JUDGMENT
B.P. Saraf, J.
1. This appeal is directed against the judgment and order passed by the Additional Sessions Judge, Sibsagar, Jorhat in Sessions Case No. 121 (S-G) of 1978 convicting the appellants under Sections 304 (Part II) read with Section 34 of the Indian Penal Code. The appellant No. 1 was sentenced rigorous imprisonment for three years and a fine of Rs. 500/-. The appellant No. 2 was released on probation of good conduct in exercise of powers under Section 360 of the Code of Criminal Procedure.
2. The facts of the case may be briefly stated as follows: The accused-appellants Atul and Ratul are brothers. Atul is elder and married. They were living together with their father Bapuram Gandhia. The deceased Ratneswar Gandhia was their paternal uncle and his house was to the contiguous south of the house of the father of the accused persons. To the contiguous south of the house of the deceased was the house of another uncle of the accused-appellants, namely, Manik Gandhia. The incident took place on 27-5-77. That night at about 11 p.m., both the accused-appellants surrendered themselves at the Dergaon Police Station stating that they had caused injuries to their uncle at their home which was about 2 kms from the police station. The officer-in-charge of the police station took them in custody, the same night, at about 2 a.m., an ejahar was filed by Manik Gandhia stating that at about 10/11 O’clock in the night his nephews (the accused appellants) had assaulted his second elder brother Ratneswar Gandhia with lathi and spear and had injured him grievously. In the said ejahar it was also stated that Ratneswar Gandhia had taken liquor and had attempted to set fire to his own house as well as the house of the father of the accused-appellants upon which they came out of their house and committed the incident in question.
3. On receipt of the aforesaid ejahar the Officer-in-Charge of the police station proceeded to the place of occurrence. He saw that Ratneswar Gandhia lying in the courtyard of Bapuram Gandhia in a pool of blood with several injuries. He was struggling with death. A number of neighbours were standing there as spectators. His wife was also standing there. Meanwhile Dr. Ghanashyam Bora of Dergaon State Dispensary arrived at the scene. He examined the injured Ratneswar and declared that he was not likely to survive. Thereupon the officer-in-charge of the police station recorded the dying declaration of Ratneswar. Soon thereafter Ratneswar succumbed to the injuries. Thereafter, investigation was started. In the police station the accused persons were interrogated. In course of which one of them Atul Gandhia was alleged to have disclosed that he threw away the ‘Jathi’ in the homestead. Subsequently accused Ratul made a confessional statement before the Magistrate implicating only himself in the offence and exculpatory to his brother. Atul. The investigation was completed and the accused persons were charge-sheeted for commission of the offence under Section 302 read with Section 34 of the Indian Penal Code and committed to the Court of Sessions.
4. The learned Additional Sessions Judge tried the accused persons under Section 304, Part I read with Section 34 of the Indian Penal Code. The accused persons pleaded not guilty. The prosecution examined as many as 12 witnesses including the Investigating Officer. There was no eye-witness to the incident. The witnesses had come to the scene subsequent to the occurrence. P.Ws. 2 to 10 and 12 all saw the deceased Ratneswar lying with several injuries in the courtyard of the accused-appellants. None of them saw the actual occurrence. The prosecution case was based (1) on the dying declaration of Ratneswar recorded by the Investigating Officer; (2) the confessional statement of Ratul implicating him in commission of the offence; (3) the statement of accused Atul allegedly leading to the discovery of the spear; (4) the conduct of the accused-appellants surrendering themselves before the officer-in-charge of the Dergaon police station.
5. So far as the confessional statement of accused Ratul and Atul is concerned, the learned Additional Sessions Judge did not act upon it for the reasons discussed in its judgment. He, however, accepted the dying declaration and relying on the same as well as the conduct of the accused-appellants in surrendering themselves before the officer-in-charge of the Dergao police station immediately after the occurrence held the accused-appellants guilty of the offence under Section 304, Part II of the Indian Penal Code and convicted and sentenced them as ndicated above. The present appeal has been filed against the aforesaid judgment of the learned Additional Sessions Judge.
6. The main contention on behalf of the accused-appellants is that the dying declaration in the instant case should not have been acted upon by the Court in view of the fact that it was recorded by the Investigating Officer himself even though the Doctor from the Dergaon State Dispensary was present on the spot at that time. It is contended that there was no evidence on record showing that the deceased was fully conscious at the time the alleged declaration was made by him. On the other hand, from the deposition of the various witnesses it appears that the deceased was not in a fit state of mind to make any declaration, he was not even in a position to speak, he was only gasping something, his speech could not be understood and the statements attributed to the deceased were in fact made by his wife. Taking all these factors together, Mr. D. N. Choudhury, learned counsel for the appellants submits that the Additional Sessions Judge was not justified in relying on the so called dying declaration. The fact that the appellants went to the police station by itself cannot be a circumstance which might be treated as corroborating evidence to prove the commission of the alleged offence. It was submitted that in any event, no conviction can be based on such dying declaration and circumstantial evidence and, as such, the conviction and sentence were not justified and are liable to be set aside.
