Paragraph numbers below are the court’s original numbering, recovered from the source text.
1. Both the eye-witnesses PW 2 Dannu and PW 3 Om E Prakash had stated that they were present in the fair and had seen the occurrence. In spite of lengthy cross- examination of these witnesses, their testimony that they had seen the occurrence couid not been shattered in any manner.
2. PW2 Dannu and PW3 Om Prakash had stated in their testimony that all the four accused assaulted Rajpal with dandas near the pakar tree who fell down after receiving injuries on his head.
3. The medical evidence corroborated the testimony of G the eye-witnesses that the assault was made upon Rajpal by danda, which is a blunt weapon.
4. The names of PW2 Dannu and PW4 Satyapal were mentioned in the N.C.R. lodged by Rajpal. There is no H reason to doubt the presence of PW2 Dannu and PW4 Satyapa/ on the spot, who saw the occurrence. PW2 Dannu and PW4 Satyapa/ were truthful and reliable witnesses and implicit reliance could be placed on their testimonies.
5. The FIR of the occurrence was lodged by the deceased Rajpa/ himself. The report dictated by Rajpal was initially taken down as a non-cognizable report under Section 323 of the /PC. Therefore, there was no occasion for either falsely implicating any one as accused or c exaggerating the role-played by any accused.
6. The testimony of PW6 Ram Swaroop Mishra, Head Constable showed that after the report had been dictated by Rajpal, the same was read over to him and thereafter he had put his thumb impression over the same. This act found mention in the report itself.
7. The report was admissible under Section 32 of the Evidence Act as a dying declaration of the deceased Rajpa/. The names of the accused and the important features of the case had been mentioned therein. The report contained a truthful version of the incident as narrated by Rajpa/ as to the cause of his death.
8. The version given in the FIR found complete corroboration from the testimony of eye-witnesses and the medical evidence on record.
9. The evidence did not show that the deceased was not in a position to speak at the time when he dictated the report of the occurrence.
10. The testimony of defence witnesses did not inspire confidence and was not worthy of belief.
11. It cannot be said that the accused had any intention of causing the death of Rajpal nor were the injuries caused with the intention of causing such bodily injuries as the accused knew were likely to cause death.
12. The knowledge that death is likely to be caused could A be inferred as they gave the blow on the head. The accused had therefore committed offence under Section · 304 part II of the /PC. 9. From the above findings of the High Court, it is B abundantly clear that the High Court had arrived at a well-merited judgment after a careful consideration of the materials on record. r- The position, of course, would have been different if the High Court had simply dismissed the appeal without going into the merits. However, nothing of this sort has been done in the c present case. The judgment of the High Court clearly shows that evidence before the trial court has been carefully deliberated upon and weighed and it is only then that the conclusions have been arrived at. Therefore, relying on the aforesaid principles and in view of the discussions made hereinabove, we are afraid that the decision of this court in Bani Singh's case [supra] is of D no help to the appellants but on the other hand, the High Court, while dealing with the appeal ex parte had followed the ~_/ guidelines laid down in that case.
That being the position, it cannot be said that the High Court had ignored the basic principles of criminal justice while disposing of the appeal ex E parte. In our view, there has been substantial compliance with the guidelines made in Bani Singh's Case [supra]. Accordingly, we are unable to agree with the learned counsel for the appellants that the matter should be remitted back to the High Court for decision afresh after giving opportunity of hearing to the appellants. 10. The learned Counsel for the appellants further argued before us that the alleged dying declaration which was given the shape of an FIR could not be made the basis of conviction i when the original document signed by the deceased was not G brought on record. The learned counsel for the appellants tried to prove before us that the deceased was not in a position to speak and which becomes apparent from the testimony of his father.
However, it would not be correct to say so. The evidence of PW 7 Dr. R.P. Goel shows that the condition of the deceased H A was good and that he was in a position to speak. It would not be appropriate for us to read between the lines by giving unnecessary meanings to the testimony of Raghu. It cannot be left out of sight that Raghu also said that the deceased dictated the FIR to the police. In any view of the matter, the report of B occurrence was dictated by the deceased himself and the same was read over to him after which he had put his thumb impression on the same. This report is admissible under Section 32 of the Evidence Act as a dying declaration. It is true that the original -1 document signed by the deceased was not brought on record, c but in our view, the FIR has rightly been admitted as a dying declaration. There appears no reason for the police to falsely implicate any one of the accused inasmuch as, initially, the report dictated by the deceased was taken down as a non-cognizable report under section 323 of the IPC.
If the police were to implicate D the accused, they would have not taken down the report as a non-cognizable report in the very first place itself. 11. That apart, the report dictated by the deceased fully satisfied all the ingredients for being made admissible as a dying declaration. To ascertain this aspect, we may refer to some E of the general propositions relating to a dying declaration. Section 32(1) of the Indian Evidence Act deals with dying declaration and lays down that when a statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, F such a statement is relevant in every case or proceeding in which the cause of the person's death comes into question. Further, such statements are relevant whether the person who made them was or was not at the time when they were made under expectation of death and whatever may be the nature of the G proceedings in which the cause of his death comes into question.
