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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