Holding

A statement made by a living person, even if given under expectation of death, is not a dying declaration under Section 32 and may be used only as a former statement for corroboration or contradiction; conviction cannot rest on uncorroborated accomplice testimony.

Summary

The case involved a mercenary killing where the victim Ramu Somani survived and gave a statement to a magistrate, which the prosecution treated as a dying declaration. The Supreme Court held that because the declarant was alive, the statement could not be admitted under Section 32 of the Evidence Act and could only be used as a former statement under Sections 155 and 157. It further clarified that a statement to a magistrate under Section 164 of the CrPC may be used for corroboration or contradiction but only attains dying‑declaration status if the maker later dies. The Court emphasized that an accomplice’s testimony must be corroborated before it can form the basis of a conviction. Consequently, the conviction of A‑1 Gopal Maharaj, which rested solely on uncorroborated approver testimony, was set aside, while the convictions of A‑4 Ram Prasad Yadao and the other accused were upheld due to sufficient corroborative evidence.

Issues considered

The admissibility of a statement made to a magistrate by a person who is alive but under expectation of death under Section 32 of the Evidence Act
The permissible use of such a statement under Sections 155 and 157 of the Evidence Act
The requirement of corroboration for conviction based on an accomplice/approver's testimony
Whether the conviction of A‑1 Gopal Maharaj can be sustained on uncorroborated approver evidence
Whether the conviction of A‑4 Ram Prasad Yadao can be sustained on the evidence presented

Legislation cited

Code of Criminal Procedure, 1973s. 162, s. 164
Indian Evidence Act, 1872s. 155, s. 157, s. 32
Indian Penal Code, 1860s. 109, s. 150, s. 151, s. 302

Subjects

dying declarationSection 32former statementaccomplice testimonyapprovercorroborationIndian Evidence ActCriminal Procedure Codemercenary killingconviction

Judgment

RAM PRASAD A
..... v.
ST A TE OF MAHARASHTRA

MAY 12, 1999

[K.T. THOMAS AND D.P. MOHAPATRA, JJ.] B

Indian Evidence Act, 1872-Section 32-Statement made to Magistrate
under expectation of death but the maker survived-Held, not admissible,
expectation of death not sufficient to wiggle it into th.e cassette of Section
il c
Section 157-Statement made under-Could be used only to corroborate
the testimony of witness.

Section 155-Statement made under-Could be used to contradict D
testimony of witness.

Accomplice evidence-Confessional statement given by approver-
lmportance to be attache~ for conviction-Held, it is imprudent to base
conviction on it unless corroborated and it must pass test of reliability.
E
Criminal Procedure Code, 1973-Section 164-Statement made to
Magistrate is not limited to corroboration of testimony of witness-May be
elevated to status of Section 32 if maker dies subsequently.

The deceased was the brother of PW-1 and was murdered in an act of
mercenary killing. The contemplated victim was PW-1. However he escaped F
death sustaining severe injuries. The plan was allegedly made by A-1 in
connivance with A-2 and A-4 to get PW-1 murdered. The actual act was done
by A-5, A-6, A-7, A-10 and PW-2, along with few others who had been
acquitted.
G
The prosecution ~eavily relied upon the statement given by PW-1 when
he was injured, by interpreting it as a dying declaration notwithstanding the
fact that he did not die. Even greater reliance was placed upon the statement
made by PW-2, who had turned an approver. He had stated that he was
witness to the conversations between A-1 and A-4 and also disclosed the
complete plan for the said murder in detail. H
519
520 SUPREME COURT REPORTS [1999] 3 S.C.R.

A The High Court convicted A-1 and A-4 under Section 302 read with
Sections 109 and 150 of the Indian Penal Code. The conviction of A-5, A- · ·
6, A-7 amd A-10 was also confirmed. Hence these appeals.

Dismissing the appeals filed by accused Nos. 4, 5, 6, 7 and 10, and
allowing the appeal of A-1 and setting aside his conviction and sentence this
-·
B Court.

