M.H. Beg, J. - (1.) THIS an application for a certificate of fitness of the case, Under Article 134(1)(c) of the Constitution, for an appeal to the Supreme Court of India.
(2.) THE three Applicants had been convicted by a Civil and Sessions Judge, Etah, of offences punishable Under Sections 326 and 326/34 IPC on the strength of evidence given by three eye witnesses as well as of a supposed dying declaration of the victim Shaitan Singh who died nearly fortnight after the occurrence. The medical evidence also fitted in with the prosecution case of an attack with a "gandasa" and not with the defence suggestion that the victim, Shaitan Singh, was attacked at his own house during the night with lathis. On an appeal to this Court, it was held that the learned Civil and Sessions Judge had erred in holding that the death of Shaitan Singh, which was due to tetanus, could be attributed only to the injuries during the attack and not to some other possible cause supervening after the injuries. It was, therefore, held that the first information report was not admissible as a dying declaration which is a piece of substantive evidence. The evidence of the three eye witnesses was subjected to close scrutiny and it was held by this Court, in agreement with the trial court, that their evidence was acceptable. The mainstay of the attack by the defence upon the credibility of the three eye -witnesses was the statement of a defence witness, Bhojraj, DW 1, who was found to be dishonest and untruthful by this Court. Other grounds advanced for disbelieving the three eye witnesses were also considered and rejected. It was then observed that two pieces of corroborative evidence could also be used to support the version given by the three eye witnesses. One of the two pieces of corroborative evidence relied upon was the above mentioned first information report which was, according to the contention of the learned Counsel for two of the Appellants, admissible Under Section 8 of the Evidence Act, although, according to the learned Counsel's contention, it could not be used for any purpose falling outside Sections 145 and 157 of the Evidence Act. These sections could not apply in this case as the maker of the F.I.R. had died long before the trial. The distinction between admissibility and use of a piece of evidence, sought to be made by the learned defence counsel, was not accepted as correct by this Court.
(3.) THE view taken by this Court was that, although, the F.I.R. was not admissible as a dying declaration, which is a piece of substantive evidence, yet, those parts of it were admissible which explained and were merged with the conduct of the victim in making the complaint to the police contained in the F.I.R. No direct authority was cited on this question by either side. Reliance was, however, placed on illustrations (j) and (k) to Section 8 of the Evidence Act for the view taken in this Court that the nature of the offence, the identity of the offenders and the time and place of the occurrence were so blended with the victim's conduct and were so necessary to explain it as to be parts of it.;