The admissibility and acceptance of a dying declaration should be based on the surrounding circumstances and the court's conviction of its truth, rather than a strict requirement for corroboration.

Alfred Henry Lionel Leach, C.J.

1. In order to appreciate the question which has been referred, it is necessary to state certain of the facts. The appellants have been convicted of murder. The first, second and fourth appellants have been sentenced to death and the third and fifth appellants to transportation for life. Between 5 and 6 oclock On the morning of the 31st March, 1939, one Nammalwar Naicker was attacked by a band of men and received 38 injuries from which he died shortly after midnight. As the result of his cries three persons who were in the vicinity were attracted to the spot where the deceased was lying. They had not seen the assault, but they said that they had seen rive persons running away. When these witnesses reached the deceased, he told them that he had been attacked by five men and gave their names and the names of their fathers. The names given were the names of the five appellants. One of these witnesses went and called the deceaseds brother-in-law and another person, both of whom also gave evidence. These two witnesses went to the spot and the deceased informed them that the appellants were his assailants. The Village Munsif was called to the scene of the crime at about 8 A.M. and recorded a statement made by the deceased. In that statement also the deceased implicated the appellants. The deceased was removed to the Hospital at Ettiyapuram and at about 2-30 P.M. his dying declaration was recorded by a Magistrate. In that statement the deceased again said that his assailants were the appellants. It was proved that there was enmity between the deceased and the appellants, who are of the Marava caste, but they were not the only members of that caste with whom he was at enmity. The question of law which arises is whether on the statements of a deceased person of the nature of those indicated without other testimony, except as to the number of the assailants, the appellants can be convicted of murder. The question has been referred to a Full Bench because the judgments of two Division Benches of this Court are in conflict. Neither of these judgments has been reported.

2. The first of the two cases which have given rise to this reference is Crl. App. No. 653 of 1935 which was decided by Beasley, C.J. and Gentle, J. The judgment was delivered by Gentle, J., who after quoting from Taylor on Evidence and referring to Emperor v. Akbarali Karimbhai (1935) M.W.N. 1089, In re Dab-bukota and six others (1905) 2 Weir 753 and Gula Ella Reddi v. King-Emperor I.L.R.(1933) 58 Bom. 31, observed:

Whilst the contents of a dying declaration can be relied upon as evidence for the prosecution, in the absence of any corroboration of its contents, it is clear from the authorities and text books that it is dangerous, imprudent and opposed to practice to do so, even when ho justifiable criticisms can be levelled against the declaration.

3. The judgment which is in conflict is the judgment in R.T. No. 112 of 1937, which was delivered by Burn, J., and in which I concurred. In that case, there was no corroboration of a dying declaration, but the facts were such that my learned brother and I had no hesitation in accepting it as reliable evidence and upheld the conviction of the accused. The question at issue has been fully argued before this Full Bench and I am unable to accept the observations which I have just quoted from the judgment of Gentle, J., as correctly stating the position. With great respect I regard the statement as being far too wide.

4. Section 32 of the Indian Evidence Act says that statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in certain specified cases. The first case specified is when the statement is made by a person as to the