HELD : 1. The Statement made by PW-1 cannot be used as evidence
under Section 32 of the Evidence Act though it was recorded as a dying
declaration. The fact when this statement was given, he would have been
under expectation of death is not sufficient to wiggle it into the cassette of
C Section 32. As long as the maker of the statement is alive it would remain
only in the realm of a statement recorded during investigation.
[523-H; 524-A-B)

2. Section 157 of the Evidence Act permits proof of any former statement
made by a witness relating to the same fact before "any authority legally
D competent to investigate the Fact" but its use is limited to corroboration of
the testimony of such witness. But a statement made to a Magistrate is not
affected by the prohibition as he can record the statement of a person as
provided in Section 164 of the Code. Such a statement would either be
elevated to the status of Section 32 if the maker subsequently dies or it would
E remain within the realm or what it was originally. This statement becomes
usable to corroborate the witness as provided in Section 157 of the Evidence
Act or to C!mtradict him as provided in Section 155 thereof. [524-B-E)

Maqsoodan & Ors. v. State of U.P., A.LR. (1983) SC 216, relied on.

F 3. There is no legal hurdle against acting on the testimony of an
accomplice. It would be imprudent to base a conviction on such testimony
unless it is corroborated in material particulars. The evidence has to pass
the test of reliability and must secure adequate corroboration before the
same can be acted upon. [525-C-D)

G CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
592 of 1994 Etc.

From the Judgment and Order dated 3.3.93 of the Bombay High Court
in Crl. A.No. 218of1989.

H R.S. Lambat for the Appellant in Crl. A.No. 592/94, 1187/95 and 335/99.
RAM PRASAD v. STATE OF MAHARASHTRA [THOMAS, J.) 521

...... R.S. Sodhi, for the Appellant in Crl. A. No. 507/93, V.B. Joshi and D.M . A
Nargolkar for the Respondent.

,,. The Judgment of the Court ~as delivered by

THOMAS, J. These appeals relate to a case of mercenary killing. Though
the principal target of the killers was one Ram Kishore Somani@ Ramu they B
could kill only his younger brother Ashok Somani, who, per chance was with
his elder brother then, due to his jinxed destiny. Nevertheless they succeeded
in brutally mangling the targeted person inflicting a lot of injuries on him,
some of them near fatal. As he survived such injuries he appeared in the trial
court to tell the tale.
c
If the story is true, the intrigue was hatched, ironically, at the precincts
of a court of law and its finale was staged on a public road near the Employment
Exchange Office at Amravati (Maharashtra). Ten persons, in all, were charge-
sheeted by the police in connection with the said case, out of which one Anil
Chaudhary (PW.2) was granted pardon as he turned ail approver. Four of the
D
remaining alone were convicted and all the rest were acquitted by the trial
court. The State appealed against the acquittal and the convicted accused
appealed against their conviction and sentence. During the pendency of the
appeal A.2 Ram Kishore Yadao-the kingpin - died and the appeal as against
' ~

him got abated.
E
A Division Bench of the High Court of Bombay (Nagpur Bench)
confirmed the acquittal of A.9-Rajendra and also the conviction and sentence
passed on the four accused. But the High Court reversed the acquittal of A.l-
Gopal Maharaj and A.4-Ram Prasad Yadao and they too were convicted under
Section 302 IPC read with Sections 109 and 150 IPC and also to a few other
lesser offences. They were sentenced to imprisonment for life on the main F
offence, and to lesser terms of imprisonment for the lesser offences.

A synopsis of the case is this: Ram Kishore Somani @ Ramu Somani
(PW.I) and his brother Ashok Somani (deceased) were doing cloth business
at Amravati. A.1-Gopal Maharaj contested as a candidate for the Municipal
G

-
election in 1986 from the same Ward in which PW. I-Ramu Somani also contested
as a candidate. The contest burgeoned ill-feeling which, by course of time,
snowballed into deep-rooted rancour and it escalated to its zenith when he
decided to go forward for the liquidation of his rival Ramu Somani. He sought
the assistance of A.2- Ram Kishore Yadao who was leader of a gangster-gang.
As A.2-Ram Kishore Yadao was already in jail in connection with a criminal H
522 SUPREME COURT REPORTS [1999] 3 S.~.R.·

