Summary
The deceased lodged an FIR naming the appellants as his assailants after a darat blow to his forehead, and died nine days later; the post-mortem gave asphyxia as the cause of death. The High Court reversed the trial court's acquittal, convicting the first appellant under Section 304 IPC and the second under Sections 323 and 451 IPC. The Supreme Court held that the FIR was admissible as a dying declaration under Section 32(1) of the Evidence Act because Indian law does not require that the maker be under expectation of death, and that the head injury causing a fissured skull fracture was in law the cause of a death by hypoxic brain injury manifesting as asphyxia; the convictions were upheld but the sentences reduced.
Issues
- Whether the Supreme Court should re-appreciate the evidence where the High Court had reversed an acquittal after a thorough re-evaluation of the record.
- Whether a statement by the deceased in his FIR can be a dying declaration under Section 32(1) of the Evidence Act when the post-mortem gives asphyxia, and not the head injury he described, as the cause of death nine days after the assault.
- Whether admissibility of a dying declaration under Section 32(1) of the Evidence Act depends on the maker having been under an expectation of death when the statement was made.
- Whether the sentences imposed by the High Court should be reduced on account of mitigating circumstances.
Provisions considered
- Section 32(1), Indian Evidence Act, 1872Quoting the clause, the Court held that a statement of a deceased person as to the cause of his death or the circumstances of the transaction resulting in his death is relevant whether or not he was under expectation of death when he made it; unlike English law, Indian law does not make admissibility depend on consciousness of approaching death (State of Haryana v. Mange Ram; Kans Raj v. State of Punjab). The circumstances stated must have a proximate relation to the actual occurrence, and the FIR lodged by the deceased satisfied that test. (¶¶ 46, 48, 51, 52, 53, 54, 55)
- Section 304, Indian Penal Code, 1860The High Court's conviction of the first appellant for culpable homicide not amounting to murder, for the darat blow to the deceased's forehead causing a fissured skull fracture that led to his death, was upheld; the sentence of six years' rigorous imprisonment was reduced to one year with the fine of Rs.5,000 maintained. (¶¶ 21, 33, 45, 56, 57, 58)
- Sections 323 and 451, Indian Penal Code, 1860The second appellant's conviction for voluntarily causing hurt and house-trespass, for joining the assault with fists and kicks in the deceased's courtyard, was upheld; his sentence of one year's rigorous imprisonment was reduced to the period already undergone subject to payment of the fine of Rs.10,000. (¶¶ 22, 33, 59, 60)
Held
- Where the High Court has thoroughly re-appreciated the evidence in an appeal against acquittal, the Supreme Court will not undertake a further re-appreciation unless a palpable error or perversity is shown in the High Court's reasoning; none was found here. (¶¶ 32, 33)
- Asphyxia is ordinarily caused by strangulation or throttling, but medical literature recognises that a head injury can cause asphyxia through brain swelling, damage to the brainstem's breathing centres, impaired blood flow (hypoxic brain injury), seizures, vomiting or aspiration, and through Cushing's ulcers and gastroenteritis from vagus nerve irritation leading to stomach contents entering the lungs. Although the post-mortem simply recorded asphyxia, in medico-legal terms the cause of death was the head wound causing a fissured skull fracture which led to asphyxia by hypoxic brain injury; the argument that the death had no nexus with the assault was rejected. (¶¶ 34, 35, 36, 37, 38, 39, 44, 45)
- A dying declaration is to be believed or disbelieved on the circumstances of each case like any other evidence; once believed, the absence of oath and cross-examination is irrelevant, and no corroboration is required (Irfan v. State of U.P.). (¶¶ 49, 50)
- Unlike English law, which admits dying declarations only when made under a fixed belief that death is inevitable and near, Section 32(1) of the Evidence Act expressly makes the statement relevant whether or not the maker was under expectation of death; the FIR lodged by the deceased himself was therefore admissible as a dying declaration even though he had no expectation of death when he lodged it. (¶¶ 51, 52, 53, 54, 55)
- Having regard to mitigating circumstances, including the lapse of about 25 years since the incident of 2000, the first appellant's age of about 63 and his three months in custody as an undertrial, the sentence of the first appellant was reduced from six years' to one year's rigorous imprisonment (fine of Rs.5,000 maintained, with six months' further imprisonment in default) and the second appellant's sentence was reduced to the period already undergone, subject to payment of the fine of Rs.10,000 (six months' imprisonment in default). (¶¶ 27, 56, 57, 58, 59, 60)
Result
Appeal disposed of; High Court's convictions upheld; sentence of the first appellant (Section 304 IPC) reduced from six years' to one year's rigorous imprisonment with fine of Rs.5,000, and he is to surrender before the trial court within eight weeks to serve the remainder; sentence of the second appellant (Sections 323 and 451 IPC) reduced to the period already undergone subject to payment of the fine of Rs.10,000.