The principle on which a dying declaration is admissible in evidence is indicated in the Maxim "Nemo Moriturus Praesumitur Mentire", which means that a man will not meet his maker with a lie in his mouth. Thus it is clear that a dying H declaration may be relating to :- a) as to the cause of death of the deceased b) as to "any of the circumstances of the transaction" which resulted in the death of the deceased. It is. also clear that it is not necessary that the declarant should be under expectation of death at the time of making the B statement. If we look at the report dictated by the deceased in the light of the aforesaid propositions, it emerges that the names of the accused and the important features of the case have been l clearly mentioned in the report. It contains a narrative by the deceased as to the cause of his death, which finds complete c corroboration from the testimony of eye-witnesses and the medical evidence on record.
There is nothing on record to show that the deceased was not in a position to speak at the time when he dictated the report of occurrence. On the other hand, the materials and the other evidence on record would D conclusively show, as rightly held by the High Court, that the deceased was in a position to speak when he dictated the report _, of occurrence. Therefore, in our view, the High Court was fully justified in holding that the deceased was in a fit state of mind at the time of making the statement. In the present case, as noted hereinabove, the dying declaration was fully corroborated E by 'the other evidence on record. That apart, in our view, the submission of the learned counsel for the appellants that the dying declaration which was given the shape of an FIR could not be made the basis of conviction when the original document -1 signed by the deceased was not brought on record is not F acceptable.
It is an admitted position that despite best efforts, the original FIR could not be produced as the registers relating to non -cognizable offences were destroyed after a lapse of two years. For this reason, the Sessions Court had duly considered this aspect of the matter and found that the loss of G -1, the original FIR was duly proved by PW 6 and accordingly, the secondary evidence adduced by the prosecution was accepted. We do not find any infirmity in the said finding when, admittedly, the original register was destroyed after a lapse of two years. Therefore, no adverse inference could be drawn against the H A prosecution for non-production of the original FIR. That being f. the position and in view of our discussions, we are not inclined to accept the argument of the learned counsel for the appellant that the deceased was not in a position to speak when he dictated the report or that the alleged dying declaration could B not be admissible in evidence because of the other infirmities, as noted hereinabove. j. 12.
This takes us to the next question viz. whether the other lacunae pointed out by the learned counsel for the appellants c are fatal to the prosecution case. We agree that the High Court erred in relying on the evidence of PW4, who admittedly was declared a hostile witness. Nevertheless, we feel that in the face of the other evidence of PW2 Dannu, PW3 Om Prakash who were corroborated in all material respects by PW7 Dr. RP.Goyal and by PW9, Dr. U. Kanchan, the evidence of PW4, even if D discarded, is inconsequential. The evidentiary value of a dying declaration and the principles underlying the importance of a dying declaration have already been discussed herein earlier. Simply because PW2 and PW3, in their cross examination, have been shown to be related to the deceased does not mean E that their testimony has to be rejected. It is well settled that evidence of a witness is not to be rejected merely because he happens to be a relative of the deceased.
In State of Himancha/ Pradesh Vs. Mast Ram [(2004) 8 SCC 660], this Court observed as under :- " ….. The law on the point is well settled that the testimony of the relative witnesses cannot be disbelieved on the ground of relationship. The only main requirement is to examine their testimony with caution. Their testimony was thrown out at the threshold on the ground of animosity and relationship. This is not a requirement of law …. ". In this view of the matter and this being the well-settled law, it is difficult for us to discard the evidence of the witnesses, as discussed hereinabove, oniy on the ground that they were H related to the deceased, in the absence of any infirmity in the said evidence.
13. In the light of the aforesaid discussions, let.us now see whether the High Court was justified, in the facts and circumstances of the present case, to convert the offence from Section 302/34 of the IPC to Section 304 Part II of the IPC. Jn this regard, we may again note the findings recorded by the High Court, as noted herein earlier, in clauses 11and 12. The t· High Court observed that the accused did not have any intention of causing the death of Rajpal nor were the injuries caused with the intention of causing such bodily injuries as the accused knew c were likely to cause death. The High Court further observed that the knowledge that 9eath was likely to be caused could be inferred as the accused gave the blow on the head. Let us now see whether the aforesaid act would warrant a punishment under Section 302 or Section 304 of the IPC. In our view, the facts disclose that there was no premeditation and the fight resulted D on drinking of water from the hand pipe after an exchange of abuses.
There appeared no intention on the part of the v appellants to cause the death of the deceased Rajpal. Therefore, the offence committed by the appellants, in our view, is culpable homicide not amounting to murder because, in our view, it falls E within Exception 4 to Section 300 which reads as under: – "f.xception 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 F _j cruel or unusual manner. Explanation – It is immaterial in such' cases which party offers the provocation or commits the first assault." Section 304 of the IPC lays down the punishment for G culpable homicide not amounting to murder and reads as under:- "Whoever commits culpable homicide not amounting to murder shall be punished with [imprisonment for life}, or imprisonment.of either description for a term which may H [2008) 1 S.C.R. extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death." We have already gone through the e'ilidence and the other C materials on record.
From the evidence on record, we cannot. find any ground to discard the finding of the High Court that it cannot be said that the accused had any intention of causing the death of Rajpal, the deceased, nor were the injuries caused with the intention of causing such bodily injuries as the accused D knew were likely to cause death. Therefore, in the absence of any intention of causing the death of the deceased Rajpal1 we are in agreement with the High Court that the accused must be convicted of the offence under Section 304 Part II qf the IPC and not under Section 302 of the IPC.
14. For the reasons aforesaid, we do not find any cogent reason to interfere with the judgment of the High Court converting the offence to Section 304 Part II of the IPC from Section 302 of the IPC. Accordingly, the appeal fails and is dismissed with no order as to costs. B.B.B. Appeal dismissed.