Full Judgment Text
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PETITIONER:
STATE OF ASSAM
Vs.
RESPONDENT:
MUHIM BARKATAKI & ANR.
DATE OF JUDGMENT20/10/1986
BENCH:
RAY, B.C. (J)
BENCH:
RAY, B.C. (J)
SEN, A.P. (J)
CITATION:
1987 AIR 98 1986 SCR (3)1038
1986 SCC (4) 439 JT 1986 664
1986 SCALE (2)607
ACT:
Indian Penal Code, 1860: ss. 34, 302 & 436-Offences
under-Dying declaration of deceased-Conviction of accused-
Validity of.
Evidence Act, 1872: s. 32-Dying declaration made before
witnesses while suffering severe pain from grievous burn
injuries-Whether truthful and reliable.
Criminal Procedure Code, 1973: s. 311-Police Officer-
Whether could be examined as court witness-Witness found
independent, disinterested, trustworthy and reliable.
HEADNOTE:
The prosecution alleged that the accused-respondents
set fire to deceased’s body and his shop after sprink ling
kerosene oil, that on seeing the fire P. Ws. 4, 5 and 6
rushed to the place and put off the fire from the body of
the deceased who had come out of the shop ablaze, and that
C.W. 1, the Assistant Sub-Inspector of Police, who was on
law and order duty also came to the place of occurrence
simultaneously and witnessed the incident. The deceased made
a dying declaration before these witnesses stating that the
said two accused had set fire to his body after pouring
kerosene. One of the accused was caught hold of by the
public red handed at the shop whereas the other accused fled
away. The Officer-in-charge of Police Station was informed
of the incident on the telephone. The deceased was removed
to the hospital where he later died. Cases of murder and
arson were thereafter registered against the accused. P.Ws.
4 and 6 made statements under s. 164 Cr. P.C. before the
Magistrate and deposed to the factum of dying declaration
made by the deceased implicating the accused.
The Sessions Court after considering the evidences of
P.W. 4 and C.W. 1 as well as the statements recorded under
s. 164 Cr. P.C. accepted the dying declaration made by the
deceased and convicted the accused under s. 302 read with s.
34 I.P.C. and sentenced them to
1039
rigorous imprisonment for life. They were further convicted
and sentenced under s. 436 read with s. 34 I.P.C.
The High Court on appeal, however, found that the
prosecution had failed to prove beyond doubt the offences
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for which the appellants were charged, that the entire
evidence in the case was circumstantial as there was no eye
witness to the occurrence, that the evidence of P.W. 4 as to
the dying declaration was wholly unreliable, and therefore,
set aside the conviction and sentence passed against the
accused.
The appeal by the State to this Court was opposed by
the accusedrespondents contending that there was no evidence
to show that the deceased made the dying declaration and
even if such a declaration has been made the same having not
been corroborated cannot be taken into consideration in
convicting them.
Allowing the Appeal, the Court,
^
HELD: The accused were rightly convicted by the
Sessions Court. The prosecution has proved beyond reasonable
doubt the charges framed against them. The order of
acquittal passed by the High Court is, therefore, liable to
be set aside. [1048G]
The dying declaration made by the deceased while he was
suffering severe pain from grievous injuries clearly
implicating the two accused persons as his assailants is
truthful and reliable. [1048E]
The eye witnesses, P. Ws. 4, 5 and 6 and C.W. 1 had
undoubtedly arrived at the place of occurrence immediately
on seeing the fire. They had seen that the shop was ablaze
and there was fire on the person of the deceased. Then there
is the specific evidence of P.W. 4 and C.W. 1 that the
deceased was crying a lot in pain due to burn injuries and
that he stated clearly that the accused persons poured
kerosene on him and set fire to his body. There are also the
statements of P.W. 4 and 6 made under s. 164 Cr. P.C. to the
effect that the deceased made a dying declaration. P.W. 2,
who held post mortem on the body of the deceased has stated
in his evidence that a person sustaining burn injuries of
such nature may have been conscious for some time before his
death. It cannot, therefore, be ruled out that the deceased
was conscious in spite of the burn injuries on his person
and he could speak and make dying declaration as testified
to by P.W. 4 and C.W. 1. [1046A-D; 1045E]
