SUPREME COURT REPORTS

[1976) SUPPLEMENTARY

K. RAMACHANDRA REDDY & ANR.

THE PUBLIC PROSECUTOR

May 5, 1976

[A. C. GUPTA AND S. MURTAZA FAZAL Au, JJ.J

lndin Evidence Act. S. 32, Dying declaration-Otnission of recordinr: Afagistrate to question injured regarding his 111ental capacity to tnake statctr1e11t, whether material-Two views of evidence when possible; whether interference with order of acquittal proper.

The two appellants and three others were tried by the Additional Sessions Judge, Nellore, under Ss. 147, 148, 302/149 and 302/34 I.P.C .. f'or having committed the murder of Venugopal Reddy. The Session Judge recorded the prosecution evidence, heard the arguments, and acquitted the accused, holding that the prosecution had failed to prove the case against them. On appeal by

the State under Sec. 417 Cr.P.C., the High Court reversed the ac-quitta] order in respect of the appellants and convicted them under Sec. 302/3.t I.P.C., solely on the basis of a dying declaration a1legedly made by the deceasc--d before a Magistrate.

In the present appeal filed under Sec. 2A of the Supr..; n1'.-· Court (Enlargement of Criminal Appellate Jurisdiction) Act of 1970, it \Vas co11tended before this Court firstly that the High Court had wrongly interfered with an order of acquittal in a case where two views are possible, and secondlv, that the dying declaration was not a voluntary or true disclosure but \Vas thC result of tutoring and prompting.

Allowing the appeal the Court,

HELD : ( 1) The Magistrate appears tu have committed a serious irregularity in not putting a direct question to the injured whether he \Vas mentally capable 1 of making any statement. The doctor's certificate that the deceased was in fit state ..:i of mind to make statement, by itself would not be sufficient to dispel the doubts created particularly by the omission1 by the Magistrate, when he was satisfied that the injured was suffering severe pain and was not able to speak normaHy. [550AB, E-Fl

Klwshal Rao v. State of Bombay [1958] SCR 552, followed.

Harbans SinRh & Anr. v.

State af Punjab, [1962] Supp. 1 S.C.R. 104; Lallubhai Dev Chand Shah v. State of Gujarat [1971] 3 SCR 767 and Tapinder Singh v. State of Punjab [1971] 1 SCR 599, referred to.

(2) Even if the. High Court was in a position to take a. view different from the one taken by the Sessions Judge on the same evidence, this would not be a ground for reversing the order of acquittal. Thus as t\VO views were possible, the High Court was in enor in disturbing the order of acquittal passed by the Sessions Judge. [551 B & El

Ram Jag & Ors. v. The State of U.P. [1974] 3 SCR 9 followed.

G CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 143 of 1975.

From the Judgment and Order dated 18th February 1975 of the Andhra Pradesh High Court in Criminal Appeal No. 583 and CMP

Nos. 10-103 of 1975.

D. Mookherjee and A. V. V. Nair, for the Appellants.

P. Ram Reddy and P. Parameshwara Rao, for the Respondent.

The Judgment of the Court was delivered by

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FAZAL ALI, J. Five accused persons, nam~Iy, accused No. 1 K.

Ramachandra Reddy, No. 2, Manne . Sreehar1, No. 3 Prabhakar Reddy, No. 4 Sudhakara Reddy and No. 5 Bhaskar Reddy were put on trial in the Court of First Additional Sessions Judge, Nellore under

S6. 147, 148 302/149 and 302/34 I.P.C. for having caused the murder of th~ decessed Venugopala Reddy resident of Rachakandrika village of Nellore Iristiict. The Iearued Sessions Judge after recording the evidence of the prosecution and hearing the arguments rejected the entire prosecution case and held that the prosecution had miserably failed to prove the case against any of the accused and he accordingly acquitted all the five accused by his judgment dated July 25, 1973.

The Sate of Andhra Pradesh thereafter filed an appeal under s. 417

of the Code of Criminal Procedure agalust the order of acquittal passed by the Iearued Additional Sessions Judge, N ellore. The appeal was heard by a Division Bench of the Andhra Pradesh High Court which reversed the order of acquittal passed by the learned Sessions Judge only in respect of accused Nos. 1 & 2 and convicted them under s. 302/34 I.P.C. and sente.nced them to imprisonme,1t for life. The acquittal of the other accused Nos. 3 to 5 was confirmed by the High Court. The two appellants namely K. Ramachandra Reddy and Manne Sreehari to be referred to hereafter as Accused Nos. 1 & 2 rcspootively have filed the present appeal in this Court under s. 2A of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act of 1970.

A perusal of the judg1n<Mt of the- High Court clearly reveals that

~ the learned Judges have not accepted the major part of the evidence adduced by the prosecution in support of the case against the accused and have founded the convicton of the accused Nos. 1 & 2 solely on the basis of Ext. P-2 a dying declaration alleged to have been made by the deceased Venugopala Reddy at Dr. Ramamurthi Nursing Home before a Magistrate the next day after he is said to !rave been assaulted. The High Court on a careful reading of the dying declaration held that it was a truthful version of the manner in which the deceased was assaulted by the accused and as the deceased had made a full disclosare to a Magistrate in the presence of a Doctor who had testified to the fact that the deceased was in a fit state of mind to ll)ake a statement there was no reason to disbelieve the dying declaration which the High Court believed to be genuine and true.

J'he arguments of the learned counsel for the appellants naturally centered round the reliability of Ext. P-2 the dying declaration recorded by the Magistrate at the Nursing Home. Appearing for the appellants Mr. Debabrata Mookerjee submitted two propositions before us:

( 1) that the High Court in reversing the acquittal of the appellants completely overlooked the principles laid down by this Court that the 'High Court ought not to interlere with an order of acquittal in appeal without displacmg the H re3;8ons given and the. circums'.ances relied upon hy the Tnal Court and cemunly not m a case where two views are possible; and

(2)

that the High Court failed to consider the suspicious cir cumstances under which the dying declaration was made which went to show that it was 'nOt a voluntary or true disclosure by the deceased but was the result of tutoring) and prompting by his relations.

