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Criminal Appeal No. 368 of 1964, decided on 3rd December 1964.

S. 32‑Dying declaration‑Can be sole basis of conviction‑Mere fact, however, that statement clear as to name and identity of assailant‑Does not make such declaration unimpeachable‑Murder‑Evidence of sole eye‑witness disbelieved, statements of witnesses, as regards contents of dying declaration, bristling kith material discrepancies ; possibility that deceased, at time of making declaration, was prone to imagination and hallucina tion‑Basing conviction solely on dying declaration in circumstances, of case, held, unsafe‑Penal Code (XLV of 1860), S. 302.

Amjad Ali v. The Crown 7 D L R 346 ; Khushal Rao v. State of Bombay A I R 1958 S C 22 ; Abdul Sattar v. The State of Mysore A I R 1956 5 C 168 ; The State v. Md. Khalilur Rehman 9 D L R 327 ; Shahbaz and another v. The Crown P L D 1955 Lah. 65 and hi re: Garuswami Tevar and other's A I R 1940 Mad. 196 considered.

Birandra Nath Choudhury for Appellant

Abdul Hakim D. L. R. with Daliluddin Ahmed for the State.

.‑Abdur Rashid has been convicted under section 302 of the Pakistan Penal Code and condemned to death by The Additional Sessions Judge, Dacca. The Additional Sessions Judge has referred under section 374 of the Code of Criminal Procedure for confirmation of the death sentence. The condemned prisoner has also appealed. We dispose of both the Reference and the appeal together.

The trial was held with the aid of four Assessors, all of whom were of opinion that the condemned prisoner was guilty of the offence charged under section 302 of the Pakistan Penal Code.

The prosecution examined fourteen witnesses and defence did not examine any witness.

The prosecution case is that appellant Abdur Rashid is bhagina (sister's son) of deceased Safdar Ali of Gazipara within police station Joydebpur. On the 30th Magh, 1370 B. S. corres ponding to 13‑2‑1964, corresponding to 28th Ramzan last, Safdar Ali, after finishing his iftar, went to the corner between the east and south bhiti huts to perform ozu (ablution) for magrib prayer when appellant Abdur Rashid struck him with a katra (spear) Exh. 1, causing injury in the abdomen, as a result of which part of the intestines came out. On his outcry, his wife, P. W. 2 Sayedunnessa, rushed out from the kitchen and helped in pulling out the katra which had been embedded in the abdomen. Neighbours including P. W. 4 Abdul Mannan, P. W: 5 Nurul Islam, P. W. 6 Muhammad Surat Ali, P. W. 7 Abdus Sfiahid, P. W. 8 Abdul Malek, P. W. 10 Abdul Khaleque and P: W. 11 Abdul Latif came to the spot and found Safdar Ali lying with bleeding injuries in the corner of the two ghars, and on they‑enquiry of some of them, Safdar Ali stated that his bhagina Rashid had given him the katra blow in the abdomen. P. W. 6 bandaged the wound in the abdomen and thereafter P. W. 1 Shamsuddin, a cousin of the deceased, reached there and heard about the occurrence and also heard the story from Safdar Ali. There after he went to Joydebpur along with P. W. 10 Abdul Khaleque to call a competent doctor, and on their way back with the doctor, they came to know in the mid way that Safdar Ali had already succumbed to the injuries. P. W. 1 hastened back to Joydebpur where the thana also lay, and lodged the F. I. R. after midnight at 1‑30 hours, the whole‑ distance covered by the persons being 8 miles at best. F. I. R. Exh. 1 was recorded by P. W. 13 A. S. I. Ansaruddin Ahmed of Joydebpur police station. The A. S. I. went to the locality, found the dead body and on the identification of P. W. 10 Abdul Khaleque, held inquest over the dead body and sent the same forward to the morgue of Dacca Medical College through P. W. 9 Mizanur Rahman who escorted the dead body to the morgue and identified the same before P. W. 3 Dr. Abdul Ahad who held the post mortem examination. The A. S. I. P. W. 13 seized the blood stained katra Exh. I and the blood‑stained earth Exh. 11 under a seizure list. P. W. 14 S. I. Kazi Shamsuddin took up the investigation of the case and after. examination of some witnesses, made over investigation of the case on his transfer to P. W. 12 S. I. Abul Hashem who, after completing investigation, submitted charge‑sheet against the appellant on 31‑3‑64. After preliminary enquiry by a competent Magistrate, the appellant was committed to the Court of Sessions charging him under section 302 of the Pakistan Penal Code and he was tried thereunder.

