud’s testimony stating that the Head Constable put certain questions to clarify ambiguities, and that those questions and answers were absent from Exhibit P-H. The Court found that no such questions were put to the Head Constable who recorded the statement. The Head Constable affirmed that the dying declaration was written at the declarant’s own dictation without any addition or omission. During cross-examination, nothing was asked about any questions being put to the deceased by this witness, and the witness reiterated that no such questioning occurred.

It was observed that the officer who had taken the dying declaration did not first obtain evidence from the father of the deceased or from any other persons before proceeding to record the statement. He further explained that, prior to allowing the declaration to be made, he had satisfied himself that Bachhinder Singh was in a proper mental and physical condition to give a reliable account. The Court agreed with the view of the High Court that the dying declaration had been made by the deceased without any assistance from an external agency and without any prompting by anyone else. Accordingly, the declarant had been free from any outside influence at the time he narrated the events. One of the reasons offered by the Additional Sessions Judge for rejecting the dying declaration was that the deceased had narrated the sequence of events in Punjabi while the statement had been transcribed in Urdu. The Court noted that, in Punjab, it has long been the practice that dying declarations are recorded in Urdu, a practice that dates back to the establishment of the courts, and no judicial authority had ever held that the use of Urdu for recording such statements rendered them ineffective. Consequently, the Court found this objection to be wholly inadequate as a ground for rejection. Exhibit P-H, which contained the dying declaration, was a lengthy document that recounted a large number of incidents that had occurred before the actual assault. The Court observed that such extensive statements, which resembled a First Information Report rather than a concise narration of the cause of death or the circumstances leading to it, could give the impression that they were not genuine or that they had been made with assistance or prompting. By definition, a dying declaration is a statement made by a person concerning the cause of his own death or the circumstances of the transaction that resulted in his death, and any details that fall outside this scope are not strictly permissible under section 32(1) of the Evidence Act. The Court advised that, unless such extra details are absolutely necessary to make the statement coherent or complete, they should not be included in the dying declaration. The Court was also informed that, unlike several other states, Punjab had not yet framed specific rules governing the recording of dying declarations. The Court expressed that it would be desirable for the High Court to formulate such rules and incorporate them into its Rules and Orders so as to guide persons who are tasked with recording dying declarations. Finally, the Court emphasized that the authenticity of any dying declaration must be assessed in light of the particular circumstances of each case, taking into account the many varying factors, and that those who record such statements would be well advised to keep these considerations in mind.

The Court noted that the purpose of a dying declaration is to obtain from the declarant the cause of death or the circumstances that led to the fatal incident. The appellant’s counsel challenged the admissibility of the statement made by Dr. Mahavir Sud, arguing that the statutory requirements for admission of statements under section thirty-three of the Evidence Act had not been satisfied and citing several decided cases in support of that contention. The Court observed that this issue had not been raised at any earlier stage of the proceedings, neither before the Additional Sessions Judge nor before the High Court, and therefore the criticism appeared to lack substantial foundation. At the trial, the prosecution introduced Foot Constable Kartar Singh, identified as prosecution witness fourteen, who testified that he had taken a summons to the hospital where Dr. Sud had previously been employed; the hospital superintendent had reported that Dr. Sud was no longer in service and that his present location was unknown. Constable Singh further stated that, based on his inquiries, he had learned that Dr. Sud’s whereabouts could not be ascertained. During cross-examination, he reiterated that despite his efforts he was unable to discover the doctor’s location. Following Constable Singh’s testimony, the public prosecutor informed the Court that Dr. Sud’s whereabouts remained unknown and prayed that his statement be transferred under section thirty-three of the Evidence Act on the ground that the witness was unlikely to be produced without unreasonable delay and expense, and that no objection had been lodged by the defence at that stage. The trial judge consequently ordered the transfer of the statement under the said provision. The Court suggested that the trial judge might have been well advised to provide a more detailed rationale for the order, but it concluded that the judge had acted on the basis of unreasonable delay and expense and found no defect in the transfer order. The appellant’s counsel then argued that corroboration was essential for the effectiveness of a dying declaration. In this regard, the prosecution relied on the testimony of Narvel Singh, identified as prosecution witness twelve, who was an eye-witness to the incident and whose statement served as corroboration of the dying declaration. The Additional Sessions Judge had rejected Narvel Singh’s testimony, citing inconsistencies between his statement recorded in the commitment proceedings and his testimony at trial. The Court observed that the cross-examination of this witness was based on an English translation of his statement that was somewhat inaccurate, whereas the Urdu version presented a different complexion. Nonetheless, the Court held that the High Court had correctly evaluated the witness’s testimony and had accepted it for sound reasons. In addition to Narvel Singh’s evidence, the Court noted the existence of a statement by Bhagwan Singh, which further supported the factual matrix of the case.

In this case the Court examined the testimony of Bhagwan Singh, the father, who asserted that as soon as his son Bachhinder Singh entered the house he identified the persons who had attacked him. The Court noted that the violent episode occurred just outside Bhagwan Singh’s residence and that it was never contested that Bhagwan Singh was present inside the house at the time of the incident. Accordingly, the Court found it natural that an injured son, who was apparently conscious and aware, would be questioned about who had caused his injuries, or would himself disclose the names of his assailants to his father. No explanation was offered to suggest that the son, being in his senses, would withhold that information. The Court therefore concluded that there was no sufficient basis for rejecting this portion of Bhagwan Singh’s evidence merely because the dying declaration did not repeat it.

The Court also addressed the issue of the non-production of Sucha Singh, a person named in the dying declaration and in the statement of Narvel Singh, PW-12, as a witness to the occurrence. Counsel had characterised the failure to produce Sucha Singh as a serious omission. However, the Public Prosecutor had informed the trial Court that Sucha Singh was being abandoned as a witness because he had been “won over.” The Court observed that, even if Sucha Singh had been produced, he would have been a suborned witness and was not essential to the narrative upon which the prosecution’s case was built. Examining him would likely have created confusion, since the prosecution would have been compelled to impeach his testimony through cross-examination. No indirect or covert reason for the non-production was alleged or proven. Consequently, the Court held that the prosecution had no duty to call Sucha Singh as a witness, citing the authorities Abdul Mohammad v. Attorney General of Palestine, Stephen Servaratne v. The King, and Habeeb Mohammad v. The State of Hyderabad. In the circumstances, the Court declined to interfere with the prosecutor’s discretion in selecting witnesses and ruled that no adverse inference under section 114 of the Evidence Act could be drawn against the State. The Court further affirmed that the High Court had correctly applied the principles governing appeals against acquittals to the facts of this case. Finally, the Court rejected the erroneous view that the learned Sessions Judge’s interpretation of the dying declaration and the oral evidence warranted reversal of the acquittal, and consequently dismissed the appeal.