On the other hand Mr. Ram Reddy the Senior standing counsel B for the State of Andhra Pradesh submitted that the High Court wa.~ fully justified in relying upon the dying declaration which was both true and voluntary and whose correctness had been testified by the Magistrate and the Doctor. The learned connsel also relied on some other evidence in order to .corroborate the genuineness of the dying declaration. c

Before examining the contentions raised by counsel for the parties, it may be rncessary to give a resume of the prosecution case shorn of its essential details. It appears that there was serious political rivalry between Bhaskar Reddy A-5 and the deceased Venugopala Reddy over the election of the local Panchayat Committee known as Samithi.

It appears that some allegations of misappropriation of public funds having been made against accused No. 5 Bhaskar Reddy the deceased displaced him from the Presidentship of the Panchayat Samithi in a meeting called a few days before the death of the decea'ed where Bhaskar Reddy was 'Mt invited.

This is supposed to have provided an immediate provocation for the accused to have attacked the deceased. According to the prosecution the deceased had gone to his Petrol Pump in Tada Bazar and af.ter sunset was leaving for his village through the main highway and after having traversed about half a mile when he reached the place of occurrence situate near the mango grove he was surrounded by the five accused who pounced upon bim and assaulted him with stones, knives and sticks. Venugopal'a fell down and the accused ran away after assaulting him. P.Ws. 5 and 6 who were keeping watch over the mango grove were attracted to the scene of occurrence by the cries of the deceased and P.W. 5 was sent by P.W. 6 to the village Rachakandrika to call the relations of the dKeased. The errand entrusted to P.W. 5 having been executed P.W.

1 the son of the deceasect and P .W. 2 his cousin arrived at the ipot and found the deceased in a sitting posture being attended to by P.W.

6 with a large number of injuries on bis person. In fact it would arpear from the post mortem report that the deceased had sustained as many as 48 injuries on his person. It is further alleged by the prosecution that P.W. 1 asked his father regarding the occurrence and the. deceased disclosed the names of accused Nos. l to 5 as his assaila'ats.

Thereafter the deceased was taken in a lorry to the Nursing Home of Dr. Ramamurthi at Nellore and P.W. 7 Sarpanch of the village and a very close and intimate friend of the deceased a.Jso accompanied the deceased in the lorry upto Nellore.

Dr. Ramamur01i had gone to a cinema but on being sent for he arrived at the Nursing Home and attended to the deceased. He directed P.W. 1 to rush to the police station at Sullurpet to report be occurrence. P.W. 1 went to Sullurpet and reported the matter to the Sub-Inspector who made a station diary entry Ext. D-4. The Sub-Inspector, however, did not choose to register

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the case on the basis of the diary entry but proceeded to Nellore. We would like to mentiO'n here that Ext. D-4 was the real F.I.R. in the case within the meaning of s. 154 Cr. P.C. and the Sub-Inspector committed a dereliction of duty in not registering the case on receiving the First Information Report about the death of the deceased from P.W. 1 the son of Venugopala Reddy. We might also mention that the Sub-

Inpector P. W. 15 was also a friend of the deceased being his class fellow. It may be pertinent to note here that although a report was made by P.W. 1 to the Sub-Inspector yet the n\lmes of the appellants were not al all mentioned in the station diary entry which was based on the verbal report given by P .W. 1. No reason or explanation seems to have been given by the prosecution for the non-disclosure of the 11ames of the appellants by P.W. 1 if in fact he had been told these names by the deceased himself at the spot. When the Sub-Inspector P.W. 15 reached the Nursing Home he was asked by the Doctor P.W. 17 to get a Magistrate so that the dying declaration of the deceased may be recorded. Acting upon the instructions of P.W. 17 the Sub- Inspector went to the Magistrate P.W. 11 who arrived at the Nursing Home and recorded the dying declaration of the deceased which is Ext.

P-2 in the case and which forms the basis of the cO'nviction of the two appellants. Thereafter in view of the critical condition of the deceased Dr. Ramamurthi advised that the deceased should be taken to the Madras General Hospit>al and accordingly the relations of the deceased took the <ieceased to the Madras General Hospital where also he is said to have made another dying declaration before the police. This dying declaration, however, was rejected both by the Sessions Judge and the High Court Md it is not necessary for ns to refer to this part of the evidence. Even the oral dying declaration said to have been mrule by the deceased to P.Ws. 1 and 2 and others also has not been accepted either by the Sessions Judge or by the High Court.

The accused pleaded innocence and averred that they had been falsely implicated due to enmity. Thus it would appear that the conviction of the accused depends entirely on the reliability of the dying declaration Ext. P-2. The dying declaration is undoubtedly admissible under s. 32 of the Evidence Act and not being a statement on oath so that its truth could be tested by cross-examination, the Courts have to apply the strictest scrutiny and the closest circumspection to the statemenl before acting upon it. While great solemnity 1tnd sanctity is attached to the words of a dying man because a person on the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person yet the Court has to be on guard against the statement of the deceased being 'a result of either tutoring, prompting or a product of h1s imagination. The Court must be satisfied that the deceased was i1n a lit state of mind to make the statement after the deceased had a clear opportunity to observe anct identify his assaifants and that he was making the statement without any influence or rancour. Once the Court is satisfied that the dying declaration is true and voluntary it can be sufficient to found the conviction even without any further corroboration. The law on the subject has been clearly and explicitly enunciated 37-833 Sup Cl/76

by this Court in Khushal Rao v. State of Bombay(') where the Court observed as follows :

'On a review of the relevant provisions ofl the Evidence Act and of the decided cases in the different High Courts in India and in this Court, we have come to the conclusion, :ill agreement with the opinion of the Full Bench of the Madras High Court, aforesaid, (I) that it cannot be laid down as an absolute rule of law th•at a dying declaration ca\1not form the sole basis of conviction unless it is corroborated; (2) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made;

(3) that it cannot be laid down as a general propositim1 that a dying declaration is a weaker kind of evidence than other pieces of evidence; ( 4) that a dying declaration stands on the same footing as another piece of evidence and has to be judged i,1 the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; ( 5) that a dying declaration which has been recorded by a competent magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, ih the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character, and (6) that in order to test the reliability of a dying declaration, the Court has to keep in view the circumstances like the opportunity of the dyi•ag man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; 11nd that the statement had bee!Jl made at the earliest opportunity and was not the result of tutoring by interested parties.