7. 1 have heard at length Mr. D. N. Choudhury, learned counsel for the accused-appellants. Also heard the learned Public Prosecutor Mr. D. Goswami. Mr. Choudhury took me through the entire evidence on record to show that the “dying declaration” on which the conviction has been based cannot in fact be termed as a “Dying declaration” at all. He also referred to a number of decisions in support of his contention.
8. I have carefully considered the legal submissions in the light of the facts of the case. The dying declaration in the instant case was recorded by the police officer who went to the place of occurrence to conduct investigation. The objection to its admissibility in evidence in mainly based on following three grounds (1) It was recorded by a police officer even though the doctor was present on the spot at that moment. (2) There is no material to show that the deceased was in a fit mental state to make any declaratio. (3) The declaration was not made by the deceased as he was almost speechless and the declaration ascribed to him was, in fact, made by his wife. (4) It was not recorded in the question answer form as is generally the practice.
9. I have considered the submissions. Perused the dying declaration and the evidence of the witnesses. On careful consideration of the submissions, I am of the opinion, for the reasons hereafter stated, that the dying declaration in the instant case cannot be taken into consideration and no conviction can be based on it.
10. The law relating to reliability of dying declaration is wellsettled by now by a catena of decisions of the Supreme Court. In Khushal Rao v. State of Bombay, AIR 1958 SC 22: (1958 Cri LJ 106), the Supreme Court on a review of the provisions of the Evidence Act and the decided cases laid down the following tests to decide the question of legality of basing a conviction on a dying declaration alone:
“(1) That it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; (2) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; (3) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence; (4) that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; (5) that a dying declaration which has been recorded by a competent magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which, may suffer from all the infirmities of human memory and human character, and (6) that in order to test the reliability of a dying declaration, the Court has to keep in view the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties.”
It was observed that in order to pass the test of reliability, a dying declaration has to be 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-examination.
11. In the light of these legal propositions, we may consider the question of admissibility of the dying declaration recorded by a police officer investigating the incident. It may be observed that under Section 32 of the Indian Evidence Act, there is no legal bar to the admissibility of such dying declaration recorded by a police officer. But as with view of a series of decisions of the Supreme Court, as a general practice, the Courts deem it safe to be careful in acting upon dying declarations recorded by police officers. One of the reasoning in support of this view as given by the Supreme Court in Balak Ram v. state of Uttar Pradesh, (1975) 3 SCC 219 : (1974 Cri LJ 1486), is that Investigating Officers are keenly interested in the fruition of their efforts and though no assumption can be made against their veracity, it is not prudent to base the conviction on a dying declaration made to an Investigation Officer.
12. This view was reiterated by the Supreme Court in Munna Raja v. State of Madhya Pradesh, (1976) 3 SCC 104 : (1976 Cri LJ 1718), in the following words :
“Investigating Officers are naturally interested in the success of the investigation and the practice of the investigating officer himself recording a dying declaration during the course of the investigation ought not to be encourged”.
In Dalip Singh v. State of Punjab, AIR 1979 SC 1173 : (1979 Cri LJ 700), it was observed :
“… although a dying declaration recorded by a police officer during the course of the investigation is admissible under Section 32 of the Indian Evidence Act in view of the exception provided in Sub-section (2) of Section 162 of the Code of Criminal Procedure, 1973, it is better to leave such dying declarations out of consideration until and unless the prosecution satisfies the Court as to why it was not recorded by a Magistrate or by a doctor”.
13. In a recent case, State (Delhi Administration) v. Laxman Kumar, AIR 1986 SC 250 : (1986 Cri LJ 155), the Supreme Court on consideration of the facts and circumstances of that case did not accept the dying declaration of a burnt bride recorded by the investigating officer as no explanation was given for non-availability of the Magistrate and the doctor.
14. On reading the various decisions of the Supreme Court, in regard to dying declaration and the admissibility of such declarations recorded by the police officers, the following propositions emerge:
(1) A dying declaration recorded by a police officer during the course of investigation is admissible in evidence.
(2) It is better to leave such dying declaration out of consideration until and unless the prosecution satisfies the Court as to why it was not recorded by a Magistrate or a doctor.
(3) It is not prudent to base the conviction on a dying declaration made to an investigating officer.
(4) The practice of the investigating officer himself recording a dying declaration during the course of the investigation should not be encourged.
