Important Point
When a person who has made a statement may be in expectation of death is not dead it is not a dying declaration and is not admissible under Section 32 of the Evidence Act.

Headnote:Indian Penal Code, 1860—Section 302 read with Sections 109 and 150—Criminal Procedure Code, 1973—Sections 162, 164 and 151—Indian Evidence Act, 1872—Sections 32 and 157—All assailants way laid ‘A’ who was on pillion seat of scooter ridden by his brother (PW 1)—Launched massive on slaught on them with deadly weapons—Both injured moved to Hospital—Dying declaration of both recorded by Judicial Magistrate—‘A’ succumbed to injuries—PW 1 discharged from hospital—All ten accused arrested—A-8 gave confessional statement to CJM—Pardon tendered — Made approver — Four convicted by Trial Court—All rest acquitted—Appeal by State—During pendency of appeal A-2 died—Appeal abated against him—Division Bench of High Court—Confirmed acquittal of A-9 and conviction and sentence on four accused —Reversed acquittal of A-1 and A-4 —Convicted them under Section 302 read with Sections 109 and 115 IPC—Sentenced them to imprisonment for life on main offence and lesser terms of imprisonment for lesser offences — Appeal—Conviction of A-1 cannot be upheld as testimony of PW 2 against him remained uncorroborated — Evidence of PW 2 implicating A-4 with murder can be accepted as true—Appeals filed by A-5, A-6, A-7 and A-10 dismissed—Appeal of A-1 allowed—His conviction and sentence set aside—Conviction and sentence passed by High Court on A-4 confirmed.
       Held : The aforesaid evidence of PW 3 is a further item to lend assurance regarding the involvement of A.4-Ram Prasad in the murder case. Of course, this was not counted by the High Court but that does not matter much. We are now at the question as to what extent the evidence of PW 2-Anil Chaudhary can be acted on. We feel assured from the circumstances enumerated above that the evidence of PW 2 in so far as he implicated A.4-Ram Prasad with this murder can be accepted as true. (Para 30)
       In the result the appeals filed by A.5-Baba Swami, A.6-Anil Motiram Dhote, A.7-Raju Galhot and A.10-Pramod Motiram Ingale are dismissed. But we allow the appeal filed by A.1-Gopal Maharaj, and set aside the conviction and sentence passed on him by the High Court. His bail bond will stand discharged. However, we confirm the conviction and sentence passed by the High Court on A.4-Ram Prasad Yadao and dismiss his appeal. We direct the Sessions Judge, Amaravati to take prompt and necessary steps to put him in jail for undergoing the remaining portion of the sentence. (Para 32)
       (ii) Indian Evidence Act, 1872—Section 32—Dying declaration recorded by Judicial Magistrate—Person who gave statement not dead—Cannot be used as evidence under Section 32 of the Act—As long as maker of statement alive it would remain in the realm of statement recorded during investigation. (Para 14)
       (iii) Testimony of accomplice—It would be imprudent to base conviction on testimony of accomplice unless corroborated in material particulars. (Para 19)
       Result : Order accordingly.

JUDGMENT

Thomas, J.—These appeals relate to a case of mercenary killing. Though the principal target of the killers was one Ram Kishore Somani @ Ramu they could kill only his younger brother Ashok Somani, who, per chance was with his elder brother then, due to his jinxed destiny. Nevertheless they succeeded in brutally mangling the targeted person inflicting a lot of injuries on him, some of them near fatal. As he survived such injuries he appeared in the trial Court to tell the tale.

2. If the story is true, the intrigue was hatched, ironically at the precincts of a court of law and its finale was staged on a public road near the Employment Exchange Office at Amravati (Maharashtra). Ten persons, in all, were charge-sheeted by the police in connection with the said case, out of which one Anil Chaudhary (PW 2) was granted pardon as he turned an approver. Four of the remaining alone were convicted and all the rest were acquitted by the trial Court. The State appealed against the acquittal and the convicted accused appealed against their conviction and sentence. During the pendency of the appeal A.2—Ram Kishore Yadao - the kingpin - died and the appeal as against him got abated.

3. A Division Bench of the High Court of Bombay (Nagpur Bench) confirmed the acquittal of A.9-Rajendra and also the conviction and sentence passed on the four accused. But the High Court reversed the acquittal of A.1-Gopal Maharaj and A.4-Ram Prasad Yadao and they too were convicted under Section 302 IPC read with Sections 109 and 150 IPC and also to a few other lesser offences. They were sentenced to imprisonment for life on the main offence, and to lesser terms of imprisonment for the lesser offences.

4. A synopsis of the case is this : Ram Kishore Somani @ Ramu Somani (PW 1) and his brother Ashok Somani (deceased) were doing cloth business at Amravati. A.1-Gopal Maharaj contested as a candidate for the Municipal election in 1986 from the same Ward in which PW 1-Ramu Somani also contested as a candidate. The contest burgeoned ill-feeling which, by course of time, snowballed into deep-rooted rancour and it escalated to its zenith when he decided to go forward for the liquidation of his rival Ram Somani. He sought the assistance of A.2-Ram Kishore Yadao who was leader of a gangster-gang. As A.2-Ram Kishore Yadao was already in jail in connection with a criminal case, A.1-Gopal Maharaj went to the court of the Judicial Magistrate of First Class (Amravati) where A.2-Ram Kishore Yadao was expected to be produced from jail in connection with that criminal case. A.1-Gopal Maharaj impressed upon A.2-Ram Kishore Yadao that it was PW 1 who made all efforts to see that A.2 was not enlarged on bail. He then requested A.2 to liquidate PW 1-Ramu Somani. However, he cautioned PW 1 that it was not easy to finish him off since he was always guarded and was constantly moving around escorted by bodyguards. A.1-Gopal Maharaj suggested to liquidate the bodyguards also so that there would be no eye-witness to speak the murder.

5. The above talk was again repeated on 10.12.1987 at the same place. The only addition then was the presence of A.4-Ram Prasad Yadao who is the brother of A.2-Ram Kishore Yadao. A.4-Ram Prasad Yadao told his henchmen-gangsters to do the needful and offered himself to be arrested in the meanwhile in connection with some petty case, so that no penumbra of suspecian would fall on A.2 and A.4. It was thought that, as the mercenaries are unacquainted to the targeted persons, the operation of killing can be carried out without much risk.

6. A.2 and A.4 wanted their henchmen to liquidate Ramu Somani. On 12.12.1986, A.4-Ram Prasad Yadao managed to get himself arrested on some petty case concocted at his instance. But A.4-Ram Prasad Yadao exhibited his anxiety as to why Ramu Somani was not killed even after A.4 got himself behind the bar. He threatened his henchmen with another murder, should the assignment for Ramu Somani’s liquidation was not implemented

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Important Point When a person who has made a statement may be in expectation of death is not dead it is not a dying declaration and is not admissible under Section 32 of the Evidence Act.

Cases Referred (1)

Important Point
When a person who has made a statement may be in expectation of death is not dead it is not a dying declaration and is not admissible under Section 32 of the Evidence Act.