The defence was a plea of not guilty to the charge.

On those facts, the learned Additional Sessions Judge who characterised the murder as an atrocious murder, has condemned the appellant to death. While there is no doubt that the murder is an atrocious murder, it will be our anxious endeavour to see as to how far the charge has been driven home beyond reasonable doubt.

Mr. Birendra Nath Choudhury for the appellant, has taken us through the judgment and the entire records of the case. He has urged, inter alia, that the dying declaration has not received corroboration by independent evidence or even by circumstances; that it is not complete and that it is inadmissible; that the attack being at night, recognition was not possible. He has also urged that there are material discrepancies as to the contents of the dying statement as reproduced by different witnesses. He has further urged that the dying statement was an induced one and not spontaneous.

On the other hand, the learned Deputy Legal Remembrancer has answered back to say that the dying statement being categori cally clear as to the name and identity of the appellant, the conviction can be maintained on the basis of the dying statement alone; that corroboration by other evidence or even by circums tances is not called for in a case like the present. He has cited different rulings in support, which we propose to consider hereafter.

At this stage we might examine the evidence. The evidence of P. W. 1 Shamsuddin who is also the informant in this case is that on 30th Magh, 1370 B. S., corresponding to 28th Ramzan, after iftar he heard shouts and having gone to the house of the deceased Safdar 'All, found him lying with bleeding injuries in the corner between south bhiti and east bhiti huts. The deceased stated on his enquiry that his blzagina Abdur Rashid struck him in the abdomen with a katra Exh. I which was lying nearby. The deceased further told that he had gone to that corner to perform "ozu" His further evidence is that P. W. 2 Sayedunnessa also told him that she saw Rashid striking her husband, the deceased, on the abdomen with a katra.

P. W. 2 Sayedunnessa is the solitary witness who claims to have seen the occurrence. She has testified that at the time of 'iftar' her husband, after taking his 'Iftar' went to the corner between their south Mid and east bhiti huts to perform 'ozu" when appellant Rashid struck him on the abdomen with a katra. She saw this while she was standing at the door of the kitchen from where the place of assault was visible. She rushed there and on hearing their cries, Abdul Mannan P. W. 4, Abdus Shahid P. W. 7, Nurul Islam, P. W. 5, Surat Ali, P. W. 6, Shamsuddin, P. W. 1 and others came and she and her husband told them that it was Rashid who stabbed him with katra.

P. W. 4, P. W. 5, P. W.' 6, P. W. 7, P. W. 8, P. W. 10 and P. W. 11 have deposed that after iftar on hearing cries, they went to the house of the deceased and found him lying with bleeding injuries in the corner between south bhiti and east bhiti huts and that the deceased told them that his bhagina Rashid dealt him a blow on the abdomen with katra.

Autopsy on the body of Safdar Ali was conducted by P. W. 3 Dr. Abdul Ahad on 16-2-64 at 8-30 a.m. the occurrence having taken place on 13‑2‑64 after sunset. This Doctor found two wounds on the dead body, namely, (1) one incised wound I" x " x muscle deep on the back of the left forearm and (2) one stab wound margin clean cut 1 " x "x abdominal cavity deep on the central part of epigastrium and through this wound a portion of omentum 4" long was found protruding. In his opinion, the death was due to the second injury which was homicidal in nature.

