Holding

The dying declaration was truthful and reliable, no corroboration was required, and the police officer’s testimony as a court witness was admissible, thus the convictions stand.

Summary

The State of Assam charged Muhim Barkataki and Oulu Dutta with murder and arson, alleging they set fire to the deceased Nagen Dey's shop and body after pouring kerosene. The prosecution relied on eye‑witnesses who saw the fire, a dying declaration made by the victim while in severe pain, and statements recorded under Section 164 CrPC, as well as testimony of a police officer examined as a court witness under Section 311 CrPC. The Gauhati High Court acquitted the accused, holding the dying declaration unreliable and uncorroborated. The Supreme Court reversed this decision, finding the dying declaration truthful and reliable, noting that corroboration is not mandatory when the court is satisfied of its veracity, and affirming the admissibility of the police officer’s testimony. Consequently, the convictions under Sections 302 read with 34 and 436 read with 34 of the IPC were upheld and the appeal allowed.

Issues considered

Whether a dying declaration made by a victim suffering severe burn injuries is admissible and reliable under the Evidence Act.
Whether a dying declaration requires corroboration to sustain a conviction.
Whether a police officer can be examined as a court witness under Section 311 of the Criminal Procedure Code.
Whether the evidence presented is sufficient to uphold convictions under Sections 302/34 and 436/34 IPC.

Legislation cited

Code of Criminal Procedure, 1973s. 162, s. 164, s. 311
Indian Evidence Act, 1872s. 32
Indian Penal Code, 1860s. 302, s. 34, s. 436

Subjects

dying declarationcorroborationmurderarsonSection 302 IPCSection 34 IPCSection 436 IPCSection 311 CrPCSection 164 CrPCpolice witnessconviction

Judgment

A

STATE OF ASSAM
v.
MUHIM BARKATAKI & ANR.
B
OCTOBER 20, 1986

[A.P. SEN AND B.C. RAY, JJ.]

Indian Penal Code, 1860: ss. 34, 302 & 436-0ffences .under-
Dying declaration of deceased-Conviction of accused-Validity of.
c
Evidence Act, 1872: s. 32-Dying declaration made before
witnesses while suffering severe pain from grievous burn injuries-
Whether truthful and reliable.

D Criminal Procedure Code, 1973: s. 311-Police Officer-
Whether could be examined as court witness-Witness found indepen-
dent, disinterested, trustworthy and reliable.

The prosecution alleged that the accused-respondents set ftre to

E
deceased's body and his shop after sprinkling kerosene oil, that on see-
ing the ftre P. Ws. 4, S and 6 rushed to the place and put off the ftre
from the body of the deceased who had come out of the shop ablaze, and
i
I
that C. W. I, the Assistant Sub-Inspector of Police, who was on law and
order duty also came to the place of occurrence simultaneously and \
witnessed the incident. The deceased made a dying declaration before
these witnesses stating that tbe said two accused had set ftre to his body
F after pouring kerosene. One of the accused was caught hold of by the
public red handed at the shop whereas the other accused fled away. The
Officer-in-charge of Police Station was informed of the incident on the
telephone. The deceased was removed to the hospital where he later
died. Cases of murder and arson were thereafter registered against the
accused. P.Ws. 4 and 6 made statements under s. 164 Cr. P.C. before
G the Magistrate aud deposed to the factum of dying declaration made by
the deceased implicating the accused.

The Sessions Court after considering the evidences of P .W. 4 and
C. W. 1 as well as the statements rec11rded under s. 164 Cr. P.C.
accepted the dying declaration made by the deceased and convicted the
H accused under s. 302 read with s. 34 I.P.C. and sentenced them to

1038
STATE OF ASSAM v. MU HIM BARKATAKI 1039 -

_, rigorous imprisonment for life. They were further convicted and A
" sentenced nnder s. 436 read withs. 34 I.P.C.

The High Court on appeal, however, found that the prosecution
had failed to prove beyond doubt the offences for which the appellants
were charged, that the entire evidence in the case was circumstantial as
there was no eye witness to the occurrence, that the evidence of P.W. 4 B
as to the dying declaration was wholly unreliable, and therefore, set
aside the conviction and sentence passed against the accused.

