1. The appellant Gulabrao, ex-Sub-Inspector of Police, was convicted and sentenced to undergo 2½ years' rigorous imprisonment under S. 330 read with S. 109, Penal Code, the appellant Ramchandra, constable, to undergo 2½ years' rigorous imprisonment, the appellant Ganeshprasad, constable, to undergo 18 months' rigorous imprisonment and the appellants Viswanath and Naklia to undergo 6 months' rigorous imprisonment under S. 330 ibid by the Sessions Judge, East Berar Division in Sessions Trial No. 8 of 1944. With their appeals will be considered the appeal filed by the Provincial Government, Central Provinces and Berar, against the acquittal of Gangadhar, head constable, under S. 330 and against his acquittal and the acquittals of the 5 appellants in respect of an offence under S. 348 ibid. At the end of July 1943 Gulabrao was the station-house officer in charge of Dhamangaon station-house, Gangadhar was the writer head constable or munshi and Sheoramprasad (P.W 12) was town head constable. Ramchandra, Ganeshprasad, Rajaram and Abdul Jabbar (who was acquitted) were constables attached to it. Viswanath and Naklia were at that time kamdar mahars of Dhamangaon. On the morning of the 29th of that month Mukinda made a report there to the effect that there had been a house-breaking on the previous night in his house and the investigation was in Gulabrao's absence entrusted to Sheoramprasad who remained in charge until about 5 P.M when Gulabrao returned and replaced him. Namdeo (P.W 7), the deceased Kikabhai, Raghubir and Chhotekhan (P.W 11) were summoned to the station-house on the same afternoon and the first three were, according to the prosecution, detained there until 7th August 1943 while Chhotekhan's detention terminated 3 days earlier. Damdia P.W 9's detention lasted from 1st August 1943 to 7th August 1943 and that of Urkudia (P.W 10) from 4th August 1943 to 7th August 1943. During the night of 6th August 1943, Gulabrao, according to Damdia (P.W 9), went to Gangadhar's room where Kikabhai was asleep, woke him up and asked him to supply information concerning the housebreaking at Mukinda's house. When he denied complicity, Gulabrao dealt him 4 blows with a cane and before going away asked the constables to give him a severe beating. The constables then closed the doors and windows of the room; Ramchandra, constable, put Kikabhai flat on his back on the ground and Vishwanath caught his legs while Naklia held his hands. Ganeshprasad, constable, placed a solid iron rod, about 4½ feet long and about 1½ inches in diameter, on his chest and Ramchandra removed it from there and placed it on his thighs. These two constables then stood and jumped on the ends of the rod for some time in spite of Kikabhai's protests and entreaties. This took place on Damdia's version in the presence of Gangadhar, Rajaram and Daulat who was suspected of complicity in the housebreaking while Namdeo (P.W 7), Urkudia (P.W 10) and Raghubir who were on the outside verandah heard Kikabhai's groans and cries. When the torture Aided, his thighs were swollen, skin had peeled off from the portions of them with which the rod had been in contact and he was unable to move. Abdul Jabbar, constable, gave him water to drink and shortly afterwards Gulabrao arrived with Shamrao a doctor who gave him some medicine, administered an injection and went away. He was next seen at about 8 A.M by Sheoramprasad (P.W 12), head constable, sitting against the northern wall of the station-house and he informed him that he had been severely beaten during the night by Gangadhar, Ganeshprasad, Rajaram and Ramchandra. He added that the Sub-Inspector had not participated in or been apprised of the beating and that he had not reported it to him. As he declared that he could not do so then because of his inability to walk, Sheoramprasad himself made the report and was directed by Gulabrao to send the constables to him. He accordingly called Ramchandra and Rajaram and adjured the former to call Ganeshprasad. On return from taking morning tea he went to the Sub-Inspector's quarters and was asked to persuade Kikabhai to go to hospital. Kikabhai, who was then in room No. 3 of Raghunath constable's quarters declined to do so until he felt better and Sheoramprasad informed Gulabrao of this. The latter then at 10 A.M filled in the obverse of the requisition form Ex. P-4 and sent it with Ganeshprasad and Kikabhai to the local hospital. The relevant part of the form vis-a-vis the Sub-Inspector runs as follows:

“The injured man was called for investigation. He stated that a rod was rolled on his thighs and as a result his skin was peeled off. He states that Ramchandra, Rajaram, Ganeshprasad, the munshi, Naklia and Vishwanath beat him.”

