FAZAL ALI, J. Five & Ors. v. State of Bombay(') where the Court observed as follows : ·'On a & Ors.

This dying declaration, however, was rejected both by the Sessions Judge and the High Court Md it is not necessary for ns to refer to this part of the evidence. Even the oral dying declaration said to have been mrule by the deceased to P.Ws. 1 and 2 and others also has not been accepted either by the Sessions Judge or by the High Court. The accused pleaded innocence and averred that they had been falsely implicated due to enmity. Thus it would appear that the con viction of the accused depends entirely on the reliability of the dying declaration Ext. P-2. The dying declaration is undoubtedly admissible under s. 32 of the Evidence Act and not being a statement on oath so that its truth could be tested by cross-examination, the Courts have to apply the strictest scrutiny and the closest circumspection to the state menl before acting upon it. While great solemnity 1tnd sanctity is at tached to the words of a dying man because a person on the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person yet the Court has to be on guard against the statement of the deceased being 'a result of either tutoring, prompting or a product of h1s imagination.

The Court must be satisfied that the deceased was i1n a lit state of mind to make the statement after the deceased had a clear opportunity to observe anct identify his assaifants and that he was making the statement without any influence or rancour. Once the Court is satisfied that the dying declaration is true and voluntary it can be sufficient to found the conviction even without any further corrobora tion. The law on the subject has been clearly and explicitly enunciated 37-833 Sup Cl/76 A B c D E F H • • (· • ' ' • .\ A B c D F G H 54 6 SUPREME COURT REPORTS [1976] SUPPLEMENTARY by this Court in Khushal Rao v. State of Bombay(') where the Court observed as follows : ·'On a review of the relevant provisions ofl the Evidence Act and of the decided cases in the different High Courts in India and in this Court, we have come to the conclusion, :ill agreement with the opinion of the Full Bench of the Madras High Court, aforesaid, (I) that it cannot be laid down as an absolute rule of law th•at a dying declaration ca\1not form 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 propositim1 that a dying declaration is a weaker 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 judg ed i,1 the light of surrounding circumstances and with re ference 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, ih 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 dyi•ag man for observation, for example, whether there was sufficient light if the crime was committed at night; whether facts stated had the capacity of the man to remember the not been that the statement, by circumstances beyond his control; if he had statement has been consistent several opportunities of making a dying declaration apart from the official record of it; 11nd that the statement had bee!Jl made at the earliest opportunity and was not the result of tutoring by interested parties. impaired at the time he was making throughout Hence, in order to pass the test of reliability, a dying de claration has to be subjected to a very close scrutiny, keeping m view the fact that the statement has been made in the absence of the accused who had '10 opportunity of testing tlte veracity of the statement by cross-examination.

" The abo'e observations made by this Court were fully endorsed by a Bench of five Judges of this Court in Harbans Singh and Another v. State of Punjab( 2 ). In a recent decision of this Court in Tapinder Singh v. State of Punjab (3 ), relying upon the earlier decision above, this Court observed as follows : referred (1) [1958]S.C.R. 552. (2) [1962] Supp. (l) S.C.R. 104. (3) [1971] 1 S.C.R. 599. • , , K. R. REDDY I'. PUBLIC PROSECUTOR (Fazal Ali, J.) 547 "It is true that a dying declaration is not a deposition in court and it is neither made on oath 'nor in the presence of the accused. It is, therefore, not tested by cross-examination on behalf of the accused. But •a dying declaration is admitted in evidence by way of an exception to the general rule against the admissibility of hearsay evidence, on the principle of •necessity. The weak points of a dying declaration just men tioned merely serve to put the court on its guard while testing its reliability, by imposing on it an obligation to closely scru tinise •all the relevant attendant circumstances.