Hence, in order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping m view the fact that the statement has been made in the absence of the accused who had '10 opportunity of testing tlte veracity of the statement by cross-examination."

The abo'e observations made by this Court were fully endorsed by a Bench of five Judges of this Court in Harbans Singh and Another v.

State of Punjab( 2). In a recent decision of this Court in Tapinder Singh

v. State of Punjab (3), relying upon the earlier decision referred to above, this Court observed as follows :

(1) [1958]S.C.R. 552.

(2) [1962] Supp. (l) S.C.R. 104.

(3) [1971] 1 S.C.R. 599.

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"It is true that a dying declaration is not a deposition in court and it is neither made on oath 'nor in the presence of the accused. It is, therefore, not tested by cross-examination on behalf of the accused. But •a dying declaration is admitted in evidence by way of an exception to the general rule against the admissibility of hearsay evidence, on the principle of •necessity. The weak points of a dying declaration just mentioned merely serve to put the court on its guard while testing its reliability, by imposing on it an obligation to closely scrutinise •all the relevant attendant circumstances."

In Laliubhai Devchand Shah and Others v. State of Gujarat('), this Court laid special stress on the fact that one of the important tests <?f tho reliability of a dyio,1g declaration is that the person who recorded 1t must be satisfied that the deceased was 'in a fit state of mind and observed as follows :

"The Court, therefore, blamed Dr. Pant for not questioning Trilok Singh with a view to test whether Trilok Singh was in a "fit state of mind" to make the statement. The "fit

state of mind" referred to is in relation to the statement that the dying man was mah1g. In other words, what the case suggests is tlrat the person who records a dying declaration must be satisfied that the dying man was making a conscious and voluntary statement with normal understanding."

We would now examine the dylag declaration Ext. P-2 in the light of the princ'iples enunciated above. To begin with, we would like to deal with the surrounding circumstances •and the attendant factors which culminated in the dying declaration Ext. P-2 made by the deoceased at Dr. Ramamurthi Nursing Home. According !o the prosecution there were three clear occasions when the deceased was conscious and could have made a statemnt disclosing the names of his assailants.

The first occasion was at the place of occurrence itself, alter the deceased is said to have been assaulted by the accused. The persons who wen> present on this occasion were P.Ws. 1, 2, 5 & 6. According to P.W. 1 (p. 5 of the printed Paper Book) the deceoased even though he was groaning was in a condition to speak out and on being questioned he narrated the entire occurrence and disclosed the names of the five accused persons to P.W. 1. The fact that the deceased had mentioned the names of all the accused to this witness has been disbelieved by both the Courts and in our opinion rightly, because P.W. i did not make any mention of this fact either in the F.I.R. Ext. D-4 or in his statement to the police.

Nevertheless from the statement of P.W. I who is the son of the deceased it is manifestly clear that the deceased was in a position to make a statement and yet he did not di.sclose the names of the assailants.

Similarly P.W. 2 (p. 15 of the Printed Paper Book ) categorically states that in his presence P.W. 1 asked the deceased as to how the incident took place and the deceased told him that all the five accused had assaulted him with sticks, stones and

(!) [19711 3 s.c.c. 767.

knives and then ran away.

This also shows that the deceased was conscious when he is said to have made this statement.

Lastly, there is foe evidence of P.W. 6 (p. 29 of the Paper Book) who also says that although the witness could not hear what the deceased said yet he was speaking very slowly with his son.

Thus at the first stage, namely, when the deceased was at the spot he was in a position to r; iake the statement and yet, according to the findings of the Courts b=low, he did not disclose the names of the assailants to any body.

The second occasion when the deceased could have disclosed the names or his assailants was at the time when he was carried in a lorry frota tte pJoace of occurrence to Dr. Ramamurthi Nurs.ing Home. P.W.

1 (p. 8 of the printed Paper Book) categorically states that at the time when his father was put on the lorry he was groaning but he was in a position to talk. The witness further goes on to state that inone of the 20 to 30 persons who had gathered at the scene tried to ask the deceased as to how the incident took place. Similarly P .W. 6 (p. 29 of the printed Paper Book) clearly stated that the injured was in a position to talk while he was being put on the lorry and about 50 to 60 persons were present there at that time.

The third occasion when the deceased could have disclosed the names of the assailants was when he reached the Nursing Home. In this connection P.W. 1 (p. 9 of the printed Paper Book) has stated that on reachinl' the hospital the Doctor was sent for and at that time his father was conscious and was in a position to talk though he was groaning with pain. He further admitted that he did not tell the Doctor '• ' what his father had told him. Similarly P.W. 2 states (at p. 16 of the printed Paper Book) that when the Sub-Inspector of Sullurpet came and saw the injured in the room of the Nursing Home the injured was in a position to talk but the Sub-Inspector did not talk to him or question him on anything.

P.W. 15 thy Sub-Inspector of Sullurpet states (at p. 41 of the printed Paper Book) tilat he found about 20 persons at the Nursing Home gathered outside the Nursing Home and saw Dr. Ramamnrthy attending on the injured inside when the injured was in a conscious state.

From the evidence discussed above, it is clearly established that alth0ugh the deceased was conscious at the place of occurrence, at the time when he was put on the Jory and also at the time when he was brought to the Nursing Home and was in a position to speak he did npt disclose the names of the assailants to any body. This conduct of the deceased can be explained only on two hypotheses, namely, either the deceased was not conscious at all and was not in a position to talk to any body or that even though he was conscious he did not disclose the occurrence to any body because under the stress and strain of the assau!.t, which tock place admittedly at a time when darkness had set in and there was very little moonlight, he was not able to identify the assailants. No third inference can be spelt ou! from the conduct of the deceased in not disclosing the names of the assailants on these three occasions. Further more, the fact that the deceased was not in a position to identify the assailants receives intrinsic support from the statement of P.W. 1 (at p. 6 of the printed Paper Book) where he clearly

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stales that he had seen A-3, A-4 and A-1 at A-5's house about fiv~ years before the occurrence. He further states that he did not know if his father knew A-1, A-3 and A-4 well and by their names. He further states that A-3 had visited his house five years ago and he could not say whether his father was present at that time. Lastly the witness states that he had no other acquaintance with A-3 and A-4. He also states that he came to know A-2 only after the occurrence of this case.

