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TMI Blog2006 (9) TMI 612X X X X Extracts X X X X X X X X Extracts X X X X ..... missed. 2. The appeals were directed against the judgment and order dated 6th February, 1993 passed by the learned Third Additional Sessions Judge, Nasik whereby accused No. 1 Sham Shankar Kankaria was convicted for offence punishable under Section 304 Part II IPC. The other five accused persons were convicted for offence punishable under Section 325 read with Section 34 IPC. All the six accused persons were convicted for offence punishable under Section 342 read with Section 34 IPC. For the first offence accused No. 1 Sham Shankar Kankaria was sentenced to undergo rigorous imprisonment for six years and to pay fine of ₹ 3,000/- with default stipulation. For the second offence each of accused Nos. 2 to 6 were sentenced to undergo rigorous imprisonment for four years and to pay fine of ₹ 2,000/- with default stipulation. For the third offence, all the six were sentenced to undergo rigorous imprisonment for six months and to pay a fine of ₹ 3,000/- each with default stipulation. The accused Nos. 1 to 6 were acquitted of the charge under Section 302 read with Section 34 IPC and Section 135 of Bombay Act. While the accused persons challenged their conviction and se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k, intracranial hemorrhage and due to fracture of skull. After carrying out the spot panchnama, the articles at the spot of the incident including the blood scrapping were collected from the scene of offence. The iron pipe was recovered at the instance of the accused No. 1 Sham Kankaria, Coir Cord and pieces of wooden pegs having blood stains were seized from the spot of the incident. The seized articles were sent for examination by the Chemical Analyser. The blood sample of the deceased was also collected and sent for medical analysis along with the clothes on the body of the deceased. On conclusion of the investigation, all the six accused were charge-sheeted. They were tried before learned Additional Sessions Judge and were convicted and sentenced by the judgment and order dated 6th February, 1993. Challenge was made to the same before the High Court, as noted above. 4. The High Court analysed the evidence and was of the view that the trial court was not justified in acquitting the accused persons of the charge of offence punishable under Section 302 read with Section 34 IPC and by only convicting accused No. 1 Sham Shankar Kankaria in terms of Section 304 Part II IPC. During ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate on the other hand supported the judgment of the High Court. 6. At this juncture, it is relevant to take note of Section 32 of the Indian Evidence Act, 1872 (in short 'Evidence Act') which deals with cases in which statement of relevant fact by person who is dead or cannot be found, etc. is relevant. The general rule is that all oral evidence must be direct viz., if it refers to a fact which could be seen it must be the evidence of the witness who says he saw it, if it refers to a fact which could be heard, it must be the evidence of the witness who says he heard it, if it refers to a fact which could be perceived by any other sense, it must be the evidence of the witness who says he perceived it by that sense. Similar is the case with opinion. These aspects are elaborated in Section 60. The eight clauses of Section 32 are exceptions to the general rule against hearsay just stated. Clause (1) of Section 32 makes relevant what is generally described as dying declaration, though such an expression has not been used in any Statute. It essentially means statements made by a person as to the cause of his death or as to the circumstances of the transaction resulting in his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of deceased was not as a result of either tutoring, or prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. This Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under as indicated in Smt. Paniben v. State of Gujarat 1992 CriLJ 2919 : (i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. [See Munnu Raja and Anr. v. The State of Madhya ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... angaram Gehani v. State of Maharashtra [1982] 3 SCR 277]. In the light of the above principles, the acceptability of alleged dying declaration in the instant case has to be considered. The dying declaration is only a piece of untested evidence and must like any other evidence, satisfy the Court that what is stated therein is the unalloyed truth and that it is absolutely safe to act upon it. If after careful scrutiny the Court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it basis of conviction, even if there is no corroboration. [See Gangotri Singh v. State of U.P. 1992 CriLJ 1290, Goverdhan Raoji Ghyare v. State of Maharashtra 1993 CriLJ 3414, Meesala Ramakrishan v. State of Andhra Pradesh [1994] 3 SCR 497 and State of Rajasthan v. Kishore 1996 CriLJ 2003]. There is no material to show that dying declaration was result of product of imagination, tutoring or prompting. On the contrary, the same appears to have been made by the deceased voluntarily. It is trustworthy and has credibility. 9. Criticism that PWs 9 and 10 being relatives have fa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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