" In Laliubhai Devchand Shah and Others v. State of Gujarat('), this Court laid special stress on the fact that one of the important tests <?f tho reliability of a dyio,1g declaration is that the person who recorded 1t must be satisfied that the deceased was 'in a fit state of mind and observed as follows : "The Court, therefore, blamed Dr. Pant for not question ing Trilok Singh with a view to test whether Trilok Singh was in a "fit state of mind" to make the statement. The "fit state of mind" referred to is in relation to the statement that the dying man was mah1g. In other· words, what the case suggests is tlrat the person who records a dying declaration must be satisfied that the dying man was making a conscious and voluntary statement with normal understanding. " • ' We would now examine the dylag declaration Ext. P-2 in the light of the princ'iples enunciated above. To begin with, we would like to deal with the surrounding circumstances •and the attendant factors which culminated in the dying declaration Ext.

P-2 made by the deo ceased at Dr. Ramamurthi Nursing Home. According !o the prosecu tion there were three clear occasions when the deceased was conscious and could have made a statem~nt disclosing the names of his assailants. The first occasion was at the place of occurrence itself, alter the de ceased is said to have been assaulted by the accused. The persons who wen> present on this occasion were P.Ws. 1, 2, 5 & 6. According to P.W. 1 (p. 5 of the printed Paper Book) the deceoased even though he was groaning was in a condition to speak out and on being questioned he narrated the entire occurrence and disclosed the names of the five accused persons to P.W. 1. The fact that the deceased had mentioned the names of all the accused to this witness has been disbelieved by both the Courts and in our opinion rightly, because P.W. i did not make any mention of this fact either in the F.I.R. Ext. D-4 or in his statement to the police.

Nevertheless from the statement of P.W. I who is the son of the deceased it is manifestly clear that the deceased was in a position to make a statement and yet he did not di.sclose the names of the assailants. Similarly P.W. 2 (p. 15 of the Printed Paper Book ) categorically states that in his presence P.W. 1 asked the deceased as to how the incident took place and the deceased told him that all the five accused had assaulted him with sticks, stones and (!) [19711 3 s.c.c. 767. A B c D E F G H A B c D E F G H 548 SUPREME COURT REPORTS [1976] SUPPLEMENTARY knives and then ran away. This also shows that the deceased was conscious when he is said to have made this statement. Lastly, there is foe evidence of P.W. 6 (p. 29 of the Paper Book) who also says that although the witness could not hear what the deceased said yet he was speaking very slowly with his son. Thus at the first stage, namely, when the deceased was at the spot he was in a position to r;iake the statement and yet, according to the findings of the Courts b=low, he did not disclose the names of the assailants to any body.

The second occasion when the deceased could have disclosed the names or his assailants was at the time when he was carried in a lorry frota tte pJoace of occurrence to Dr. Ramamurthi Nurs.ing Home. P.W. 1 (p. 8 of the printed Paper Book) categorically states that at the time when his father was put on the lorry he was groaning but he was in a position to talk. The witness further goes on to state that inone of the 20 to 30 persons who had gathered at the scene deceased as to how the incident took place. Similarly P .W. 6 (p. 29 of the printed Paper Book) clearly stated that the injured was in a posi tion to talk while he was being put on the lorry and about 50 to 60 persons were· present there at that time. to ask f • ' The third occasion when the deceased could have disclosed the In names of the assailants was when he reached the Nursing Home. this connection P.W. 1 (p. 9 of the printed Paper Book) has stated that on reachinl' the hospital the Doctor was sent for and at that time his father was conscious and was in a position to talk though he was groaning with pain.

He further admitted that he did not tell the Doctor what his father had told him. Similarly P.W. 2 states (at p. 16 of the printed Paper Book) that when the Sub-Inspector of Sullurpet came and saw the injured in the room of the Nursing Home the injured was in a position to talk but the Sub-Inspector did not talk to him or ques- tion him on anything. P.W. 15 thy Sub-Inspector of Sullurpet states (at p. 41 of the printed Paper Book) tilat he found about 20 persons at the Nursing Home gathered outside the Nursing Home and saw Dr. Ramamnrthy attending on the injured inside when the injured was in a conscious state. '• ' From the evidence discussed above, it is clearly established alth0ugh the deceased was conscious at the place of occurrence, at the time when he was put on the Jory and also at the time when he was brought to the Nursing Home and was in a position to speak he did npt disclose the names of the assailants to any body.

