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CASE NO.: Appeal (crl.)  677 of 2002

PETITIONER: State of Rajasthan

RESPONDENT: Wakteng

DATE OF JUDGMENT: 07/06/2007

BENCH: Dr. ARIJIT PASAYAT & D.K. JAIN

JUDGMENT: J U D G M E N T

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  default stipulation.   

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.

3.      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

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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 framed.

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 noted above.

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

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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 different.  

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  dismissed.