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Criminal Appeal No. 457 of 1960/Murder Reference No. 140 of 1960, decided on 2nd February, 1961.
‑Dying declaration‑Incomplete and partly "touched up" by interested parties‑Cannot be relied upon‑Penal Code (XLV of 1860), S. 302.
A dying declaration in order to be admissible must be complete in itself. An unfinished statement is inadmissible because no one can tell what the deceased was about to add. Similarly the value of a dying declaration altogether disappears where parts of it have obviously been supplied to the dying man by other persons whether interested parties or police officers. A "touched up" dying declaration has no value because while a person is making a statement, a mere hint by another person may completely change the nature of the statement.
Where the husband and the mother‑in‑law of the deceased were interfering while her dying declaration was being recorded and she died before concluding her statement, the dying declaration was held unsafe to be relied upon and was excluded from consideration altogether.
Phipson on Evidence, 9th Edn., p. 332 ; Tayler on Evidence, Vol. I, para. 721 ; Cyril Waugh v. The King (1950) A C 203 and Dial Singh v. Emperor A I R 1934 Lah. 805 rel.
S. Wajid Ali Shah at State expense for Appellant.
Iftikhar‑ul‑Haq for Respondent.
Date of hearing : 2nd February, 1961.
This is an appeal, through jail by Allah Ditta who has been convicted by Mr. Sher Muhammad Sial, Additional Sessions Judge, Gujrat, under section 302 P. P. C. and has been sentenced to death for the murder of Mst. Said Begum on the 27th of September 1959, at about mid‑day, in the abadi of village Adowal. The case is also before us under section 374, Cr. P. C. This judgment will dispose of the appeal as well as the reference for confirmation of the death sentence.
2. The facts out of which this appeal arises are : Mst Said Begum deceased was daughter of Mst. Nawab Begum by Said first husband. On the death of her first husband, Mst. Nawab Begum married Allah Ditta appellant. Mst. Said Begum was first married to Bashir Ahmad, sister's son of the appellant, who some eight years before the present occurrence, divorced her whereupon she began to live with her mother in the house of the appellant. After she bad been in her mother's house for some time, she eloped with Gbulam Rasul (P. W. 8) and married him and began to live in his house. She lived with him till the date of the present occurrence,
3. On the day of occurrence, i.e., 27th of September 1959. at about 11 a.m., Mst. Said Begum deceased left her house with two pitchers to bring water from the handpump of one Maula Dad. Some time after her departure from the house, Inayat (P. W. 9), her husband's brother, and Mst. Zainab Bibi (P. W. 10), her mother‑in‑law, heard some cries from the direction of the street, and on rushing to the spot they saw Allah Ditta appellant causing injuries to Mst. Said Begum with a chhura. On seeing the witnesses, the appellant ran away carrying the chhura with him.
4. Inayat P. W. sent his brother Latif to Gujrat to inform Ghulam Rasul P. W. about the occurrence. Mst. Said Begum, who was still in her senses, told Inayat and Mst. Zainab Bibi P. Ws. that Allah Ditta appellant had stabbed her. On learning from Latif at about 11 a m., Ghulam Rasul P. W. went to Adowal on a bicycle and on reaching there saw Mst. Said Begum lying injured on a charpoy in the street. She was still :in her senses and on inquiry by Ghulam Rasul stated : "I was bringing pitchers of water from the house of Maula Dad and when I was passing near the house of Karam Dad, Allah Ditta caused injuries to me with a chhura. Ghulam Rasul P. W. removed Mst. Said Begum to Civil Hospital, Gujrat.
5. Lady Dr. Hamida Khatun (P. W. 2) examined the injuries of Mst. Said Begum and as the patient was in a precarious condition, the lady doctor sent ruqqa Exh. P. C., to the, police asking them to make arrangements for recording Mst. Said Begum's statement.
6. Mian Abdus Samad, Magistrate, P. W. 3, reached the hospital and after satisfying himself that Mst. Said Begum was in a fit condition to make a statement proceeded to record her statement Exh. P. G. Before concluding her statement Mst. Said Begum became unconscious and died within a few minutes. Lady Dr. Hamida Khatun, who was present, appended‑ the following note at the end of Exh. P. G. :‑
"The injured was in her senses when she gave the above statement but she suddenly collapsed and died at 5‑45 p. m. "
7. Doctor Abdul Haq (P. W. 1) conducted the post‑mortem examination on the 28th of September 1959, at 10‑45 a m. and observed seven injuries on different parts of Mst. Said Begum's dead body. In the opinion of the doctor, the injuries had been caused with a sharp‑edged weapon. Death, in the opinion of the doctor, was due to severe internal haemorrhage.
