IMPORTANT POINT
The dying declaration simply mentioning presence of the accused, without certificate from the doctor available of fitness of declarant and Magistrate having no recollection whether it was signed by the declarant by itself would not tantamount to substantial evidence against the accused - appellant warranting the conviction and sentence as affirmed by the High Court .

Headnote:Evidence Act, 1872-Dying declaration -Conviction of appellant on the basis of dying declaration alone for offence u/s. 302 Indian Penal Code and for other offences-Dying declaration not involving the appellant with the crime but states his presence at the site of occurrence-Recorded by Magistrate-No certificate of doctor taken of fitness of the declarant-The Magistrate also did not recollect as to whether deceased did put his signature-Whether a declaration of this type would amount to substantial evidence against the appellant herein warranting the conviction and sentence as affirmed by the High Court? (No)-Case law discussed-1999(7) SCC 695 relied on -Appeal allowed.
Held : As noticed above, declaration itself can be treated as a substantive piece of evidence and can be the basis of an Order of conviction and sentence without there being any corroboration, provided, however, the same brings forth a sense of confidence and trustworthiness in the mind of the Court - why did not the doctor certify the fitness of the person making the statement or even append his signature, there is no answer to the same. The Magistrate also did not recollect as to whether the deceased did put his signature or not but since there is no mention of "L.T.I." before "Ram Singh" obviously left thumb impression is not there on the dying declaration. This is the declaration which happened to be the only material piece of evidence on the basis of which the trial Court came to a conclusion that the appellant herein ought to be found guilty under Section 302 IPC warranting sentence of life imprisonment. The decision of this Court in Paparambaka Rosamma and others v. State of A.P., 1999(7) SCC 695 directly runs counter to the Judgment under appeal. In our view it is not otherwise a very safe piece of evidence to rely upon for conviction under Section 302 IPC. The declaration must be such so as to evoke confidence in the factual context. However, we are unable to record our confidence on such a declaration so as to lend support and concurrence to the Judgment under appeal. As noticed above, Rosamma (supra) decides counter and we do record our respectful agreement, apart from being a larger Bench Judgment which should act as a binding precedent, with the observations and findings and on the wake of the aforesaid we are of the view that the High Court fell into a manifest error. The Judgment under appeal thus cannot be sustained. The appeal is thus allowed. The appellant be released forthwith, if not wanted in any other case. (Para 11)

JUDGMENT

Banerjee, J.-Admissibility of a dying declaration has had judicial scrutiny for over five decades. Whereas the earlier view in Ramnath s case (Ramnath Madhoprasad and others v. State of Madhya Pradesh, AIR 1953 SC 420) to the effect that it is not safe to convict an accused person merely on the evidence furnished by a dying declaration without further corroboration, a larger Bench judgment of this Court in Tarachand (Tarachand Damu Sutar v. The State of Maharashtra: AIR 1962 SC 130) categorically observed that conviction based on dying declaration, against the correctness of which no cogent reasons have been given or suggested, is sustainable in law.

2. This Court, a decade later in Munnu Raja and another v. The State of Madhya Pradesh (AIR 1976 SC 2199) stated the law to the effect that though the dying declaration must be approached with caution for the reason that the maker of the statement cannot be subjected to cross-examination, there is neither a rule of law nor a rule of prudence which has hardened into a rule of law that a dying declaration cannot be acted upon unless it is corroborated. This Court went up to observe that the court must not look out for corroboration unless it comes to the conclusion that a dying declaration suffered from any infirmity.

3. One of the latest pronouncement of this Court pertaining to the subject find place in the decision of Arvind Singh v. State of Bihar (J.T. (2001) 5 SC 127) wherein, this court observed that apart from the care and caution factors as noticed earlier the dying declaration ought otherwise to be treated as trustworthy. The issue thus becomes as to whether the dying declaration has been able to bring about a confidence thereon or not - is it trustworthy or it is a mere attempt to cover up the latches of investigation: it must allure to the satisfaction of the court that reliance ought to be placed thereon rather than a distrust: The confidence of the court is the summum-bonum and in the event of there being any affirmation thereto in the judicial mind, question of any disbelieve or distrust would not arise. In the event however of there being some infirmity, howsoever, negligible it be, the Court unless otherwise satisfied about the credibility thereof, ought to look for some corroboration, if however it is otherwise, question of requirement of a corroboration would not arise: dying declaration alluring confidence of the court would be a sufficient piece of evidence to sustain conviction. There is no format as such of dying declaration neither the declaration need be of any longish nature and neatly structured. As a matter of fact, perfect wording and neatly structured dying declaration may bring about an adverse impression and create a suspicion in the mind of the court since dying declarations need not be drawn with mathematical precision the declarant should be able to recollect the situation resulting in the available state of affairs.

4. Having dealt with the basic issue involved in the matter and adverting to the factual score, be it noted that against the judgment and order of conviction and sentence dated 23rd December, 1988 passed by the Additional Sessions Judge, Dhanbad, two separate appeals being Crl.A.No.64/1989 (Panchdeo Singh v. State of Bihar) and the other Crl.A. No. 65/1989 (Dun Bahadur Singh v. State of Bihar), the High Court by a common judgment affirmed the order of conviction and sentence passed against the appellant by the court below. The learned Additional Sessions Judge, Dhanbad convicted the appellant herein under Section 302 read with Section 149 of the Indian Penal Code for committing murder of one Sriram Singh and Section 148 of the Indian Penal Code and sentenced rigorous imprisonment for life. The accused was further convicted under Section 324 read with Section 149 of the Indian Penal Code and Section 148 of the Indian Penal Code and was sentenced to rigorous imprisonment for 3 years on each count though, however, sentence

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2001 Supreme(SC) 1656

Cases Referred (4)