IMPORTANT POINTS
(1) If the person recording dying declaration is satisfied that declarant is in a fit medical condition to make dying declaration then such statement will not be invalid solely on ground that it was not certified by doctor as to the condition of declarant to make statement.
(2) Percentage of burns above would not determine the probability or otherwise of making dying declaration.

Headnote:(i) Evidence Act, 1872-Section 32-Dying declaration should be of such a nature as to inspire full confidence of Court in its correctness-Court has to be on guard that such a statement was not as a result of either tutoring, or prompting or a product of imagination and that deceased was in a fit state of mind-No absolute rule of law that dying declaration could not form sole basis of conviction unless it was corroborated-Rule requiring corroboration was merely a rule of prudence-Principles governing dying declaration.
       Held : (i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. [See Munnu Raja & Anr. v. The State of Madhya Pradesh (1976) 2 SCR 764)]; (ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. [See State of Uttar Pradesh v. Ram Sagar Yadav and Ors. (AIR 1985 SC 416) and Ramavati Devi v. State of Bihar (AIR 1983 SC 164)]; (iii) The Court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. [See K. Ramachandra Reddy and Anr. v. The Public Prosecutor (AIR 1976 SC 1994)]; (iv) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. [See Rasheed Beg v. State of Madhya Pradesh (1974 (4) SCC 264); (v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. [See Kaka Singh v. State of M.P. (AIR 1982 SC 1021)]; (vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. [See Ram Manorath and Ors. v. State of U.P. (1981 (2) SCC 654)]. (vii) Merely because a dying declaration does contain the details as to the occurrence, it is not to be rejected. [See State of Maharashtra v. Krishnamurthi Laxmipati Naidu (AIR 1981 SC 617)]; (viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. [See Surajdeo Oza and Ors. v. State of Bihar (AIR 1979 SC 1505)]; (ix) Normally the Court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye-witness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. [See Nanahau Ram and Anr. v. State of Madhya Pradesh (AIR 1988 SC 912)]; (x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. [See State of U.P. v. Madan Mohan and Ors. (AIR 1989 SC 1519)]; (xi) Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declaration could be held to be trustworthy and reliable, it has to be accepted. [See Mohanlal Gangaram Gehani v. State of Maharashtra (AIR 1982 SC 839)]. (Para 12)
       (ii) Evidence Act, 1872-Section 32-Dying declaration-If person recording dying declaration is satisfied that declarant is in a fit medical condition to make statement then such dying declaration will not be invalid solely on ground that it was not certified by doctor as to the condition of declarant to make it-Percentage of burns suffered whether determinative factor to affect credibility of dying declaration and improbability of its recording, there could be no hard and fast rule. (Paras 15 & 16)
       (iii) Indian Penal Code, 1860-Section 302-Deceased was admitted with burn injuries in hospital-Conviction based on dying declaration recorded by PW 6 police official in presence of doctor PW7-Appeal-Deceased had sustained 80 to 85% ante mortem burns-No material to show that dying declaration was result of product of imagination, tutoring or prompting-It appeared trustworthy and had credibility-Courts below were justified in placing reliance on it for convicting appellant. (Paras 11, 14 & 17)

JUDGMENT

Arijit Pasayat, J.-Accused-appellant allegedly committed uxoricide was found guilty of offence punishable under Section 302 Indian Penal Code, 1860 (for short IPC ); and sentenced to undergo imprisonment for life and a fine of Rs. 1,000/- with default stipulation of one month imprisonment by 22nd Additional City Civil and Sessions Judge, Bangalore. The appeal before the High Court of Karnataka having yielded no success, this appeal has been filed.

2. Accusations which led to trial of the accused-appellant in essence are as follows:

On 7-2-1993 Smt. Dharni (hereinafter referred to as the deceased ) was in the house with the accused-appellant when they quarrelled over certain domestic differences, and the accused poured kerosene and set her on fire. On hearing her screams and seeing smoke coming out of the room, their landlord V.N. Guptha (PW1) rushed to the spot. He did not find the accused there; but was told by the deceased that the accused had poured kerosene and set her on fire and run away. On receiving of information about the incident Srinivasa Murthy, ASI, (PW6) arrived at the spot along with Sivanna (PW4) Police constable. The deceased was taken to the victoria Hospital for treatment. At the hospital PW6 recorded statement of the deceased in the presence of Dr. M. Narayana Reddy (PW7). This was treated as FIR. After registering the case, investigation was started. In the hospital the deceased breathed her last while undergoing treatment on 8-2-1993 at about 10.25 p.m.

3. Dr. Thirunavukkarasu (PW3) conducted the post-mortem and found that the deceased had sustained about 80 to 85% ante-mortem burns. On completion of investigation, charge sheet was placed. Learned Trial Judge on consideration of the evidence on record found the accused guilty, as afore-mentioned, and convicted and sentenced him.

4. Reliance was placed on the dying declaration which was recorded by PW6 in the presence of PW7 and was marked as Exhibit P-7. In appeal before the High Court, the accused appellant contended that the so-called dying declaration was not credible and acceptable. But the High Court did not find any substance in the plea, and dismissed the appeal by the impugned judgment.

5. Learned counsel appearing for the accused-appellant submitted that the so-called dying declaration (Exhibit P-7) cannot by any stretch of imagination be considered to be a dying declaration in the sense it is understood in law. The same was recorded by PW6, a police official. Though there was ample time, as the factual scenario shows, no effort was made to secure the presence of a magistrate if really a dying declaration was to be recorded. Furthermore PW7 has himself stated that the deceased had suffered 100% burns. It is highly improbable that the deceased was in a fit state of health and mind to give the dying declaration. There is no mention in the document treated as dying declaration that the deceased was in fit state of mind to give the statement. PW6 stated that attempt was made to get permission from the Chief Medical Officer. There is no material to substantiate the claim. On the contrary PW7 stated that though there was no requisition, being the doctor at the spot he had given the permission to record the dying declaration on request by PW6.

6. The post-mortem report stated that the burns suffered were second and third degree burns and with those types of burns it is unlikely that the condition of the deceased permitted making of a statement and putting of signature. On the basis of uncorroborated dying declaration, conviction should not have been made.

7. Strong reliance was placed on Munnu Raja and Anr. v. The State of Madhya Pradesh (1976 (3) SCC 104), Laxmi (Smt.) v. Om Prakash and Ors. (2001 (6) SCC 118) and Chacko v. State of Kerala (2003 (1) SCC 113) to contend that evidence recorded by a police official as dying declaration is of no probative value.

8. Further, it was contended that conviction is impermissible solely on the basis of dying

Click Here to Read the rest of this document

2003 Supreme(SC) 652

Cases Referred (21)