8. The appellant pleaded not guilty to the charge and denied the prosecution allegations against him. He stated that he had been involved in 3 false case on account of enmity. No evidence was led in defence.
9. The prosecution case against the appellant rests on the
(i) Evidence of Inayat (P. W. 9) and Mst. Zainab Bibi (P. W. 10), the alleged eye‑witnesses of the occurrence; and
(ii) Exh. P. G. and the oral dying declaration of Mst. Said Begum deceased.
10. The learned Additional Sessions Judge did not rely on the evidence of the eye‑witnesses as would appear from the following passage occurring in his judgment :
"As already noticed, according to the dying declaration. Exh. P. G., nobody had seen the occurrence and this casts a serious doubt as to the truth of the statements of Inayat and Mst. Zainab P. Ws. Again, Inayat did not report the matter to the police promptly and he did not even accompany Mst. Said Begum to the hospital. So, his statement appears to have been recorded the next morning. His house was about 251 feet from the place of occurrence and there was not a good chance of his having heard the shrieks of the deceased. Mst. Zainab Bibi is an aged woman and admitted that she could identify a man from a distance of five or six karams only. So she had no opportunity to identify the culprit correctly from the turn in the street. For the above reasons. I am of the view that Inayat and Mst. Zainab had not seen the accused at the spot of occurrence. They, however, may have reached the spot soon after the occurrence and may have been told by Mst. Said Begum that she had been stabbed by the present accused."
He, however, convicted the appellant on the dying declaration Exh. P. G recorded by Mian Abdus Samad Magistrate.
11. The evidence of Mian Abdus Samad and Lady Dr. Hamida Khatun P.Ws. shows that the dying declaration is incomplete. The question for determination is : what is the value of an incom plete dying declaration The following passage at page 332 of Phipson on Evidence, 9th Edition, deserves consideration :‑
"The declarations should be complete, conveying the whole of what the declarant intended to say. An unfinished statement, or one which the declarant intended, but was prevented from, qualifying is inadmissible."
The following passage from paragraph 721 of Tayler on Evidence, Volume I, also deserves consideration :‑
"Whatever the declaration may be, it must be complete in itself, for if the dying man appears to have intended to qualify it by other statements which he is prevented by any cause from making, it will not be received."
In Cyril Waugh v. The King ((1950) A C 20), Lord Oaksey observed :‑
"Their Lordships are of opinion that the dying declaration was inadmissible because on its face it was incomplete and no one can tell what the deceased was about to add ; that it was t in any event a serious error to admit it in part ; and that it was a further and even more serious error not to print out to the jury that it had been subject to cross‑examination."
12. The dying declaration Exh. P. G., suffers from another defect also. Mian Abdul Samad, Magistrate, stated in cross -examination :‑
"The husband and mother‑in‑law of Mst. Said Begum were present with her and were attending to her because she was feeling severe pain. They too spoke now and then to her during her statement but I had correctly recorded only what Mst. Said Begum herself had stated."
In Dial Singh v. Emperor (A I R 1934 Lah. 805), Monre and Abdul Rashid, JJ., held that the value of a dying declaration altogether disappears when parts of it have obviously been supplied to the dying man by other persons whether interested parties or police officers. A "touched up" dying declaration has no value. In the present case, Mian Abdus Samad categorically stated that the husband and mother‑in- law of the deceased were interfering while the statement was being recorded. While a person is making a statement, a mere hint by another person may completely change the nature of the statement.
13. Respectfully following the above views, we do not con sider it safe to rely on the dying declaration of Mst. Said Begum, and exclude it from consideration altogether.
14. If the dying declaration is ruled out of consideration, nothing is left on the record against the appellant. After going through the evidence and the other material on the record, we accept the appeal, set aside the conviction and sentence of the appellant, decline to confirm his sentence of death, and acquit him. He shall be released forthwith if not required to be detained in connection with any other case.
R. B. A.
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