A case, A.1-Gopal Maharaj went to the court of the Judicial Magistrate of First
Class (Amravati) where A.2-Ram Kishore Yadao was expected to be produced
from jail in connection with that criminal case. A.1-Gopal Maharaj impressed
upon A.2-Ram Kishore Yadao that it was PW.1.who made all efforts to see
"'-
that A.2 was not enlarged on bail. He then requested A.2 to liquidate PW.1-
B Ramu Somani. However, he cautioned PW. I that it was not easy to finish him
off since he was always guarded and was constantly moving around escorted
by bodyguards. A.1-Gopal Maharaj suggested to liquidate the bodyguards
also so that there would be no eye-witness to speak about the murder.

The above talk was again repeated on l 0.12.1987 at the same place. The
C only addition then was the presence of A.4-Ram Prasad Yadao who is the
brother of A.2-Ram Kishore Yadao. A.4-Ram Prasad Yadao told his henchmen-
gangsters to do the needful and offered himself to be arrested in the meanwhile
in connection with some petty case, so that no penumbra of suspecian would
fall on A.2 and A.4. It was thought that, as the mercenaries are unacquainted
to the targeted persons, the operation of killing can be carried out without
D much risk.

A.2 and A.4 wanted their henchmen to liquidate Ramu Somani. On

E
12.12.1986, A.4-Ram Prasad Yadao managed to get himself arrested on some
petty case concocted at his instance. But A.4-Ram Prasad Yadao exhibited his
anxiety as to why Ramu Somani was not killed even after A.4 got himself
r-
behind the bar. He threatened his henchmen with another murder, should the
assignment for Ramu Somani's liquidation was not implemented without any
further delay.

Six accused persons (A.5-Baba Swami @ Vinit, A.6Anil Motiram Dhote,
F A.7-Raju @ Mitun Galhot and Pramod lngale) along with Anil Chaudhary
(PW.2) went on a prowl for the target. Though Ramu Somani was spotted by
them around 3 P.M. on 15.12.1987 they could not reach him as he got perched
in his house in the meantime. But it was only a short-lived safety.

G Around 4 P.M. on 15.12.1987, Ramu Somani went out of the house
without having any foreboding of the slinking marauders, he was on the
pillion seat of a scooter ridden by his younger brother Ashok Somani. As
they reached near the office of Employment Exchange, all the assailants
waylaid them and a massive onslaught was launched on them with deadly
weapons. When the gangsters saw that their victim was very grievously
H mauled they fled from the place.
RAM PRASAD v. STATE OF MAHARASHTRA [THOMAS, J.] 523

Both the injured were removed to the hospital as both sustained many A
serious injuries. Dying Declarations of both were recorded by a Judicial
Magistrate (PW.16). On the same night Ashok Somani succumbed to the
injuries, but Ramu Somani registered progress in the healing process and
eventually he was discharged from the hospital.

All the accused were arrested, different accused on different dates, and B
some weapons were recovered from a well situated near the house of PW.2-
Anil Chaudhary. He was arrayed as accused No.8. He gave a confessional
statement to the Chief Judicial Magistrate and on 11.3 .1988 pardon was
tendered to him and he was made an approver.

The roles ascribed to A.5-Baba Swami, A.6-Anil Dhote, A.7-Raju Galhot C
and A.10-Pramod Ingale besides PW.2-Anil Chaudhary as assailants in the
occurrence, were spoken to by PW. l-Ramu Somani and PW.2-Anil Chaudhary
in full measure. The trial court and the Division Bench of the High Court have
chosen to act on their evidence and found them guilty of the offences.
D
There is no dispute now that PW.l-Ramu Somani and deceased Ashok
Somani sustained very serious injuries at the place and at the time mentioned
by the prosecution. The only point of dispute, on that aspect, was regarding
the identity of the assailants. PW.2-Anil Chaudhary has narrated the story,
including the incident on 15.12.1986 with all vivid details. PW.I-Ramu Somani
also narrated the incident with full particulars, though he could identify only E
A.5, A.6, A.7, and PW.2 among the assailants. It is no matter that PW.I could
not identify A. I 0 as his participation in the occurrence was effectively
vouchsafed by the evidence of PW.5-Avinash. Testimony of PW.4-Balaji
Bobde affords additional evidence regarding the participation of A.5-Baba
Swami and A.7-Raju Galhot.
F
Ext. 52 is the Dying Declaration made by PW.I-Ramu Somani, which was
recorded by a Judicial Magistrate (PW.16). Both the trial court and the High
Court counted Ext.52 as a piece of evidence. Shri R.S. Lambat, learned counsel
contended that both courts have gone wrong in treating Ext.52 as evidence
because the person who gave that statement is not dead and hence it could G
not fall under Section 32 of the Evidence Act. Counsel further contended that
even otherwise Ext.52 could only have been used to contradict PW. I as
provided in Section 162 of the Code of Criminal Procedure (for short "the
Code") as it was a statement recorded during investigation. •