P. W. 2 Sayedunnessa's alleged ocular version that she saw the appellant striking the deceased in the abdomen with karta, does not stand scrutiny regard being had to the fact that she did not tell the 1. O. P. W. 14 that she saw Rashid striking her husband. On the other hand, the evidence of the I. O. Kazi Shamsuddin P. W. 14 is that she told him that she found that some one had left the karta embedded on the abdomen of her husband when she went out with a kupi from the kitchen. "She also stated in her deposition in the committing Court that she was "sitting in the kitchen which stands in the west bhiti," although she denied having made such statement to the I. O. and the committing Court. P. W. Shamsuddin did not state in the F. I. R. that Sayedunnessa told him that she saw Rashid striking the deceased in the abdomen with katra, though in his deposition in Court he made such an assertion. The story of P. W. 2 Sayedunnessa having seen the appellant assaulting the deceased, is belied by her own earlier statement. Hence, the trial Court rightly disbelieved her alleged eye‑witness version of the occur rence. The learned Deputy Legal Remembrancer also frankly conceded that the evidence of P. W. 2 that she witnessed the occurrence, is unworthy of credence. We thus reject the direct evidence regarding the occurrence and as to the author of the murder which was sought to be furnished by P. W. 2 Sayedunnessa. Nor did anybody see the appellant coming to or going from the place of occurrence with the long weapon which is nearly 3 cubits in length. We are thus left solely with the dying declara tion of the deceased, the wordings of which have varied from mouth to mouth, as we shall see more fully later.

So far as the occurrence itself is concerned, there is hardly any room for doubt that Safdar Ali was stabbed in the corner of the south bhiti and east bhiti huts on 13‑2‑64, and due to the fatal injury inflicted on the abdomen he died. These facts are borne out by all the local witnesses supported and corroborated by medical evidence furnished by P. W. 3 Dr. Abdul Ahad.

There is, however, serious controversy with regard to the time of the occurrence. According to the informant Shamsuddin and P. W. 2 Sayedunnessa, wife of the deceased and the other local witnesses, the occurrence took place after Iftar and before magrib prayer but the contention of the appellant is that the incident happened long after sunset. The assertion of the prosecu tion that the time of the occurrence was after Iftar and before magrib prayer, is based on oral testimony of the witnesses. But scrutiny of the evidence on record reveals that the occurrence took place quite sometime after sunset. In the F. I. R. the time of the occurrence was given by P. W. 1 Shamsuddin to be 7 P. M. at night. P. W. 2 Sayedunnessa stated to I. O. that she went out with kupi which means a lamp. It may be mentioned here that the sunset time on 30th Magh 1370 B. S. was 5‑56 P.M. The word "night" mentioned in the F. I. R. is significant, and the fact that P. W. 2. went out with kupi, suggests that it was already dark. In this connection medical evidence may also be referred to, as it throws sufficient light on the question of time of the occurrence. P. W. 3 found 6 oz. of undigested rice in the stomach of the deceased and stated that the "major portion of digestion was done before the injury." If immediately after breaking the fast with rice the deceased went to perform ablution and if he was stabbed then, there was no time for any digestion of the food at all. There is no evidence that he was not fasting and his going to perform ozu after iftar, as narrated by different witnesses, can well mean that it was after he bad broken his fast.

The medical evidence that major portion of the food had been digested before receipt of the injury, goes to show that a consider able time elapsed after the taking of the food and before the infliction of the injury.

The average consumption of rice by the ordinary folk, parti cularly after fast, would be, if not half seer, at least, 1 poa and in this case, it should be noted, no other food article was found in the stomach. 1 poa would be almost 12 ounces. 6 oz. having been found undigested, the other 6 oz. had already been digested. The doctor's evidence is that "the man may have taken food 2 or 3 hours before his death and after injury the power of diges tion becomes diminished and that in this case, after injury No. 2 the digestion of the deceased became vitally diminished". It was also the doctor's opinion that the major portion of digestion was done before the infliction of the injury No. 2.

