2004 Supreme(SC) 1447

2004(8) Supreme 128
SUPREME COURT OF INDIA
(From Madras High Court)
Arijit Pasayat & S.H. Kapadia, JJ.
Muthu Kutty & Anr. -Appellants
versus
State by Inspector of Police, Tamil Nadu -Respondent
Criminal Appeal No. 1301 of 2004
(Arising out of SLP (Crl.) No. 1853 of 2004)
Decided on 19-11-2004
Counsel for the Parties :
For the Appellants : S. Nanda Kumar, Anuj Kr. Chauhan and Rakesh K. Sharma, Advocates.
For the Respondent : Subramonium Prasad, Advocate.

IMPORTANT POINT
If Court is satisfied that dying declaration is true and voluntary, it can base conviction on it without corroboration.

Headnote:(i) Indian Penal Code, 1860-Sections 498A and 304B-Appellants, mother and father of husband of deceased, convicted under-Victim sustained burn injuries and told PW1, PW4, PW5 and PW6, who came on spot, that A2 poured kerosene on her and A1 lit the match stick-PW9, Medical Officer, recorded statement of deceased that A1 and A2 poured kerosene on her and set fire-Similar statement was recorded by police of victim and same was certified by doctor and case was registered on it-Magistrate also recorded the dying declaration in presence of PW9 who certified that victim was conscious and able to give statement-Conviction challenged on plea that no cogent evidence to justify that there was dowry demand and it was improbable that victim gave statement having suffered burns to great extent-Dying declaration could be acted upon without corroboration if Court found it truthful and acceptable and free from any effort to induce deceased to make a false statement-No material to show that dying declaration was result of any imagination, tutoring or prompting-It appeared trustworthy and had credibility-Availability of presumption u/s 113-B Evidence Act-Conviction could not be interfered with.

       Held : Judged in the background of the legal principles as stated above, the Courts below have rightly relied upon the dying declaration. But we find something unusual in the conclusion of the trial Court. After having accepted that the accused persons were responsible for setting the deceased ablaze, applied Section 304 Part B IPC and not Section 302 IPC. The Trial Court observed that the accused without knowing what they were doing at the relevant time poured kerosene and set fire on the deceased and in view of this situation Section 302 IPC was not applied and Section 304B IPC was applied. The reasoning is clearly wrong. But we find that the State had not questioned correctness of the conclusions arrived at by the learned Trial Judge in directing acquittal of the accused persons from the charge under Section 302 IPC. But even then the case would be covered by Section 304 Part II IPC, on the basis of the conclusions arrived at by the Trial Court. A reading of Section 304-B IPC and Section 113-B Evidence Act together makes it clear that law authorizes a presumption that the husband or any other relative of the husband has caused the death of a woman if she happens to die in circumstances not normal and that there was evidence to show that she was treated with cruelty or harassed before her death in connection with any demand for dowry. It, therefore, follows that the husband or the relative, as the case may be, need not be the actual or direct participant in the commission of the offence of death. For those that are direct participants in the commission of the offence of death there are already provisions incorporated in Sections 300, 302 and 304. The provisions contained in Section 304-B IPC and Section 113-B of the Evidence Act were incorporated on the anvil of the Dowry Prohibition (Amendment) Act, 1984, the main object of which is to curb the evil of dowry in the society and to make it severely punitive in nature and not to extricate husbands or their relatives from the clutches of Section 302 IPC if they directly cause death. This conceptual difference was not kept in view by the Courts below. But that cannot bring any relief if the conviction is altered to Section 304 Part II. No prejudice is caused to the accused appellants as they were originally charged for offence punishable under Section 302 IPC along with Section 304-B IPC. (Paras 20 and 21)

       (ii) Evidence Act, 1872-Section 32-Dying declaration-Rule requiring corroboration is rule of prudence-Principles governing.

       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 16)