15. The question for determination in the present case is whether on the facts and circumstances of the case, the trial Court was justified in accepting the dying declaration and basing the conviction thereon. To decide it, it is necessary to refer to some of relevant facts.
16. The dying declaration in question was recorded by Sri Chandra Kanta Khanikar, Inspector of Police, Dergaon. On receipt of Ejahar, he went to place of occurrence at about 3 O’ Clock at night. In his deposition before the Court, he stated that immediately on his arrival, Dr. Ghana Kanta Bora from the Dergaon State Dispensary also arrived at the place of occurrence. He examined injured Ratneswar. When the doctor said that Ratneswar would not survive then he (the police officer) interrogated Ratneswar and recorded his dying declaration in the diary in presence of the witnesses and just after a little while of recording the dying declaration, Ratneswar died. No explanation was given as to why he recorded the dying declaration himself instead of asking the doctor to do so who was present on the spot at the relevant time. In cross examination it was stated: “Doctor was not there then. Doctor washed the intestines and put it into his belly and then he returned from there. I could not get time to inform the magistrate”. This statement made in cross-examination goes counter to his own statement made in his examination-in-chief wherein he had specifically stated: “After examining the injured when doctor said that he would not survive then I interrogated Ratneswar Gandhia and recorded his dying declaration in the diary in presence of witnesses”. From the aforesaid statement it is clear that Dr. Ghana Kanta Bora was present on the spot when the dying declaration was recorded by the police officer. No attempt was made to get it recorded by the doctor. It is not understandable that when the Doctor told that Ratneswar was not expected to survive why the police officer instead of asking him to record the dying declaration, proceeded to do so himself and allowed the doctor to go.
17. The only irresistible conclusion from all these circumstances can be that the police officer did not make any attempt to get the dying declaration recorded by the doctor who was evidently present there and recorded it himself.
18. The second relevant factor to be considered is the mental or physical condition of Ratneswar at the time the dying declaration was recorded. Immediately before the statement was recorded, he was examined by Dr. Ghana Kanta Bora who declared that he would not survive and soon after the dying declaration was recorded, he died. Dr. Ghana Kanta Bora would have been the best person to depose about the mental or physical state of the injured at the time the dying declaration was recorded. He has not been examined. The version of the other witnesses in this regard also varies.
19. P.W. 8 Feduram Kalita who was a witness to the dying declaration stated in his deposition:
“Police interrogated the injured. The injured gasped something. His speech could not be understood. His wife explained it.”
20. P.W. 9, another witness to the dying declaration stated about Ratneswar:
“He had sense. He was taking. I saw him besmeared with blood and was shouting, groaning and was seeking for water. He was in a speaking condition”.
The aforesaid statement, however, is description of the condition much before the doctor arrived and the dying declaration was recorded as is evident from his further statement: “On seeing it we tried to bring the doctor”. This statement is, therefore, not relevant for the purpose of ascertaining the mental and physical condition at the time the dying declaration was recorded. Besides, on such evidence of layman, it is difficult to hold that Ratneswar was in a fit mental and physical condition to make the declaration ascribed to him. Moreover, in view of the evidence of P.W. 8 to the effect that “the injured gasped something. His speech could not be understood. His wife explained it”, it is difficult, without something more, to ascribe to the dying declaration to the deceased. It is in fact the record of what was said by the wife of the deceased not by the deceased himself.
21. In view of the facts and circumstances discussed above, I am of the opinion that it is not prudent or safe to accept the dying declaration in question and base conviction thereon.
22. Besides, the dying declaration, there is no other substantive evidence which can sustain the conviction. The circumstance that the accused appellants surrendered to the police cannot, in itself without anything more, be a basis for conviction.
23. In view of the aforesaid, I am of the opinion that the order of conviction and sentence passed by the learned Additional Sessions Judge cannot be sustained and the same is, therefore, set aside.
24. Before parting with case, it will be appropriate also to deal with the alternative submission of the learned counsel for the appellant that dying declaration in the present case should not have been accepted as it was not in question answer form. I have considered the submission but I do not find any force in it. Though preferably a dying declaration should be in question and answer form, there is no such rule that a dying declaration recorded in the form of a statement cannot be acted upon. It will depend upon the facts and circumstances of each case. Too much reliance on the form is not desirable. As observed by the Supreme Court in Munna Raja v. State of Madhya Pradesh, (1976 Cri LJ 1718) (supra): “many a time, dying declarations which are curiously worded or neatly structured excite suspicion for the reason that they bear the traces of tutoring” I am, therefore, of the opinion that it is not necessary as a matter of rule that a dying declaration must be in the form of question and answer. A dying declaration recorded in the form of statement would be no less reliable or trustworthy only on that account.
25. In the result, the appeal is allowed. The accused-appellants are acquitted.