We are in full agreement with the contention of the learned counsel that H
524 SUPREME COURT REPORTS . [1999] 3 S.C.R

A Ext.52 cannot be used as evidence under Section 32 of the Evidence Act
though it was recorded as a dying declaration. At the time when PW. I. gave
the statement he would have been under expectation of death but that is not
sufficient to wiggle it into the cassette of Section 32. As long as the maker
of the statement is alive i~ would remain only in the realm of a statement
B recorded during investigation.

Be that as it may, the question is whether the court could treat it as an
item of evidence for any purpose. Section 157 of the Evidence Act permits
proof of any former statement made by a witness relating to the same fact
befqre "any authority legally competent to investigate the fact" but its use
C is limited to corroboration of the testimony of such witness. Though a police
officer is legally competent to investigate, any statement made to him during
such investigation cannot be used to corroborate the testimony of a witness
because of the clear interdict contained in Section 162 of the Code. But a
statement made to a magistrate is not affected by the prohibition contained
in the said Section. A magistrate can record the stateme.rit of a person as
D provided in Section 164 of the Code and such statement would either be
elevated to the status of Section 32 if the maker of the statement subsequently
dies or it would remain within the realm of what it was originally. A statement
recorded by a magistrate under Section 164 becomes usable to corroborate ·
the witness as provided in Section 157 of the Evidence Act or to contradict
E him as provided in Section 155 thereof.

In Maqsoodan and Ors. v. State of UP., AIR (1983) SC 126 a three-
Judge Bench of this Court has stated the legal position thus:

"When a person who has made a statement, may be in expectation of
death, is not dead, it is not a dying declaration and is not admissible
F under Section 32 of Evidence Act. In the inst~t case, the makers of
the statements Exts.Ka-22 and Ka-23, are not only alive but they
deposed in the case. Their statements, therefore, are not admissible
under Section 157 of the Evidence Act as former statements made by
them in order to corroborate their testimony in Court."
G
So we repel the contention of the learned counsel that Ext. 52 cannot
be used for corroborating the testimony of PW. l. Nothing could be shown
to discredit his testimony. He, being the injured, seems to be the most natural
witness to speak to the occurrence. When PW.I pointed out PW.2 as one of
the assailants, we have no difficulty in believing that PW.2-Anil Chaudhary
H had witnessed everything which occurred when the victims were showered
RAM PRASAD v. ST A TE OF MAHARASHTRA (THOMAS, J.] 525

