KULWANT SINGH AND ORS. versus STATE OF PUNJAB

Citation: [2004] 1 S.C.R. 1018 · Decided: 23-01-2004 · Supreme Court of India · Bench: DORAISWAMY RAJU · Disposal: Dismissed

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Judgment (excerpt)

,I 
A 
KULWANT SINGH AND ORS. 
I 
.... 
V. 
ST A TE OF PUNJAB 
JANUARY 23, 2004 
B 
(DORAISWAMY RAJU AND S.B. SINHA, JJ.] 
Penal Code, 1860-Sections 96, 148, 149, 302 & 323-Evidence Act, 
... 
1872-Section 32-Murder of two persons and injuring two witnesses by 
c accused with sharp weapons-One of the deceased making a statement five 
days before death-Whether dying declaration-Plea of right of private defence 
by accused-Admissibility of-Held, the said statement is a dying declaration 
and hence admissible in evidence-On facts, the accused were not able to 
establish that the offence was committed in the exercise of their right of 
private defence. 
D 
Appellants, numbering three, with their father (accused no.I) and 
brother (accused no.3) attacked P and Kand two sons of K (PWs. 5 and 
6) over a dispute relating to the boundaries of agricultural lands. K died 
on way to hospital. PWs. 5 and 6 received injuries. P was seriously injured 
E 
and was admitted in a hospital. The statement of P was recorded after 5 
days of the incident when he was fit. P died thereafter. Appellant no. 3 
and accused no.I also received injuries purportedly inflicted by PWs .. 5 
and 6 in self defence. All the five accused were charged for offences under 
sections 148, 302, 323 & 149 !PC. The trial court acquitted all the accused 
holding that the offences were committed by the accused in exercise of 
F the right of private defence. In appeal by the State, High Court convict1ed 
_,._ . 
all the accused and sentenced them to life imprisonment and also sentenc1!d 
them for various offences. 
In appeal to this Court, the appellants contended that the statement 
of P cannot be treated as a dying declaration under section 32 of the Indian · 
G Evidence Act, 1872 and was made under section 161 Cr. PC and the same 
is not reliable since P died thereafter; that P and PWs. 5 and 6 were the 
aggressors and the offences were committed by the appdlants whi!le 
¥ • 
exercising the right of private defence which is proved by the nature of 
injuries suffered by them; that the injuries suffered by PWs. 5 and 6 were 
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1018 
KULWANT SINGH v. STATE OF PUNJAB 
1019 
I 
self-in flictcd; and that there is no material on record to show that they A 
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were present and participated in the crime. 
The State contended that the appellants failed to prove that the 
informant party were _the aggressors and they ell\ercised their right of 
private defence; that no explanation has been offered by the appellants 
B 
as to why K was done to death; and that from the materials on record, K 
was subjected to assault despite falling down on the field. 
f .... 
Dismissing the appeal, the Court 
HELD: I. Section 32 of the Indian Evidence Act, 1872 nowhere states c 
that the dying declaration must be recorded in the presence of a Magistrate 
or in other words no statement, which has not been recorded before the 
Magistrate, cannot be treated to be a dying declaration. The fact that the 
investigating officer from the beginning intended to take the statement of 
P is not in dispute. The endorsement made by the doctor would clearly 
show that he had not been found fit to make such statement. Only on the D 
fifth day, the statement of P could be recorded. Section 32 of the Indian 
Evidence Act also does not state that a dying declaration should be made 
only in expectation of death and in that view of the matter the fact that P 
died after a period of one week is of no consequence. Explanation-I 
appended to Section 32 specifies that when the statement is made by a E 
person as to the cause of his death, or any of the circumstances of the 
transactio.n which resulted in his death where cause of death of that 
person's death comes into question would be a relevant factor. The 
investigating officer has proved the statement of P. He deposed that he 
was fully conscious when he made the statement which were read over to 
him. Hence, the statement of P would be admissible under Section 32 of F 
' 
.... 
the Indian Evidence Act. 11031-F-H; 1032-A-BI 
Ramawati Devi'" State of Bihar, AIR (1983) SC 164 and Tehal Singh 
and Ors. v. State of Punjab, AIR (1979) SC 1347, relied on. 
2. The statement of P stands corroborated by the evidence of PWs. G 
5 and 6. PW 5 categorically state;! that when they were working in the 
. 
). 
field, their mother K had come with food and when they just finished 
taking the same, the accused came with weapons and inflicted blows on 
P, K, PW 5 and PW 6. The 

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