2001 Supreme(SC) 914

2001(5) Supreme 26
SUPREME COURT OF INDIA
R.C. Lahoti & Doraiswamy Raju, JJ.
Smt. Laxmi -Appellant
versus
Om Prakash & Ors. -Respondents
Criminal Appeal No. 717 of 1994
Decided on 9-7-2001
Counsel for the Parties :
For the Appearing Parties : Mr. Anoop G. Chowdhury and Mr. V.V. Vaza, Sr. Advocates, Mr. D.N. Goburdhan, Ms. Pinky Anand, Ms. Geeta Luthra, Mr. K.K. Tyagi for Mr. K.R. Nagaraja, Mr. W.A. Qadri, Mr. S.N. Terdol, Mr. K.C. Kaushik and Mr. D.S. Mahra, Advocates.

VERY IMPORTANT POINT
A dying declaration is relevant and admissible in evidence (under Section 32 of Evidence Act, 1872) provided it has been made by the deceased when in a fit mental condition . That element was absent in this case in all the five dying declarations to Investigating ASI, Doctor, SI at hospital, SDM and brother of deceased implicating husband, mother-in-law and sister-in-law thus are found not reliable and hence acquittal of accused cannot be interfered with a probable defence of suicide which cannot be ruled out.

Headnote:Indian Penal Code, 1860-Sections 302/34-Offences under-Deceased, a young married woman Janak Kumari aged 25 years died an unusual death-Husband Om Prakash, his mother and sister were arrested on the basis of 5 dying declarations to Police, Doctor, attendant SI, SDM and brother of deceased-Homicidal death by pouring kerosene due to strained relations-Smt. Laxmi mother of deceased alleging it dowry death by husband and in-laws-Om Prakash etc. alleging suicide-Sessions Judge acquitting accused-State not preferring any appeal, mother of deceased filed appeal by special leave-Whether dying declarations admissible in evidence? (Yes under Section 32, Evidence Act if reliable)-Whether a dying declaration made by a person on the verge of her death has a special sanctity? (Yes)-Whether conviction can be recorded on it without looking for corroboration? (Yes if true and reliable)-Whether in the facts and circumstances five dying declarations are reliable? (No, in the absence of medical fitness of the deceased)-Effect-Appeal dismissed-Case law discussed-(Cross Ref: Evidence Act, 1872-Section 32-Constitution of India-Article 136). (Paras 15 to 30)

       Held : "Nemo moriturus praesumitur mentire-No one at the point of death is presumed to lie." "A man will not meet his Maker with a lie in his mouth"-is the philosophy in law underlying admittance in evidence of dying declaration. "A dying declaration made by person on the verge of his death has a special sanctity as at that solemn moment, a person is most unlikely to make any untrue statement. The shadow of impending death is by itself the guarantee of the truth of the statement made by the deceased regarding the causes or circumstances leading to his death. A dying declaration, therefore, enjoys almost a sacrosanct status, as a piece of evidence, coming as it does from the mouth of the deceased victim. Once the statement of the dying person and the evidence of the witnesses testifying to the same passes the test of careful scrutiny of the Courts, it becomes a very important and a reliable piece of evidence and if the Court is satisfied that the dying declaration is true and free from any embellishment such a dying declaration, by itself, can be sufficient for recording conviction even without looking for any corroboration"-is the statement of law summed up by this Court in Kundula Bala Subrahmanyam v. State of A.P. (1993) 2 SCC 684. The Court added - such a statement, called the dying declaration, is relevant and admissible in evidence provided it has been made by the deceased while in a fit mental condition . The above statement of law, by way of preamble to this judgment, has been necessitated as this appeal, putting in issue acquittal of the accused respondents from a charge under Section 302/34 IPC, seeks reversal of the impugned judgment and invites this court to record a finding of guilty based on the singular evidence of dying declaration made by the victim. The law is well settled: dying declaration is admissible in evidence. The admissibility is founded on principle of necessity. A dying declaration, if found reliable, can form the basis of conviction. A court of facts is not excluded from acting upon an uncorroborated dying declaration for finding conviction. A dying declaration, as a piece of evidence, stands on the same footing as any other piece of evidence. It has to be judged and appreciated in the light of the surrounding circumstances and its weight determined by reference to the principles governing the weighing of evidence. It is, as if the maker of the dying declaration was present in the court, making a statement, stating the facts contained in the declaration, with the difference that the declaration is not a statement on oath and the maker thereof cannot be subjected to cross-examination. If in a given case a particular dying declaration suffers from any infirmities, either of its own or as disclosed by other evidence adduced in the case or circumstances coming to its notice, the court may as a rule of prudence look for corroboration and if the infirmities be such as render the dying declaration so infirm as to prick the conscience of the court, the same may be refused to be accepted as forming safe basis for conviction. In the case at hand, the dying declarations are five. However, it is not the number of dying declarations which will weigh with the court. A singular dying declaration not suffering from any infirmity and found worthy of being relied on may form the basis of conviction. On the other hand if every individual dying declaration consisting in a plurality is found to be infirm, the court would not be persuaded to act thereon merely because the dying declarations are more than one and apparently consistent. (Para 1)

