A dying declaration, though relevant and material evidence, must be subjected to close scrutiny, and if found to be unreliable in part, cannot form the sole basis of conviction without further corroboration.

Judgment

BACHAWAT, J.: Thurukanni Pompiah, Siddaiah, Singapurada Hussaini and Nitravatti Rudramuni were charged under S. 302 of the Indian Penal Code with the offence of murdering Ullegadde Eranna on September 29, 1961 at about 11 A. M. on the road from Kampli to Shanapur at a distance of about a mile. The Sessions Judge, Bellary convicted all of them of an offence under S. 325/34 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for three years. All the four accused as also the State preferred separate appeals. The High Court allowed the appeals of Siddaiah and Rudramuni, set aside their conviction and sentence and acquitted them. The appeals of Pompiah and Hussaini were dismissed. The appeal by the State was allowed in part, the conviction of Pompiah and Hussaini was altered into one under S. 326/34 of the Indian Penal Code, and in lieu of the sentence imposed by the Sessions Judge, they were sentenced to undergo rigorous imprisonment for a period of four years. Pompiah and Hussaini now appeal to this Court by special leave.

2. Deceased Eranna was a resident of village Tekkalakota in Sirugappa Taluk, Bellary District. Eranna and Pompiah were great friends. Pompiah had a mistress named Shankaramma. Taking advantage of this friendship, Eranna used to visit Pompiah s house, an in the course of such visits, developed intimacy with Shankaramma. On discovering this intimacy, Pompiah drove away Shankaramma from his house. Subsequently, Eranna kept Shankaramms as his mistress. This woman was the cause of strained relationship between Eranna and Pompiah. Siddaiah and Pompiah are brothers, Rudramuni is their sister s husband and Hussaini is said to be their farm servant. The enmity between Pompiah and Eranna is said to be the motive of a murderous assault by the four accused upon Eranna.

3. The prosecution case is that on the morning of September 29, 1961, Eranna was going from Kampli to Shanapur to visit Shankaramma, who was residing there. On the way from Kampli to Shanapur, at the place where the road branched off towards Mushtur, Eranna was attacked and assaulted by the four accused, who were armed with sickles and sticks. Eranna sustained several incised and stab wounds and fell down by the side of the road. Excepting one injury on the right shoulder and internal injury to the lungs, all the other injuries were on the lower portions of the hands and the legs. Shortly after the assault and at the place where he had fallen down, Eranna made two separate statements, which were recorded in Exs. P-2 and P-1(a). Later, he was removed to the hospital at Kampli, and there at about 12-15 P. M. he made a declaration, which is recorded in Ex. P-9. He died in the hospital on the same day at about 2-30 P. M. Death was due to shock and haemorrhage as a result of the injuries.

4. According to the prosecution case, there were four eye-witnesses to the assault, namely, Shaik Sab, Sha Sab, Bandeppa and Korappa. The High Court rejected the evidence of these witnesses, and decided the case on the footing that there were no eye-witnesses of the assault.

5. The High Court believed the prosecution case with regard to Exs. P-2, P-1(a) and P-9. Both Exs. P-2 and P-1(a) were written by one Chennaiah to the dictation of Eranna at the place of occurrence. Exhibit P-2 was written in the presence of one Tippanna, and is in the form of a note addressed to Veerabhadrappa, a brother-in-law of Eranna. By Ex. P-2, Veerabhadrappa was requested to come to Kampli immediately, and it was stated that while Eranna was going to Shanapur from Kampli, Pompiah and Hussaini and some others of the village of Eranna came on the way and cut his legs and hands with sickle and axe. Exhibit P-2 did not mention the names of Siddaiah and Rudramuni. At Eranna s request, Tippanna took Ex. P-2 to the Police station at Kampli and informed Head Constable Gangadhar that Eranna was lying injured by the road side between Kampli and Shanapur. Immediately after Ex. P-2 w