Moti Singh And Another vs State Of Uttar Pradesh

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

Court: Supreme Court of India

Case Number: Criminal Appeals Nos. 146 and 147 of 1962

Decision Date: 23 January 1963

Coram: Raghubar Dayal, Syed Jaffer Imam, J.R. Mudholkar

In this case the Supreme Court of India recorded a judgment dated 23 January 1963 concerning the appeal of Moti Singh and another accused person against the State of Uttar Pradesh. The judgment was authored by Justice Raghubar Dayal and was delivered by a bench consisting of Justice Raghubar Dayal, Justice Syed Jaffer Imam and Justice J. R. Mudholkar. The matter was cited as 1964 AIR 900 and 1964 SCR (1) 688, and it involved a criminal trial that raised the issue of the admissibility of a dying declaration under section 32 (1) of the Indian Evidence Act, 1872, where the cause of death of the declarant had not been established. The headnote of the decision explained that seven persons, including the appellants, had been convicted of murder. The High Court had relied on the dying declaration of a person identified as G, who had been wounded during the incident, taken to a hospital, and whose statement had been recorded there. G left the hospital and died twenty days later; before a post‑mortem examination could be performed his body was cremated. The appellants argued that the dying declaration should be excluded from evidence and that they were therefore entitled to acquittal. The Court held that the declaration was inadmissible because there was no evidence on the record establishing the cause of G’s death. The fact that G had sustained two gunshot injuries, which the treating doctor considered dangerous to life, was insufficient to prove that those injuries caused his death. Section 32 (1) of the Evidence Act permits the statement of a deceased person only when it relates to the cause of death or to the circumstances of the transaction that caused the death. Since it was not proven that G’s death resulted from the injuries he received, his statement did not meet the requirements of the provision and was excluded. The judgment also noted the procedural history: criminal appeals numbered 146 and 147 of 1962 were brought by special leave from the Allahabad High Court’s order dated 2 February 1962, which had arisen from criminal appeals 157 and 158 of 1961 and criminal revision 384 of 1961. Counsel for the appellants were described in neutral terms, as were counsel for the respondent. The Court observed that Moti Singh and Jagdamba Prasad, together with five other individuals, had been convicted by the Sessions Judge of Unnao under section 148, section 302 read with section 149 and section 307 read with section 149 of the Indian Penal Code, and each had been sentenced to life imprisonment under section 302 read with section 149. On appeal the High Court acquitted the other five persons of the various charges, set aside the appellants’ conviction under section 148, but altered their convictions for offences under sections 302 and 307 read with section 149 to convictions under sections 302 and 307 read with section 34. Following an application by Krishna Kumar, the brother of one of the victims, the High Court enhanced the appellants’ sentence for murder to the death penalty. Both Moti Singh and Jagdamba Prasad then preferred separate appeals after obtaining special leave from this Court. The Court expressed that it was unnecessary to recount the detailed facts of the incident that led to multiple deaths, because it was of the opinion that the convictions could not be sustained on the basis of the evidence as assessed by the High Court, noting that all eyewitnesses had given practically identical testimonies regarding the progression of the incident.

In the appeal, the conviction of the appellants under section 148 of the Indian Penal Code was set aside, and the convictions for offences under sections 302 and 307 read with section 149 were altered to convictions for offences under sections 302 and 307 read with section 34 of the Indian Penal Code. Upon an application by Krishna Kumar, who was the brother of one of the murdered persons, the High Court enhanced the punishment for the murder to the death penalty. The appellants, Moti Singh and Jagdamba Prasad, have filed these appeals after obtaining special leave from the Supreme Court. The Court did not find it necessary to repeat the factual description of the incident in which several individuals lost their lives, because it concluded that the convictions could not be sustained on the basis of the evidence as evaluated by the High Court. All eyewitnesses of the incident gave practically identical testimonies describing the sequence of events, alleging that members of the accused group discharged firearms and pistols both from inside and outside a room on one side of a passage and also from the seori, that is, a cattle shed on the opposite side of the passage, when the victim group was moving along the passage. The High Court expressed doubt about the shots fired from the cattle shed and, accordingly, acquitted Sheo Shankar, Jagjiwan and Shankar Dayal, who were alleged to be the principal shooters from that location. Nevertheless, the High Court accepted the prosecution’s account of firing from the room and subsequently from the platform. This acceptance appears to have been based on the prosecution witnesses’ statements and on the reference to exhibits Kha 5, Kha 8 and Kha 75, which were said to mention shots being fired from those places. However, exhibit Kha 75 does not actually state that; it merely records that firing occurred from the front and that certain persons discharged shots with guns. Exhibits Kha 5 and Kha 8 were statements made by Ram Shankar and Jageshwar, who were examined as Court‑witness 1 and Court‑witness 2 respectively. The Sessions Judge had disbelieved the testimony of Ram Shankar and Jageshwar, and the High Court does not appear to have given a more favorable view to their courtroom testimony. Yet the High Court appears to have relied on the earlier statements recorded by a magistrate at the hospital in exhibits Kha 5 and Kha 8. Such reliance was erroneous because those statements could be used only to corroborate or contradict the witnesses’ testimony given in court. If the witnesses themselves were not believed, their prior statements could not be admitted as independent evidence to support other prosecution material. In assessing the participation of each accused in the firing from the room and later from the chabutra, the High Court said that Raj Kumar, P. W. 11 …