The learned Sessions Judge has rightly relied on these circumstances to come to the conclusion that the deceased did not know the names of the accused nor was he able to identify them in the darkness and tllis introduces a serious infirmity in the dying declaration itself. It would be seen that in the dying declaration Ext. P-2 the name of the accused No. 1 Ramachandra Reddy is clearly mentioned and so is the nam<: of accused No. 2. If according to P.W. 1 there was a clear possibility "f the deceased not having known the names of A-1, A-2 or A-3 then it i; not understndable how these names could be mentioned by the deceased in his dying declaration unless the names were suggested to him by some body. Against this background the presence of P.W. 2 the coi:sin of the deceased by his side even at the time when the dying declaration was recorded or a little before that clearly suggests that tl1e possibility of prompting cannot be excluded. Even the High Court has clearly found that the possibility of prompting was there.

Dr. Ramamurthi P.W. 17 has stated tha~ while the Magistrate was recording the statement of the injured, the injured was sitting for a while and was thereafter lying in the lap of P.W. 2 who was nursing him then. Another important circumstance that has been considered by • the learned Sessions Judge but overlooked by the High Court is that < even though according to the evidence led by the prosecution the

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deceased was fully couscious in the hospital and had met persons from his village, his friends and acquaintances including Dr. Ramamurtlli P.W. 17 and the Sub-Inspector P.W. 15 yet he did not make any sttc ment to any of these persons nor did any of these persons try to question . the deceased about the occurrence. In fact the categorica1 evidence of

P.W. 17 Dr. Ramamurthi is that from the time the patient was br01; ght in the Nursiilg Home till the Magistrate arrived, the patient did not talk to any one including him. The learned Sessions Judge has observed that this is a very extra-ordinary and unnatural circumstances which throws a good deal of doubt on the circumstances in which the dying declaration was recorded. The Doctor was known to the deceased and yet neither the deceased talked to him nor did the Doctor make any inquiry from him. On the other hand P. W. 15 the Sub-Inspector has stated (at p. 42 of the printed Paper Book) that when the deceased had reached tlie Hospital he was not in a position to talk and was groaning.

P.W. 17 Dr. Ramamurthi has also stated that the state of mind of the

deceased was restlessness.

He further deposed that till tlie Magistrate arrived, the witness had no opportunity to assess the mental capacity of the injured Venugopala Reddy. It would appear from the evidence of !'!"·. 20 who made the postmortem that there were as many as 48 m1unes on the person of the deceased out of which there were 28 incised wounds on the various parts of the body including quite a few gaping incised injuries. In view of these serious injuries we find it difficult to believe that the deceased would have been in a fit state of mind to make a dying declaration. The Magistrate P. W. 11 who recorded the dying

declaration has admitted that the injured was suffering from paid and h,, was not in a position to sign and so his thumb impression was taken.

The Magistrate further admitted that the injured was taking time to answer the questions. The Magistrate further admitted that the injured was very much suffering with pain. In spite of these facts the Magistrate appears to have committed a serious irregularity in not putting a direct question to the injured whether he was capable mentally to make any statement.

In the case of Lallubhai Devchand Shah referred to by us 511pra the omission of the person who recorded the dying declaration to yuection the deceased regarding his state of mind to make the

taten1ent \Vas considered to be a very serious one and in our opinil..in in the insLrnt case the omission of the Judicial Magistrate who knew the Jaw well throws a good deal of doubt on the fact whether the deceased was really in a fit state of mind to make a statement.

The Se,, io11; Judge has rightly pointed out that even though the deceased might have been conscious in the strict sense of the term, there must he

re!iahl~ evidence. to show, in view of his intense suffering and serious injuries, that he was in a fit state of mind to make a statement regarding the occurrence. Having regard, therefore, to the surrounding circumswnces mentiQ11ed above, which have not been fully considered by the High Court, we find it extremely unsafe to place any reliance on Ext.

P-~ particular!} in view of the conduct of the deceased in not making any disclosure regarding the occurrence on the three previous occasions wllcn he had a full and complete opportunity to name his assailants.

Lastly it is admitted that there was serious enmity between the

parties. P.W. 2 states (at p. 16 of the printed Paper Book) that there , were ill-feelings between the deceased and A-1, A-2 to A-5. While , com1sei for the State has submitted that the deceased was assauted due E

to enmity. the possibility cannot be ruled out that the accused may have been named 1.Jccause of the enmity. The learned standing counsel for the State relied upon the statement of Dr. Ramamurthi who had given

th~ ce,-tificatc that the deceased was in fit state of mind to make a statem,.1t.

This certificate by itself would not be sufficient to dispel the doubts created by the circumstances mentioned by us and particularly the omission by the Magistrate in not putting a direct question to the deceased regarding the mental condition of the injured when he was satisfied that the injured was suffering from severe pain and was uot abk to speak normally. For these reasons, therefore, this case clearly laJls within principles (5) and (6) laid down by this Court in Khttshal Rao's case (supra). In these circumstances we feel that it would be wholly unsafe to found the conviction of the appellants on the basis of Ext. P-2.

Mr. P. Ram Reddy for the State submitted that Ext. P-2 was corroborated by the presence of at least accused No. 1 near the petrol oump slightly before the occurrence, took place.

The presence of accused No. 1 in Tada Bazar near his village is not completely inconsistent with his guilt and being a resident of the village close by his presence in the H Bazar can be explained on account of various reasons. It was then submitted that the accused had been absconding. The accused, howe\'er, surrendered within 14 days and this is not a circumstance which can outweigh the effect of the suspicious circumstances under which

the dying declaration was made. It seems to ns that as the deceased did not know the names of the appellants nor did he know them from before he was not able to identify his assailants and the names were supplied by P.W. 2 his cousin just before the dying declaration was made.