The appeal by the State to this Court was opposed by the accused-
respondents contending that there was no evidence to show that the
deceased made the dying declaration and even if such a declaration has c
been made the same having not been corroborated cannot be taken into
consideration in convicting them.
-{

Allowing the Appeal, the Court,

HELD: The accused were rightly convicted by the Sessions D
Court. The prosecution has proved beyond reasonable doubt the
charges framed agaiust them. The order of acquittal passed by the High
Court is, therefore, liable to be set aside. [1048G I

The dying declaration made by the deceased while he was suffer-
ing severe pain from grievous in.iuries clearly implicating the two .E
accused persons as his assailants is truthful and reliable. [1048E]

The eye witnesses, P. Ws. 4, 5 and 6 and C. W. I had undoubtedly
arrived at the place of occurrence immediately on seeing the fire. They
had seen that the shop was ablaze and there was fire on the person of the
deceas_ed. Then there is the specific evidence of P. W. 4 and C. W. I that
the deceased was crying a lot in,pain due to burn injuries and that he
stated clearly that the accused persons poured kerosene on him and set
fire to his body. There are also the statements of P. W. 4 and 6 made
under s. 164 Cr. P.C. to the effect that the deceased made 'a dying
declaration. P.W. 2, who held post mortem on the body of the deceased
has stated in his evidence that a person sustaining burn injuries of such G
nature may have been conscious for some time before his death. It can-
not, therefore, be ruled out that the deceased was conscious in spite of
the burn injuries on his person and he could speak and make dying
declaration as testified to by P. W. 4 and C. W. I. [1046A-D; 1045E)

There is no infirmity in the action of th~ Sessions Court treating H
1040 SUPREME COURT REPORTS [1986] 3 S.C.R.

A C. W. 1 as a court witness. It has assigned cogent reasons as to why
P. W. 1 was examined as a court witness under the provisions of s. 311
..
Cr. P.C. He has been found an independent and disinterested witness,
to be reliable and trustworthy. He was an important witness of the case
and his examination was for the just decision of the case. His evidence
has full corroborations with another independent and distinterested
B
witness, P. W. 4, who was also found to be trustworthy and reliable. The
evidence of C. W. 1 cannot, therefore, be underestimated merely be-
cause he was a police officer. I 1046E-G]

The Court of appeal has acted illegally in discarding the evidence
of P. W. 4 as well as his statement recorded under s. 164 Cr. P.C. There
C is no criticism regarding the evidence of this witness on behalf of the
respondents as to why his testimony regarding the dying declaration
shall not be taken into oonsideration. I1044H; 1045A-B I

There is also the testimony of P. W. 4 and C. W. I that one of the
accused was caught hold red handed at the spot and was detained by the
D
public while the other !led away from the place of occurrence. I 1043F-G J

All these lead to the only conclusion that the two accused persons
poured kerosene in the shop as well as on the deceased and set them on
fire. I I047C-D] ..J,

E
Ramnath Madhn Prasad & Ors. v. State of Madhya Pradesh, AIR
1953 SC 420; Khushal Rao v. State of Bombay, [1958] SCR 552; Kusa
& Ors. v. State of Orissa, AIR 1980 SC 559 at 562 para 9; State of Assam r
v. Muaizuddin Ahmed, [1983] 2 SCC 14 at 19 para 10; and Jayaraj v.
State of Tamil Nadu, AIR 1976 SC 1519 at 1522 para 16 referred to. --(
F CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 27 I of 1986

From the Judgment and Order dated 31.1. 1985 of the Gauhati
High Court in Cr. A. No. 66 of 1983.

G S.K. Nandy for the Appellant.

R.K. Garg, Sunil K. Jain and Vijay Hansaria for the Res-
pondents.