The very taking of such a large quantity of rice would take at least 20 to 25 minutes. The exact time of occurrence, there fore, would be at least one hour after Iftar when it must have been dark and the evening had practically turned into night. At any rate, the time for magrib prayer was left long behind and it was nearing the time fore tarabi and esha. From all these facts and circumstances, we are of the view that the occurrence took place not less than an hour after the Iftar and not just after Iftar and before magrib prayer, as alleged by the prosecution. Time given in the F. I. R., namely 7 O'clock at night is, in our opinion, the correct time of the occurrence. It follows from the above finding that the occurrence did dot take place exactly at the time alleged by the prosecution.

The direct evidence of the occurrence having been rejected as unreliable, we are left with the alleged dying declaration of the deceased. It is to be considered whether the evidence regard ing the dying declaration is worthy of belief; whether it can form the sole basis of conviction without any, corroboration; Whether the deceased had the physical capacity to make the declaration; whether the witnesses heard correctly or not and whether the maker of the declaration had any opportunity to recognise the assailant.

The evidence regarding the contents of the statement, as deposed to by different witnesses, is not of uniform nature.

This is illustrated by the fact that P. Ws. 2 and 10 have merely stated that the deceased told them that his bhagina Rashid struck him on the abdomen with katra while the version of P. W. 1 is that he further stated that he had gone to the corner to perform ozu'. The evidence of P. W. 4 is that the deceased stated that he saw his bhagina when he gave par (blow) and that of P. Ws. 6 and 7 is that the deceased also stated that he tried to avert the blow on the abdomen when he received the injury on the hand. Further P. W. 8 has testified that the deceased saw Rashid when he stabbed him from the front: But P. W. 5 has categorically stated that Safdar Ali did not say anything else except that Rashid stabbed him with katra on the abdomen. In view of these discrepancies, we find it difficult to place reliance on the evidence with regard to the alleged dying declaration. Besides, what was the exact statement made by the deceased, is not ascertainable from the evidence of the witnesses. There is reason to think also that the statement was not complete. The evidence of some of the witnesses, namely, P. Ws. 1, 5 and 6 shows that the deceased made the statement on their queries but what questions were put by them are not in evidence. There might have been leading questions or for that matter, misleading questions, and if it were so, no reliance can be placed on the dying declaration.

Though it is true that all the different versions of what the deceased stated agree on the point that it was the appellant who gave the katra blow in the abdomen, the question remains as to how far the deceased was speaking the truth and as to how far he was capable of seeing rightly. The doctor P. W. 3 has stated that the deceased was capable of speech even after the injury and according to P. W. 1 Shamsuddin, the dying man talked inside as well as outside the ghar. The question arises; if he could talk such a lot why was he so cryptic as to the crucial statement and besides, though the doctor has stated that the dying man retained the power of speech, his evidence is not such as to rule out the chances of delirium and hallucination.

Right at the moment of hitting when he raised cries, there was no utterance of the name of Abdur Rashid the killer and according to P. W. 3, both the wounds could not be caused by one blow and the first blow was a simple blow caused by a sharp weapon whereas the second blow was a mortal blow caused by sharp edged pointed weapon. There were two distinct strokes and the name of Rashid was not shouted spontaneously. It was only when all had assembled that the deceased is alleged to have stated the name of Rashid as the assailant. Of the two injuries, there is some evidence, namely, that of P. W. 4. P. W. 6 and P. W. 7 to indicate that the minor injury in the hand was caused when trying to ward off the assailant. If that were so, the very first cry whereupon the people came should have mentioned the name of Rashid and it should not have come as after‑thought when all bad assembled after the occurrence.

