Reliability of dying declarations and corroborating evidence in establishing guilt under section 302 I.P.C.

Per: Rakesh Saksena,J.:-

Appellant has filed this appeal against the judgment dated 30th September, 1997 passed by II Additional Sessions Judge, Jabalpur in Sessions Trial No.254/1985 convicting him under section 302 I.P.C. and sentencing him to imprisonment for life.

2. In short, the facts of the case are that there had been enmity between acquitted accused Shyam Kesarwani and Shankerlal @ Bhola, the deceased. Appellant Sushil Yadav was the friend of Shyam Kesarwani. On 15.3.1985, at about 6:00 p.m., when deceased was sitting on his ration shop for selling sugar, appellant came armed with a knife and dealt its blow on his abdomen, back, hand and leg and ran away. Deceased believed that appellant assaulted him on the move of Shyam Kesarwani. Deceased was taken to police station Kotwali, Jabalpur where he lodged first information report Ex.P/12, thereafter he was shifted to Victoria Hospital for treatment.

3. Dr. Sheela Agrawal (PW-5) examined the injuries of injured Shankerlal and found four injuries on his body. The injuries were deep and bleeding.

4. On the requisition by police, G.P.Gonthiya, Tehsildar (PW-13) went to Victoria Hospital and recorded dying declaration Ex.P/10 of Shankerlal.

5. On 17.3.1985, at about 11:55, Shankerlal died. His dead body was sent for postmortem examination to Medical College, Jabalpur. Dr. T.Mohan (PW-17), demonstrator of Forensic Medicines Department conducted the postmortem examination and found six injuries on the body of deceased. The injuries were caused by some sharp pointed weapon. Injury on the abdomen was sufficient to cause death of deceased in the ordinary course of nature.

6. The case, after the death of deceased, was converted under section 302 of Indian Penal Code. During investigation, police arrested appellant on 23.3.1985 and on his information under section 27 of the Evidence Act recovered a knife from his possession. Though the said knife was sent to Forensic Science Laboratory, but no report was produced in the Court. After investigation, charge sheet was filed against six accused persons.

7. On charge being framed against the appellant under section 302 I.P.C. he pleaded false implication.

8. To substantiate its case, prosecution examined 17 witnesses. Appellant did not adduce any evidence in his defence. The eyewitnesses examined in the case though did not support the prosecution case, but relying on the evidence of dying declaration Ex.P/12, the F.I.R. lodged by the deceased and Ex.P/10, dying declaration recorded by Tehsildar, learned trial Judge held the appellant guilty and convicted and sentenced him under section 302 I.P.C. Finding the evidence insufficient against rest of other accused persons, learned Judge acquitted them of the charge under section 302 read with section 34 and section 109 I.P.C. Aggrieved by his conviction, appellant has filed this appeal.

9. Learned Senior Counsel Shri Surendra Singh submitted that in the absence of corroboration the evidence of dying declarations was not reliable or sufficient for holding the appellant guilty. None of the eyewitnesses supported the prosecution case. In the first information report and in the dying declaration Ex.P/10 recorded by Tehsildar, deceased merely named 'Sushil' without giving out the name of his father. Correct address of the assailant was also not given to fix the identity of the culprit. He submitted that in these circumstances trial Court committed error in convicting the appellant. In the alternative, learned Senior Counsel submitted that in the facts and circumstances of the case and in view of the nature of injuries found on the body of deceased, the conviction of appellant under section 302 I.P.C. was not justified. At the most the case against the appellant might fall under section 304 Part II I.P.C. Appellant had already served out the sentence of 5 years imprisonment. On the other hand, Amit Pandey, learned Panel Lawyer for the State submitted that the evidence of dying declarations adduced