R.K. Das, J.
1. The appellant Chandramohan Singh Lai alias Bayalal has been convicted Under Section 324, IPC and sentenced to R. I. for one year by an order dated 23-7-62 of the Sessions Judge, Koraput-Jeypore, in Sessions Case No. 71/62.
2. Sometime after the evening of 57-9-61 one Mangu Bhatra (deceased) of village Sashahandi was returning from his field with a stick in his hand. On his way, he met appellant and two others (since acquitted) near a culvert on the Borigumma-Kotpad road when the appellant enquired about the identity of the deceased to which the deceased replied that he was a man. To his further enquiry as to his identity the deceased reported that he was their- God. At this the appellant snatched away the stick from his hand and assaulted the deceased with it by dragging him to a mango tree where he was further assaulted by the appellant and his two companions. After the assault, the deceased returned to his home and immediately reported this matter to different persons including his son Hari Bhotra (P. W. 1), Dhansingh the watchman P. W. 2 and one Krushna Chandra Biswal (P. W. 7). lie was then carried in a cot to the police station where the deceased himself lodged the F. I. R. (Ext. 12). From the police station, he was sent to the hospital for treatment, but died on the verandah of the hospital before any medical aid could be given to him. After investigation, the accused persons were charge-sheeted and were committed to the Co1 it of Sessions to stand their trial for an offence Under Section 302/34, IPC The learned Sessions Judge acquitted all the accused persons of the said charge, but convicted the appellant alone Under Section 324, IPC and sentenced him as stated above
3. The plea of the accused was one of a denial.
4. Admittedly, there are no eye-witnesses1 to the occurrence and the prosecution case rests upon (1) The dying declaration of the deceased which was in the form of F. I. R. (2) The earlier statement made by the deceased to P. Ws, r, 2 and 7 before recording of the F.I.R., and (3) Corroboration received from recoveries made in pursuance of the said dying declaration.
5. There cannot be any dispute that a dying declaration may take the form of an F. I. B. and may be taken as a piece of substantive evidence Under Section 32(1) of the Evidence Act as a statement as to the cauae of the informant's death. In a case reported in Vallon Kochol v. State AIR 1956 Trav-Co. 207 where in a murder trial the prosecution depended on the deceased's statement made to the Police while she was in hospital and the same was treated as first information report, it was held that had not the deponent died, the first information report would have been useful only to corroborate or contradict her testimony in Court. But by reason of her death, it-had become a piece of substantive evidence Under Section 32(1) as a declaration as to the cause of the informant's death or as part of the informant's conduct Under Section 8 and was therefore admissible in evidence. In the present case the dying declaration which has been treated as the first information report runs as follows:
My name is Mangu Bhatra, son of Dhana Bhatra of Sashahandi. I have been carried to-day in a cot to the Police Station at 3 p.m. of 28-0-61 along with Tari Bhatra (P. W. 1), Shana Singh (P. W. 2) and pome others and report to you as follows:Yesterday at about 8 p.m. I was returning from my land to my home. Near a culvert on the road I met Bayalal (appellant of Nuagaon and two others whom 1 do not know, going to wards Nuagaon from Sashahandi side. At that place they asked me as to where had I been. I told them that I had been to my land. Then they asked me who I was and I told them that I was a man. Then they further asked me what sort of man I was to which I replied that I was their God. At this the said Bayalal snatched away the bamboo stick held by me and struck me on my head and body while the other two dealt me fist and kick blows and all of them dragged me to the mango tree where they beat me heavily. There Lai bit my left hand and I fell down. The occurrence has not been noticed by anybody. As a result of their assault my head has been broken and 1 ha re got pain all over my body. Being read out to me, I admit the statement to be correct, and I affix my thumb impression.
That a dying declaration can be made the basis of a conviction cannot be doubted. All that is necessary to find out is that i;: it is a truthful version as to the circumstances leading to the death of the victim. Their Lordships of the Supreme Court in a case reported in Khushal v. State of Bombay : 1958CriLJ106 held that in order to pass the test of reliability, a dying declaration has to be1 subjected to a very close scrutiny keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examinaion. But once the Court has come to the conclusion that the dying declaration was a truthful version as to the circumstances of the death of the victim, there is no question of further corroboration. If on the other hand, the Court after examining a dying declaration in all its aspects and testing its veracity has come to the conclusion that it is not reliable by itself and that it suffers from an infirmity, then without corroboration it cannot form the basis of conviction. Thus the necessity for corroboration arises not from any inherent weakness of the dying declaration as a piece of evidence, but from the fact that the Court in a given case has come So the conclusion that that particular dying declaration was not free from the infirmities. It is in the light of this principle of law the dying declaration has to be examined be as to be satisfied whether it represents a truthful version of the prosecution story.
6. It was contended by learned Counsel for the appellant that the deceased met his death so soon after the F.T.R, was lodged, that is, about half an hour later, that it was not possible for him to keep up the mental equilibrium so as to correctly depict the story that he has done in this case. In this connection, the evidence of the investigating officer, P. W. 14 who recorded the F.I.R. is very pertinent as also the evidence of the doctor who examined the deceased. Ac-ording to P. W. 14 the informant Mangu was sitting on he cot on the verandah of the police station when he arrived and. on his asking he gave the report without any interference from him. The informant had also no groaning pain by then and the F.I.R. when read over to him was found to be correct and was thumb-marked by him. From the evidence of the doctor, P. W. 13 it is clear that a victim of such injuries would not become unconscious immediately after the receipt of the injuries and with proper medical assistance death might have been prevented.
