2001 Supreme(SC) 648

2001(3) Supreme 238
SUPREME COURT OF INDIA
(From Rajasthan High Court)
K.T. Thomas, R.P. Sethi & S.N. Phukan, JJ.
Uka Ram -Appellant
versus
State of Rajasthan -Respondent
Criminal Appeal No. 749 of 2000
Decided on 10-4-2001
Counsel for the Parties :
For the Appellant : Ms. Minakshi Vij, Advocate (A.C.).
For the Respondent : Ms. Sushil Kr. Jain, A. Misra, Ms. Anjali Doshi and A.P. Dhamija, Advocates.

VERY IMPORTANT POINT
The prosecution has not proved, beyond doubt, that the dying declaration was true, voluntary and not influenced by any extraneous consideration as there exists a doubt about the mental condition of the deceased at the time she made dying declaration (Ex. P. 27) to the Magistrate. The incident may be suicidal or homicidal. Thus it is a fit case in which appellant is entitled to the acquittal on benefit of doubt as his conviction is based solely relying upon the unreliable dying declaration.

Headnote:(i) Evidence Act, 1872-Section 32-Dying declaration-Meaning and effect on criminal trial-Explained-Case law referred. (Paras 6 to 8)

       Held : Statements, written or verbal of relevant facts made by a person who is dead, or who cannot be found or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the court unreasonable, are themselves relevant facts under the circumstances enumerated under sub-sections (1) to (8) of Section 32 of the Act. When the statement is made by a person as to cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person s death comes into question is admissible in evidence being relevant whether the person was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question. Such statements in law are compendiously called dying declarations. The admissibility of the dying declaration rests upon the principle that a sense of impending death produces in a man s mind the same feeling as that of a conscientious and virtuous man under oath - Nemo moriturus praesumuntur mentiri. Such statements are admitted, upon consideration that their declarations made in extremity, when the maker is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced and the mind induced by the most powerful consideration to speak the truth. The principle on which the dying declarations are admitted in evidence, is based upon the legal maxim "Nemo moriturus praeumitur mentire" i.e., a man will not meet his maker with a lie in his mouth. It has always to be kept in mind that though a dying declaration is entitled to great weight, yet it is worthwhile to note that as the maker of the statement is not subjected to cross-examination, it is essential for the court to insist that dying declaration should be of such nature as to inspire full confidence of the court in its correctness. The court is obliged to rule out the possibility of the statement being the result of either tutoring, prompting or vindictive or product of imagination. Before relying upon a dying declaration, the court should be satisfied that the deceased was in a fit state of mind to make the statement. Once the court is satisfied that the dying declaration was true, voluntary and not influenced by any extraneous consideration, it can base its conviction without any further corroboration as rule requiring corroboration is not a rule of law but only a rule of prudence.

       (ii) Indian Penal Code, 1860-Sections 302, 326 and 498A-Appellant convicted and sentenced to life imprisonment for murder of his wife Parveena and infant daughter Dharmistha by burning, both by trial Court and High Court-Appeal against to Supreme Court-Conviction based-Solely on dying declaration (Ext. P-27) recorded by the Magistrate-Deceased was a mentally retarded woman-Medical fitness was for her physical condition-Is dying declaration reliable? (No) effect-Appellant is entitled to acquittal on benefit of doubt-Appeal allowed.

       Held : After going through the whole of the evidence, perusing the record and hearing the submissions of the learned counsel for the parties, we are of the opinion that the prosecution had not proved, beyond doubt, that the dying declaration was true, voluntary and not influenced by any extraneous consideration. Despite knowing the fact that the deceased was a mental patient, the investigating agency did not take any precaution to ensure that the incident was suicidal or homicidal. The probability of the deceased committing suicide has not been eliminated. There also exist a doubt about the mental condition of the deceased at the time she made dying declaration (Exhibit P-27). Exhibit P-26, the medical certificate only states to her physical condition to make a statement but does not refer to her mental condition even at that time. The trial as well as the High Court appear to have ignored this aspect of the matter while convicting and sentencing the appellant. We are satisfied that it is a fit case in which the appellant is entitled to the benefit of doubt. As the dying declaration, the sole evidence upon which the conviction is based, is not reliable beyond all reasonable doubts, the conviction and sentence of the appellant is not justified. Accordingly, the appeal is allowed by setting aside the impugned judgment. The appellant is acquitted of all the charges and is directed to be set ata liberty forthwith unless required in some other case. (Paras 11 and 12)