STATE OF ASSAM v. MUHIM BARKATAKI

A B ###### c STATE OF ASSAM _v._ MUHIM BARKATAKI & ANR. OCTOBER 20, 1986 [A.P. SEN AND B.C. RAY, JJ.] _Indian Penal Code,_ _1860:_ _ss._ _34,_ _302_ _&_ _436-0ffences .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._ D _Criminal Procedure Code,_ _1973:_ _s._ _311-Police_ _Officer-_ _Whether could be examined as_ _court witness-Witness found indepen-_ _dent, disinterested, trustworthy and reliable._ I i ##### \ E F G The prosecution alleged that the accused-respondents set ftre to deceased's body and his shop after sprinkling kerosene oil, that on seeing the ftre P. Ws. 4, S and 6 rushed to the place and put off the ftre from the body of the deceased who had come out of the shop ablaze, and that C. W. I, 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 tbe said two accused had set ftre 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 aud 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 rec11rded under s. 164 Cr. P.C. accepted the dying declaration made by the deceased and convicted the H accused under s. 302 read with s. 34 I.P.C. and sentenced them to 1038 _, " -{ STA TE OF ASSAM _v._ MU HIM BARKAT AKI 1039 rigorous imprisonment for life. They were further convicted and sentenced nnder s. 436 read withs. 34 I.P.C. The High Court on appeal, however, found that the prosecution had failed to prove beyond doubt the offences 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 agaiust them. The order of acquittal passed by the High Court is, therefore, liable to be set aside. [ 1048G I A B #### c D The dying declaration made by the deceased while he was suffer ing severe pain from grievous in.iuries clearly implicating the two . E accused persons as his assailants is truthful and reliable. [ 1048E] The eye witnesses, P. Ws. 4, 5 and 6 and C. W. I 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 deceas_ed. Then there is the specific evidence of P. W. 4 and C. W. I 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. I. [1046A-D; 1045E) There is no infirmity in the action of th~ Sessions Court treating G H A B 1040 SUPREME COURT REPORTS [1986] 3 S.C.R. 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. I 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 C 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 oonsideration. I 1044H; 1045A-B I _D_ E F G H There is also the testimony of P. W. 4 and C. W. I that one of the accused was caught hold red handed at the spot and was detained by the public while the other !led away from the place of occurrence. I 1043F-G J All these lead to the only conclusion that the two accused persons poured kerosene in the shop as well as on the deceased and set them on fire. I I047C-D] _..J,_ _Ramnath Madhn 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 r 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. --( CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 27 I 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 STATE OF ASSAMy. MUHIMBARKATAKI (RAY,J.J 1041 ' **B.C. Ray, J.** This appeal by sp~cial leave is against the judgment A 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. 34oflndian Penal Code, 1860. B The prosecution case in short is that on 2hd November, 1978 at about 7 p.m. two accused respondents Muhim Chandra Barkataki and ~ Oulu Dutta came together to the shop of Nagen Dey since deceased and sp1ihkled 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 ##### ~7 a Guliamal (grocery) shop where rice, Dahl, soap, mu'stered oil, . spread over the shop as well on the body of Nagen Dey. The shop was ###### a Guliamal (grocery) shop where rice, Dahl, soap, mu'stered oil, c 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 a blazing condition all ov~ his body. The witnesses _-(_ Arnn Barna, Prabin Barna and Kiron Saikia on seeing the fire rushed to the place of occurrance and put off the fire from the body of the· D 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 N agen Dey made a dying decla_;._ ration before the witnesses stating that the two accused persons E namely Muhim Barkataki and Oulu 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 Oulu Dutta fled away. InjuredNagen Dey was immediately removed to Jorhat Civil Hospital for treatment, but he died at the hospital. Accused Muhim Barkataki was handed over to ## **_t_** whereas other accused Oulu Dutta fled away. InjuredNagen Dey was immediately removed to Jorhat Civil Hospital for treatment, but he F died at the hospital. Accused Muhim Barkataki was handed over to ## **_t_** the Police by the witness Pradip Joyti Sarrna, 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 G 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 returned to police station. He then informed the facts of occurrence to the Officer-in~ charge 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 H 1042 SUPREME COURT REPORTS (1986) 3 S.C.R. Montu Ch. Dey, nephew of deceased Nagen Dey lodged Ejahar (Ext. A 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 B 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 ###### -~ ### c 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 D 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 th_e First Information Report of the occurrence. ... E 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 Oulu Dutta as pouring kerosine oil on his body and setting fire to his person. P. W. -~ F 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 "'o" 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 G 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 tl>e Indian Penal Code and they were sentenced to suffer rigorous imprisonment for 5 years H each. Both the sentences shall run concurrently. STAIBOFASSAMv. MUHIMBARKATAKI (RAY,J.] 