Putting the prosecution case at the highest, there can be no doubt th:; t the view taken by the learned Sessions Judge that the dying declaration did not amount to a trnthful disclosure cannot be said to be against the weight of the evidence on the record and even if the High Court was in a position to take a view different from the one taken by the Sessions Judge on the same evidence, this would not be a ground for reversing the order of acquittal.

In Rani Jag and others v. The State of U.P. (') this Court observed as followed:

'"Such regard and slowness must find their reflection in the c appellate judgment, which can only be if the appellate court deals with the principal reasons that become influenced the order of acquittal and after examining the evidence with care gives its own reasons justifying a contrary view of the evi- "lence.

Jt is implicit in this judicial process that if two views of the evidence are reasonably_ possible, the finding of acquittal ought not to be distnrbed." D

Thus in <he instant case as two views were reasonably possible and therefore the High Court was in error in disturbing the order of acquittal passed by the Sessions Judge.

r For the reasons given above, we are satisfied that the High Court wa3 not at all justified in reversing the order of acquittal passed by the E Sessions Judge. The appeal is accordingly allowed, the conviction and ' sentence passed against the appellants are set aside and they are acquit ted of tl1e charges framed against them. The appellants are directed to be set at liberty forthwith.

M.R.

Appeal allowed.

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(11 [197413 S.C.R. 9.

K. RAMACHANDRA REDDY & ANR

THE PUBLIC PROSECUTOR

A. C. GUPTA

S. 32

Ss. 147, 148, 302

I.P.C

Sec. 417

Cr.P.C

Sec. 302

I.P.C

Sec. 2A

[1971] 3 SCR 767

[1971] 1 SCR 599

[1974] 3 SCR 9

I.P.C

s. 417

Code of Criminal Procedure

s. 302

I.P.C

s. 2A

s. 154

s. 32

[1971] 1 S.C.R. 599


STATE OF MADHYA PRADESH

RATAN SINGH & ORS.

May 5, 1976

(A. C. GUPTA AND S. MURTAZA FAZAL ALI, JJ.]

Code of crin1inal Procedu.re-Ss. 401 and 40-2-Convicted for impriMnn1e11t for life by one State-Priso_ner transferred to his native State-Appropriate Gorenunent which could remit sentence.

The respondent was convicted and sentenced to imprisonment for life by a court in the State of Madhya Pradesh. At his request be was transferred to a jail in the State of Punjab, to which State he belonged.

He applied to the Government of Punjab that under the Punjab Jail Manual he is entitled to be released since he had completed more than 20 years of imprisonment. The applicition was sent to the Government of Madhya Pradesh, which rejected it.

In a writ petition filed by him the High Court of Ponjab and Haryana held that the State of Punjab was the appropriate authority to release him and directed the State of Punjab to consider the matter.

In appeal to this Court, the State of Madhya Pradesh contended : (i) that since 1he sentence was of imprisonment for life, it would not expire automatically at the expiry of' 20' years including remissions; and (ii) that as the priooner was convicted by a court in the State of Madhya Pradesh the appropriate Government to exercise discretion under ss. 401 and 402 Cr.P.C. was the State of Madhya Pradesh and not the State of Punjab,

Allowing the appealJ

HELD : The High Court was in error in holding that the respondent was entitled to be released as of right on completing the tern1 of 20 years including remissions.

[556C]

Gopal Vinayak Godse v. 6tc<e of Maharashtra and Others, [1%1] 3 S.C.R. 440 and Pandit Kislzori Lal v. King E1nperor, L.R. 72 I.A. 1, followed.

( 1) A sentence of imprisonment for life does not automatically expire at the end of 20 years including remissions because the administrative rules framed under the various Jail Manuals or under the Prisons Act canoot supersede the statutory provisions of the Indian Penal Code. A sentence of imprisonment for life means a sentence for the entire life of the prisoner unless the appropriate Government chooses to exercise its discretion to remit either the whole or a part of the sentence under s. 401 of the Code of Criminal Procedure. [559G]

(2) The appropriate Government has the discretion to remit or refuse to remit the sentence and where it refuses to remit the sentence no writ can be issued directing the State Government to release the prisoner. [560A]

(a) The appropriate Government which is empowered to grant remission under s. 401 of the Code of Criminal Procedure is the Government of the State where 'the prisoner had been convicted and sentenced, that is, the transferor Slate and not the transferee State where the prisoner may have been transferred at his instance under the Transfer of Prisoners Act.

[560B]

(b) Where the transferee State feels that the accused had completed a period of 20 years it haSJ merely to forward the request of the prisoner to the Government of the State where the prisoner was convicted and sentenced and if this request was rejected by the State Government the /order of the Government cannot be interfered with by a High Court in its writ jllrisdiction. [56'0D]

[Since the respondent was released 1n pursuance of the order of th~ High Court, the release order was allowed to stand.]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 246 of 1971.

Appeal by Special Leave from the Judgment and Order dated the 13th May 1971 of the Punjab and Haryana High Comt in Crimi, nal Original No. 61-M of 1971.

Ram Panjwani, Deputy Advocate General, M.P., Ii. S. Parihar, • and l. N. Shroff, for the Appellants.

0. P. Sharma, M. S. Dhillon and S. K. Mehta, for Responder.ts Nos. 2 to 4.

Nemu for Respondent No. I.

The Judgment of the Court was delivered by

FAZAL Au, J.-This appeal by special leave is directed against

the judgment of the Punjab & Haryana High Court dated May 13, D 1971 by which the High Court allowed the writ petition filed by the respondent Ratan Singh a prisoner who was confined in Central Jail, Amritsar. The appeal arises in the following circumstances.

The respondent Ratan Singh was convicted by the Sessions Judge, " r Bhind in the State of Madhya Pradesh by his order dated October 16, 1957 under s. 302 I.P.C. and sentenced to imprisonment for life.

