Holding

The High Court was correct in acquitting the accused because the alleged dying declaration was infirm and the recovered weapon evidence was unreliable.

Summary

The State of Rajasthan prosecuted Wakteng and two others for murder, relying on a statement recorded two days after the assault (Exb.P-10) as a dying declaration and on the recovery of a sword allegedly used in the crime. The High Court acquitted the accused, holding that the statement could not be treated as a dying declaration because the deceased's fitness to give such a statement was not established, and that the sword was not properly examined or linked to the accused. On appeal, the Supreme Court examined whether a police‑recorded statement without a medical fitness certificate can qualify as a dying declaration under Section 32 of the Evidence Act, and whether conviction can rest solely on such a statement. The Court reiterated that a dying declaration must be free from infirmities, tutoring, or prompting, and the prosecution must prove the declarant was in a fit state of mind. It also noted the lack of forensic examination of the recovered weapon rendered that evidence unreliable. Consequently, the Court affirmed the High Court's decision and dismissed the appeal.

Issues considered

Whether the statement recorded by police (Exb.P-10) qualifies as a dying declaration under Section 32 of the Indian Evidence Act.
Whether the absence of a medical certificate confirming the deceased's fitness invalidates the dying declaration.
Whether the recovered sword can be admitted as evidence under Section 27 of the Evidence Act without forensic analysis.
Whether a conviction can be sustained solely on a dying declaration that suffers from infirmities.
Whether the High Court erred in acquitting the accused.

Legislation cited

Code of Criminal Procedures. 313
Indian Evidence Act, 1872s. 27, s. 32
Indian Penal Code, 1860s. 302, s. 307, s. 324, s. 326, s. 34

Subjects

dying declarationIndian Evidence ActSection 32Section 27weapon recoveryconvictionacquittalcriminal lawIndian Penal CodeSection 34forensic examinationevidence admissibility

Judgment

A STATE 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. .
In the instant case Exbt P-10 was recorded by PW 7 without finding out whether B
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.
(Paras 11, 12 and 131 (996-E, F, G; 997-AI
c
Paras Yadav and Ors. v. State ofBihar, (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
the statement without any influence or rancor. Once the Court is satisfied F
,,
..
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 procured at the time of recording Exb. P-10. (Para 16) (997-D, E)
..,.
4. So far as recovery of the sword is concerned, the same was not sent
for any examination by the Forensic Science Laboratory and the report if any H
994 SUPREME COURT REPORTS [2007) 7 S.C.R.

A was not exhibited and even no question in that regard was put to the accused
while he was examined under Section 313 Cr. P.C. IPara 1711997-E, Fl
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 677 of
2002.

B From the Judgment and Order dated 04.05.200 I of the High Court of
Judicature for Rajasthan at Jodhpur in D.B. Crl. Appeal No. 526 of 1993.

Naveen Kumar Singh, Mukul Sood and Aruneshwar Gupta for the
Appellant.

C The Judgment of the Court was delivered by

DR ARIJIT PASAYA T, J. I. Challenge in this appeal is to the judgment
of a Division Bench of the Rajasthan High Court directing acquittal of the
respondent. Respondent alongwith two others faced trial for alleged
commission of offences punishable under Section 302 read with Section 34
D of the Indian Penal Code, 1860 (in short the '!PC'). The respondent in
addition was also convicted for offence punishable under Section 326 read
with Section 34 !PC and Section 324 read with Section 34 !PC. Life sentence
of two years rigorous imprisonment and six months rigorous imprisonment
were respectively imposed alongwith fine with default stipulation.

E 2. The learned Additional Sessions Judge, Bansabara convicted all the
three accused persons but two other accused did not prefer any appeal while
the respondent preferred an appeal against his conviction and sentence
imposed. In appeal, High Court set aside conviction and directed acquittal.

3. Background facts in a nutshell are as follows:
F
On 8.6.1988 Thanu (hereinafter referred to as 'deceased') along with
three accused persons in the night, went to well of accused-respondent
Wakteng in order to capture tribals stealing away forest wood. They also
drank 'mahudi', a local wine, and thereafter, accused Wakteng stated to
G deceased that he used to frighten village people; and therefore, he shall be
taught a lesson today and brought a sword, concealed in the well and
inflicted a blow on his neck. When deceased Thanu started running, he was
chased by Dhuliya and Lalu and thereafter, Dhuliya took sword from Wakteng
and inflicted second blow on neck of the deceased, upon which he fell down
unconscious.
H
STATE OF RAJASTHANv. WAKTENG(PASAYAT,J.) 995

4. This factual narration is found in Ex.P-10. alleged dying declaration, A
, recorded by Abhey Singh Bhati. SHO, (PW-7) in Surgical Ward of Government
Hospital, Banswara on 10th June, 1988 two days after the occurrence.

5. The FIR Ex.P-11 was lodged by Naveneet Lal (PW-4) on the basis of
injuries seen on the person of Thanu, who was unconscious till then and was
not able to speak and therefore, neither any narration of the crime is mentioned B
in it nor name of assailants. An offence under Sec.307, lPC was registered on
the basis of Ex.P-11 and the deceased was admitted in the hospital where his
injuries were examined and he was given treatment and his dying declaration
(Ex.P-10) was recorded, as stated above.

