2007 Supreme(SC) 884

2007(5) Supreme 183
Supreme Court of India
(From Rajasthan High Court)
Dr. Arijit Pasayat & D.K. Jain, JJ.
State of Rajasthan — Petitioner
versus
Wakteng — Respondent
Appeal (crl.) 677 of 2002
Decided on : 07-06-2007
Counsel for the Parties :
For the Appellant : Naveen Kumar Singh, Mukul Sood and Aruneshwar Gupta, Advocates.

Important POINTS
If the dying declaration is recorded by an investigating officer the same can be relied upon if the evidence of the prosecution witness is clearly established beyond reasonable doubt that the deceased was conscious and he was removed to the hospital and he was in a fit state of health to make the statement.
Though conviction can be raised solely on the dying declaration without any corroboration the same should not be suffering from any infirmity – Once the Court is satisfied that the dying declaration is true and voluntary it is sufficient for the purpose of conviction.

Headnote:Code of Criminal Procedure, 1973 – Section 161 – Dying declaration – Trial Court holding the alleged dying declaration to be neither dying declaration nor a statement u/s 161 of the Code because the thumb impression of the deceased was affixed on it – The High Court concurred that the same cannot be called to be a dying declaration and cannot be made the basis of conviction – Merely because a statement is recorded by a police personnel and the thumb impression of the deceased was affixed it cannot straightaway be rejected. (Paras 8 and 11)

       Code of Criminal Procedure, 1973 – Section 161 – Dying declaration – If the dying declaration is recorded by an investigating officer the same can be relied upon if the evidence of the prosecution witness is clearly established beyond reasonable doubt that the deceased was conscious and he was removed to the hospital and he was in a fit state of health to make the statement – In the instant case, the position appears to be different. (Para 12)

       Indian Penal Code, 1860 – Section 302 – Though conviction can be raised solely on the dying declaration without any corroboration the same should not be suffering from any infirmity – Once the Court is satisfied that the dying declaration is true and voluntary it is sufficient for the purpose of conviction – In view of the occurrence taking place on 8.6.1988, the deceased dying on 25.6.1988 and the declaration recorded on 10.6.1988 and absence of any explanation as to why the Magistrate could not be called to state why certificate of his fitness and state of health and condition of the deceased could not be procured at the time of recording; the High Court has rightly held that the prosecution has failed to establish the accusations against the respondent. (Paras 14, 15 and 18)

       Code of criminal procedure, 1973 – Section 313 – In view of the sword not having been sent to Forensic Laboratory and no question in that regard asked to the accused while examining him u/s 313; the issue becomes irrelevant. (Para 17)

       Facts of the case :

       On 8.6.1988 Thanu (‘deceased’) along with three accused persons in the night, went to well of accused-respondent Wakteng in order to capture tribals stealing away forest wood. They also drank ‘mahudi’, a local wine, and thereafter, accused Wakteng stated to deceased that he used to frighten village people, and therefore, he shall be taught a lesson today and brought a sword, concealed in the well and inflicted a blow on his neck. When deceased Thanu started running, he was chased by Dhuliya and Lalu and thereafter, Dhuliya took sword from Wakteng and inflicted second blow on neck of the deceased, upon which he fell down unconscious.

        This factual narration is found in Ex.P-1O, alleged dying declaration, recorded by Abhey Singh Bhati, SHO, (PW-7) in Surgical Ward of Government Hospital, Banswara on 10th June, 1988 two days after the occurrence.

        The FIR Ex.P-11 was lodged by Naveneet Lal (PW-4) on the basis of injuries seen on the person of Thanu, who was unconscious till then and was not able to speak and therefore, neither any narration of the crime is mentioned in it nor name of assailants. An offence under Sec.307, IPC was registered on the basis of Ex.P-11 and the deceased was admitted in the hospital where his injuries were examined and he was given treatment and his dying declaration (Ex.P-10) was recorded.

       Subsequently, Thanu died on 25.6.1988 and, therefore, offence was converted to one under Section 302 IPC. On the basis of Ex.P-10, all the accused persons were put under arrest on 11th June, 1988 vide memos Ex.P-12 to P-14. A discloser statement Ex.P-15 under Section 27 of the Indian Evidence Act, 1872 (in short the ‘Evidence Act’) as given by Dhuliya at 08:00 AM on 2nd June, 1988 by which he wanted to recover ‘myan’ and ‘sword’ used in the crime and on the same day, in the presence of attesting witnesses, Bhika (PW5) and Chamna, vide Ex.P-7 Dhuliya made ‘sword’ along with ‘myan’ recovered from his residential house, which was seized and sealed then and there. A site plan Ex P-8 was also prepared of the place of recovery. On completion of investigation charge sheet was filed and charges were framed.

       The trial Court relied on two circumstances to convict the accused persons; (i) the dying declaration purported to have been made and (ii) the recovery of the sword. The High Court directed acquittal.

       Findings of the Court:

       In view of the inconsistency in evidence of witnesses and in absence of any explanation or evidence as to why a Magistrate was not called to record the statement claimed to be dying declaration despite there being ample time, the alleged dying declaration is neither a dying declaration nor it can be relied upon for conviction.

       In view of the sword not having been sent to Forensic Laboratory and no question in that regard asked to the accused while examining him u/s 313; the issue becomes irrelevant.