LexSTATE OF RAJASTHAN versus WAKTENG
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A ST A TE OF RAJASTHAN \'. WAKTENG JUNE 7, 2007 B [DR. ARIJIT PASAYA T AND D.K. JAIN. JJ.) Penal Code, 1860-ss. 302 r/w 34, 324 r/w 34 and 326 r/w 34- Murder-Conviction by trial court on the basis of dying declaration and C recovery of weapon u/s 27-Acquittal by High Court-On appel, held: Acquittal justified as the dying declaration and the recovery suffered from infirmity-Evidence Act, 1872-ss. 32 and 27. Evidence Act, 1872-s.32-Dying declaration-Evidentiary value a/- Though conviction can be recorded solely on the dying declaration without D any corroboration-But the same should not suffer from any infirmity-While relying on the same, court has to be careful that the statement was not the result of tutoring, prompting or a product of imagination. ~ Respondent - accused along with others was prosecuted for causing injuries and murder of a person. As per the prosecution FIR was lodged by E PW-4 on the basis of injuries seen on the person of deceased, who was unconscious at that time. An offence under s. 307 IPC was registered. He was taken to hospital. Two days thereafter statement of the deceased (Exb. P- IO) was recorded by SHO (PW 7) in the hospital. In the statement the deceased narrated as to how he was assaulted by the accused persons. The statement was signed by the deceased. The statement was taken without F finding out whether the deceased was in a fit state of health and mind to give the dying declaration. On the basis of the statement, accused persons were arrested. At the instance of one of the accused, weapon used in the incident was recovered. After some days -the deceased died and the offence was converted to one u/s. 302 IPC. The trial court relying on the statement of the G deceased as dying declaration and on the recovery of the weapon convicted all the accused u/s. 302 r/w s.34, s.326 r/w s.34 and s. 324 r/w s. 34 IPC. Only respondent - accused preferred appeal, wherein High Court held that Exbt P. 10 could not be a dying declaration and that recovery of the weapon was also doubtful Accused was therefore acquitted. Hence the present appeal. H 992 STATE OF RAJASTHAN v. WAKTENG 993 ~ Dismissing the appeal, the Court A HELD : 1. Merely because a statement is recorded by a police personnel. and the thumb impression of the deceased was affixed it cannot straightaway be rejected. Such statement can be taken as a dying declaration after the death of the injured if he was found to be in a fit state of health to make a statement. . B In the instant case Exbt P-10 was recorded by PW 7 without finding out whether the deceased was in a fit state of mind and health to give dying declaration. Significantly, the doctor PW-3 stated that he does not remember at what time Exh. P-10 was recorded and he does not know whether the deceased was in a fit condition to give a statement and he also did not know in which language the deceased replied to the questions put to him. c (Paras 11, 12 and 131 (996-E, F, G; 997-AI Paras Yadav and Ors. v. State of Bihar, (1999l 2SCC 126, distinguished. State of Rajasthan v. Teja Ram, (1999) 3 SCC 507; Rajik Ram v. Jaswant Singh Chauhan, AIR (1975) SC 667 and Tahsildar Singh v. State of UP., AIR D (1959) SC 1012, referred to. 2. Though conviction can be raised solely on the dying declaration without any corroboration the same should not be suffering from any infirmity. While great solemnity and sanctity is attached to the words of dying man because a person on the verge of death is not likely to tell lie or to concoct E a case so as to implicate an innocent person but the Court has to be careful to ensure that the statement was not the result of either tutoring, prompting or a product of the imagination. It is, therefore, essential that the Court must be satisfied that the deceased was in a fit state of mind to make the statement, had clear capacity to observe and identify the assailant and that he was making F the statement without any influence or rancor. Once the Court is satisfied .. ,, that the dying declaration is true and voluntary it is sufficient for the purpose of conviction. (Paras 14 and 15) (997-8, C, DJ 3. The occurrence took place on 8.6.1988 and deceased breathed his last on 25.6.1988. Exb. P-10 was recorded on 10.6.1988. No evidence was G forthcoming as to why the Magistrate could not be called to state why certificate of his fitness and state of health and condition of the deceased could not be
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