An appeal filed by the respondent against the order of the Sessions

Judge was dismissed by the High Court on May 19, 1959. Thereafter the accused made a prayer to the Government for transferring hin: from Gwalior Jail to Amritsar as the accused/respondent belonged to Punjab State.

The representation of the accused was accepted and accordingly he was transferred to the Punjab Jail where he was lodged at Central Jail, Amritsar.

The order of transfer was passed on October 15, 1959. The respondent contended that as he had completed the period of 20 years' imprisonment including the remissions granted under the Punjab Jail Manual he was entitlcJ to be released forthwith and he accordingly made an application for his release to the Punjab Government. In fact the admitted position is that OH May 7, 1971 the accused had undergone imprisonment for a period of 25 years 18 days and 19 hours taking into account the various remissions granted to him from time to time.

The Government of Punjab forwarded the representation of the respondent to the Government of Madhya Pradesh for passing an order of release.

On April 18, 1971 the State of Madhya Pradesh rejected the request of the respondent for his release.

Thereafter the accused/respondent filed a writ petition in the High Court of Punjab & Haryana on the ground that the accused having served the sentence for more than 20 years was entitled to be released as a matter of course under the provisions of the Punjab Jail Manual and the Rules framed under the Prisons Act. It was also contended by the respondent that as he was lodged

in a jail under the jurisdiction of the Punjab Government, the appropriate Government to order his release was the Punjab Government and not the Government of Madhya Pradesh and, therefore, the request made by the Punjab Government to the Madhya Pradesh Government was not warranted by law.

The High Court without issuing notice to the State of Madhya Pradesh and after hearing the Advocate-General accepted the plea taken by the. respondent and held that Punjab State was the appropriate authority to release the respondent The High Court relied upon a decision of the Madhya Pradesh High Court in Sitaram Bare/al v. State of Madhya Pradesh(') and directed that as the respondent had already served more than 20 years 11e was entitled to be released forthwith.

Accordingly the High Court allowed the petition and directed the State Go?crnmcnt to con>ider the case of the respondent for being released and dispose of t:; e case within 20 days from the date of the order of the High Court.

It appears that in pursuance of the order of the High Court the :espondent was released.

The State of Madhya Pradesh has filed this appeal by special leave against the order of the Punjab and Haryana High Court on the ground that in law it was the Madhya Pradesh Government alone which had the power to remit the sentence and release the prisoner a:id t11e High Court was in error in holding that the Punjab Government could pass the order of release.

Appearing in support of the apµeal Mr. Ram Panjwani learned counsel submitted two points before us.

In the first place it was argued that the High Court ccmipletel y overlooked the legal position that a sentence of imprisonmcn; for life could not be said to be a sentence which would expire c, ul0matically after the expiry of 20 years including remissions.

The se::tence would enure till the life time of the prisoner but the State Government had the discretion under ss. 401 and 402 of the Code of Criminal Procedure to remit the remaining part of th.e sentence and' order release of the prisoner.

Secondly, it was submitted that as the prisoner was convicte.d by a Court situate in the State of Madhya Pradesh the appropriate Government was the Madhya Pradesh Government and not the Punjab Government where the prisoner was transferred to exercise its discretion under s. 401 of the Code of Criminal Procedure.

No one appeared for the respondent, but at the time of granting special leave, this Court had ordered that the release of the prisoner would not be reopened even if. the appeal succeeded.

In other words the State of Madhya Pradesh in this case is not concerned with the individual case of the respondent but only wants an authoritative decision on the important principle involved in the case.

As regards the first point, namely, that the prisorer could be released automatically on the expiry of 20 years under the Punjab JaiT Manual or the Rules framed under the Prisons Act, the matter is no longer res integra and stands concluded by a decision of this;

(I) AIR 1969 M.P. 252.

! • I

M.P. STATE v. RATAN SINGH (Fazed Ali, J.) 555

Court in Go pal Vinayak Godse v. State of Maharashtra and Others(!), A where the Court, following a decision of the Privy Council in Pandit Kishori Lni v. King-Emperor(') observed as follows :

"Under that section, a person transported for lil'e or any other term before the enactment of the said section would be treated as a person sentenced to rigorous imprisonment for life or for the said term.

If so, the next question is whether there is any provision of law whereunder a sentence for life imprisonment, without any formal remission by appropriate• Government, can be automatically treated as one for a definite period.

No such provision is found in the Indian Penal Code, Code of Criminal Procedure or the Prisons Act. * A sentence of transportation for life or imprisonment for life must prima facie be treated as transportation or imprisonment for the whole of the remaining periocl of the convicted person's natural .Jife."

The Court further observed thus :

"But the Prisons Act does not confer on any authority a power to commute or remit sentences; it provides only for the regulation of prisons and for the treatment of prisoners confined therein.

Section 59 of the Prisons Act confers a power on the State Government to make rules, inter alia, for rewards for good conduct.

Therefore, the rules made under the Act should be construed within the scope of the ambit of the Act. * * * Under the said rules the orders of an appropriate Government under s. 401, Criminal Procedure Code, are a pre-requisite for a release.

No other rule has been brought to our notice which confers an indefeaslble right on a prisoner sentenced to transportation for life to an unconditional release on the expiry of a particular term including remissions.

The rules under the Prisons Act do not substitute a lesser sentence for a sentence of transportation for life."

"The question of remission is exclusively within the province of the appropriate Government; and in this case it is admitted that, thongh the appropriate Government made certain remissions under s. 40 l of the Code of Criminal Procedure, it did not remit the entire sentence.

We, therefore, hold that the petitioner has not yet acquired any right to release."

It is, therefore, manifest from the decision of this Court that the Rules framed under the Prisons Act or under the Jail Manual do not affect the total period which the prisoner has to suffer but merely amount

(1) [1961/ J S.C.R. 440.

(2) L.R. 72 IA. I.

55 6 SUPREMjl COURT REPORTS

[1976] SUPPLE~4ENTARY

to administrative instructions regarding the various remis; ions to be given to the prisoner from time to time in accordance with the rules.