As stated before, we do not have the queries to examine as to whether they were of leading or misleading nature.

A man in such a state as the dying man here, can be an easy prey to inducement and imagination and hallucination. As per evidence of P. W. 4, Safdar Ali had golmal with his bhagina, the appellant, on the road 2 or 3 days before the occurrence. No other witness has supported this and even if it is accepted, this evidence cuts both ways. Possibly, this golmal with the appellant 2/3 days before subjected the deceased to hallucination and made him see the spectre of Rashid, particularly when by all evidence, the occurrence was after sunset in a winter evening when the evenings are darker and not infrequently foggy.

In those circumstances, we cannot place any reliance on the dying statement and we doubt whether Safder Ali at all made a dying statement of the kind, as deposed to by the prosecution witnesses.

Furthermore, apart from some delay in lodging the ejahar, there is also some evidence to indicate that Shamsuddin, Surat Ali and P. W. 2 Sayedunnessa had consultation over the question of lodging the ejahar.

A dying declaration is, no doubt, admissible in evidence under section 32 of the Evidence Act even without proof that the maker was under apprehension of death. There is also no legal bar in principle to its forming the sole basis of conviction without any corroboration provided that its absolute correctness can be vouchsafed upon a consideration of the evidence relating to it in the light of the attending circumstances and probabilities. In the instant case there is no corroboration of the dying declaration as such notwithstanding the fact that there is some evidence to the effect that a badna and the katra Exh. were found lying near the deceased after his receiving the fatal low. The presence of these two articles there does not lend corroboration to the dying statement that it was Rashid who stabbed the deceased. Except the oral testimony of the witnesses regarding the dying statement there are no other circumstances or probabilities lending support to the story that appellant Rashid inflicted the blow with the katra on the abdomen of the deceased. Thus, in the present case the verbal testimony of the witnesses remains unsupported by any circumstance or probability. In such circumstances, it is unsafe to base the conviction on the dying declaration, even assuming that the deceased made such statement.

Whether the deceased had full physical capacity to make the declaration attributed to him, also appears to us to be of some doubt in the light of what we have already stated on the subject. As stated before, the medical evidence certifying retention of the power of speech does not mean retention of the full sense by the deceased. The wound was a very deadly wound leading to the omentum protruding out by 4 long. In such a state, it would not be unreasonable to think that there was complete loss of mental equilibrium. It is also doubtful whether in such circumstances the witnesses could have heard him correctly.

As regards the question whether he had opportunity to recognise the appellant, it has already been held that the occur rence took place an hour if not more, after sunset. An hour after, sunset, as stated before, would mean full darkness, particularly, in the month of February. We, therefore, find that the deceased had no opportunity of recognising the appellant however close a relation he might have been.

Before we conclude, we feel it necessary to refer to some of the decisions cited by the learned Deputy Legal Remembrancer in support of his contention that when the dying statement is clear as to the name and identity of the assailant, no corrobora tion by other evidence or even by circumstances was called for.

Firstly, even assuming that the principle is correct, in the facts of this case, as stated already, we are not convinced as to the identity of the appellant. In support of the principle the learned Deputy Legal Remembrancer referred to the following decisions:‑

(1) Amjad Ali v. The Crown 7 D L R 346.

(2) Khushal Rao v. State of Bombay A I R 1958 S C 22.

(3) Abdul Sattar v. The State of Mysore A I R 1956 S C 168.

(4) The State v. Md. Khalilur Rahman 9 D L R 327.

(5) Shahbaz and another v. The Crown P L D 1955 Lah. 65.

(6) In re : Garuswami Tevar and others A I R 1940 Mad. 196.

The learned Deputy Legal Remembrancer referred to the lines as under:

7 D L R 346: The lines of the 7 D L R relied upon are these:

"There is no rule of law that a dying declaration must be corroborated before it can be acted upon."

