IMPORTANT POINT
Where oral dying declarations were allegedly made to brother of the deceased, though several other persons were present at the time of declarations but none of the disinterested person was examined, it was held that the dying declarations could not be relied upon.

Headnote:(i) Indian Evidence Act, 1872-Section 32-Dying declaration-Oral dying declaration-Reliability of-Two alleged oral dying declarations-First, in ambulance van to brother of deceased and second to another brother in hospital-Several other persons present at both occasions-Disinterested person who were present not examined-No reason given for non-examination-Further, in FIR lodged no mention made about alleged dying declaration to informant-Alleged dying declarations could not be relied upon.
       Held : An oral dying declaration no doubt can form the basis of conviction, though the Courts seek for corroboration as a rule of prudence. But before the said declaration can be acted upon, the Court must be satisfied about the truthfulness of the same and that the said declaration was made by the deceased while he was in a fit condition to make the statement. The dying declaration has to be taken as a whole and the witness who deposes about such oral declaration to him must pass the scrutiny of reliability. (Para 3)
       Where the trial Court based on alleged two dying declaration made to the brothers of deceased one while in the ambulance vane and another at hospital convicted the accused to life sentence, but at both the occasions while the deceased was said to have made the declarations several other disinterested persons were present, the prosecution had not examined none of the disinterested witness and further one of the persons to whom the dying declaration was made who lodged FIR did not mention about the dying declaration made to him and further there was material difference between two dying declarations, it was held that it was unsafe to rely upon the dying declarations and therefore conviction could not be sustained in the absence of any other evidence. (Paras 3 & 4)
       (ii) Indian Penal Code, 1860-Section 302 r/w Section 32 of the Indian Evidence Act-Murder-Conviction on basis of oral dying declarations-Legality of-Alleged dying declarations made to brothers of deceased-Several other persons present when alleged declarations were made-No disinterested persons examined nor no reason given for non-examination-In FIR lodged by one of the persons to whom dying declaration was made no motion made about dying declaration-Difference between two dying declarations-Dying declarations unreliable-No other evidence to inculpate accused-Conviction set aside. (Paras 3 & 4)

JUDGMENT

Pattanaik, J.-The appellant has been convicted under Section 302/34 IPC along with the absconding accused, Yamlesmba Paka Singh and has been sentenced to imprisonment for life for having committed the murder of one Kangujam Hera Singh by the learned Additional Sessions Judge and the said conviction and sentence has been upheld in appeal by the Imphal Bench of the Gauhati High Court in Criminal Appeal No. 62 of 1987. The prosecution case in nutshell is that the deceased was a Lecturer of Standard College, Kongba. On 11.4.84, the students did not turn up and the deceased, therefore, spent some time in the College with one of his colleague, PW 8 and at 9.00 a.m. both of them left the College on a bicycle and reached the crossing between Imphal Yairipok road leading to Unchekon. At that point of time, three persons suddenly emerged who were armed with hockey sticks and thang and started assaulting the deceased. The deceased raised alarm and the assailants after giving blows ran away. The deceased was then removed to the nearby house of a Doctor, one Toijam Ibotomba Singh who has been examined as a Court witness, CW 1 who gave the first aid and the Doctor then left for District Hospital, Imphal telling the injured that he would send the ambulance van very soon. CW 1 arranged for an ambulance and sent to his house for bringing the injured. PW 8 had come to the injured while he was getting the first aid in the house of CW 1 and then seeing the injured left for his house. On the way, PW 8 met another Lecturer, L. Chandra Singh and narrated the incident to him. The said L. Chandra Singh reached the house of the deceased at 11.00 a.m. and told the wife of the deceased about the occurrence whereafter the wife of the deceased proceeded to the house of PW 2 who is the elder brother of the deceased. PW 2 then came in a jeep to the place of occurrence and on the way saw the ambulance which was meant for carrying the injured to the hospital. The ambulance van was then stopped and PW 2 seeing his brother went with him to the hospital. The further prosecution case is that on the way to the hospital in the ambulance, PW 2 made a query and the deceased told him that the present appellant and one accused. Yamlamba Paka Singh and another person assaulted him with lathis. When the injured reached the District hospital, Imphal, there was no seat available in the hospital and, therefore, he was taken to the Regional Medical College Hospital wherein the injured was admitted. After getting the initial treatment from PW 11, the Medical Officer attached to the Casualty Department, he was removed to his bed and was treated as an indoor patient. In the hospital, the other brother of the deceased, PW 5 inquired from the deceased and came to know from him that he has been assaulted by the appellant, the absconding accused, Y. Paka Singh and another person. PW 5 went to the police station and lodged the complaint which was treated as an FIR , Exh. P5. On the basis of the said FIR, the police registered the case and started investigation. On completion of investigation, charge-sheet was filed for the offence as already stated and on being committed the accused stood his trial. The deceased, Hera Singh died in the hospital at 10.20 p.m. on 12th of April, 1986. On the basis of the evidence of the Doctor, PW 11 whp had examined the deceased in the Casualty Department, the evidence of Doctor, PW 6 who conducted the postmortem examination on the dead body of the deceased as well as the evidence of Court Witness No. 1, the Doctor who examined the deceased in his house and gave the first aid, the learned Sessions Judge came to the conclusion that the deceased met a homicidal death and the injuries on his person were antemortem in nature. The said conclusion has been upheld in appeal and has not been assailed before us. The sole eye witness, PW 8 could not identify the accused persons including the appellant to be the assailant of the deceased and as such his

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1999 Supreme(SC) 1201

IMPORTANT POINTWhere oral dying declarations were allegedly made to brother of the deceased, though several other persons were present at the time of declarations but none of the disinterested person was examined, it was held that the dying declarations could not be relied upon.

IMPORTANT POINT
Where oral dying declarations were allegedly made to brother of the deceased, though several other persons were present at the time of declarations but none of the disinterested person was examined, it was held that the dying declarations could not be relied upon.