N.K. Das, J.
1. The respondents have been acquitted of the charges Under Section 302/140 I.P.C. for committing murder of one Benia Domb of village Garuda Gachha on 5-2-1977 at about 7 P. M.
2. The prosecution case is that the deceased was rendering service as watchman in the neighbouring villages including Dindaraja. On 5-2-1977 at about 7 P. M. the deceased and the respondents gathered at the front ninda of respondent Pitabas and started discussing questions relating to disposal of hides of six buffaloes after the local festival. The deceased stated that he would take the hide on payment of Rs. 5/- whereas the respondents demanded Rs. 10/-. At that time the deceased as well as respondents were taking liquor. Suddenly a quarrel arose. The respondents, it is alleged, gave slaps, fist blows' and kicks on the deceased. The deceased became unconscious. He was thereafter carried to a place called Nisanimunda Jholla and was placed on the side of the road, On the following morning, as the deceased did not return home, his brother P.W. 1 went in search of the deceased and found the deceased lying by the road side. The deceased was able to talk and told P.W. 1 that five of the respondents assaulted him on the previous night on account of quarrel relating to disposal of a piece of hide. The deceased was carried to his house. In the afternoon he died, P.W. 1 lodged F. I. R. in the police Station. After investigation, chargesheet was submitted against the respondents.
The plea of the respondents is of denial.
3. The trial court has held that the deceased succumbed to the injuries sustained by him, especially the internal injuries found at the time of post-mortem examination. The only eye-witness examined in this case was P.W. 6. He has been disbelieved by the trial court on the ground that he did not disclose the occurrence before the investigating agency and for the first time he stated to have seen the occurrence in court only. Moreover he was not examined by the I. O, P.W. 9 while the I. O. had been to that village but long after the occurrence he has been examined. The only evidence before the trial court, therefore, was that there was dying declaration of the deceased before p. Ws. 1 and 3 to 5. The trial court disbelieving the dying declaration placed reliance on Ram Nath Madhoprasad v. State of Madhya Pradesh : AIR1953SC420 where it has been held that corroboration was necessary in this case and for want of corroboration, conyiction cannot be sustained only on the dying declaration. Therefore, the respondents were acquitted.
4. We are in agreement with the finding of the trial court that the deceased died of the injuries sustained by him on his abdomen and at his neck and the injuries were also antemortem in nature. We also agree with the reasonings given by the trial court for disbelieving the sole eye-witness P.W. 6. This witness is now working as a labourer of P. Ws, 1 and 2 and is admittedly on inimical terms with the respondents. This witness also did not state before the Investigating Officer to have seen the occurrence,
5. The trial court has held that the dying declaration should be corroborated by other evidence on record. In that it has relied on Ram Nath Madhoprasad v. State of Madhya Pradesh : AIR1953SC420 . The principle laid down in the said Supreme Court case has been overruled by subsequent decisions of the Supreme Court, In : 1958CriLJ106 , Khushal Rao v. State of Bombay, it has been held that the observations of the Supreme Court in that case are in the nature of obiter dicta. It was argued before the Supreme Court that even if it is obiter dicta, it is binding on the courts in India. But the Supreme Court after discussing the principles for accepting the dying declaration did not agree with the principles laid down in : AIR1953SC420 . Also in Kusa v. State of Orissa : 1980CriLJ408 , a Bench of three Judges have held that the decision reported in : AIR1953SC420 , Ram Nath Madhoprasad v. State of Madhya Pradesh, has been overruled in : 2SCR775 and : 1976CriLJ1718 . On the aforesaid dicta of the Supreme Court, we hold that the finding of the trial court that dying declaration requires corroboration is not tenable.
6. In : 1976CriLJ1718 , Munnu Rajah v. State of Madhya Pradesh, it has been held that it is well settled that though a dying declaration must be approached with caution for the reason that the maker of the statement cannot be subjected to cross-examination, there is neither a rule of law nor a rule of prudence which has hardened into a rule of law that a dying declaration cannot be acted unless it is corroborated. Court must not look out for corroboration unless it comes to the conclusion that the dying declaration suffered from any infirmity by reason of which it was necessary to look out for corroboration. In order that the Court may be in a position to assess the evidentiary value of a dying declaration, what is necessary is that the whole of the statement made by the deceased must be laid before the Court, without tampering with its terms or its tenor. Law does not require that the maker of the dying declaration must cover the whole incident or narrate the case history. The Supreme Court in K. Ramachandra Reddy v. Public Prosecutor : 1976CriLJ1548 , held that once the court is satisfied that the dying declaration is true and voluntary it can be sufficient to found the conviction even without any further corroboration. In Kusa v. State of Orissa : 1980CriLJ408 , the Supreme Court has observed that it is now well established that although a dying declaration should be carefully scrutinised but if after perusal of the same, the Court is satisfied that the dying declaration is true and is free from any effort to prompt the deceased to make a statement and is coherent and consistent, there is no legal impediment in founding the conviction on such a dying declaration even if there is no corroboration. If the statement of a dying person passes the test of careful scrutiny applied by the courts, it becomes a most reliable piece of evidence which does not require any corroboration.