There is no infirmity in the action of the Sessions
Court treating
1040
C.W. 1 as a court witness. It has assigned cogent reasons as
to why P.W. 1 was examined as a court witness under the
provisions of s. 311 Cr. P.C. He has been found an
independent and disinterested witness, to be reliable and
trustworthy. He was an important witness of the case and his
examination was for the just decision of the case. His
evidence has full corroborations with another independent
and distinterested witness, P.W. 4, who was also found to be
trustworthy and reliable. The evidence of C.W. 1 cannot,
therefore, be underestimated merely because he was a police
officer. [1046E-G]
The Court of appeal has acted illegally in discarding
the evidence of P.W. 4 as well as his statement recorded
under s. 164 Cr. P.C. There is no criticism regarding the
evidence of this witness on behalf of the respondents as to
why his testimony regarding the dying declaration shall not
be taken into consideration. [1044H; 1045A-B]
There is also the testimony of P.W. 4 and C.W. 1 that
one of the accused was caught hold red handed at the spot
and was detained by the public while the other fled away
from the place of occurrence. [1043F-G]
All these lead to the only conclusion that the two
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accused persons poured kerosene in the shop as well as on
the deceased and set them on fire [1047C-D]
Ramnath Madho Prasad & Ors. v. State of Madhya Pradesh,
AIR 1953 SC 420; Khushal Rao v. State of Bombay, [1958] SCR
552; Kusa & Ors. v. State of Orissa, AIR 1980 SC 559 at 562
para 9; State of Assam v. Muaizuddin Ahmed, [1983] 2 SCC 14
at 19 para 10; and Jayaraj v. State of Tamil Nadu, AIR 1976
SC 1519 at 1522 para 16 referred to.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
271 of 1986
From the Judgment and Order dated 31.1. 1985 of the
Gauhati High Court in Cr. A. No. 66 of 1983.
S.K. Nandy for the Appellant.
R.K. Garg, Sunil K. Jain and Vijay Hansaria for the
Respondents.
The Judgment of the Court was delivered by
1041
B.C. Ray, J. This appeal by special leave is against
the judgment and order passed in Criminal Appeal No. 66 of
1983 by the High Court of Gauhati acquiting both the accused
respondents from the charges under Sec. 302 read with Sec.
34 I.P.C. as well as under Sec. 436 read with Sec. 34 of
Indian Penal Code, 1860.
The prosecution case in short is that on 2nd November,
1978 at about 7 p.m. two accused respondents Muhim Chandra
Barkataki and Dulu Dutta came together to the shop of Nagen
Dey since deceased and sprinkled and poured kerosine oil in
the shop as well as on the person of Nagen Dey and then set
fire. Immediately fire caught and spread over the shop as
well on the body of Nagen Dey. The shop was a Guliamal
(grocery) shop where rice, Dahl, soap, mustered oil,
kerosine oil, etc goods were sold and situate at Na-Ali Road
of Jorhat Town in front of M/s Baruah Printers. Nagen Dey
came out of the shop house with ablazing condition all over
his body. The witnesses Arun Barua, Prabin Barua and Kiron
Saikia on seeing the fire rushed to the place of occurrance
and put off the fire from the body of the Nagen Dey but
Nagen Dey suffered extensive burnt injuries all over his
body. Pradip Jyoti Sarma, Assistant Sub-Inspector of Police
also came to the place of occurrence a few minutes later and
he also witnessed the fire on the person of Nagen Dey as
well as in the shop of Nagen Dey. Prosecution case is,
further, that Nagen Dey made a dying declaration before the
witnesses stating that the two accused persons namely Muhim
Barkataki and Dulu Dutta set fire on his body after pouring
kerosine oil. It was also the prosecution case that both the
accused were found at the place of occurrence and public
caught hold of the accused Muhim Barkataki red handed at the
shop of occurrence whereas other accused Dulu Dutta fled
away. Injured Nagen Dey was immediately removed to Jorhat
Civil Hospital for treatment, but he died at the hospital.
Accused Muhim Barkataki was handed over to the Police by the
witness Pradip Joyti Sarma, Assistant Sub-Inspector of
Police. The information of the incident was received over
telephone message at 7.15 p.m. by the Officer-Incharge of
Jorhat Police Station who recorded an entry in the General
Diary being G.D. Entry No. 47 dated 2.11.1978 at 7.15 p.m.
The Town Sub-Inspector Sri P. Khatoniar was immediately
deputed to make local investigation on the spot. Sri P.
