Dr. Arijit Pasayat, J
1. Challenge in this appeal is to
the judgment of a Division Bench of the Rajasthan High Court directing
acquittal of the respondent. Respondent alongwith two others faced trial
for alleged commission of offences punishable under Section 302 read
with Section 34 of the Indian Penal Code, 1860 (in short the 'IPC'). The
respondent in addition was also convicted for offence punishable under
Section 326 read with Section 34 IPC and Section 324 read with Section
34 IPC. Life sentence of two years rigorous imprisonment and six months
rigorous imprisonment were respectively imposed alongwith fine with
2. The learned Additional Sessions
Judge, Bansabara convicted all the three accused persons but two other
accused did not prefer any appeal while the respondent preferred an
appeal against his conviction and sentence imposed. In appeal, High
Court set aside conviction and directed acquittal.
Background facts in a nutshell
are as follows:
On 8.6.1988 Thanu (hereinafter referred to as '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.
4. 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.
5. 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, as stated above.
6. 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
7. Accused persons denied
accusations and claimed trial. Seven witnesses were examined to further
the prosecution version. 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. Because of the conviction
and sentence imposed by the trial Court, an appeal had been filed as
8. Before the High Court it was
submitted that the dying declaration Exb.P-10 was open to grave doubt.
It cannot be treated as a dying declaration as the same was neither in
question answer form nor was there any endorsement of fitness of the
deceased given. On the other hand, the State supported the order of
conviction. The High Court noticed that the dying declaration was not
recorded in question answer form and it was not written as a dying
declaration. Further, the trial Court held that Exb.P-10 was neither
dying declaration nor a statement under Section 161 of the Code of
Criminal Procedure, 1973 (in short the 'Code') because the thumb
impression of the deceased was affixed on it. The trial Court held that
it has been recorded in course of investigation and therefore it was
admissible in evidence. The High Court found that Exb.P-10 cannot be
called to be a dying declaration and cannot be made the basis of
conviction. It also doubted the recovery of the sword as claimed.
Accordingly, evidence of the prosecution witnesses was held to be
unworthy of credence and therefore acquittal is directed.
9. In support of the appeal, learned
counsel for the appellant submitted that the dying declaration is a
vital piece of evidence and the High Court should not have lightly
brushed it aside. It was stated that merely because condition of the
deceased to make a statement was not noted in the dying declaration that
cannot be a ground to outright reject the same.
10. If Exb.P-10 does not come in the
category of dying declaration it cannot be made the basis of conviction.
There is no other provision under which a signed statement before the
police can be admissible into evidence even if it discloses in detail
the prosecution story.
11. Merely because a statement is
recorded by a police personnel and the thumb impression of the deceased
was affixed it cannot straightaway be rejected. (See
State of Rajasthan v. Teja Ram (1999 (3)
SCC 507), Rajik Ram v. Jaswant Singh Chauhan
(AIR 1975 SC 667) and famous Tahsildar's
case, Tahsildar Singh v. State of U.P.
(AIR 1959 SC 1012)
12. In Paras
Yadav and Ors. v. State of Bihar (1999 (2) SCC 126) it was held
that the statement of a deceased recorded by a police officer in a
routine manner as a complaint and not as a dying declaration can be
taken as a dying declaration after the death of the injured if he was
found to be in a fit state of health to make a statement. 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
13. Navneet Lal (PW-4) claimed to
have gone to the site where the deceased was lying injured and unable to
speak. He was sent to the hospital for treatment, Banswara and
simultaneously Exb.P-11 was lodged. Two days thereafter in the surgical
ward of the government hospital, Banswara Exb.P-10 was purportedly
recorded by Abhey Singh Bhati (PW-7) without finding out whether the
deceased was in a fit state of mind and health to give dying
declaration. Significantly, the doctor Bajrang Singh (PW-3) stated that
he does not remember at what time Exb.P-10 was recorded and he does not
know whether the deceased was in a fit condition to give a statement and
he also did not know in which language the deceased replied to the
questions put to him.
14. Though conviction can be raised
solely on the dying declaration without any corroboration the same
should not be suffering from any infirmity.
15. While great solemnity and
sanctity is attached to the words of dying man because a person on the
verge of death is not likely to tell lie or to concoct a case so as to
implicate an innocent person but the Court has to be careful to ensure
that the statement was not the result of either tutoring, prompting or a
product of the imagination. It is, therefore, essential that the Court
must be satisfied that the deceased was in a fit state of mind to make
the statement, had clear capacity to observe and identify the assailant
and that he was making the statement without any influence or rancor.
Once the Court is satisfied that the dying declaration is true and
voluntary it is sufficient for the purpose of conviction.
16. One other factor is of great
importance. The occurrence took place on 8.6.1988 and the deceased
breathed his last on 25.6.1988. Exb.P-10 was recorded on 10.6.1988. No
evidence was forthcoming 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 Exb.P-10.
17. So far as recovery of the sword
is concerned, the same was not sent for any examination by the Forensic
Science Laboratory and the report if any was not exhibited and even no
question in that regard was put to the accused while he was examined
under Section 313 of the Code.
18. Above being the position, the
High Court has rightly held that the prosecution has failed to establish
the accusations against the respondent. The appeal sans merit and is
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