LexRAM PRASAD versus STATE OF MAHARASHTRA
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.... RAM PRASAD A v. ST A TE OF MAHARASHTRA MAY 12, 1999 [K.T. THOMAS AND D.P. MOHAPATRA, JJ.] B Indian Evidence Act, 1872-Section 32-Statement made to Magistrate under expectation of death but the maker survived-Held, not admissible, expectation of death not sufficient to wiggle it into th.e cassette of Section il c Section 157-Statement made under-Could be used only to corroborate the testimony of witness. Section 155-Statement made under-Could be used to contradict D testimony of witness. Accomplice evidence-Confessional statement given by approver- lmportance to be attache~ for conviction-Held, it is imprudent to base conviction on it unless corroborated and it must pass test of reliability. Criminal Procedure Code, 1973-Section 164-Statement made to Magistrate is not limited to corroboration of testimony of witness-May be elevated to status of Section 32 if maker dies subsequently. E The deceased was the brother of PW-1 and was murdered in an act of mercenary killing. The contemplated victim was PW-1. However he escaped F death sustaining severe injuries. The plan was allegedly made by A-1 in connivance with A-2 and A-4 to get PW-1 murdered. The actual act was done by A-5, A-6, A-7, A-10 and PW-2, along with few others who had been acquitted. The prosecution ~eavily relied upon the statement given by PW-1 when he was injured, by interpreting it as a dying declaration notwithstanding the fact that he did not die. Even greater reliance was placed upon the statement made by PW-2, who had turned an approver. He had stated that he was witness to the conversations between A-1 and A-4 and also disclosed the complete plan for the said murder in detail. 519 G H 520 SUPREME COURT REPORTS [1999] 3 S.C.R. A The High Court convicted A-1 and A-4 under Section 302 read with Sections 109 and 150 of the Indian Penal Code. The conviction of A-5, A- · · 6, A-7 amd A-10 was also confirmed. Hence these appeals. Dismissing the appeals filed by accused Nos. 4, 5, 6, 7 and 10, and allowing the appeal of A-1 and setting aside his conviction and sentence this B Court. HELD : 1. The Statement made by PW-1 cannot be used as evidence under Section 32 of the Evidence Act though it was recorded as a dying declaration. The fact when this statement was given, he would have been under expectation of death is not sufficient to wiggle it into the cassette of C Section 32. As long as the maker of the statement is alive it would remain only in the realm of a statement recorded during investigation. [523-H; 524-A-B) 2. Section 157 of the Evidence Act permits proof of any former statement made by a witness relating to the same fact before "any authority legally D competent to investigate the Fact" but its use is limited to corroboration of the testimony of such witness. But a statement made to a Magistrate is not affected by the prohibition as he can record the statement of a person as provided in Section 164 of the Code. Such a statement would either be elevated to the status of Section 32 if the maker subsequently dies or it would E remain within the realm or what it was originally. This statement becomes usable to corroborate the witness as provided in Section 157 of the Evidence Act or to C!mtradict him as provided in Section 155 thereof. [524-B-E) Maqsoodan & Ors. v. State of U.P., A.LR. (1983) SC 216, relied on. F 3. There is no legal hurdle against acting on the testimony of an accomplice. It would be imprudent to base a conviction on such testimony unless it is corroborated in material particulars. The evidence has to pass the test of reliability and must secure adequate corroboration before the same can be acted upon. [525-C-D) G CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 592 of 1994 Etc. From the Judgment and Order dated 3.3.93 of the Bombay High Court in Crl. A.No. 218of1989. H R.S. Lambat for the Appellant in Crl. A.No. 592/94, 1187/95 and 335/99. -· RAM PRASAD v. STATE OF MAHARASHTRA [THOMAS, J.) 521 ...... R.S. Sodhi, for the Appellant in Crl. A. No. 507/93, V.B. Joshi and D.M . A Nargolkar for the Respondent. ,,. The Judgment of the Court ~as delivered by THOMAS, J. These appeals relate to a case of mercenary killing. Though the principal target of the killers was one Ram Kishore Somani@ Ramu they B could kill only his younger brother Ashok Somani, who, per chance was with his elder brother then, due to his jinxed destiny. Nevertheless t
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