Dayal, J.:— [This case calls for report only on the matters referred to in, the head-note.]
Mr. Darbari, one of the learned counsel for the accused appellants, contended that the dying declaration alone, unless corroborated, cannot be the basis for recording a convictions and referred us to the cases reported in Bullu Singh v. Emperor and Arumuga Tevan v. Emperor. The facts of both the cases are very different. Those facts raised a lot of doubt about the truth of the dying declaration. The learned Judges in the former case observed at page 253:
“The statement made by the deceased to the doctor is admissible in evidence as a dying declaration under section 32 of the Evidence Act, but that statement requires corroboration in order to convict the accused of the serious charge of murder. That statement has not been tested by cross-examination and facts have not been elicited to show that the deceased had not taken any other thing, say sweetmeat, etc. containing aconite poison and that his suspicion as regards the bhang, though it might be reasonable, might be without foundation.”
In the Madras case the dying declaration was recorded about a month prior to the death taking place. It was observed by Jackson, J., in the Madras case at page 180:
“When a man who is dead has left a statement throwing light upon the cause of his death, that statement is relevant evidence under section 32 of the Evidence Act, but it is not entitled to any, peculiar credit. No doubt if a man gasps out his story soon after the occurrence it may be said that there was no time for him to fabricate or for his friends to suggest falsehood… But if, as in this case, the man is in bed in hospital four days after the event and a month before he dies' and makes a statement, that statement carries no more weight than if he made it in the witness box and rather less, because he was never been cross-examined.”
Both these cases cannot be taken as good law and as being in full support of the proposition of law which Mr. Darbari desires us to accept and lay down.
We find from Sarkar on Evidence, 1946 edition, that later cases of these two courts and also of other courts go against the contention for the accused.
In Mohammad Arif v. Emperor it was observed at page 410:
“There is no absolute rule that a dying declaration should not be acted on for the purpose of convicting any accused person even if uncorroborated, provided that the court is fully satisfied that it is true. But before so acting on it the court will apply to it every test of its genuineness and good faith which it is possible in the circumstances of he case to apply.”
We respectfully agree with this view.
In re Guruswami Tewar. A Full Bench held:
“It is not possible to lay down any hand 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, notwithstanding 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 cannot be fully convinced if there is anything in the other evidence or in the surrounding circumstances to raise suspicion as to its creditability.”
Again we fully agree with this view.
A similar view was expressed in the King v. Maung Po-Thi.
We are of opinion that a conviction on the evidence of a dying declaration alone is perfectly legal. Whether it be the evidence of a dying declaration only or of eye-witnesses, a court has to come to the conclusion that it is satisfied beyond reasonable doubt that the accused had been proved guilty before it can record a conviction. The court has to apply the various tests to scrutinise and weigh the evidence on the record. If those tests do not tend to throw deubts on the prosecution story, the evidence led is believed and acted upon. It goes without saying that the circumstances in which a dying declaration is made and the nature of its contents are very strong guides in determining the weight to be attached to a dying declaration. A dying declaration made soon after the incident or at a time when the deceased expected death or at a time by which the deceased could not have consulted others or received hints from others will ordinarily be deserving of great weight. Similarly if the contents of the dying declaration indicate that what is alleged there is probably true, that no apparent attempt has been made to exaggerate the incident or to rope in a large number of persons, it will ordinarily be considered to be a dying declaration worth reliance. We must make it clear that what we have just said is by way of illustration only and is not exhaustive description of the factors which would justify reliance on a dying declaration or whose absence will always justify the rejection of a dying declaration. We, therefore, hold that conviction on a mere dying declaration without any corroboration is good in law if the Court believes it. [After discussing the evidence his Lordship proceeded].
We are, therefore, of opinion that the dying declarations of Girwar Singh to his son, to the police and to the Tehsildar were true statements of facts and deserve full reliance. They find corroboration from the statements of Munshi I Singh and Hukum Singh and also from the circumstances that Kishanpal, one of the absconding accused, had returned after acquittal a day or two before and that the two appellants did abscond from the village for some time, they being not present in the village when the Sub-Inspector went there.
It follows, therefore, that the prosecution had succeeded in fully proving that Kunwarpal Singh and Baji Lal were among the assailants who caused Girwar Singh's death.
This brings us to the question as to what offence the accused appellants have committed. Undoubtedly the offence they have committed is an offence under section 302 of the Indian Penal Code. The various assailants came together and jointly assaulted Girwar Singh, who died on account of the multiple injuries he received. All will be responsible for his death, provided they were all acting in furtherance of a common, intention to beat or kill Girwar Singh. Such a common intention can be easily gathered from the circumstances of the case.
There is, however, a legal point and it is that no mention of section 34 of the Indian Penal Code was made in the charge framed against the accused. It is contended that in the absence of the mention of section 34 of the Indian Penal Code in the charge the accused cannot be convicted of an offence read with section 34 of the Indian Penal Code. Reliance is placed on the case of Emperor v. Bishwanath Tewari. We need not discuss the question in detail in this case.
We have held in Emperor v. Shiva Ram, after reference to sections 225, 232, 535, 537, 236 and 237, Criminal Procedure Code, and the Privy Council decision reported in Begu v. King-Emperor, that a person charged with a substantive offence can be legally convicted of that offence read with section 34 of the Indian Penal Code, irrespective, of the fact that the charge framed against him did not mention section 34 of the Indian Penal Code, if the facts of the case justify it and if the accused has not been misled in his defence and if there has been no failure of justice.
In this case we do not feel that the accused appellants have been prejudiced in any manner. In this case the two appellants and Bhopal were charged under section 302 of the Indian Penal Code. The prosecution story was that, they and two other persons had actually assaulted the deceased in the night. The fact that the accused came together and fell upon Girwar Singh leads to the inference that all of them had, a common intention to beat Girwar Singh. The in intention is gathered from their conduct. The accused knew the allegations about their conduct and the evidence led in the case. They cannot be prejudiced if the court infers from the established facts that they had a common intention to beat Girwar Singh and that the beating was in furtherance of the common intention of all. In this view of the matter we are of opinion that section 34 of the Indian Penal Code is clearly applicable to the facts of this case and that the omission of its mention in the charge does not bar the conviction of the accused of the offence under section 302 of the Indian Penal Code read with section 34 of the Indian Penal Code as the accused are not prejudiced and misled in their defence and as there appears to have been no failure of justice.
We are, therefore, of opinion that the appellants have been rightly convicted under section 302 read with section 34 of the Indian Penal Code, with respect to the murder of Girwar Singh and that they are not proved guilty of committing the murder of Megh Singh. We acquit them of the murder of Megh Singh.
We, therefore dismiss the appeal, confirm the conviction and the sentence of death for committing the murder of Girwar Singh and direct that the sentence of death be carried out according to law.