7. From the principles laid down by the Supreme Court, as discussed above, it is apparent that the court after scrutinising the evidence relating to dying declaration is to be satisfied that the evidence is reliable and the court could come to the conclusion that the dying declaration is reliable and proved. If the court comes to such a conclusion then, conviction can be based exclusively on dying declaration without corroboration. According to the aforesaid principles, the Court has first to scrutinise the evidence relating to dying declaration in order to come to the conclusion that the evidence relating to dying declaration is reliable. In the instant case, the dying declaration is based only on oral evidence inasmuch as the dying declaration has not been recorded. Prosecution relies on the testimony of P. Ws. 1, 3 to 5 on this count. From the evidence of P.W. 9, the Investigating Officer, it appears that there has been several disputes between P.W. 1 and the respondents and the feeling happens to be strained, P.W. 1 is the brother of the deceased; P.W. 3 is the widow of the deceased and P. Ws. 4 and 5 are co-villagers of the deceased. The occurrence, according to the prosecution, did not take place in the village of the deceased. The occurrence took place another village Dandiraja. P.W. 1 is the person who lodged the F. I. R. He has stated in the F. I. R. that the deceased told him that all the respondents assaulted him with fist blows and kicks at his abdomen and at his neck and he had to lie down there throughout the night. On the following early morning all the five persons carried him away to the road and threw him there. The deceased had also told him that while he was assaulted many persons of village Dandaraja were present who had seen the occurrence. From the evidence of the doctor P.W. 2, it appears that if a person sustains injuries as were found on the deceased, he would normally be able to talk after one to two hours only. The occurrence is said to have taken place on 5-2-1977 a1 about 7 P. M. The dying declaration is said to have been made on the following morning, According to the evidence of the doctor, ordinarily it is not possible that the deceased could have been able to talk by the time when dying declaration is said to have been made. We just now point out that there are certain infirmities and also discrepancies in the evidence of the witnesses examined to prove the dying declaration. P.W. 1 says that he asked the deceased as to how he was lying by the road side prior to others came out to the spot. The deceased told him that five accused persons assaulted him and brought him to the place where he was lying. He has stated that respondents Hari and Pitabas assaulted and threw him down on the ground and others gave him fist blows and kicks. P.W. 3. the widow of the deceased was called by P.W. 1. By the time P.W. 3 reached the place, P. Ws. 4 and 5 were already there, She states that the deceased said that five accused persons assaulted him. The deceased further stated that a quarrel started and the respondents assaulted him by giving fist blows and kicks. Then they carried him to their house. In cross-examination she has admitted that she did not state before the I. O. the names of the respondents. According to prosecution, P.W. 4 was also present where the deceased made the declaration before P.W. 3. P.W. 4 says that to the query of P.W. 1, the deceased stated that a quarrel arose between him and the respondent Pitabas and all the respondents gave him fist blows and kicks. According to this witness, the deceased said that he did not know how he came to the place where he was lying. This statement of P.W. 4 to a great extent supports the evidence of the doctor. P.W. 4 further states that he did not have any talk with the deceased. P.W. 5 is another villager who is said to have been present along with P.W. 4. He states that on being asked by P.W. 1, the deceased said that respondent Pitabas dealt him two kicks and two slaps and other four assaulted him at his belley and chest and completely pressed him and so he was not able to walk. This is the statement made by him before the committing court. In the Sessions Court, he has stated that the deceased told him that all the five respondents gave him fist blows and kicks and at the cock-crow time all the respondents carried him to the spot and laid him there. He also states that he did not talk with the deceased nor P.W. 3 asked anything to the deceased.
8. The aforesaid evidence relating to dying declaration appears to be discrepant and the evidence of the witnesses does not appear to be reliable. Even though it has been stated in the F. I. R. by P.W. 1 that many persons of the village were present at the time of assault and P.W. 9, the Investigating Officer states that he has examined the eye-witnesses, curiously enough only P.W. 6 has been examined who, as we have already held, is unreliable. No reason has been assigned as to why other witnesses to the occurrence have not been examined. Admittedly there has been ill-feeling between the respondents and the family of P, W. 1. Therefore, the evidence of P. Ws. 1 and 3 is to be scrutinised with great care and caution. The evidence of P. Ws. 1, 3 and 4 is not at all consistent about the dying declaration and as such, their evidence cannot be accepted to be reliable. In view of such evidence, the dying declaration cannot be held to be devoid of infirmity, and we hold that the prosecution has also failed to establish beyond doubt that the deceased made the dying declaration as forwarded by the prosecution. On the aforesaid analysis, we hold that no reliance can be placed on the evidence of dying declaration.
9. For the aforesaid reasons, we are in agreement with the decision of acquittal of the respondents and we do not find any compelling reason to the ultimate result of acquittal.
10. In the result, the appeal fails and is, accordingly, dismissed. The respondents are directed to be set at liberty forthwith.
J.K. Mohanty, J.
10. I agree.