The Judgment of the Court was delivered by
H
STATE OF ASSAMy. MUHIMBARKATAKI (RAY,J.J 1041
' A
B.C. Ray, J. This appeal by sp~cial leave is against the judgment
and order passed in Criminal Appeal No. 66 of 1983 by the High Court
of Gauhati acquiting both· the accused respondents from the charges
under Sec. 302 read with Sec. 34 I.P.C. as well as under Sec. 436 read
with Sec. 34oflndian Penal Code, 1860.
B
The prosecution case in short is that on 2hd November, 1978 at
about 7 p.m. two accused respondents Muhim Chandra Barkataki and
~
Oulu Dutta came together to the shop of Nagen Dey since deceased
and sp1ihkled and poured kerosine oil in the shop as well as on the
person of Nagen Dey and then set fire. Immediately fire caught and
. spread over the shop as well on the body of Nagen Dey. The shop was
~7 a Guliamal (grocery) shop where rice, Dahl, soap, mu'stered oil, c
kerosine oil, etc goods were sold and situate at Na-Ali Road of Jorhat
Town in front of M/s Baruah Printers. Nagen ·Dey came out of the
shop house with ablazing condition all ov~ his body. The witnesses
-(
Arnn Barna, Prabin Barna and Kiron Saikia on seeing the fire rushed
to the place of occurrance and put off the fire from the body of the·
D
Nagen Dey but Nagen Dey suffered extensive burnt injuries all over
his body. Pradip Jyoti Sarma, Assistant Sub-Inspector of Police also
came to the place of occurrence a few minutes later and he also witnes-
sed the fire on the person of Nagen Dey as well as in the shop of Nagen
Dey. Prosecution case is, further, that N agen Dey made a dying decla-
;. ration before the witnesses stating that the two accused persons
E
namely Muhim Barkataki and Oulu Dutta set fire on his body after
pouring kerosine oil. It was also the prosecution case that both the
accused were found at the place of occurrence and public caught hold
~ of the accused Muhim Barkataki red handed at the shop of occurrence
whereas other accused Oulu Dutta fled away. InjuredNagen Dey was

t immediately removed to Jorhat Civil Hospital for treatment, but he
died at the hospital. Accused Muhim Barkataki was handed over to
the Police by the witness Pradip Joyti Sarrna, Assistant Sub-Inspector
F

~ of Police. The information of the incident was received over telephone
message at 7.15 p.m. by the Officer-Incharge of Jorhat Police Station
who recorded an entry in the General Diary being G.D. Entry No. 47
dated 2.11.1978 at 7.15 p.m. The Town Sub-Inspector Sri P. Khatoniar
G
was immediately deputed to make local investigation on the spot. Sri
P. Khatoniar made· enquiry and investigation locally at the spot,
arrested accused Muhim Barkataki at the spot and returned to police
~
station. He then informed the facts of occurrence to the Officer-in-
charge of the Police Station who recorded the same under G.D. Entry
No. 50 at 8.10 p.m. On 3rd November, 1978 at about 7 a.m. one Sri H
1042 SUPREME COURT REPORTS (1986) 3 S.C.R.

A Montu Ch. Dey, nephew of deceased Nagen Dey lodged Ejahar (Ext.
5) with Jorhat Police Station. Thereafter murder and arson cases have ~
been registered against Muhim Barkataki and Dulu Dutta. Investi-
gation was carried on by Shri Prafulla Kumar Khatoniar. The Investi-
gation Officer forwarded witnesses Arun Barua, and Kiran Saikia to
the court for recording their statements under Sec. 164 of the Criminal
B Procedure Code. The Judicial Magistrate Shri Dharyya Saikia re-
corded the statements of these two witnesses on 7.11.1978.
....
The Sessions Judge found that the message received over tele-
phone was an information relating to commission of cognizable
offence and same was entered into General Diary of the Police Station
as Entry No. 47. On the basis of this information the investigation of -~
c the case was entrusted to the Town Sub-Inspector Shri Prafulla Kumar
Khatoniar with the recording of General Diary Entry No. 47 and the
Investigating Officer fairly progressed with the investigation in that
very night. Subsequent information of Montu Chandra Dey on 3rd
November, 1978 are nothing but statements during the course of
D investigation and as such those are hit by Sec. 162 of the Criminal
Procedure Code. It has, therefore, been held that Exhibit 5 cannot be
recoganized as the First Information Report of the occurrence. The
General Diary Entry No. 47 which is proved as Ext. 7(1), is th_e First
Information Report of the occurrence.
...
E The Sessions Judge duly considered the evidences of P.W. 4
Arun Barua and C. W. 1 Pradip Joyti Sarma as well as the statements
under Sec. 164 recorded by the Judicial Magistrate, P. W. 8 on
7 .11.1978 and accepted the dying declaration made by the deceased ,,,.
Nagen Dey implicating the accused Muhim Barkataki and Oulu Dutta
as pouring kerosine oil on his body and setting fire to his person. P. W. -~
F 6 Kiran Saikia also stated in his statement under Sec. 164 of Criminal
Procedure Code before the Judicial Magistrate, that Nagen Dey,
deceased made a dying declaration that these two accused persons "'o"