This conduct of the deceased can be explained only on two hypotheses, namely, either the deceased was not conscious at all and was not in a position to talk to any body or that even though he was conscious he did not disclose the occurrence to any body because under the stress and strain of the assau!.t, which tock place admittedly at a time when darkness had set in and there was very little moonlight, he was not able to identify the assail ants. No third inference can be spelt ou! from deceased in not disclosing the names of the assailants on these occasions. Further more, the fact that the deceased was not in a posi tion to identify the assailants receives intrinsic support from the state ment of P.W. 1 (at p. 6 of the printed Paper Book) where he clearly the conduct of K. R. REDDY v. PUBLIC PROSECUTOR (Fazal Ali, J.) 549 stales that he had seen A-3, A-4 and A-1 at A-5's house about fiv~ years before the occurrence.

He further states that he did not know if his father knew A-1, A-3 and A-4 well and by their names. He further states that A-3 had visited his house five years ago and he could not say whether his father was present at that time. Lastly the witness states that he had no other acquaintance with A-3 and A-4. He also states that he came to know A-2 only after the occurrence of this case. The learned Sessions Judge has rightly relied on these circumstances to come to the conclusion that the deceased did not know the names of the accused nor was he able to identify them in the darkness and tllis intro It would be duces a serious infirmity in the dying declaration itself. seen that in the dying declaration Ext. P-2 the name of the accused No. 1 Ramachandra Reddy is clearly mentioned and so is the nam<: of accused No. 2. If according to P.W. 1 there was a clear possibility «f the deceased not having known the names of A-1, A-2 or A-3 then it i; not underst~ndable how deceased in his dying declaration unless the names were suggested to him by some body.

Against this background the presence of P.W. 2 the coi:sin of the deceased by his side even at the time when the dying declaration was recorded or a little before that clearly suggests that tl1e possibility of prompting cannot be excluded. Even the High Court has clearly found that the possibility of prompting was there. these names could be mentioned by < even though according to the evidence Dr. Ramamurthi P.W. 17 has stated tha~ while the Magistrate was recording the statement of the injured, the injured was sitting for a while and was thereafter lying in the lap of P.W. 2 who was nursing him then. Another important circumstance that has been considered by the learned Sessions Judge but overlooked by the High Court is led by the prosecution deceased was fully couscious in the hospital and had met persons from his village, his friends and acquaintances including Dr. Ramamurtlli P.W. 17 and the Sub-Inspector P.W. 15 yet he did not make any st~tc­ ment to any of these persons nor did any of these persons try to question . the deceased about the occurrence.

In fact the categorica1 evidence of P.W. 17 Dr. Ramamurthi is that from the time the patient was br01;ght in the Nursiilg Home till the Magistrate arrived, the patient did not talk to any one including him. The learned Sessions Judge has observed that this is a very extra-ordinary and unnatural circumstances which throws a good deal of doubt on the circumstances in which the dying declaration was recorded. The Doctor was known to the deceased and yet neither the deceased talked to him nor did the Doctor make any inquiry from him. On the other hand P. W. 15 the Sub-Inspector has stated (at p. 42 of the printed Paper Book) that when the deceased had reached tlie Hospital he was not in a position to talk and was groaning. P.W. 17 Dr. Ramamurthi has also stated that the state of mind of the deceased was restlessness. He further deposed that till tlie Magistrate arrived, the witness had no opportunity to assess the mental capacity of the injured Venugopala Reddy.

It would appear from the evidence of !'·!"·. 20 who made the postmortem that there were as many as 48 m1unes on the person of the deceased out of which there were 28 incised wounds on the various parts of the body including quite a few gaping In view of these serious injuries we find it difficult to incised injuries. believe that the deceased would have been in a fit state of mind to make a dying declaration. The Magistrate P. W. 11 who recorded the· dying A B c D E F G H • ' , - • • • . t • , , • 5 50 SUPREME COURT REPORTS (1976] SUPPLEMENTARY A B c D E F G In the case of Lallubhai Devchand Shah declaration has admitted that the injured was suffering from paid and h,, was not in a position to sign and so his thumb impression was taken. The Magistrate further admitted that the injured was taking time answer the questions. The Magistrate further admitted that the injured was very much suffering with pain.