2. The Assistant Medical Officer Mr. J.D Hastak (P.W 17) was on casual leave at the time but the compounder Gulabrao Surse (P.W 15) when free from hospital duties went to room No. 3 at about 2-30 p. M. and dressed and bandaged the wounds on Kikabhai's thighs. Kikabhai then told him that he had no desire to go to hospital and the compounder visited him at about the same time next day (8th August 1943), washed the wounds with boric lotion and applied boric ointment guaze and acriflavine lotion before putting on fresh bandages. The compounder went to the station, house at about 8 P.M in response to call from the Sub-Inspector, learned from him that Kikabhai had vomited twice during the afternoon and advised him to have him sent to the hospital. He was admitted into hospital at 10 P.M and, as his bed head ticket Ex. p-5 shows, his pulse was then not countable, perspiration was present and his hands and feet were cold. He was given a mild stimulant and a hot water bottle and his injuries were given the same treatment as they had received earlier in the day. About an hour later he asked for some paper to narrate what had happened and when this had been provided and the witnesses Bajirao, S.G Vighey and Shakur (1 D.W 1) assembled, he recorded and signed the following declaration in Gujrati on the obverse side of Ex. P-9:

“The police have harassed me in investigation into the theft (case) of Vaid Master for (the last) fifteen days. I state that (they) beat me (and) made me get up and sit down repeatedly on Saturday. After that, at 2 o'clock at night Friday, the constables Ramchand, Bajaram Munshi and Ganeshprasad, Nakalia Mahar and Isunath Makar (verb missing) me. Isunath kept holding both the hands and pressed the mundi (head, neck). Then Nakalia firmly kept holding both the legs, Ramchand constable rolled a piece of iron pipe 3 feet long, on my legs while standing on it and rolled a stick also. They harassed me for about two hours and Ganesh Prasad beat (me) with slaps on the head and got me beaten (with daps) by the hand of Dawlat Gowari also and they have repeatedly struck (on) (omission) with the ferrule of stick X (unintelligible) X for the same reason X (X sic, probably means in the same way). The S.I has gone for round at that X (sic) time. Ramchandra and Ganesh Prasad said ‘Make (him) much after the departure of the S.I’ and the hair of my beard was also extracted. (They added) ‘our trick would not succeed in the presence of the S.I’ I have written this statement in possession of my senses.”

3. This was attested by S.G Vighey and Shakur. As it was written in Gujrati the witnesses were unable to read it and when Bajirao demurred on this account, Kikabhai dictated the contents of the reverse side of Ex. P-9 to him and he recorded them in Hindi. This was attested by Bajirao, S.G Vighey and Shakur and signed by Kikabhai and being a translation of the obverse side it was pro tanto the same as it. Next day (9th August 1943) Mr. J.D Hastak on return from leave examined Kikabhai at about 11-30 A.M and found the following injuries on his person: (1) Reddish black superficial contusion with epidermis peeled 4″ × 2½″ oval transversely on right thigh in front and inner side in the middle. (2) Same as before 3″ × 2″ vertical on the same part of the body. (3) Same as before 4″ × 3″ oval transversely on left thigh in front and inner side in the middle. (4) Same as No. 3, 2″ × 2″ on the same part of the body. (5) Same as before 1″ × ¾″ on outer side of left leg just below left knee. These injuries could in Mr. Hastak's opinion have been caused by the rolling of a pipe over the thighs in the manner described in Ex. P-4. As Kikabhai was in a critical condition Mr. Hastak gave him a glucose injection which revived his pulse after 10 minutes. Deciding that it was advisable to have his dying declaration recorded Mr. Hastak sent word to Gulabrao and the latter arrived at the hospital and recorded the following: vide Ex. P-6:

“At 6 o'clock in the evening on 29th July 1943, the S.I called me in the station-house, in connexion with the theft at the house of Master. On Friday and Saturday 30th/31st July 1943, when the S.I had gona to other town, Constable Ganesh Prasad and Constable Ramchandra made (me) sit down and get up. Thereafter, at 2 o'clock on the night of Friday, when the S.I had gone on round in the basti, then they saw that there was nobody, then said that the S.I does not allow to make. Therefore, on the S.I's leaving, the doors of the station-house were caused to be closed. Ramchandra caught (my) hands and felled (me) down. Making my legs straight and holding them through Naklya Mahar, a 2 feet piece of iron pipe and one stick—these two things were caused to be placed on my legs, and (they) were caught by Naklya. Ramchandra stood on the iron pipe, and on stick. Munsi (Gangadhar) and Rajaram—these two stood up and rolled (the pipe and the stick). Vishwanath Mahar had caught my both hands. Ganesh Prasad and Dawlat Gowari hit slaps on (my) head and dragging me along the ground, Ramchandra pulled out the hair of (my) beard. Ramchandra caught my penis with (his foot) and was pinching it. Thereafter when information of the arriving of the Sub-Inspector reached them, they left me. In the morning, you — the Sub-Inspector saw (my) condition.”