sprinkled kerosine over the body of the deceased Nagen Dey and
then set fire to him. These witnesses also proved that the accused
Muhim Barkataki was caught hold of red handed at the place of
G occurrence whereas Dulu Dutta fled away from the place. The Ses-
sions Judge, therefore, convicted both the accused under sec. 302 read
with Sec. 34 of the Indian Penal Code and sentence them to rigorous
imprisonment for life. The accused persons were further convicted and
sentenced under Sec. 436 read with Sec. 34 of tl>e Indian Penal Code
and they were sentenced to suffer rigorous imprisonment for 5 years
H each. Both the sentences shall run concurrently.
STAIBOFASSAMv. MUHIMBARKATAKI (RAY,J.] 1043
' A
Against this judgment and order of conviction and sentence the
accused person preferred an appeal being Criminal Appeal No. 66 of
1983 in the High Court of Gauhati. The High Court proceeded on the
footing that entire evidence in the case was circumstantial as there was
no eye witness to the occurrence and the clinching circumstances in
which the ·ease according to the prosecution is proved are the circum- B
stances relating to the dying declaration. The learned Judges held that
the evidence of P. W. 4 Arnn Barna who deposed to the dying declara-
tion was wholly unreliable as there was serious infirmity in his evidence
as he disputed his statement made to the Police that the three persons
used to drink liquor and play cards which fact as we have observed, is
very material to cast a serious doubt on prosecution version itself. The
learned Judges therefore, held that the prosecution failed to prove c
beyond doubt the offences for which the appellants were charged. The
conviction and sentence passed ag~st the accused persons was ·set
aside and the appeal was allowed.

