LexNARAIN SINGH AND ANR. versus STATE OF HARYANA
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NARAIN SINGH AND ANR. A v. STATE OF HARYANA FEBRUARY 5, 2004 [DORAISWAMY RAJU AND ARIJIT PASAYAT, JJ.) B Penal Code, 1860-Sections 302, 323 and 364-Evidence Act, 1872- Section 32-Deceased was abducted and was seriously injured by four accused-Death of the deceased on way to hospital-Dying declaration of the C ·deceased-Trial Court acquitted two accused and convicted the other two on the basis of motive-High Court confirming the conviction-Validity of-Held, on facts and evidence, conviction on the basis of motive \vithout proving the dying declaration by the prosecution is not proper-Hence conviction set aside. D The deceased and appellant~ A-1 and A-3 had a series of litigations between them in respect of some properties. The deceased and his lawyer PW-15 went to Tehsildar's office to take possession of a piece of land over which the title to the deceased was declared. On their way, the appellants with A-2 and A-4 came in a Maruti Van and forcibly dragged and abducted the deceased in the van. PW-7, who tried to save the deceased E from the appellants, suffered injuries. PW-15 lodged first information report with the police. The Police found the deceased severely injured. The statement of deceased was recorded under Section 161 CrPC. The deceased died on the way to hospital. The statement of the deceased was subsequently treated as a dying declaration by the prosecution. F During the trial, none of the eyewitnesses supported the prosecution version. The Trial Court, however, convicted the accused A-1 to A-4, on the basis of the dying declaration of the deceased, under Sections 364~ 302, 323 read with Section 34 IPC and sentenced them to life imprisonment, rigorous imprisonment for 10 years and two months imprisonment G respectively. In appeal, the High Court acquitted A-2 and A-4 since the dying declaration was not sufficient to hold them guilty and confirmed the conviction of appellants A-1 and A-3 on the basis of motive. In appeal to this Court, the appellants contended that the 115 H 116 SUPREME COURT REPORTS [2004] 2 S.C.R. A eyewitnesses PW-7 and PW-15 did not support the prosecution version; that the dying declaration of the deceased is not believable; that the medical evidence clearly rules out the manner of assault as claimed by the prosecution; and that the logic applied for disbelieving the involvement of A-2 and A-4 is equally applicable to the appellants also; B. c The respondent, on the other hand, contended that the appellants had motive to kill the deceased due to property disputes; that mere disbelief of the dying declaration in part in favour of A-2 and A-4 cannot be the basis of their acquittal. Allowing the appeal, the Court HELD: I.l. Though in law there is no bar in acting on a part of th~ dying declaration, it has to pass the test of reliability. Section 32(1) of the Evidence Act, 1872 is an exception to the general rule that hearsay evidence is not admissible evidence and unless evidence is tested by cross- D examination, it is not creditworthy. A dying declaration made by a person on the verge of his death has a special sanctity as at that solemn moment a person is most unlikely to make any untrue statement. The shadow of impending death, is by itself, guarantee of the truth of the statement of the deceased regarding circumstance.s leading to his death. But at the s~me time, the dying declaration, like any other evidence, has to be tested on E the touchstone of credibility to be acceptable. It is more so, as the accused does not get an opportunity of questioning veracity of the statement by examination. (120-D-E-FJ 1.2. In the dying declaration, specific roles were attributed to all the F accused persons A-1 to A-4. The High Court found the roles attributed to the accused A-4 to be unacceptable as he was not found present when the police arrived at the house from where the deceased was supposedly rec~vered. Similar is the situation so far as accused-appellant A-3 is concerned. In the dying dedaration, the deceased had said that it was A- 2 and the appellant A-1 who were trying to kill him. The High Court found G that since A-2 would not have benefited from the death, he cannot be convicted. The reasoning is fallacious. A definite role was attributed to· A-2 and it was stated that he wanted to kill the deceased. On mere sur:mise that there was no motive, a different approach was adopted. Added to this, there are other sus
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