IMPORTANT POINTS
1. If persons are known to each other, from the manner of walk, talking and peculiar features of gait identification is possible even when the occurrence took place at night.
2. The dying declaration is only a piece of untested evidence and must like any other evidence, satisfy the Court that what is stated therein is the unalloyed truth and that it is absolutely safe to act upon it.

Headnote:(i) Evidence Act, 1872 — Section 32 — Dying declaration — Conviction based on — Sustainability — Principles governing dying declaration — Dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness — Indian Penal Code, 1860 — Section 302.
       Held : Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of deceased was not as a result of either tutoring, or prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. This Court has laid down in several judgments the principles governing dying declaration (Para 11)
       The dying declaration is only a piece of untested evidence and must like any other evidence, satisfy the Court that what is stated therein is the unalloyed truth and that it is absolutely safe to act upon it. If after careful scrutiny the Court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it basis of conviction, even if there is no corroboration. (Para 12)
       (ii) Indian Penal Code, 1860 — Sections 299, 300, 302, 304-I — Nature of offence — Dying declaration — Accused and deceased known to each other — In the night at about 2 a.m. when deceased was sleeping in his house, accused allegedly inflicted a blow on his head by ‘Gandasi’ and also inflicted injuries on his hand — Another accused also inflicted injuries on his legs and then both the accused ran away — Injured was examined in the night itself at about 3 a.m. and he succumbed to the injuries at about 7 a.m. — Trial Court convicted appellant for offence u/s 302 IPC on basis of dying declaration made by deceased — Dying declaration was treated as the first FIR when the investigation was taken — Whether conviction of appellant based on dying declaration is sustainable — (Yes) — Whether identification of accused would have been possible considering that the occurrence took place at night — (Yes) — Accused and deceased were well known to each other — Whether conviction of appellant for offence u/s 302 IPC is sustainable — (No) — Appropriate conviction would be under Section 304 Part I, IPC.
       Held : Though the occurrence took place at night, the existence of light, however, feeble has been established. The accused and deceased were well known to each other. So identification by deceased, since he was seeing him from close quarters, is possible. If persons are known to each other, from the manner of walk, talking and peculiar features of gait identification is possible. The courts below have rightly held that deceased could have easily identified the accused persons. (Para 26)
       Considering the fact that the occurrence took place in the night in almost dark conditions with feeble light and attack was made indiscriminately, the appropriate conviction would be under Section 304 Part I, IPC. Custodial sentence of 10 years would meet the ends of justice. (Para 27)

JUDGMENT

Dr. Arijit Pasayat, J. — Leave granted.

2. In this appeal judgment of a Division Bench of the Rajasthan High Court is the subject matter of challenge. The appellant was found guilty of offence punishable under Section 302 of the Indian Penal Code, 1860 (in short the ‘IPC’), while the co-accused Laxmi Narain was found guilty of offence punishable under Section 302 read with Section 34 IPC. Each of the accused was sentenced to undergo imprisonment for life and to pay a fine of Rs.1,000/- each with default stipulation. The trial Court’s judgment of conviction & sentence was maintained.

3. Background facts in a nutshell are as under:

4. On 22.8.1998 a ‘Parcha Bayan’ (Ex.P20) of injured Heeralal (hereinafter referred to as the ‘deceased’) was recorded by the SHO, Police Station, Chechat, Distt. Kota, wherein it was stated that accused appellant Sunderlal told him as to why he has been abused. He told him that he should remove the stones. Subsequently in the night at about 2 a.m. when he was sleeping in his house, accused Sunderlal inflicted a blow on his head by ‘Gandasi’ with the intention to kill him and also inflicted injuries on his hand. He also stated that accused Laxmi Narain also inflicted injuries on his legs. When he cried Chaturbhuj, Deva, Rameshwar came but both the accused appellants ran away. On the basis of this ‘Parcha Bayan’ Police registered a case for offences under Sections 448, 307, 323 and 34 IPC. Subsequently, FIR No.125/1998 (Ex.P.22) was registered on 22.8.1998 itself. The injured was examined in the night itself at about 3 a.m. at Primary Health Centre, Chechat by Dr. Girish Chand (PW-1). The injured succumbed to the injuries at about 7 a.m. His post-mortem was conducted on 22.8.1998 itself by Dr. Ashok Mundara (P.W.22). The I.O. prepared the site plan and recorded the statements of the prosecution witnesses under Section 161 of the Code of Criminal Procedure, 1973 (in short the ‘Code’) The accused persons were arrested and on the basis of their information, the weapons i.e. gandasi and lathi were recovered. After death of Heera Lal the case was converted for offence punishable under Section 302 IPC. After completion of the investigation, the police filed a challan against both the accused appellants. The case was committed and the trial Court framed the charges against the accused appellant Sunderlal for offence under Section 302 IPC and appellant Laxmi Narain for offence under Section 302 read with Section 34 IPC. Both the accused denied the charges and claimed to be tried.

5. The trial Court found the evidence to be cogent and credible. The dying declaration was found to be reliable. The High Court found the judgment of the trial Court to be in order and dismissed the appeal.

6. In support of the appeal, learned counsel for the appellants submitted that the High Court should not have placed reliance on the so called dying declaration. The same was not worthy of acceptance. Additionally, when the recovery has been disbelieved, the conviction solely on the highly improbable dying declaration should not have been made. Alternatively, it was submitted that offence under Section 302 IPC has not been made out.

7. In response, learned counsel for the respondent-State supported the order of the courts below.

8. The dying declaration was recorded at 3.45 a.m. on 22.8.1998. It was categorically stated that he was sleeping in the night. The appellant came and assaulted him on his head with the gandasi with the intention of killing him and the co-accused Laxmi Narain inflicted injuries on his legs. The dying declaration was treated as the first FIR when the investigation was taken.

9. At this juncture, it is relevant to take note of Section 32 of the Indian Evidence Act, 1872 (in short ‘Evidence Act’) which deals with cases in which statement of relevant fact by person who is dead or cannot be found, etc. is relevant. The general rule is that all oral evidence must be direct viz., if it refers to a fact

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2007 Supreme(SC) 665

Cases Referred (24)