       The principal accused Om Prakash had himself informed the police of the incident. In fact, he was the first to give any information relating to the incident to the police. Unfortunately, none of the accused could have escorted the victim to the hospital nor could remain present by her side as the case diary revealed (as has been noticed by the trial court) that the accuced persons were arrested on the same day. The house of the accused persons which is the site of the incident is situated in a thickly populated locality in a narrow lane where the houses are located like a cluster. The neighbours must have collected soon at the place of the incident. This is borne out from the statement of Shiv Charan, ASI who had made on the spot inquiries. None of the neighbours has been examined excepting Trishla Kumari, PW1 to whom the injured Janak Kumari has not made any statement implicating the accused persons although she had the opportunity of doing so. We have also dealt with each of the five dying declaration to find out their worth. We have found the second dying declaration to be no dying declaration, the first and third ones having been made to police officers associated with investigating and also not worthy of credence. We have disbelieved the fifth dying declaration to have been made to PW3, Krishan Lal. We have found it not safe to act on the fourth dying declaration said to have been made to a Magistrate as we entertain grave doubts if the injured Janak Kumari was in a position to make any statement at the time at which this fourth, as also the third and the fifth dying declarations are alleged to have been made. We have found some inconsistency between the statements said to have been made by the injured Janak Kumari and recorded as third and fourth dying declaration. We have also found that from the beginning there was an effort to develop a story of Janak Kumari having been attempted to be stragulated which story finds a mention in the record as prepared by Dr. Khanijau but which story has been found to be false. None of the five statements attributed to Janak Kumari and coming from the mouth of different witnesses has been held worthy of being accepted and acted upon as dying declaration so as to form a safe basis to base conviction of the accused thereon. We find ourselves not persuaded to reverse the well-reasoned finding of not guilty recorded by the trial court and convert the same into a finding of guilty simply because the statements alleged to be dying declaration are five in number. Needless to say there is no other shred of evidence connecting the accused with the crime. It appears that the marriage between the accused Om Prakash and the victim Janak Kumari proved to be a failure and all efforts at restoring and re-establishing the matrimonial home had failed leading to utter frustration in the mind of Janak Kumari. She probably felt convinced in her mind that she had no other escape except to finish herself which course would also enable her avenging her grievance and settling scores with the accused persons whom she thought were responsible for spoiling her life and leading her into immense misery. She had indicated what was transpiring in her mind to Trishla Kumari, PW1. The possibility of her committing a suicide and implicating the accused persons cannot be ruled out in the facts and circumstances of the case as available on record. For the foregoing reasons, the appeal is dismissed. The judgment of acquittal, along with the findings recorded by the trial court, is maintained. (Paras 31, 32 and 33)