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 ·ease 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 Arnn Barna who deposed to the dying declaration was wholly unreliable as there was serious infirmity in his evidence as he disputed 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 ag~st 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 Barna, P.W. 6--Kiran Saikia and P.W. 5-Prabin Barna 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 SubInspector, Police that the deceased N agen Dey made a dying declaration to the effect that the accused persons Muhim Barkataki and Oulu 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 Barkatakiwas caught hold red handed on the spot and he was detained there by the public while Oulu 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. A B ###### c D E F G H 1044 SUPREME COURT REPORTS [1986] 3S.C.R. A This is proved by Iqvestigation 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 Oulu Dutta entered in the Guliamal shop of N agen Dey which was in front B ### c D E F G H of Barna 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. 4Arun Barna, P.W. 5-Prabin Barna, 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 Barna, 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 Oulu Dutta as his assailants. It is also evident frotn Exts. 3 and 4 that the Judicial Magistrate Shri Dharyya Saikia (P.W. 8) recorded the statements of Arun Barna (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 Oulu Dutta had set fire on him. · P.W. 4 Arun Barna also in his evidence clearly testifies to this dying declaration made by the deceased Na{t:n 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 take'.! into consideration there is a clear statement of P.W. 4 Arun Barna 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 STATE OF ASSAM _v._ MUHIM BARKATAKI [RAY, l.] 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 Oulu 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 ~nd 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 ornot. P.W. 2 Dr. JibakantaBorah 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 dyii)g 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 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 A B ###### c D E F G H 1046 SUPREME COURT REPORTS [1986] 3 S.C.R. A against them. The order of acquittal passed by the Higb 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 isfire on the person of Nagen B 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 ### c ' on him and set fire on [accused persons Muhim Barkataki and Oulu Dutta poured kerosine oil ] crying a lot in pain out of burnt injuries and he stated clearly that the his body. So far as depositions of P.W. 4 and -,._.,.. I I 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 MagisIrate of Jorhat (P. W. 8) to the effect that the deceased Nagen Dey ~· made a dying declaration implicating the accused persons as his assailD ants. This recording of the statements of P.W. 4 and P.W. 6 was proved by the deposition of the Addi. 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 con tended that his statement before the O.C. of the Police Station that the ~ E deceased made a dying declaration cannot be accepted as there is nothing to show that this was recorded in the G.D. Entry. This statemen! cannot be accepted inasmuch as the learned Sessions Judge has assigned cogent reasons as to why Pradip Jyoti Sanna was examined as )loo. a court witness under the provisions of Sec. 311 of the Code of Crimi nal Procedure. It has been clearly found that Shri Sanna was an in- ·-( F dependent and disinterested witness and he was found to be reliable ' and trustworthy. It has been also found that Shri Pradip Jyoti Sanna is an important witness of the case and his examination was for the just ~ decision of the case and his evidence has full corroboration wit!) another independent and disinterested witness namely Arun Barua who is also found to be trustworthy and reliable witness. The evidence G of Shri Pradip Jyoti Sanna cannot be under-estimated merely because he is a pnlice 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 H A B ### c D E F G H ).. STATE OF _ASSAMv._ MUHIMBARKATAKI [RAY,J.) 1047. Sanna 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 the evidence of C. W. 1 Pradip Jyoti Sanna. 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 Addi. Judicial Magistrate, Jorhat on 7.11.1978 that these two witnesses P.Ws. 4and 6 clearly stated about the dying declaration made by N agen 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.LR. 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 !=ourt 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 ofOrissa,_ A.LR. 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: A. B ###### c D E F G 1048 SUPREME COURT REPORTS [1986) 3 S.C.R. 'Thus. the law is now well settled that there can be conviction on the basis of dying decla(ation and it is not at all necessary to have a corroboration provided the court is satisfied that the dying declaration is a truthful dying decla-· ration and not vitiated in any other manner." It has been observed by this Court in _Jayarajl_ v. _State of Tamil Nadu,_ A.LR. 1976 S.C. 1519 at 522 para 16 which reads: "When the deponent (while making his dying declaration) was in ~evere 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 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 decla ration made by the deceased while he was suffering severe pain from grievous injuries is truthful and reliable. Therefore, on an overall assessment 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. ) ### i )