This Court further pointed out that the question of remission of the entire sentence or a part of it lies within the exclusive domain of the appropriate Government under s. 401 of the Code of Crim; rral Procedure and neither s. 57 of the Indian Penal Code nor any Rules or local Acts can stultify the effect of the sentence of life imprisonment given by the Court under the Indian Penal Code.

In other words, this Court has clearly held that a sentence for life would enure till the life-time of the accused as it is not possible to .fix a particular period of the prisoner's death so any remissions given under the Rules could not be regarded as a substitute for a sentence of tra:bp0rtation for life.

In these circumstances, therefore, it is clear tlrnt the High Court was in error in thinking that the respondent was entitled to be released as of right on completing the term of 20 years including the remissions.

For these reasons, therefore, the first contention raised by the learned counsel for the appellant is well founded and must prevail.

The next plank of the argument put forward by Mr. Ram Panjwani was that under s. 401 of the Code of Criminal Procedure it was the State of Madhya Pradesh where the accused was convicted which alone had the power to grant remission and order release of the prisoner.

It was submitted that the transfer of the accused from the State of Madhya Pradesh to the State of Punjab was made merely at the instance of the prisoner and for his convenience and eollkl 11,11 clothe the transferee State with the power to pass an order under s. 401 of the Code of Criminal Procedure. In order to understand the implications of the argument put forward by the appellant it may be necessary to extract the relevant provisions of s. 401 of the Code of Criminal Procedure which run thus :

"401. (1) When any person has been sentenced to punishment for an offence, the appropriate Government may at any time, without conditions or upon any conditions which the person sentenced accepts suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced.

(2) Whenever an application is made to the appropriate Government for the suspension or remission of a sentence, the appropriate Government, may require the presiding Judge of the Court before or by which the conviction was had or confirmed to state bis opinion as to whether the application should be granted or refused, together with his reasons for such opinion and also to forward with the statement of such opinion a certified copy of the record of the trial or of such record thereof as exists."

; JI A perusal of s. 401 of the Code of Criminal Procedure would reveal that the section consists of two parts-the first part confers an absolute discretion on the appropriate Government to remit the whole or any part of the punishment to which the accused may have been sentenced.

) . -

The words used in sub-s. (1) as also sub-s. (2) of s. 401 clearly A show that the power is exercised by the "appropriate Government".

The expression "appropriate Govermnent" appears to have been substituted for the expression "Provincial Government" by Amendment Act 1950. Previously the words used were "Provincial Government".

Sub-section (2) of s. 401 of the Code of Crimina:l Procedure, however, enjoins that before exercising its discretion on an application made to the appropriate Government for remission of the sentence, the B appropriate Government may require the presiding Judge of the Court which convicted the prisoner to state his opinion whether the application should be granted or refused. Thus the procedure laid down in sub-s. (2) of s. 401 gives a clear indication as to the real meaning and purport of the words "appropriate Government". It is obvious that only that Govermnent can call for the opinion of the presiding Judge of the Court which has control over the said presiding Judge C or the Court which is situated within the jurisdiction of the said Government.

As a logical corollary of the interpretation of sub-s. (2) of s. 401 it is the State where the accused was convicted which alone has the power to grant remissions of the sentence.

In the instant case the Punjab Government had absolutely no control or jurisdiction o"er the Sessions Judge, Bhind in the State of Madhya Pradesh and could not have called for an opinion from. that Court.

In these D circumstances there can be no .shadow of doubt that the appropriate Govermnent mentioned in sub-s. (!) and sub-s. (2) of s. 401 of the Code of Criminal Procedure refers to the Govermnent of the State \Vl1crc the accused was convicted, that is to say, the transferor Government and not the transferee Govermnent.

Any such transfer of the accused from a jail situate in one State to a jail in some other State has absolutely no bearing on the question as to the application of E s. 401 of the Code of Criminal Procedure, because this is merely an executive matter and an executive decision taken to meet the convenience of the accused.

Furthermore, the position is made absolutely clear by sub-s. (3) to s. 402 of the Code of Criminal Procedure which runs thus :

''In this section and in section 401, the expression "appropriate Government" shall mean -

(a) in cases where the sentence is for an offence against, or the order referred to in sub-section ( 4A) of section 401 is passed under, any law relating to a matter to which the executive power of the Union 0xtends, the Central Government; and G

(b) in other cases, the State Government." A perusal of this provision olearly reveals that the test to determine ··. the appropriate Government is to locate the State where the accused was convicted and sentenced and the Government of that State would be the appropriate Government within the meaning of s. 40 I of the Code of Criminal Procedure.

Thus since the prisoner in the instant case was tried, convicted and sentenced in the State of Madhya Pradesh. the State of Madhya Pradesh would be the appropriate Government

to exercise the discretion for remission of the sentence under s. 401 ( 1) of the Code of Criminal Procedure.

Although the present case is governed by the old Code, yet we may mention that the new Code of Criminal Procedure, 1973 has put the matter completely beyond any controversy and has reiterated the provisions of s. 402 ( 3) in sub-s. (7) of s. 432 which provides thus :

"(7) In this section and in section 433, the expression "appropfiate Government" means,-

(a) in cases where the sentence is for an offi.:ncc a.-ainst,

or the order referred to in sub-section ( 6) is passed under, any law relating to a matter to which the executive power of the Union extends, the Central Government;

(b) in other cases, the Government of the State within which the offender is sentenced or the said order is passed." Actually this clause has been bodily lifted from the provisions of s. 402 ( 3) and has made the position absolutely clear.

D In Surjit Singh v. State of Punjab & Ors.( 1) a Division Bench of

the Punjab & Haryana High Court has also taken the view that the appropriate Government would be the Government of the State where the prisoner has been convicted and sentenced.

The Division Bench of the Court after an exhaustive discussion of the various provisions of the Code of Criminal Procedure and the Rules C'bserved as follows :

"There is, however, nothing to indicate that for the purposes of remission and suspension of sentences under section 401, Criminal Procedure Code, the Legislature intended to adopt a different definition of 'appropriate Government'.

In short, under section 401, Criminal Procedure Code, the Government of the State of conviction and not the Punjab Government was competent to remit the balance of the sentence of these life convicts.