Khatoniar made enquiry and investigation locally at the
spot, arrested accused Muhim Barkataki at the spot and
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returned to police station. He then informed the facts of
occurrence to the Officer-incharge of the Police Station who
recorded the same under G.D. Entry No. 50 at 8.10 p.m. On
3rd November, 1978 at about 7 a.m. one Sri
1042
Montu Ch. Dey, nephew of deceased Nagen Dey lodged Ejahar
(Ext.5) with Jorhat Police Station. Thereafter murder and
arson cases have been registered against Muhim Barkataki and
Dulu Dutta. Investigation was carried on by Shri Prafulla
Kumar Khatoniar. The Investigation Officer forwarded
witnesses Arun Barua, and Kiran Saikia to the court for
recording their statements under Sec. 164 of the Criminal
Procedure Code. The Judicial Magistrate Shri Dharyya Saikia
recorded the statements of these two witnesses on 7.11.1978.
The Sessions Judge found that the message received over
telephone was an information relating to commission of
cognizable offence and same was entered into General Diary
of the Police Station as Entry No. 47. On the basis of this
information the investigation of the case was entrusted to
the Town Sub-Inspector Shri Prafulla Kumar Khatoniar with
the recording of General Diary Entry No. 47 and the
Investigating Officer fairly progressed with the
investigation in that very night. Subsequent information of
Montu Chandra Dey on 3rd November, 1978 are nothing but
statements during the course of investigation and as such
those are hit by Sec. 162 of the Criminal Procedure Code. It
has, therefore, been held that Exhibit 5 cannot be
recoganized as the First Information Report of the
occurrence. The General Diary Entry No. 47 which is proved
as Ext. 7(1), is the First Information Report of the
occurrence.
The Sessions Judge duly considered the evidences of
P.W. 4 Arun Barua and C.W. 1 Pradip Joyti Sarma as well as
the statements under Sec. 164 recorded by the Judicial
Magistrate, P.W. 8 on 7.11.1978 and accepted the dying
declaration made by the deceased Nagen Dey implicating the
accused Muhim Barkataki and Dulu Dutta as pouring kerosine
oil on his body and setting fire to his person. P.W. 6 Kiran
Saikia also stated in his statement under Sec. 164 of
Criminal Procedure Code before the Judicial Magistrate, that
Nagen Dey, deceased made a dying declaration that these two
accused persons sprinkled kerosine over the body of the
deceased Nagen Dey and then set fire to him. These witnesses
also proved that the accused Muhim Barkataki was caught hold
of red handed at the place of occurrence whereas Dulu Dutta
fled away from the place. The Sessions Judge, therefore,
convicted both the accused under sec. 302 read with Sec. 34
of the Indian Penal Code and sentence them to rigorous
imprisonment for life. The accused persons were further
convicted and sentenced under Sec. 436 read with Sec. 34 of
the Indian Penal Code and they were sentenced to suffer
rigorous imprisonment for 5 years each. Both the sentences
shall run concurrently.
1043
Against this judgment and order of conviction and
sentence the accused person preferred an appeal being
Criminal Appeal No. 66 of 1983 in the High Court of Gauhati.
The High Court proceeded on the footing that entire evidence
in the case was circumstantial as there was no eye witness
to the occurrence and the clinching circumstances in which
the case according to the prosecution is proved are the
circumstances relating to the dying declaration. The learned
Judges held that the evidence of P.W. 4 Arun Barua who
deposed to the dying declaration was wholly unreliable as
there was serious infirmity in his evidence as he disputed
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his statement made to the Police that the three persons used
to drink liquor and play cards which fact as we have
observed, is very material to cast a serious doubt on
prosecution version itself. The learned Judges therefore,
held that the prosecution failed to prove beyond doubt the
offences for which the appellants were charged. The
conviction and sentence passed against the accused persons
was set aside and the appeal was allowed.
There is no dispute that the shop of deceased Nagen Dey
situated by the side of Na-Ali Road was set on fire and fire
was also set on the person of Nagen Dey by pouring kerosine.
Eye witnesses P.W. 4-Arun Barua, P.W. 6-Kiran Saikia and
P.W. 5-Prabin Barua came to the place of occurrence
immediately on seeing the fire. It is also evident from the
evidence of P.W. 4 that he and Kiran Saikia who was in the
shop of P.W. 4 both came together at the place of occurrence
and they tried to put out the fire by throwing dust on the
body of Nagen Dey who was on fire by tearing off his dress
and Kiran Saikia put the clothing on the person of deceased
Nagen Dey. It is also in the evidences of P.W. 4 and C.W. 1
Pradip Joyti Sarma, Assistant Sub-Inspector, Police that the
deceased Nagen Dey made a dying declaration to the effect
that the accused persons Muhim Barkataki and Dulu Dutta
poured kerosine oil in his shop and sprinkled kerosine oil
on his person and then set on fire. It is also evident from
the depositions of P.W. 4 and C.W. 1 that the accused Muhim
Barkataki was caught hold red handed on the spot and he was
detained there by the public while Dulu Dutta fled away from
the place of occurrence. It is also evident from the G.D.
