P L D 1966 Dacca 400 (PLP)

Whether the deceased had full physical capacity to make the declaration attributed to him, also appears to us to be of some doubt in the light of what we have already stated on the subject. As stated before, the medical evidence certifying retention of the power of speech does not mean retention of the full sense by the deceased. The wound was a very deadly wound leading to the omentum protruding out by 4 long. In such a state, it would not be unreasonable to think that there was complete loss of mental equilibrium. It is also doubtful whether in such circumstances the witnesses could have heard him correctly. As regards the question whether he had opportunity to recognise the appellant, it has already been held that the occur rence took place an hour if not more, after sunset. An hour after, sunset, as stated before, would mean full darkness, particularly, in the month of February. We, therefore, find that the deceased had no opportunity of recognising the appellant however close a relation he might have been. Before we conclude, we feel it necessary to refer to some of the decisions cited by the learned Deputy Legal Remembrancer in support of his contention that when the dying statement is clear as to the name and identity of the assailant, no corrobora tion by other evidence or even by circumstances was called for. Firstly, even assuming that the principle is correct, in the facts of this case, as stated already, we are not convinced as to the identity of the appellant. In support of the principle the learned Deputy Legal Remembrancer referred to the following decisions:‑ (1) Amjad Ali v. The Crown 7 D L R 346. (2) Khushal Rao v. State of Bombay A I R 1958 S C 22. (3) Abdul Sattar v. The State of Mysore A I R 1956 S C 168. (4) The State v. Md. Khalilur Rahman 9 D L R 327. (5) Shahbaz and another v. The Crown P L D 1955 Lah. 65. (6) In re : Garuswami Tevar and others A I R 1940 Mad.

196. The learned Deputy Legal Remembrancer referred to the lines as under: 7 D L R 346: The lines of the 7 D L R relied upon are these: "There is no rule of law that a dying declaration must be corroborated before it can be acted upon." It is true that those lines occur there; but then the decision, it appears, laid particular stress upon surrounding circumstances. The relevant lines are:‑‑ "Lastly, there is the question whether the learned Sessions Judge should have cautioned the Jury as to whether any corroboration was necessary in respect of this dying declara tion. Of course, there is no rule of law that a dying declaration must be corroborated before it can be acted upon. Dying declarations are admitted into evidence on the principle of necessity for, in case of secret murders the only evidence often available is the statement of the victim; but dying declaration can be made the basis of conviction only when the Jury are satisfied beyond all shadow of doubt that the men who made the declaration had a good opportunity of recognising his assailant, that he did recognise the assailant, and that he was telling the truth. In this view, all the surrounding facts and circumstances of the case and all the arguments for and against the accused should be placed before the Jury so that they Might have an opportunity to assess the situation correctly. It is entirely within the province of the Jury to believe such statement or not. In my opinion, they should be adequately cautioned as to whether it will be prudent in the particular circumstances of a particular case to act upon such statement. The learned Sessions Judge has not directed the Jury on the above particulars and so there has been a miscarriage of justice. Instead of directing the Jury on the above points, the quota. tions given above would rather, indicate that the learned Sessions Judge was giving a direction to the Jury for acceptance of the said evidence." It appears the learned Judges went to the length of saying that failing to refer to the surrounding circumstances in address ing the Jury, would amount to miscarriage of justice. A I R 1958 S C 22 : The paragraph referred to is paragraph 16 of the same. Para. 16: "On a review of the relevant provisions of the Evidence Act and of the decided cases in the different High Courts in India and in this Court, we have come to the conclu sion, in agreement with the opinion of the Full Bench of the Madras High Court, aforesaid: (1) that it cannot be laid down as an absolute rule of law that a dying declaration cannot from the sole basis of conviction unless it is corroborated; (2) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; (3) that it cannot be laid down as a general proposition that a dying declaration is a weeker kind of evidence than other pieces of evidence: (4) that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; (5) that a dying declaration which has been recorded by a competent magistrate in the proper manner, that is to say, in the form of questions and answers, and as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character, and (6) that in order to test the reliability of a dying declaration, the Court has to keep in view, the circumstances like the opportunity of the dying man for observation, for example, whether there was suffi cient light if the crime was committed at night; whether the capa city of the man to remember the facts stated, had not been im paired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties." It is true that on a review of the different decided cases the Supreme Court of India came to the conclusion that it could not be laid down as an absolute rule of law that a dying declaration could not form the sole basis of conviction unless it was corroborated. Now, that case, unlike the instant case, the dying declaration relied upon was recorded by as many as three public servants and the circumstance of absconsion was also taken into account and further the facts of that case show that the oral dying statements made to a number of ordinary persons as here was not given any importance at all. Here, all the successive statements are oral, not recorded and made to ordinary folk; so that the principle of that decision and the background in which the dying statement in that case was accepted, does 'not carry the prosecution very far. A I R 1956 S C 168 : The head-note of this decision reads as under:

"In a murder case, in the dying declaration, even though the same was incomplete by reason of the deceased not being able to answer further questions in his then condition, the statements so far as they went to implicate the accused in the affair were quite categoric in character and they definitely indicated that it was the accused who had shot the deceased There was also corroboration for the dying declaration. Held that the statement in regard to the accused having shot the deceased was complete in itself and it could not be said that any further questions would have elicited any information which would run counter to the same. Under the circum stances, the dying declaration, though incomplete otherwise, was complete so far as the accused having shot the deceased was concerned and could certainly be relied upon by the prosecution. The corroboration of the dying declaration invested it with a stamp‑of truth which went a long way towards inculpating the accused." The very headnote indicates that there teas corroboration for the dying declaration and it was because of the corroboration that an otherwise incomplete statement was accepted as the basis for conviction. Examination of the facts of the case reveals that various extraneous circumstantial features were considered before accept ing the incomplete dying statement. The accused in that case was seen at about 7‑30 P.M. at the shop of P. W. 10 and at 8 P.M. he was seen moving towards the flour mill of the deceased by P. W.

16. He was further seen peeping into the mill premises at about 9 P.M. by P. W.

12. Besides this evidence in regard to the movements of the accused at or near the place of the incident, there was the evidence of Range Gowda, P. W. 20, who was in the company of the deceased till he reached his own house and who stated that he, all of a sudden, heard the report of a gun shot followed by the cry of the deceased "Sattar shot me off." So, there were sufficient evidence and circumstances in that case which we have not in the present case. 9 D L R 327 : That is not exactly a case on the point and its examination reveals that an otherwise unsatisfactory dying statement was accepted by reason of its tallying with certain external circumstances. In that case there was corroboration of the dying statement in the shape of several severe scratches on the face of the assailant who was sitting right near the dying man in the Railway compartment where the murder took place. P L D 1955 Lah.65 : It was held in this decision that a dying declaration is a valuable piece of evidence and if it is free from suspicion and believed to be true it may be sufficient for conviction. Examination of the decision reveals that in that case there was the direct evidence of r. Ws. 6, 7, 8, and

9. Some of them testified to having seen the occurrence itself. In the facts of that case, the decision does not seem to us to have raised the value of the dying declaration, although it has been held that a dying declaration is a valuable piece of evidence if it is free from suspicion and believed to be true. Being "free from suspicion and believed to be true" bring in so many other things for consideration. So that it cannot be said that the dying declara tion by itself carried the day. A I R 1940 Mad. 196 : This is the high water‑mark of the learned Deputy Legal Remembrancer's decisions. In this case there was no eye‑witness at all to support the dying statement but the headnote itself is clear, namely, "after taking everything into consideration". The headnote of the decision is as under:‑ "There may not be corroboration of the nature contemplated by S. 157 or matters provable under S. 158, and the only direct evidence may be a statement by the deceased made admissible under S.

32. It does not however necessarily follow that this evidence is insufficient to support a conviction. In such a case the surrounding circumstances will have an important bearing. If the evidence of an accomplice is tainted the Court may under S. 114, presume, that he is unworthy of credit unless corroborated, but a dying declaration is on a much higher plane and the Act places no restriction on its acceptance. It is not possible to lay down any hard and fast rule when a dying declaration should be accepted, beyond saying that each case must be decided in the light of the other facts and the surrounding circumstances, but if the Court after taking every thing into consideration, is convinced that the statement is true, it is its duty to convict, notwithstanding that there is no corro boration in the true sense. The Court must of course be fully convinced of the truth of the statement and naturally it cannot be fully convinced if there is anything in the other evidence or in the surrounding circumstances to raise suspicion as to its credibility." The question of law that arose in that case was whether on the statements of a deceased person uncorroborated by any other testimony except as to the number of the assailants, the appellants could be convicted of murder. The question had been referred to the Full Bench presided over by Leach C. J. and after examina tion of the conflicting authorities, the learned Chief Justice observed as under:‑ "In my judgment it is not possible to lay down any hard and fast rule when a dying declaration should be accepted, beyond saying that each case must be decided in the light of the other facts and the surrounding circumstances, but if the Court, after taking everything into consideration, is convinced that the statement is true, it is its duty to convict, notwith standing that there is no, corroboration in the true sense. The Court must, of course, be fully convinced of the truth of the statement and naturally it could not be fully convinced if there were anything in the other evidence or in the surrounding circumstances to raise suspicion as to its credibility. I would answer the reference in this sense." The facts of that case show that it was sunrise when the attack was made. So, there was no question of poor visibility. The victim was stabbed in 38 places which must have taken some time, so that be had ample opportunity to see who were the persons who were stabbing him. The above review thus shows that though in theory conviction can be' based on the dying declaration alone yet it has always been the practice to look for external support to the dying declaration. The statement has to pass through the hurdle of tests which necessarily calls in external evidence and circumstances. In the result and considering all the circumstances, we allow the appeal and reject the Reference. We set aside the conviction and sentence of the appellant and acquit him of the charge against him. We direct that he be set at liberty forthwith, if not wanted in any other connection. A. SOBHAN CHOUDHURI, J.‑I agree. K. B. A. Appeal accepted.