6. Subsequently, Thanu died on 25.6.1988 and, therefore, offence was C
converted to one under Section 302 IPC. On the basis of Ex.P-10, all the
accused persons were put under arrest on 11th June, 1988 vide memos Ex.P-
12 to P-14. A discloser statement Ex.P-15 under Section 27 of the Indian
Evidence Act, 1872 (in short the 'Evidence Act') as given by Dhuliya at 08:00
AM on 2nd June, 1988 by which he wanted to recover 'myan' and 'sword' D
used in the crime and on the same day, in the presence of attesting witnesses,
Bhika (PW5) and Chamna, vide Ex.P-7 Dhuliya made 'sword' along with
'myan' recovered from his residential house, which was seized and sealed
then and there. A site plan Ex P-8 was also prepared of the place of recovery.
On completion of investigation charge sheet was filed and charges were
framed. E

7. Accused persons denied accusations and claimed trial. Seven
witnesses were examined to further the prosecution version. The trial Court
relied on two circumstances to convict the accused persons; (i) the dying
declaration purported to have been made and (ii) the recovery of the sword. F
Because of the conviction and sentence imposed by the trial Court, an appeal
had been filed as noted above.

8. Before the High Court it was submitted that the dying declaration
Exb.P-10 was open to grave doubt. It cannot be treated as a dying declaration
as the same was neither in question answer form nor was there any G
endorsement of fitness of the deceased given. On the other hand, the State
supported the order of conviction. The High Court noticed that the dying
declaration was not recorded in question answer form and it was not written
as a dying declaration. Further, the trial Court held that Exb.P-10 was neither
dying declaration nor a statement under Section 161 of the Code of Criminal
Procedure, 1973 (in short the 'Code') because the thumb impression of the H
996 SUPREME COURT REPORTS [2007] 7 S.C.R.

A deceased was affixed on it. The trial Court held that it has been recorded in
course of investigation and therefore it was admissible in evidence. The High
Court found that Exb.P-10 cannot be called to be a dying declaration and
cannot be made the basis of conviction. It also doubted the recovery of the
sword as claimed. Accordingly, evidence of the prosecution witnesses was
B held to be unworthy of credence and therefore acquittal is directed. ;

9. In support of the appeal, learned counsel for the appellant submitted
that the dying declaration is a vital piece of evidence and the High Court
should not have lightly brushed it aside. It was stated that merely because
condition of the deceased to make a statement was not noted in the dying
C declaration that cannot be a ground to outright reject the same.

10. If Exb.P-10 does not come in the category of dying declaration it
cannot be made the basis of conviction. There is no other provision under
which a signed statement before the police can be admissible into evidence
even if it discloses in detail the prosecution story.
D
11. Merely because a statement is recorded by a police personnel and
the thumb impression of the deceased was affixed it cannot straightaway be
rejected. (See State of Rajasthan v. Teja Ram, ( 1999] 3 SCC 507; Rajik Ram
v. Jaswant Singh Chauhan, AIR (1975) SC 667 andfamous Tahsi/dar''s case,
TahsildarSingh v. State of UP., AIR (1959) SC 1012)
E
12. In Paras Yadav and Ors. v. State of Bihar, (l 999] 2 SCC 126.it was
held that the statement of a deceased recorded by a police officer in a routine
manner as a complaint and not as a dying declaration 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. If the dying declaration is recorded by an
F investigating officer the same can be relied upon if the evidence of the
prosecution witness is clearly established beyond reasonable doubt that the
deceased was conscious and he was removed to the hospital and he was in
a fit state of health to make the statement. In the instant case, the position
appears to be different.
G 13. Navneet Lal (PW-4) claimed to have gone to the sitt where the
deceased was lying injured and unable to speak. He was sent to the hospital
for treatment, Banswara and simultaneously Exb.P- l l was lodged. Two days
thereafter in the surgical ward of the government hospital, Banswara Exb.P-
l 0 was purportedly recorded by Abhey Singh Bhati (PW-7) without finding
H out whether the deceased was in a fit state of mind and health to give dying
STATEOF RAJASTHANv. WAKTENG{PASAYAT,J.) 997

declaration. Significantly, the doctor Bajrang Singh (PW-3) stated that· he A
does not remember at what time Exb.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.

14. Though conviction can be raised solely on the dying declaration B
without any corroboration the same should not be suffering from any infirmity.

15. 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 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, C
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 the statement without any influence or rancor. Once the
Court is satisfied that the dying declaration is true and voluntary it is sufficient D
for the purpose of conviction.

16. One other factor is of great importance. The occurrence took place
on 8.6.1988 and the deceased breathed his last on 25.6.1988. Exb.P-10 was
recorded on l 0.6.1988. No evidence was forthcoming as to why the Magistrate
could not be called to state why certificate of his fitness and state of health E
and condition of the deceased could not be procured at the time of recording
Exb.P-10.

17. So far as recovery of the sword is concerned, the same was not sent
for any examination by the Forensic Science Laboratory and the report if any
was not exhibited and even no question in that regard was put to the accused F
~, while he was examined under Section 313 of the Code.

18. Above being the position, the High Court has rightly held that the
prosecution has failed to establish the accusations against the respondent.
The appeal sans merit and is dismissed.
G
K.KT. Appeal dismissed.