Entry No. 47 i.e., telephonic message received at the Jorhat
Police Station at about 7.15 p.m. on the date of occurrence
that the said two men set fire to the person of Nagen Dey,
deceased as well as to his Guliamal shop which is in front
of Baruah Printers after pouring kerosine oil. One of the
accused persons was caught hold of by local rija (public)
while it was informed that Shri P.K. Khatoniar was
investigating for local investigation after giving all
entries in the diary.
1044
This is proved by Investigation Officer P.W. 7 and marked as
Ext.7(1). It also appeared that immediately after the
enquiry and investigation into the incident the Town Sub-
Inspector Shri Khatoniar returned to the Police Station and
informed that Muhim Barkataki and Dulu Dutta entered in the
Guliamal shop of Nagen Dey which was in front of Barua
Printers of Na-Ali and poured kerosine oil kept in the shop
for sale and set fire on it and as a result the Guliamal
shop was burnt. Nagen Dey was the owner of the shop who also
was set on fire. It was also recorded in the G.D. Entry that
Muhim Barkataki who was caught hold of at the place by the
local people has been sent to the police station. This G.D.
Entry No. 50 was proved by P.W. 7 and it was marked as Ext.
7(2). It also appears that the witnesses P.W. 4-Arun Barua,
P.W. 5-Prabin Barua, P.W. 6-Kiran Saikia and C.W.1-Pradip
Joyti Sarma who was on duty on that Na-Ali locality at that
time arrived at the place of occurrence almost
simultaneously and all of them found Nagen Dey out of his
shop in a complete ablazing state all over his body. It also
appears from evidences of these three witnesses Arun Barua,
Kiran Saikia and Pradip Joyti Sarma that the injured Nagen
Dey was conscious and was crying out due to burning pain. It
was also their evidence that the deceased Nagen Dey made a
dying declaration at the place of occurrence implicating
accused Muhim Barkataki and Dulu Dutta as his assailants. It
is also evident from Exts. 3 and 4 that the Judicial
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Magistrate Shri Dharyya Saikia (P.W. 8) recorded the
statements of Arun Barua (P.W. 4) and Kiran Saikia (P.W. 6)
on 7.11.1978 under Sec. 164 of the Criminal Procedure Code
stating about the dying declaration made by the deceased
Nagen Dey implicating that Muhim Barkataki and Dulu Dutta
had set fire on him. P.W. 4 Arun Barua also in his evidence
clearly testifies to this dying declaration made by the
deceased Nagen Dey. Of course P.W. 6 Kiran Saikia tried to
contradict his statement made before the Police as well as
before the Judicial Magistrate as to the dying declaration
made by the deceased Nagen Dey. He admitted in his
examination-in-chief that he made a statement about this
incident before the Magistrate of Jorhat Court. Exhibit 4 is
his statement and Ext. 4 (2) is his signature. He further
stated that the Magistrate has recorded his statement. But
in cross-examination he contradicted himself by saying that
he was tutored by the police to say so before the
Magistrate. Even if his statement is not taken into
consideration there is a clear statement of P.W. 4 Arun
Barua before the Magistrate (Ext. 3) as well as his
deposition which clearly corroborates his statement before
the Magistrate about the dying declaration made by the
deceased implicating the two accused persons as his
assailants. The court of appeal below has acted
1045
illegally in discarding the evidence of P.W. 4 as well as
his statement recorded under Sec. 164 of the Criminal
Procedure Code by the Judicial Magistrate on the flimsy
ground that it was not reliable because he contradicted his
statement made before the Police that these three persons
(the two accused and the deceased Nagen Dey) used to take
liquor and play cards. Moreover C.W. 1 Pradip Jyoti Sarma
who came to the place of occurrence a few minutes after the
arrival of P.W. 4 and P.W. 6 at the place of occurrence has
stated in his evidence that he saw the body of the deceased
under fire and the deceased is crying out of burnt pain. He
implicated in his dying declaration that Muhim Barkataki and
Dulu Dutta had set fire on his person after pouring kerosine
oil on him. He also stated that at the place of occurrence
he found that the accused Muhim Barkataki was caught by the
public and he was being assaulted. He further stated that to
save Muhim Barkataki from assultant he handed him over to
the Police Constable who was with him. He also deposed that
Nagen Dey has sense and he was speaking. There was no cross-
examination of this witness as to the dying declaration made
by the deceased. This witness further stated that he came to
the Thana in the night and told the inspector about the
incident. He also stated that he did not know whether O.C.
recorded this in the General Diary or not. P.W. 2 Dr.