In spite of these facts the Magis trate appears to have committed a serious irregularity in not putting a direct question to the injured whether he was capable mentally to make referred any statement. to by us 511pra the omission of the person who recorded the dying dec laration to yuection the deceased regarding his state of mind to make the ~taten1ent \Vas considered to be a very serious one and in our opinil..in in the insLrnt case the omission of the Judicial Magistrate who knew the Jaw well throws a good deal of doubt on the fact whether the de The ceased was really in a fit state of mind to make a statement. Se,,io11; Judge has rightly pointed out that even though the deceased might have been conscious in the strict sense of the term, there must he re!iahl~ evidence. to show, in view of his intense suffering and serious injuries, that he was in a fit state of mind to make a statement regarding the occurrence.

Having regard, therefore, to the surrounding circum swnces mentiQ11ed above, which have not been fully considered by the High Court, we find it extremely unsafe to place any reliance on Ext. P-~ particular!} in view of the conduct of the deceased in not making any disclosure regarding the occurrence on the three previous occasions wllcn he had a full and complete opportunity to name his assailants. Lastly it is admitted that there was serious enmity between parties. P.W. 2 states (at p. 16 of the printed Paper Book) that there were ill-feelings between the deceased and A-1, A-2 to A-5. While com1sei for the State has submitted that the deceased was assauted due to enmity. the possibility cannot be ruled out that the accused may have been named 1. Jccause of the enmity. The learned standing counsel for the State relied upon the statement of Dr. Ramamurthi who had given th~ ce,-tificatc that the deceased was in fit state of mind to make a state- m·,.1t.

This certificate by itself would not be sufficient to dispel the doubts created by the circumstances mentioned by us and particularly the omission by the Magistrate in not putting a direct question to deceased regarding the mental condition of the injured when he was satisfied that the injured was suffering from severe pain and was uot abk to speak normally. For these reasons, therefore, this case clearly laJls within principles (5) and (6) laid down by this Court in Khttshal In these circumstances we feel that it would be Rao's case (supra). wholly unsafe to found the conviction of the appellants on the basis of Ext. P-2. Mr. P. Ram Reddy for the State submitted that Ext. P-2 was corro borated by the presence of at least accused No. 1 near the petrol oump slightly before the occurrence, took place. The presence of accused No. 1 in Tada Bazar near his village is not completely inconsistent with his guilt and being a resident of the village close by his presence in the submitted that the accused had been absconding.

The accused, how e\'er, surrendered within 14 days and this is not a circumstance which can outweigh the effect of the suspicious circumstances under which H Bazar can be explained on account of various reasons. It was K. R. REDDY v. PUBLIC PROSECUTOR (Fazal Ali, !.) 551 the dying declaration was made. It seems to ns that as the deceased did not know the names of the appellants nor did he know them from before he was not able to identify his assailants and the names were supplied by P.W. 2 his cousin just before the dying declaration was made. Putting the prosecution case at the highest, there can be no doubt th:;t the view taken by the learned Sessions Judge that the dying declaration did not amount to a trnthful disclosure cannot be said to be against the weight of the evidence on the record and even if the High Court was in a position to take a view different from the one taken by the Sessions Judge on the same evidence, this would not be In Rani Jag and a ground for reversing the order of acquittal. others v.

The State of U.P. (') this Court observed as followed: , '"Such regard and slowness must find their reflection in the appellate judgment, which can only be if the appellate court deals with the principal reasons that become influenced the order of acquittal and after examining the evidence with care gives its own reasons justifying a contrary view of the evi- Jt is implicit in this judicial process that if two views «lence. finding of of the evidence are reasonably_ possible, acquittal ought not to be distnrbed. " Thus in <he instant case as two views were reasonably possible and therefore the High Court was in error in disturbing the order of acquit tal passed by the Sessions Judge. r ' For the reasons given above, we are satisfied that the High Court wa3 not at all justified in reversing the order of acquittal passed by the Sessions Judge. The appeal is accordingly allowed, the conviction and sentence passed against the appellants are set aside and they are acquit· ted of tl1e charges framed against them. The appellants are directed to be set at liberty forthwith. A B c D E M.R. Appeal allowed. ---·-------r-- (11 [197413 S.C.R. 9.