All that the Punjab Government could do was to forward the cases of these life-convicts to the appropriate Government for remitting the remaining term of their life imprisonment, in exercise of the power under section 401, Criminal Procedure Code.

The Punjab Government has already made such a re!erence in favour of the petitioners to the Governments of the States of conviction.

Neither the Punjab Government nor the Superintendent of Jail concerned can release the priso1>ers under any of the statutory rules contained in Punjab Jail Manual without receiving the necessary orders of the appropriate Government under section 401. Pending the receipt of orders of the J!ppropriate Government, therefore, the detention of the petitioners could not by any reasoning, be called illegal."

(1) Criminal Writ No. 11 of 1971 decided on 26-5-72.

• -

' '>·

We find ourselves in complete agreement with the view taken by the A Punjab & Haryana High Court.

Before closing the judgment, we may refer lo Sitaram Bare/a/'s case

(supra) which forms the sheet-anchor of the decision of the High Court in the instant case.

To begin with that case does uot deal with the identical point involved in the present case.

In that case, the Stale Government had exercised a s.tatutory power umlcr a Speciai Act passed by the State of Madhya Pradesh, nmncly, the :Vfadhy<c Pradesh Prisoners Release on Probation Act 16 of 1954.

Under the provisions of that Act the State Government was gi>'en the power to release prisoners found to have been of good conduct by imposing certain conditions for their release.

It was not a case \\'here the Government was exercising its discretion under s. 40 l !)!" the Code ol Criminal Procedure for remission of a part of the scatence att<r the accused had served the sentence for 20 years and claimed to be released.

Secondly the power for a temporary release of the prisoner was conferred by the said Act on the State of Madhya Pradesh under certain conditions.

The Government was, therefore, exercising a statutory power.

In these circumstances the facts in Si:aram Bare/al's case (supra) were quite different from the facts of the present case. It is true that the prisoner in that case was lodged in a jail in the State of Maharashtra but in view of the provisions of lhe Special Act a particular State Government alone was empowered to exercise its discretion under the provisions of s. 2 of the said Act.

In the instant c:i.se there is no such Act at all in the State of Punjab & Haryana which could have provided any justification for the said State to I exercise its power to release the prisoner.

Thirdly, as already stated the power conferred by the Act was merely a power to release tho

prisoner on a temporary basis subject to certain conditions which is not the case here at all.

In these circumstances the High Court was not at all justified in relying on the decision of the Madhya Pradesh High Court in Sitaram Barela/' s case (supra) for the proposition that the Punjab Government would be the appropriate Government to exercise power under s. 401 (1) of the Code of Criminal Procedure.

From a review of the authorities and the statutory provisions of the Code of Criminal Procedure the following propositions emerge :

(1)

(2)

that a sentence of imprisonment for life does not automatically expire at the end of 20 years including the remissions, because the administrative rules framed under the various Jail Manuals or under the Prisons Act cannot supersede the statutory provisions of the Indian Penal Code.

A sentence of imprisonment for life means a sentence for the entire life of the prisoner unless the appropriate Government chooses to exercise its discretion to remit either the whole or a part of the sentence under s. 401 of the Code of Criminal Procedure;

that the appropriate Government has the undoubted discretion to remit or refuse to remit the >entence

A and where it refuses to remit the sentence no writ "

can be issued directing the State Government to 1 release the prisoner;

(3) that the appropriate Government which is empowered to grant remission under s. 401 of the Code of Criminal Procedure is the Government of the State wl1ere B the prisoner has been convicted and sentenced, that \ is to say, the transferor State and not the transferee State where the prisoner may have been transferred • at his instance under the Transfer of Prisoneq; Act; and •

(4) that where the transferee State feels that the accused c has completed a period of 20 years it has merely to forward the request of the prisoner to the concerned State Government, that is to say, the Government of - the State where the prisoner was convicted and sentenced and even if this request is rej,, cted by the State Government the order of the Government cannot be interfered with by a High Court in its ,, D writ jurisdiction.

For these reasons, therefore, we are satisfied that the view taken by the High Court of Punjab & Haryana in the instant case is erroneous and cannot be supported in law.

We accordingly allow the appeal, set aside the order of the High Court.

But as tbe respondent has ah'eady been released, the order of release of the respondent shall stand. '

P.B.R.

Appeal allowed.

STATE OF MADHYA PRADESH

RATAN SINGH & ORS

A. C. GUPTA

S. MURTAZA FAZAL ALI, JJ.

Ss. 401 and 40

ss. 401 and 402

Cr.P.C

L.R. 72 I.A. 1

Prisons Act

Indian Penal Code

s. 401

Code of Criminal Procedure

s. 401

Code of Criminal Procedure

Transfer of Prisoners Act

s. 302

I.P.C

Prisons Act

ss. 401 and 402

Code of Criminal Procedure

s. 401

Code of Criminal Procedure

Prisons Act

Prisons Act

Section 59

Prisons Act

s. 401

Criminal Procedure Code

Prisons Act

s. 40

Code of Criminal Procedure

s. 401

s. 57

Indian Penal Code

Indian Penal Code

s. 401

Code of Criminal Procedure

s. 401

Code of Criminal Procedure

s. 401

Code of Criminal Procedure

s. 401

Code of Criminal Procedure

s. 401

Amendment Act 1950

s. 401

s. 401

s. 401

s. 401

Code of Criminal Procedure

s. 401

Code of Criminal Procedure

s. 402

Code of Criminal Procedure

section 401

section 401

s. 40

Code of Criminal Procedure

s. 401

Code of Criminal Procedure

Code of Criminal Procedure, 1973

s. 402

s. 432

section 433

s. 402

Code of Criminal Procedure

section 401

Criminal Procedure Code

section 401

Criminal Procedure Code

section 401

Criminal Procedure Code

section 401

s. 40

s. 2

s. 401

Code of Criminal Procedure

Code of Criminal Procedure

Prisons Act

Indian Penal Code

s. 401

Code of Criminal Procedure

s. 401

Code of Criminal Procedure