A dying declaration can be sufficient for conviction without corroboration if it is found to be reliable.

JUDGEMENT

Das, j. :- The respondents have been acquitted of the charges under S.302/140 I.P.C. for committing murder of one Benia Domb of village Garuda Gachha on 5-2-1977 at about 7 P.M.

2. The prosecution case is that the deceased was rendering service as watchman in the neighbouring villages including Dindaraja. On 5-2-1977 at about 7 P.M. the deceased and the respondents gathered at the front pinda of respondent Pitabas and started discussing questions relating to disposal of hides of six buffaloes after the local festival. The deceased stated that he would take the hide on payment of Rs. 5/- whereas the respondents demanded Rs. 10/-. At that time the deceased as well as respondents were taking liquor. Suddenly a quarrel arose. The respondents, it is alleged, gave slaps, fist blows and kicks on the deceased. The deceased became unconscious. He was thereafter carried to a place called Nisanimunda Jholla and was placed on the side of the road. On the following morning, as the deceased did not return home, his brother P.W. 1 went in search of the deceased and found the deceased lying by the road side. The deceased was able to talk and told P.W. 1 that five of the respondents assaulted him on the previous night on account of quarrel relating to disposal of a piece of hide. The deceased was carried to his house. In the afternoon he died, P.W. 1 lodged F.I.R. in the Police Station. After investigation, chargesheet was submitted against the respondents.

The plea of the respondents is of denial.

3. The trial court has held that the deceased succumbed to the injuries sustained by him, especially the internal injuries found at the time of post-mortem examination. The only eye-witness examined in this case was P.W. 6. He has been disbelieved by the trial court on the ground that he did not disclose the occurrence before the investigating agency and for the first time he stated to have seen the occurrence in court only. Moreover he was not examined by the I. O. P.W. 9 while the I. O. had been to that village but long after the occurrence he has been examined. The only evidence before the trial court, therefore, was that there was dying declaration of the deceased before P.Ws. 1 and 3 to 5. The trial court disbelieving the dying declaration placed reliance on Ram Nath Madhoprasad v. State of Madhya Pradesh AIR 1953 SC 420 : (1953 Cri LJ 1772) where it has been held that corroboration was necessary in this case and for want of corroboration, conviction cannot be sustained only on the dying declaration. Therefore, the respondents were acquitted.

4. We are in agreement with the finding of the trial court that the deceased died of the injuries sustained by him on his abdomen and at his neck and the injuries were also antemortem in nature. We also agree with the reasonings given by the trial court for disbelieving the sole eye-witness P.W. 6. This witness is now working as a labourer of P.Ws. 1 and 2 and is admittedly on inimical terms with the respondents. This witness also did not state before the Investigating Officer to have seen the occurrence.

5. The trial court has held that the dying declaration should be corroborated by other evidence on record. In that it has relied on Ram Nath Madhoprasad v. State of Madhya Pradesh, AIR 1953 SC 420 : (1953 Cri LJ 1772). The principle laid down in the said Supreme Court case has been overruled by subsequent decisions of the Supreme Court. In AIR 1958 SC 22 : (1958 Cri LJ 106), Khushal Rao v. State of Bombay, it has been held that the observations of the Supreme Court in that case are in the nature of obiter dicta. It was argued before the Supreme Court that even if it is obiter dicta, it is binding on the courts in India. But the Supreme Court after discussing the principles for accepting the dying declaration did not agree with the principles laid down in AIR 1953 SC 420. Also in Kusa v. State of Orissa, AIR 1980 SC 559 : (1980 Cri LJ 408), a Bench of three Judges have held that the decision reported i