with lethal blows, besides himself also participating along with other assailants. A
We, therefore, find no reason to interfere with the concurrent finding
that A.5-Baba Swami, A.6-Anil Motiram Dhote, J\.7-Raju Galhot and A.IO
Pramod Motiram Ingale were active participants in the occurrence in which
deceased and PW. I Ramu Somani were violently attacked.
B
While dealing with the appeals concerning A.1-Gopal Maharaj and A.4-
Ram Prasad Yadao we are t!,) point out that their conviction depends entirely
on the testimony PW.2-Anil Chau9hary. The Division Bench of the High
Court placed full reliance on his evidence. Though there is no legal hurdle
against acting on the testimony of an accomplice it is well-nigh settled that C
it would be imprudent to base a conviction on such testimony unless it is
corroborated in material particulars. Hence PW.2's evidence has to pass the
test of reliability and must secure adequate corroboration before the same can
be acted upon, in so far as A.1-Gopal Maharaj and A.4-Ram Prasad Yadao are
concerned.
D
PW.2-Anil Chaudhary said that on 4. I2. I987 he too was present at the
court premises when A. I-Gopal Maharaj conversed with A.2-Ram Kishore
Yadao regarding the necessity to exterminate Ramu Somani. PW.2-Anil
Chaudhary also said in his evidence that on IO. I2. I 987, A. I-Gopal Maharaj
repeated the same conversation to A.2-Ram Kishore Yadao. To corroborate E
the aforesaid version prosecution examined PW. I I Yusufkhan and PW. I 7-
Kishan Jamu Goyal. The former has stated that he was present at the court
premises on 4.12.1987 and saw A.1-Gopal Maharaj, A.2-Ram Kishore Yadao
and others were talking with each other. The other witness said that on
IO. I2. I 987 he saw those persons conversing together. But neither of them
could hear what they were talking about. Criminal liability can be fastened F
with A.I-Gopal Maharaj only if the words attributed to him by PW.2 have
assurance from other sources. The mere fact that A. I -Gopal Maharaj was
found talking with A.2 is hardly sufficient to elicit such an assurance.

Shri V.8. Joshi, learned counsel for the State candidly admitted before
us that there is no other evidence or material to corroborate the testimony of G
PW.2 regarding the involvement of A.1-Gopal Maharaj in the crime. No other
circumstance has been brought to our notice. Nor is there any material to
show that A.1-Gopal Maharaj did anything for bailing out any of the assailants,
nor that he expended any money for the defence of the said persons at any
stage. H
I
JI

526 SUPREME COURT REPORTS [1999] 3 S.C.R.

A Thus we are unable to uphold the conviction of A.1-Gopal Maharaj as
the testimony of PW.2-Anil Chaudhary against him remained uncorroborated.

But the position regarding A.4-Ram Pradad Yadao is different. The role
attributed to him by PW.2-Anil Chaudhary is that on 10 .. 12.1987 A.4-Ram
Prasad Yadao told the assailants to go ahead with the operation for annihilation
B of Ramu Somani and that himself would, in the meantime, go behind bars so
that no suspicion would arise against him also. PW.2-Anil Chaudhary said
that it was A.4-Ram Prasad Yadao who supplied all the weapons to the
assailants for carrying out the operation for annihilation of Ramu Somani.
PW.2-Anil Chaudhary further said that true to his statement A.4-Ram Prasad
C Yadao got himself arrested on the succeeding day and when the witness
visited A.4 at the Executive Magistrate Court premises he was abused by A.4
for the delay in carrying out the operation. According to PW.2-Anil Chaudhary
he complained to A.2~Ram Kishore Yadao regarding the aforesaid conduct of
A.4-Ram Prasad Yadao and then A.2 warned him that A.4-Ram Prasad might
even go to the extent of slaying the assailants after coming out of jail if they
D fail to carry out the operation.

Learned counsel for the appellant pointed out that PW.2 in cross-
examination has said that he did not disclose to any body earlier that A.4
supplied the weapons of offence. So we are not inclined to accept that part
of his testimony, whether it is true or not. That apart, how far the said
E testimony of PW.2-Anil Chaudh:iry regarding the other part of the involvement
of A.4-Ram Prasad be acted on as true?

Toe confessional statement given by PW.2 to the Magistrate before
pardon was tendered to him, is projected as a material for corroboration.
Though legally.it can be used as a corroborative material we are not disposed
F to attach great weight to it since it is only the former statement of an
accomplice.

Learned counsel for A.4 Ram Prasad pointed out that PW.2 himself
admitted that when he was questioned by the police he did not speak anything
G about A.4. But that is not of much use now because PW.2 was questioned
by the police as an accused, and then he would not have divulged the truth.
It was later that he changed his mind and offered to confess the entire truth.
In the confession he implicated himself and others. So the fact that he did
not divulge the whole truth at the outset when he was questioned by the
police is not of much consequence. That aspect only goes along with the
H inherent weakness of the testimony of any approver.
RAM PRASAD v. STATE OF MAHARASHTRA [THOMAS, J.) 521
PW.17-Kishan Jamu Goyal was a detenue during December 1987. He A
said in his evidence that he was on the court verandah on 10-12-1987 along
with A.2-Ram Kishore Yadao and then he saw A.2 talking with the assailants.
As we have pointed out, while dealing with the case of A. l-Gopal Maharaj,
corroboration provided by the evidence PW.17-Kishan Jamu Goyal is not
sufficient to ensure confidence in judicial mind about the truth of PW.2's B
testimony. It may be one circumstance, but we require more circumstances to
assure that PW.2 spoke the truth in the court.