4. This was signed by Kikabhai, the Sub-Inspector, Balkisandas (1 D.W 2), Pundalik (1 D.W 3) and Mr. Hastak who also attested the record of the following questions and answers in the same exhibit:

“Question 1. — Kikabhai, when you were beaten in the station-house, who were present there?

Answer 1. — Myself, Baghuwir, Dawlat, Naklya, Vishwanath Mahar, Ganesh Prasad, Ramchandra, Rajaram and Munsi were (there).

Question 2. — Did you cry when you were being beaten?

Answer 3.—Yes. But there was nobody.

Question 3.—Did you make any complaint of the marpit that was done to yon in the Station-House?

Answer 3. — Yes. Next day, in the morning, at 9 o'clock (the complaint) was made with the Jamadar and then to you (the Sub-Inspector also).”

5. At 5 P.M as Kikabhai vomited on two occasions, his perspiration was cold and clammy and his pulse was absent, Mr. Hastak gave him two injections, one saline and the other of strychnine and digitalin and the reaction was favourable. At 10-20 P.M Mr. N.N Ingle (P.W 4), Second Class Magistrate, recorded another dying declaration Ex. P-2 in which Kikabhai because of his condition gave faltering replies to queries towards the end. The gist of his version was that Ramchandra had stood on the rod on his thighs, Ganeshprasad had beaten him on the head, Vishwanath had seized his hands and Naklia had caught his legs. This declaration was attested by Mr. N.N Ingle and Mr. 3. D. Hastak and the latter finding that Kikabhai's condition had deteriorated subsequently gave him an injection of adrenalin but this had little effect and he expired at about 4 A.M (10th August 1943). All the appellants disavowed connexion with the torturing, beating and wrongful confinement of Kikabhai on the night in question and Gulabrao's case was briefly stated that the suspects in the housebreaking case were permitted to go away after investigation each day. Ramchandra's version was that as he was off duty on that night he attended the Ramlila until 2 A.M in Bhandari's ginning factory in Hardaganj and Ganeshprasad declared that as he too was off duty he had not visited the station-house and had slept in his quarters from 11 P.M until the following morning. Both Naklia and Vishwanath refused to make any statements in the committal Court, and in the Court of Session they merely asserted that they were not in the station-house on the relevant night and the witnesses had given false evidence against them.

6. We have in the circumstances no hesitation in reaching the conclusion that these declarations were pro tanto authentic and were sufficient to justify the convictions of the appellants other than the station-house officer Gulabrao. In I.L.R (1940) Mad. 1581 a Full Bench made the following decision:

“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, 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 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.”

7. A Division Bench was of the view in A.I.R 1941 Pat. 4092 that there was no absolute rule that a dying declaration should not be acted on for the purpose of convicting an accused person even if uncorroborated provided that the Court is fully satisfied that it is true, but that before so acting on it the Court should apply to it every test of its genuineness and good faith which it is possible in the circumstances to apply. The Madras case cit. sup. was relied on by a Division Bench in ILR 1942 KAR 5873 in which it was ruled that where the Court is entirely satisfied with regard to the truth and genuineness of an uncorroborated dying declaration, there is nothing to prevent it from regarding such a dying declaration as sufficient to sustain a conviction. With these decisions we are in respectful agreement and have only to add that the case before us is stronger than those to which we have referred because of the fact that in it there were no less than 4 declarations all of which were largely consistent with one another and bore the stigmata of veracity.

8. The appeal of the appellant Gulabrao is allowed and he is acquitted. Appeals of the other appellants are dismissed and the appeal of the Provincial Government succeeds in respect of the appellants Ramchandra, Ganeshprasad, Vishwanath and Naklya, but fails in respect of Gulabrao and Gangadhar.

9. Order accordingly.