There is no dispute that the shop of deceased Nagen Dey situated
D
by the side of Na-Ali Road was set on fire and fire was also set on the
person of Nagen .Dey by pouring kerosine. Eye witnesses P.W.
4-Arun Barna, P.W. 6--Kiran Saikia and P.W. 5-Prabin Barna
came to the place of occurrence immediately on seeing the fire. It is
also evident from the evidence of P.W. 4 that he and Kiran Saikia who
was in the shop of P. W. 4 both came together at the place of occurr-
E
ence and they tried to put out the fire by throwing dust on the body of
Nagen Dey who was on fire by tearing off his dress and Kiran Saikia
put the clothing on the person of deceased Nagen Dey. It is also in the
evidences of P.W. 4 and C.W. 1 Pradip Joyti Sarma, Assistant Sub-
Inspector, Police that the deceased N agen Dey made a dying declara-
tion to the effect that the accused persons Muhim Barkataki and Oulu
F
Dutta poured kerosine oil in his shop and sprinkled kerosine oil on his
person and then set on fire. It is also evident from the depositions of
P.W. 4 and C.W. 1 that the accused Muhim Barkatakiwas caught hold
red handed on the spot and he was detained there by the public while
Oulu Dutta fled away from the place of occurrence. It is also evident
from the G.D. Entry No. 47 i.e., telephonic message received at the
G
Jorhat Police Station at about 7 .15 p.m. on the date of occurrence that
the said two men set fire to the person of Nagen Dey, deceased as well
as to his Guliamal shop which is in front of Baruah Printers after
pouring kerosine oil. One of the accused persons was caught hold of by
local rija (public) while it was informed that Shri P.K. Khatoniar was
investigating for local investigation after giving all entries in the diary. H
1044 SUPREME COURT REPORTS [1986] 3S.C.R.
•
A This is proved by Iqvestigation Officer P.W. 7 and marked as Ext.
7(1). It also appeared that immediately after the enquiry and investiga-
tion into the incident the Town Sub-Inspector Shri Khatoniar returned
to the Police Station and informed that Muhim Barkataki and Oulu
Dutta entered in the Guliamal shop of Nagen Dey which was in front
of Barna Printers of Na-Ali and poured kerosine oil kept in the shop
B
for sale and set fire on it and as a result the Guliamal shop was burnt.
Nagen Dey was the owner of the shop who also was set on fire. It was
also recorded in the G.D. Entry that Muhim Barkataki who was
caught hold of at the place by the local people has been sent to the
police station. This G.D. Entry No. 50 was proved by P.W. 7 and it
was marked as Ext. 7(2). It also appears that the witnesses P.W. 4-
c Arun Barna, P.W. 5-Prabin Barna, P.W. 6-Kiran Saikia and C.W.
1-Pradip Joyti Sarma who was on duty on that Na-Ali locality at that
time arrived at the place of occurrence almost simultaneously and all
of them found Nagen Dey out of his shop in a complete ablazing state
all over his body. It also appears from evidences of these three witnes-
ses Arun Barna, Kiran Saikia and Pradip Joyti Sarma that the injured
D
Nagen Dey was conscious and was crying out due to burning pain. It
was also their evidence that the deceased Nagen Dey made a dying
declaration at the place of occurrence implicating accused Muhim ·
Barkataki and Oulu Dutta as his assailants. It is also evident frotn
Exts. 3 and 4 that the Judicial Magistrate Shri Dharyya Saikia (P.W. 8)
recorded the statements of Arun Barna (P.W. 4) and Kiran Saikia
E
(P.W. 6) on 7.11.1978 under Sec. 164 of the Criminal Procedure Code
stating about the dying declaration made by the deceased Nagen Dey
implicating that Muhim Barkataki and Oulu Dutta had set fire on him. ·
P.W. 4 Arun Barna also in his evidence clearly testifies to this dying
declaration made by the deceased Na{t:n Dey. Of course P. W. 6 Kiran
Saikia tried to contradict his statement made before the Police as well
F
as before the Judicial Magistrate as to the dying declaration made by
the deceased Nagen Dey. He admitted in his examination-in-chief that
he made a statement about this incident before the Magistrate of
Jorhat Court. Exhibit 4 is his statement and Ext. 4 (2) is his signature.
He further stated that the Magistrate has recorded his statement. But
in cross-examination he contradicted himself by saying that he was
G tutored by the police to say so before the Magistrate. Even if his
statement is not take'.! into consideration there is a clear statement of
P.W. 4 Arun Barna before the Magistrate (Ext. 3) as well as his depo-
sition which clearly corroborates his statement before the Magistrate
about the dying declaration made by the deceased implicating the two
accused persons as his assailants. The court of appeal below has acted
H
STATE OF ASSAM v. MUHIM BARKATAKI [RAY, l.] 1045

illegally in discarding the evidence of P. W. 4 as well as his statement A
recorded under Sec. 164 of the Criminal Procedure Code by the Judi-
cial Magistrate on the flimsy ground that it was not reliable because he
contradicted his statement made before the Police that these three
persons (the two accused and the deceased Nagen Dey) used to take
liquor and play cards. Moreover C.W. 1 Pradip Jyoti Sarma who came B
to the place of occurrence a few minutes after the arrival of P. W. 4 and
P. W. 6 at the place of occurrence has stated in his evidence that he saw
the body of the deceased under fire and the deceased is crying out of
burnt pain. He implicated in his dying declaration that Muhim
Barkataki and Oulu Dutta had set fire on his person after pouring
kerosine oil on him. ·He also stated that at the place of occurrence he
found that the accused Muhim Barkataki was caught by the public and c
he was being assaulted. He further stated that to save Muhim
Barkataki from assultant he handed him over to the Police Constable
who was with him. He also deposed that Nagen Dey has sense ~nd he
was speaking. There was no cross-examination of this witness as to the
dying declaration made by the deceased. This witness further stated D
that he came to the Thana in the night and told the inspector about the
incident. He also stated that he did not know whether O.C. recorded
this in the General Diary ornot. P.W. 2 Dr. JibakantaBorah who hold
post-mortum on the body of the deceased has stated in his evidence
that a person sustaining burnt injuries of such nature may have con-
sciousness for some time before death. It cannot, therefore, be ruled E
out that the deceased Nagen Dey was conscious in spite of the severe
burnt injuries on his person and he could speak and could make dying
declaration as testified to by the witnesses P.W. 4, and C.W. 1. It has
been tried to be urged before us by the learned counsel on behalf of
the respondents that there is no evidence to show that the deceased
Nagen Dey made a dying declaration as has been alleged as the Gen- F
eral Diary Entry was not produced to show such statement of C.W. 1
about the dyii)g declaration recorded therein. Moreover even if such a
dying declaration has been made the same being not corroborated
cannot be taken into consideration by the court in convicting the
accused respondents. It has been further submitted that the court of
appeal below rightly discarded the alleged dying declaration as being G
not corroborated by any other evidence and duly acquitted the accused
persons.