There is one circumstance which is reasonably sturdy to corroborate
the evidence of PW.2-Anil Chaudhary regarding his accusation against A.4-
Ram Prasad Yadao. Ext.170 is a police report showing that a petty case was C
registered by the police against A.4-Ram Prasad Yadao and he was taken into
custody by the police on 12.12.1987. PW.29 Head Constable testified that a
person by name Vilas Mulatkar went to the police station with a complaint
that A.4-Ram Prasad Yadao created unruly scene under the influence of
alcohol in a public place, and that a case was registered against him under
Section 151 of the Code and he was interned in the lock-up on 12.12.1987. D

The fact that A.4 was so arrested on-12.12.1987 is not disputed. The
contention is that A.4 was released on bail even prior to the incident in the
case and hence his arrest is of no use in this case. That might be so, and
we are not at the question whether he should have continued in jail till the E
occurrence was over. We are scrutinizing the evidence of PW.2, and ascertain
the extent it has been corroborated by other evidence. In that scrutiny we
notice that the arrest of A.4 on 12.12.1987 is a circumstance which corroborates
the testimony of PW.2.

Another item of evidence noticed as of corroborative value is the F
testimony of PW.3. He was a boy aged 17, who was then a student. He
deposed that he too had connections with A.2-Ram Kishore Yadao. On
15.12.1987, at about 1.30 P.M. while he was standing at Duffarin bus stop
along with A.5 and A.IO, some others including A.4 and A.6 and then A.7
joined them and PW.2 also came later. A.4 was heard saying to them "you G
carry out the work assigned and do not bother about consequences", and A.4
assured them that he would bear all the expenses. Next day of the occurrence,
A.6-Anil Dhote sent PW.3-Sudir Pohokar to the house of A.4-Ram Prasad
Yadao to collect some money. PW.3 went to A.4 and collected some money
from him and then A.4 told him that the police was suspecting him and hence
he would be able to supply further fund only later. This is the substance of H
I.._

528 SUPREME COURT REPORTS [1999] 3 S.C.R.

A what PW.3 said regarding the role of A.4-Ram Prasad.

The aforesaid evidence of PW.3 is a further item to lend assurance
regarding the involvement of A.4-Ram Prasad in the murder case. Of course,
this was not counted by the High Court but that does not matter much. We
are now at the question as to what extent the evidence of PW.2-Anil Chaudhary
B can be acted on. We feel assured from the circumstances enumerated above
that the evidence of PW.2 in so far as he implicated A.4-Ram Prasad with this
murder can be accepted as true.

When we record our finding against A.4-Ram Prasad we are also obliged
to record our gratitude to Shri R.S. Lambat (learned counsel who argued for
C A.4) for the able assistance he provided to the accused with th;; thorough
and deep study he made with the facts and evidence in this case.

In the result the appeals filed by A.5-Baba Swami, A.6-Anil Motiram
Dhote, A.7-Raju Galhot and A.10-Pramod Motiram Ingale are dismissed. But
D we allow the appeal filed by A.1-Gopal Maharaj, and set aside the conviction
and sentence passed on him by the High Court. His bail bond will stand
discharged. However, we confirm the conviction and sentence passed by the
High Court on A. 4-Ram Prasad Yadao and dismiss his appeal. We direct the
Sessions Judge, Amaravati to take prompt and necessary steps to put him in
jail for undergoing the remaining portion of the sente~ce.
E
A.Q. Appeals filed by A~cused No. 4, 5, 6, 7 and IO dismissed.
Appeals filed by Accused No. A-1 allowed .

.'