Jibakanta Borah who hold post-mortum on the body of the
deceased has stated in his evidence that a person sustaining
burnt injuries of such nature may have consciousness for
some time before death. It cannot, therefore, be ruled out
that the deceased Nagen Dey was conscious in spite of the
severe burnt injuries on his person and he could speak and
could make dying declaration as testified to by the
witnesses P.W. 4, and C.W. 1. It has been tried to be urged
before us by the learned counsel on behalf of the
respondents that there is no evidence to show that the
deceased Nagen Dey made a dying declaration as has been
alleged as the General Diary Entry was not produced to show
such statement of C.W. 1 about the dying declaration
recorded therein. Moreover even if such a dying declaration
has been made the same being not corroborated cannot be
taken into consideration by the court in convicting the
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accused respondents. It has been further submitted that the
court of appeal below rightly discarded the alleged dying
declaration as being not corroborated by any other evidence
and duly acquitted the accused persons.
We have considered and appraised thoroughly the
evidence on record and on an overall assessment of the same,
we hold that the prosecution has proved beyond reasonable
doubt, the charges framed
1046
against them. The order of acquittal passed by the High
Court is liable to be set aside for the reasons stated here
after. Firstly, eye witnesses P.Ws. 4, 5, 6 and C.W. 1
undoubtedly arrived at the place of occurrence immediately
on seeing the fire in the grocery shop of the deceased Nagen
Dey at about 7 p.m. on 2.11.1978. All these witnesses have
seen that the shop is ablaze and there is fire on the person
of Nagen Dey. It is also the specific evidence of P.W. 4
Arun Barua and C.W. 1 Pradip Jyoti Sarma, A.S.I. at Jorhat
Police Reserve deputed by the Jorhat Thana at Jorhat Town in
law and order duty on that day. All these eye witnesses P.W.
4 and C.W. 1 also stated that Nagen Dey was crying a lot in
pain out of burnt injuries and he stated clearly that the
accused persons Muhim Barkataki and Dulu Dutta poured
kerosine oil on him and set fire on his body. So far as
depositions of P.W. 4 and C.W. 1 are considered there is no
cross-examination on this point. Further more, P.W. 4 and
P.W. 6 made statements Exts. 3 and 4 under Sec. 164 of
Criminal Procedure Code before the Chief Judicial Magistrate
of Jorhat (P.W. 8) to the effect that the deceased Nagen Dey
made a dying declaration implicating the accused persons as
his assailants. This recording of the statements of P.W. 4
and P.W. 6 was proved by the deposition of the Addl. Chief
Judicial Magistrate at Jorhat, Shri Dharyya Saikia (P.W. 8).
Of course, P.W. 6 Kiran Saikia tried to contradict his
statement made before the Chief Judicial Magistrate. As
regards the evidence of C.W. 1 it has been tried to be
contended that his statement before the O.C. of the Police
Station that the deceased made a dying declaration cannot be
accepted as there is nothing to show that this was recorded
in the G.D. Entry. This statement cannot be accepted
inasmuch as the learned Sessions Judge has assigned cogent
reasons as to why Pradip Jyoti Sarma was examined as a court
witness under the provisions of Sec. 311 of the Code of
Criminal Procedure. It has been clearly found that Shri
Sarma was an independent and disinterested witness and he
was found to be reliable and trustworthy. It has been also
found that Shri Pradip Jyoti Sarma is an important witness
of the case and his examination was for the just decision of
the case and his evidence has full corroboration with
another independent and disinterested witness namely Arun
Barua who is also found to be trustworthy and reliable
witness. The evidence of Shri Pradip Jyoti Sarma cannot be
under-estimated merely because he is a police officer. The
Sessions Judge also stated in his order that the reasons for
examining him as a court witness had been elaborately
recorded in the order-sheet dated 17.2.1982 and 22.3.1983.