It also appears from the evidence of P. W. 1 that his father returned that evening to his home obviously without anybody's assistance. The F.I.R. also shows that he came alone walking the distance from the place of occurrence to his house which is at a considerable distance. Thus Mangu must be held to have been in proper state of mind at the time of lodging the First Information Report though no doubt he has pain all over his body having received large number of injuries. Further it appears from the evidence of P. Ws. 1, 2 and 7 that the deceased Manga gave a narration of the very same story before them immediately after his arrival at his house and long before lie made the statement before the Police in the following afternoon. P. W. i has stated that his father went with the stick M.O.I, and a burning faggot to the field and returned with bleeding injuries on his head aid complained of pain all over his body. To his query, he narrated the story as given in the F.I.R.
Thereafter P. W. i called Dhansingh the village watchman P. W. a and Krushna Biswal P. W. 7 and his father also narrated the story before them involving Bayalal as his assailant. The evidence of P. W. 7 is to the same effect that the deceased attributed the assault to accused Bayalal. The evidence of P. W. 7 clearly shows that Mangu was then able to speak well. Nothing has been brought out to discredit the evidence of these three witnesses, nor is there anything to suggest as to why the deceased would falsely implicate Bayalal the appellant as one of his assailants. The appellant has an alias as Bayalal cannot be doubted, though he has denied it. P. W. 7 has stated that accused Chandra-mohan Singh Lai is also known as Bayalal. P. W. 6 has also stared that accused No. 1 Lai Babu of Nuagaon is also called by the name Baya. lal. He has further stated in his cross-examination that people behind his back named him as Baya, but none addressed him in such terms and Baya was the name by which he is usually referred to in the village.
It further appears from the evidence of school teacher Padmanava Patra, P. W 3 that on the date of occurrence at about 4.30 after the school hours, he went to village Nuagaon from Sasha-handl to get some money from the accused Chandramohan otherwise known as Baya. There lie met the appellant and two others whom he did not know. The other two went, introduced to him as some teachers. The witness returned in their company for some distance as they wanted to come to Sashahandi market. Lal had then worn a coloured Lunge and a white shirt which the witness identified to be the Lungi and the shirt which the accused had put on on that day. P. W. 5 Padmanava Bisoi had stated that on the date of occurrence he saw all the three accused persons. Thus the evidence is clear that all the three accused persons were seen together on the date of occurrence and nothing has been brought out against those witnesses is discredit their testimony. The evidence substantially supports the story given in the F.I.R.
7. The truth of the dying declaration is also corroborated by other circumstances in this case. M.O. is the stick found from near the place of occurrence as named in the F.I.R. which has been identified by P. W 1 to have been carried by his father while going to the field. According to the doctor there were a number of injuries on the person of the deceased including three lacerated wounds on his head and all these injuries were ante mortem and could possibly have been caused by M.O.I. A portion of M.O.I, was found on serological test to have contained blood-marks. The earth seized from near the piace of occurrence was also found to have contained blood marks. Thus the story of assault, the place of assault and the weapon of assault corroborate the dying declaration. The only question is what other corroborating evidence is there to connect with the crime. As I have said P. W. 3 is one of the persons who saw the appellant with two others sometime before the evening of the occurrence. When the witness went to the accused for some of his dues, he found his other two companions who came with him as they wanted to go to Sashahandi market. It appears from the dying declaration that the accused was coming from Sashahandi and was going towards Nuagaon, The accused in his Section 342 statement admitted to have met P. W. 3 on the date of occurrence, and he admitted also that lie saw the other two accused persons on that day and had introduced them foci P. W. 3. Thus, the accused's own admission lends substantial support to the story in .the F.I.R. that the appellant Bayalal was accompanied by two other persons. From the dying declaration it appears that the accused Lal gave the deceased a biting on his left hand. It appears from the evidence of the doctor that he noticed some circular lacerated wounds 1' x 1/4' on the medial back suiface of the left palm. No doubt, the doctor bad not been specifically asked whether such injury was possible by biting, but the nature of the injury and the place on. which it was inflicted fully corroborate the dying declaration of the deceased that it was a biting given by accused Bayalal.
According to P. W. 3, M.O. II is the Lungi which, the accused had put on, fee day he met him. The accused had admitted this, but had disowned the white shirt, on which small blood marks were noticed on chemical examination though on account of smallness of the stains, their origin could not be traced. Accused denied the shirt to have been recovered from his house, but P. W. 7 asserted that it was the shirt which was recovered from the house of the accused. In view of the aforesaid discussion of the evidence, it would appear that the dying declaration of the deceased represents the truthful version of the incident and it also gets further corroboration from the recoveries and other circumstances as stated above. Even apart from any corroboration, the F.I.R. represents a true version of the incident that led to the death of the deceased. That being so, there if- no legal bar to base a conviction on such a statement which is admissble Under Section 32(1) of the Evidence Act even j without any independent corroboration.
There is absolutely no suggestion in evidence as to why the deceased would falsely implicate the accused Bayalal as one of the assailants. It has been amply proved from the evidence on record that Bayalal referred to is the F.I.R. is no other person than the appellant himself. Mr. Rao, the learned Counsel for the appellant contended that the night being admittedly a dark one there was scope even for a honest mistake and the deceased might have been under the erroneous impression that it was Bayalal who assaulted him. The deceased could not say the namn of the other two accused persons but was specific about the assault by Bayalal. There is no particular reason as to why he would make a mistake about Bayalal.
8. The Bamboo Stick M.O. I with which the assault was committed was a weapon, assault with which was likely to cause death cannot be doubted and in fact it caused the death of the deceased. There cannot be any doubt also that it was the accused who assaulted the deceased with M.O. I as a result 3f which he met his death. Thus, the conviction of the appellant Under Section 324, IPC is justified and the sentence does not appear to be excessive.
In the result the order of conviction and sentence passed by the learned Sess ons Judge is maintained and the appeal is dismissed.