We have considered and appraised thoroughly the evidence on
record and on an overall assessment of the same, we hold that the •
prosecution has proved beyond reasonable doubt, the charges framed H
1046 SUPREME COURT REPORTS [1986] 3 S.C.R.

A against them. The order of acquittal passed by the Higb Court is liable
to be set aside for the reasons stated here after. Firstly, eye witnesses ~
P.Ws. 4, 5, 6 and C.W. 1 undoubtedly arrived at the place of occurr-
ence immediately on seeing the fire in the grocery shop of the deceased
Nagen Dey at about 7 p.m. on 2.11.1978. All these witnesses have
B seen that the shop is ablaze and there isfire on the person of Nagen
Dey. It is also the specific evidence of P. W. 4 Arun Barua and C. W. 1
Pradip Jyoti Sarma, A.S.I. at Jorhat Police Reserve deputed by the
Jorhat Thana at Jorhat.Town in law and order duty on that day. All ·
these eye witnesses P. W. 4 and C.W. 1 also stated that Nagen Dey was
·""
crying a lot in pain out of burnt injuries and he stated clearly that the
' accused persons Muhim Barkataki and Oulu Dutta poured kerosine oil -,._.,..
c on him and set fire on his body. So far as depositions of P.W. 4 and I

C.W. 1 are ·considered there is no cross-examination on this point.
Further more, P. W. 4 and P. W. 6 made statements Exts. 3 and 4 under
Sec. 164 of Criminal Procedure Code before the Chief Judicial Magis-
~·
Irate of Jorhat (P. W. 8) to the effect that the deceased Nagen Dey
made a dying declaration implicating the accused persons as his assail-
D
ants. This recording of the statements of P.W. 4 and P.W. 6 was
proved by the deposition of the Addi. Chief Judicial Magistrate at
Jorhat, Shri Dharyya Saikia (P.W. 8). Of course, P.W. 6 Kiran Saikia
tried to contradict his statement made before the Chief Judicial Magis-
trate. As regards the evidence of C. W. 1 it has been tried to be con-
tended that his statement before the O.C. of the Police Station that the ~
E
deceased made a dying declaration cannot be accepted as there is
nothing to show that this was recorded in the G.D. Entry. This state-
men! cannot be accepted inasmuch as the learned Sessions Judge has
assigned cogent reasons as to why Pradip Jyoti Sanna was examined as )loo.
a court witness under the provisions of Sec. 311 of the Code of Crimi-
F
nal Procedure. It has been clearly found that Shri Sanna was an in- ·-(
dependent and disinterested witness and he was found to be reliable '
and trustworthy. It has been also found that Shri Pradip Jyoti Sanna is
~
an important witness of the case and his examination was for the just
decision of the case and his evidence has full corroboration wit!)
another independent and disinterested witness namely Arun Barua
who is also found to be trustworthy and reliable witness. The evidence
G of Shri Pradip Jyoti Sanna cannot be under-estimated merely because
he is a pnlice officer. The Sessions Judge also stated in his order that
the reasons for examining him as a court witness had been elaborately
recorded in the order-sheet dated 17.2.1982 and 22.3.1983. Therefore, )"-

considering this finding of the Sessions Judge we hold that there is no
infirmity in the findings of the Sessions Judge in treating Pradip Jyoti
H
STATE OF ASSAMv. MUHIMBARKATAKI [RAY,J.) 1047.