Therefore, considering this finding of the Sessions Judge we
hold that there is no infirmity in the findings of the
Sessions Judge in treating Pradip Jyoti
1047
Sarma as a court witness under the provisions of Sec. 311 of
the Code of Criminal Procedure. There is no criticism
regarding the evidence of P.W. 4 on behalf of the
respondents as to why his testimony regarding the dying
declaration shall not be taken into consideration apart from
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the evidence of C.W. 1 Pradip Jyoti Sarma. Moreover it is
evident from Exts. 3 and 4, the statements of P.Ws. 4 and 6
recorded under Sec. 164 of the Code of Criminal Procedure by
the Addl. Judicial Magistrate, Jorhat on 7.11.1978 that
these two witnesses P.Ws. 4 and 6 clearly stated about the
dying declaration made by Nagen Dey implicating both the
accused as his assailants. Along with this testimony of P.W.
4 and C.W. 1 that Muhim Barkataki was caught hold red handed
on the spot and was detained by the public while Dullu Dutta
fled away from the place of occurrence. All these clearly go
to prove the prosecution case beyond any reasonable doubt
and it leads to the only conclusion that these two accused
persons poured kerosine oil in the shop as well as sprinkled
kerosine oil on him and set fire on the deceased as well as
to the shop. It has been tried to be contended that the
dying declaration as referred to by P.W. 4 in his deposition
has not been corroborated by any independent witness and as
such the same cannot be relied upon in convicting the
accused. In support of this submission reference has been
made to the decision reported in Ramnath Madho Prasad & Ors.
v. State of Madhya Pradesh, A.I.R. 1953 S.C. 420 wherein it
has been observed:
"It is settled law that it is not safe to convict
and accused merely on the evidence furnished by a
dying declaration without further corroboration
because such a statement is not made on oath and
is not subject to cross-examination and because
the maker of it might be mentally and physically
in a state of confusion and might be well drawing
upon his imagination while he was making the
declaration. It is in this light that the
different dying declaration made by the deceased
and sought to be proved in the case have to be
considered."
This observation has been overruled being in the nature of
obiter dicta by this Court in a subsequent decision in
Khushal Rao v. State of Bombay, [1958] S.C.R. 552. The same
view was taken by this Court in the case of Kusa & Ors. v.
State of Orissa, A.I.R. 1980 S.C. 559 at 562 para 9. It is
pertinent to refer to the observation of this Court on this
point made in State of Assam v. Muaizuddin Ahmed, [1983] 2
S.C.C. 14 at 19 para 10 which are in the following terms:
1048
"Thus, the law is now well settled that there can
be conviction on the basis of dying declaration
and it is not at all necessary to have a
corroboration provided the court is satisfied that
the dying declaration is a truthful dying
declaration and not vitiated in any other manner."
It has been observed by this Court in Jayarajl v. State of
Tamil Nadu, A.I.R. 1976 S.C. 1519 at 522 para 16 which
reads:
"When the deponent (while making his dying
declaration) was in severe bodily pain (because of
stab injuries in the abdoman) and words were
scare, his natural impulse would be to tell the
Magistrate, without wasting his breath on details
as to who stabed him. The very brevity of the
dying declaration, in the circumstances of the
case, far from being a suspicious circumstance,
was an index of its being true and free from the
taint of tutoring, more so when the substratum of
the dying declaration was fully consistent with
the occular account given by the eyewitness."
In the instant case we have carefully considered the
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evidences of P.W. 4 as well as of C.W. 1 and we are clearly
of the opinion that the deceased Nagen Dey made the dying
declaration in question clearly implicating the two accused
persons as his assailants. The dying declaration made by the
deceased while he was suffering severe pain from grievous
injuries is truthful and reliable. Therefore, on an overall
as sessment of evidences recorded particularly the evidence
of P.W. 4 and C.W. 1 and also the statements recorded under
Sec. 164 of Criminal Procedure Code Exts. 6 and 4, we find
that the charges under Sec. 382/34 and Sec. 436/34 of the
Indian Penal Code, 1860 has been proved by the prosecution
beyond reasonable doubt against the two accused persons.
They were rightly convicted by the Sessions Judge and
sentence to rigorous imprisonment for life under Sec. 302/34
I.P.C. and also to rigorous imprisonment for 5 years under
Sec. 436/34 of the Indian Penal Code. Both the sentences
will run concurrently. The judgment and order of acquittal
passed by the High Court is hereby set aside and the
judgment and order of conviction and sentence awarded by the
Sessions Judge is hereby affirmed. Let warrant of arrest
issue forthwith against the accused for serving out the
sentence.
P.S.S. Appeal allowed.
1049