It is true that those lines occur there; but then the decision, it appears, laid particular stress upon surrounding circumstances. The relevant lines are:‑‑

"Lastly, there is the question whether the learned Sessions Judge should have cautioned the Jury as to whether any corroboration was necessary in respect of this dying declara tion. Of course, there is no rule of law that a dying declaration must be corroborated before it can be acted upon. Dying declarations are admitted into evidence on the principle of necessity for, in case of secret murders the only evidence often available is the statement of the victim; but dying declaration can be made the basis of conviction only when the Jury are satisfied beyond all shadow of doubt that the men who made the declaration had a good opportunity of recognising his assailant, that he did recognise the assailant, and that he was telling the truth. In this view, all the surrounding facts and circumstances of the case and all the arguments for and against the accused should be placed before the Jury so that they Might have an opportunity to assess the situation correctly.

It is entirely within the province of the Jury to believe such statement or not. In my opinion, they should be adequately cautioned as to whether it will be prudent in the particular circumstances of a particular case to act upon such statement. The learned Sessions Judge has not directed the Jury on the above particulars and so there has been a miscarriage of justice. Instead of directing the Jury on the above points, the quota. tions given above would rather, indicate that the learned Sessions Judge was giving a direction to the Jury for acceptance of the said evidence."

It appears the learned Judges went to the length of saying that failing to refer to the surrounding circumstances in address ing the Jury, would amount to miscarriage of justice.

A I R 1958 S C 22 : The paragraph referred to is paragraph 16 of the same.

Para. 16: "On a review of the relevant provisions of the Evidence Act and of the decided cases in the different High Courts in India and in this Court, we have come to the conclu sion, in agreement with the opinion of the Full Bench of the Madras High Court, aforesaid: (1) that it cannot be laid down as an absolute rule of law that a dying declaration cannot from 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 weeker 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 suffi cient light if the crime was committed at night; whether the capa city of the man to remember the facts stated, had not been im paired 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 is true that on a review of the different decided cases the Supreme Court of India came to the conclusion that it could not be laid down as an absolute rule of law that a dying declaration could not form the sole basis of conviction unless it was corroborated.

Now, that case, unlike the instant case, the dying declaration relied upon was recorded by as many as three public servants and the circumstance of absconsion was also taken into account and further the facts of that case show that the oral dying statements made to a number of ordinary persons as here was not given any importance at all. Here, all the successive statements are oral, not recorded and made to ordinary folk; so that the principle of that decision and the background in which the dying statement in that case was accepted, does 'not carry the prosecution very far.

A I R 1956 S C 168 : The head-note of this decision reads as under:---

"In a murder case, in the dying declaration, even though the same was incomplete by reason of the deceased not being able to answer further questions in his then condition, the statements so far as they went to implicate the accused in the affair were quite categoric in character and they definitely indicated that it was the accused who had shot the deceased There was also corroboration for the dying declaration.

Held that the statement in regard to the accused having shot the deceased was complete in itself and it could not be said that any further questions would have elicited any information which would run counter to the same. Under the circum stances, the dying declaration, though incomplete otherwise, was complete so far as the accused having shot the deceased was concerned and could certainly be relied upon by the prosecution. The corroboration of the dying declaration invested it with a stamp‑of truth which went a long way towards inculpating the accused."

The very headnote indicates that there teas corroboration for the dying declaration and it was because of the corroboration that an otherwise incomplete statement was accepted as the basis for conviction.

Examination of the facts of the case reveals that various extraneous circumstantial features were considered before accept ing the incomplete dying statement. The accused in that case was seen at about 7‑30 P.M. at the shop of P. W. 10 and at 8 P.M. he was seen moving towards the flour mill of the deceased by P. W. 16. He was further seen peeping into the mill premises at about 9 P.M. by P. W. 12. Besides this evidence in regard to the movements of the accused at or near the place of the incident, there was the evidence of Range Gowda, P. W. 20, who was in the company of the deceased till he reached his own house and who stated that he, all of a sudden, heard the report of a gun shot followed by the cry of the deceased "Sattar shot me off." So, there were sufficient evidence and circumstances in that case which we have not in the present case.