Sanna as a court witness under the provisions of Sec. 311 of the Code A
. of Criminal Procedure. There is no criticism regarding the evidence of
P. W. 4 on behalf of the respondents as to why his testimony regarding
the dying declaration shall not be taken into consideration apart from
the evidence of C. W. 1 Pradip Jyoti Sanna. Moreover it is evident
from Exts. 3 and 4, the statements of P. Ws. 4 and 6 recorded under
B
Sec. 164. of the Code of Criminal Procedure by the Addi. Judicial
Magistrate, Jorhat on 7.11.1978 that these two witnesses P.Ws. 4and 6
clearly stated about the dying declaration made by N agen Dey
implicating both the accused as his assailants. Along with this
testimony of P.W. 4 and C.W. 1 that Muhim Barkataki was caught
hold red handed on the spot and was detained by the public while
Dullu Dutta fled away from the place of occurrence. All these clearly c
go to prove the prosecution case beyond any reasonable doubt and it
leads to the only conclusion that these two accused persons poured
kerosine oil in the shop as well as sprinkled kerosine oil on him and set
fire on the deceased as well as to the shop. It has been tried to be
contended that the dying declaration as referred to by P. W. 4 in his
D
deposition has not been corroborated by any independent witness and
as such the same cannot be relied upon in convicting the accused. In
support of this submission reference has been made to the decision
reported in Ramnath Madho Prasad & Ors. v. State of Madhya
Pradesh, A.LR. 1953 S.C. 420 wherein it has been observed:
)..
"It is settled law that it is not safe to convict and accused
E
merely on the evidence furnished by a dying declaration
without further corroboration because such a statement is
not made on oath and is not subject to cross-examination
and because the maker of it might be mentally and physi-
cally in a state of confusion and might be well drawing upon
F
his imagination while he was making the ·declaration. It is
in this light that the different dying declaration made by. the
deceased and sought to be proved in the case have to be
considered."

This observation has been overruled being in the nature of obiter dicta
by this !=ourt in a subsequent decision in Khushal Rao v. State of G
Bombay, [1958] S. C.R. 552. The same view was taken by this Court in
the case of Kusa & Ors. v. State ofOrissa, A.LR. 1980 S.C. 559 at 562
para 9. It is pertinent to refer to the observation of this Court on this
point made in State of Assam v. Muaizuddin Ahmed, [1983] 2 S.C.C.
14 at 19 para 10 which are in the following terms: H
1048 SUPREME COURT REPORTS [1986) 3 S.C.R.
A. 'Thus. the law is now well settled that there can be convic-
tion on the basis of dying decla(ation and it is not at all
necessary to have a corroboration provided the court is
satisfied that the dying declaration is a truthful dying decla-·
ration and not vitiated in any other manner."
B
It has been observed by this Court in Jayarajl v. State of Tamil Nadu,
A.LR. 1976 S.C. 1519 at 522 para 16 which reads:

"When the deponent (while making his dying declaration)
was in ~evere bodily pain (because of stab injuries in the
abdoman) and words were scare, his natural impulse would
c be to tell the Magistrate, without wasting his breath on
details as to who stabed him. The very brevity of the dying
declaration, in the circumstances of the case, far from
being a suspicious circumstance, was an index of its being
)
true and free from the taint of tutoring, more so when the
D substratum of the dying declaration was fully consistent
with the occular account given by the eyewitness."

In the instant case we have carefully considered the evidences of
P. W. 4 as well as of C. W. 1 and we are clearly of the opinion that the
deceased Nagen Dey made the dying declaration in question clearly
E implicating the two accused persons as his assailants. The dying decla-
ration made by the deceased while he was suffering severe pain from
grievous injuries is truthful and reliable. Therefore, on an overall as-
sessment of evidences recorded particularly the evidence of P.W. 4
and C. W. 1 and also the statements recorded under Sec. 164 of Crimi-
nal Procedure Code Exts. 6 and 4, we find that the charges under Sec.
F 382/34 and Sec. 436/34 of the Indian Penal Code, 1860 has been proved i )
by the prosecution beyond reasonable doubt against the two accused
persons. They were rightly convicted by the Sessions Judge and sent-
ence to rigorous imprisonment for life under Sec. 302/34 I.P.C. and
also to rigorous imprisonment for 5 years under Sec. 436/34 of the
Indian Penal Code. Both the sentences will run concurrently. The
G judgment and order of acquittal passed by the High Court is hereby set
aside and the judgment and order of conviction and sentence awarded
by the Sessions Judge is hereby affirmed. Let warrant of arrest issue
forthwith against the accused for serving out the sentence.

P.S.S. Appeal allowed.