The Court observed that the witnesses identified as Raj Kumar (P. W. 1) and Chandra Kumar (P. W. 15) were partisan witnesses, and therefore their testimony had to be examined with great caution. It further noted that the testimony of Shyam Lal (P. W. 12) and Gopi Singh (P. W. 14) could not be regarded as completely independent, while the witnesses Lal Singh (P. W. 17) and Sardar (P. W. 16), who had sustained gun‑shot injuries, did not present any particular evidence against the accused. The Court emphasized that, when assessing the evidence of the prosecution witnesses, the rule requiring careful examination of such evidence must be kept in mind. In addition, the Court found it necessary to refer to the statements recorded as exhibits Kha 5 and Kha 8, which, as previously explained, could not be admitted as substantive evidence, as well as to the statement recorded as exhibit Kha 75 of the deceased Gaya Charan.

The High Court had relied heavily on the alleged dying declaration contained in exhibit Kha 75 of Gaya Charan, treating it as a complete narrative of the incident and of the assailants as perceived by him. The Court quoted the High Court’s view of that declaration: “The dying declaration Ex. Ka‑75 (Kha 75) of Gaya Charan appears to be a complete account of the occurrence and the assailants as seen by him, for he stated: ‘Lallan, Chandu, Raj Narain, Sardar, Sri Prakash were going to the bazar. Shots were fired from front, Jagdamba, Phunnar, Moti and one man whom I know by face fired gunshots on us.’ The statement does not show that Gaya Charan did not see all the assailants who fired gunshots. It is therefore not possible to hold that any accused not mentioned in the dying declaration of Gaya Charan had also fired shots. At the same time we see no reason to hold that the dying declaration of Gaya Charan is not true.” The Court also noted that the eye‑witness Jageshwar had identified the accused Jagdamba among the assailants, and consequently the testimony of the eye‑witnesses must be evaluated in the context of exhibits Kha 5 and Kha 8 of Ram Shankar and Jageshwar, together with the dying declaration Ex. Kha 75 of Gaya Charan.

According to the High Court, the conviction of Jagdamba Prasad was based on the collective statements of the prosecution witnesses, the statement of Jageshwar recorded as exhibit Kha 8, and the alleged dying declaration of Gaya Charan recorded as exhibit Kha 75. The High Court also considered the fact that Jagdamba had remained at large until his arrest on 30 September 1960, the incident having occurred on 9 February 1960. Regarding the conviction of Moti Singh, the High Court relied on the dying declaration Ex. Kha 75 of Gaya Charan and, presumably, on the statements of the prosecution witnesses, although it did not expressly state the latter. The Court affirmed, “We have also no doubt about the participation of the accused Moti in the firing of shots from the east of the galiara. He is named in the dying declaration Ex. Kha 75, of Gaya Charan.” The Court further addressed the criticism that the description of Moti in the dying declaration was indefinite, noting that despite the existence of three individuals named Moti in the village, the High Court expressed confidence that the reference in the dying declaration was to the accused.

In reviewing the evidence, the High Court addressed the problem that the dying declaration of Gaya Charan identified a person named “Moti” while the village contained three individuals bearing that name, each belonging to a different caste. The Court asserted that it had no doubt that the “Moti” referred to in the declaration was the appellant Moti Singh, yet it did not explain the basis for reaching that conclusion. Because the declaration did not specify which Moti was meant, the Court could not state with confidence that the reference was to the appellant. The same approach was applied when the Court acquitted Sheo Darshan Singh. Although strong circumstances appeared to implicate him, the Court noted that his name was absent from the dying declaration, and therefore his participation among the assailants was doubtful. A similar finding was made regarding Avadh Behari, whose name also did not appear in the declaration. When determining how many persons had fired from the room and the platform, the Court again relied exclusively on Exhibit Kha 75, the alleged dying declaration of Gaya Charan, treating it as the decisive piece of evidence. The Court observed that the declaration mentioned only four assailants and expressed doubt that there could have been more than four. Consequently, the Court concluded that no offence under section 148 of the Indian Penal Code had been committed and that section 149 of the Code was inapplicable. It was evident from these observations that the High Court’s assessment of the appellants’ alleged participation depended primarily on whether their names were found in the dying declaration. All prosecution witnesses had identified every accused as an assailant, yet the Court distinguished the two appellants, Moti Singh and Jagdamba Prasad, from the other accused solely on the presence or absence of their names in the declaration. The Court therefore indicated that, if the alleged dying declaration were to be excluded as inadmissible, the convictions of the two appellants should be set aside and their appeals allowed.