9 D L R 327 : That is not exactly a case on the point and its examination reveals that an otherwise unsatisfactory dying statement was accepted by reason of its tallying with certain external circumstances. In that case there was corroboration of the dying statement in the shape of several severe scratches on the face of the assailant who was sitting right near the dying man in the Railway compartment where the murder took place.

P L D 1955 Lah.65 : It was held in this decision that a dying declaration is a valuable piece of evidence and if it is free from suspicion and believed to be true it may be sufficient for conviction.

Examination of the decision reveals that in that case there was the direct evidence of r. Ws. 6, 7, 8, and 9. Some of them testified to having seen the occurrence itself. In the facts of that case, the decision does not seem to us to have raised the value of the dying declaration, although it has been held that a dying declaration is a valuable piece of evidence if it is free from suspicion and believed to be true. Being "free from suspicion and believed to be true" bring in so many other things for consideration. So that it cannot be said that the dying declara tion by itself carried the day.

A I R 1940 Mad. 196 : This is the high water‑mark of the learned Deputy Legal Remembrancer's decisions. In this case there was no eye‑witness at all to support the dying statement but the headnote itself is clear, namely, "after taking everything into consideration".

The headnote of the decision is as under:‑

"There may not be corroboration of the nature contemplated by S. 157 or matters provable under S. 158, and the only direct evidence may be a statement by the deceased made admissible under S. 32. It does not however necessarily follow that this evidence is insufficient to support a conviction. In such a case the surrounding circumstances will have an important bearing. If the evidence of an accomplice is tainted the Court may under S. 114, presume, that he is unworthy of credit unless corroborated, but a dying declaration is on a much higher plane and the Act places no restriction on its acceptance.

It is not possible to lay down any hard and fast rule when a dying declaration should be accepted, beyond saying that each case must be decided in the light of the other facts and the surrounding circumstances, but if the Court after taking every thing into consideration, is convinced that the statement is true, it is its duty to convict, notwithstanding that there is no corro boration in the true sense. The Court must of course be fully convinced of the truth of the statement and naturally it cannot be fully convinced if there is anything in the other evidence or in the surrounding circumstances to raise suspicion as to its credibility."

The question of law that arose in that case was whether on the statements of a deceased person uncorroborated by any other testimony except as to the number of the assailants, the appellants could be convicted of murder. The question had been referred to the Full Bench presided over by Leach C. J. and after examina tion of the conflicting authorities, the learned Chief Justice observed as under:‑

"In my judgment it is not possible to lay down any hard and fast rule when a dying declaration should be accepted, beyond saying that each case must be decided in the light of the other facts and the surrounding circumstances, but if the Court, after taking everything into consideration, is convinced that the statement is true, it is its duty to convict, notwith standing that there is no, corroboration in the true sense. The Court must, of course, be fully convinced of the truth of the statement and naturally it could not be fully convinced if there were anything in the other evidence or in the surrounding circumstances to raise suspicion as to its credibility. I would answer the reference in this sense."

The facts of that case show that it was sunrise when the attack was made. So, there was no question of poor visibility. The victim was stabbed in 38 places which must have taken some time, so that be had ample opportunity to see who were the persons who were stabbing him. The above review thus shows that though in theory conviction can be' based on the dying declaration alone yet it has always been the practice to look for external support to the dying declaration. The statement has to pass through the hurdle of tests which necessarily calls in external evidence and circumstances.

In the result and considering all the circumstances, we allow the appeal and reject the Reference. We set aside the conviction and sentence of the appellant and acquit him of the charge against him. We direct that he be set at liberty forthwith, if not wanted in any other connection.

.‑I agree.

K. B. A. Appeal accepted.

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