The incident under consideration occurred on 9 February 1960. On the same day, Dr Bhatnagar examined the injuries sustained by Gaya Charan. The medical examination recorded two gun‑shot wounds, each of entry size one‑quarter by one‑quarter inch, penetrating to the depth of the abdomen, and the doctor concluded that the injuries were caused by gunfire and were dangerous to life. After the examination, Gaya Charan left the hospital; the record does not disclose whether he was discharged after his injuries had healed or whether he departed before healing was complete, and no details are provided about the circumstances of his departure. He subsequently died on 1 March 1960. Sub‑Inspector Puttu Lal, identified as witness 24, testified that the death of Gaya Charan was known on 1 March 1960. The documentation does not contain any information regarding the cause of his death, nor does it explain the conditions under which he left the hospital prior to his demise.

In Kanpur, the investigating officer learned that the body of Gaya Charan had been burned at Bhairon Ghat a few hours before it was recovered. No evidence was presented to explain the cause of Gaya Charan’s death, and consequently the Sessions judge’s conclusion that the death resulted from the injuries sustained during the February 9, 1960 incident could not be sustained as a sound finding. The judge had observed that Gaya Charan possessed a gun‑shot wound entering the left hypochondrium and another entering the right lumbar region, both described by the doctor as dangerous to life, and that the absence of a post‑mortem before cremation did not preclude reliance on his dying declaration. However, the mere characterization of those two wounds as life‑threatening does not, by itself, establish that a death occurring roughly three weeks later was caused by those injuries. The Court’s attention was drawn to the fact that another victim of the same incident, Ram Shankar, suffered a single gun‑shot wound measuring one‑quarter inch in entry size and extending to the depth of his abdomen above the right upper border of the pubic symphysis, an injury likewise deemed dangerous to life, yet Ram Shankar survived. The High Court had not addressed this issue, apparently because the admissibility of Gaya Charan’s alleged dying declaration was not raised before it. Nonetheless, the Court may examine the factual finding that Gaya Charan died as a result of the injuries, a finding necessary to sustain a charge of murder, even though lower courts had affirmed it. In the absence of any evidence supporting that conclusion, the Court found that it could not be said that Gaya Charan’s death was caused by the injuries sustained, and therefore concluded that the prosecution had not proved death due to those wounds.

The consequence of that finding is that Gaya Charan’s alleged dying declaration, exhibited as Exhibit Kha 75, cannot be admitted as evidence. Section 32 of the Indian Evidence Act, in clause (d), renders a statement of a deceased person relevant only when the statement concerns the cause of his death or the circumstances of the transaction that led to his death, particularly in cases where the cause of death is in dispute. Because the Court could not establish that Gaya Charan’s death was caused by the injuries received in the incident, his statement does not meet the criteria of a declaration about the cause of death or the surrounding circumstances. Thus, the statement fails to satisfy the statutory requirement for admissibility, and the Court declared it inadmissible.

In this case, the Court observed that because the death of Gaya Charan had not been proved to result from the injuries sustained in the incident, his statement cannot be regarded as a statement concerning the cause of his death or as a statement concerning any of the circumstances that led to his death. The Court noted that this observation was clear and was not contested by the State. Consequently, the Court concluded that the statement of Gaya Charan recorded as Exhibit Kha 75 was inadmissible as evidence. The Court further explained that the High Court had relied heavily on that statement in upholding the finding of the Sessions Judge that the appellants, Moti Singh and Jagdamba Prasad, were among those who fired from the room and the platform. Since the statement has now been held inadmissible, the Court examined the remaining evidence on the record. According to the High Court’s own assessment, the remaining evidence was insufficient to establish beyond reasonable doubt that the two appellants were among the assailants. The Court therefore held that the appellants were entitled to the benefit of that doubt, a benefit they would have received had the High Court not relied erroneously on Exhibit Kha 75. As a result, the Court found that Moti Singh and Jagdamba Prasad had not been proved to have taken part in the incident of 9 February 1960, which resulted in the deaths of Lallan and Matrumal and caused injuries to several other persons. Accordingly, the Court allowed the appeals, set aside the order of the High Court, acquitted the two appellants of the offences for which they had been convicted, and directed that they be released immediately unless they are required to be detained under some other legal process. The appeal was allowed.