2006 Supreme(SC) 151

2006(2) Supreme 264
Supreme Court of India
(From Madras High Court)
S.B. Sinha & P.P. Naolekar, JJ.
Ravikumar alias Kutti Ravi —Appellant
versus
State of Tamil Nadu —Respondent
Criminal Appeal No. 630 of 2005
Decided on 22-2-2006
Counsel for the Parties :
For the Appellant : Ms. Rohan Thawani, Joseph Pookkatt, Ms. Pooja Dhar and Prashant Kumar, Advocates.
For the Respondent : Ms. Abhay Kumar, Jai Kishor, Gopal Krishan and Subramonium Prasad, Advocates.

Important pointWhen the statement recorded by the Magistrate as translated by the doctor, was narrated to the deceased which she admitted, there cannot be any manner of doubt that whatever was stated by the deceased, was correctly recorded by the Magistrate in the dying declaration.

Headnote:(i) Indian Penal Code, 1860—Sections 302 and 449—Conviction based on dying declaration duly corroborated—Sustainable—Deceased, her brother (PW3) and his wife (PW2) were residing in a rented house—On 15-1-1998 at about 5 p.m., when PW2 was returning from market, she heard hue and cry from her house and when she rushed towards the house, she saw the accused running away from her residence—She saw that deceased came out of their house in flames—PW2 raised alarm and several neighbours came to the spot and put off fire with the help of a blanket—Deceased narrated the incident to PW2 implicating accused—Deceased was taken to the government hospital—Doctor gave a certificate that deceased was conscious at that time and that he had translated her version given in Telugu to Tamil so as to enable the constable to record the statement—Judicial Magistrate then came to the hospital and recorded the dying declaration of the deceased on the date of occurrence when doctor translated the statement given in Telugu to Tamil—Doctor opined that deceased died due to septicaemia—Whether conviction of appellant primarily based upon the dying declaration of the deceased which found corroboration by the statement of PW2, was sustainable—(Yes)—Evidence Act, 1872—Section 32.

       Held : Pushpa, the deceased, was admitted in the hospital. Treating Doctor Dr. Jayraman Raju was examined as PW-9. He has categorically stated that when the deceased was admitted in the hospital she was in conscious state of mind. He had informed the police as well as the Judge about the incident. On information being sent to the police, the declaration of Pushpa was recorded by the Head Constable at the hospital. At that time she was in conscious state of mind. He was present when the statement of Pushpa was recorded. The statement recorded by the Head Constable is marked as Ex. P-9. In the statement, the deceased has stated that Kutty alias Ravi had taken kerosene cane, poured the kerosene on her and lit the fire with matchbox and that she was admitted in the hospital by her father and brother. The declaration contained the note by Head Constable that Pushpa had narrated the incident in Telugu which was taken by the Head Constable in Tamil and that he knew Telugu. The Head Constable could not be examined since he had died. The doctor has certified that the patient was conscious while giving the declaration. In pursuance of the information sent to the Magistrate, the Magistrate came to the hospital and recorded the dying declaration of the deceased. The Magistrate Thiru Muthuraj was examined as PW-8. In his statement, he has stated that he had received a letter from the doctor of Government Hospital, Hosur for recording the dying declaration of Pushpa. In pursuance thereof, he went to hospital at 6.30 P.M. He had satisfied himself before recording the dying declaration that the deceased was in a position to give the statement. He asked her name, her father’s name, etc. and specifically put a question to her whether she would be able to give the declaration and she said "yes". After satisfying that she would be able to give the declaration, he recorded the statement. Pushpa gave dying declaration in Telugu. The duty doctor informed that he knows Telugu and, therefore, whatever was said by Pushpa in Telugu was translated into Tamil by the duty doctor PW-9. After recording the declaration in Tamil, the same was translated by the duty doctor in Telugu to Pushpa and Pushpa had accepted the same and to that effect a certificate had been given by him. He had obtained the thumb impression of Pushpa, the deceased, on the dying declaration. From the evidence of these witnesses, it is apparent that Pushpa did not know Tamil and, therefore, the doctor who knew Telugu and Tamil translated the questions put by the Magistrate in Tamil into Telugu and the answers given in Telugu were translated into Tamil. The statement so recorded was read over and explained by the doctor to Pushpa and she admitted the same to be true and correct. The endorsement to that effect was made by the Magistrate. As the statement recorded by the Magistrate as translated by the doctor, was narrated to the deceased which she admitted, there cannot be any manner of doubt that whatever was stated by the deceased, was correctly recorded by the Magistrate in the dying declaration. We do not find any cross-examination of the two witnesses by the defence as regards the translation of the statement given in Telugu into Tamil by the doctor and recording the same in Tamil by the Magistrate. The dying declaration as recorded was corroborated by the statement of PW-2 who has deposed that she returned to her house at about 5 p.m. from the market. She heard shouting at her house and she saw the accused running away from the place. She saw that the deceased was burning and on hearing her shouts neighbours rushed to the place and somebody gave a blanket and the fire was extinguished. After that she along with her uncle enquired from the deceased about what had happened and the deceased told them that Kutti Ravi was making advances time and again and she had not yielded. Kutti Ravi pushed the deceased and poured kerosene and lit fire and thereafter he ran away. The suggestion made by the defence that due to non-settlement of the marriage of Pushpa with the accused, Pushpa has poured kerosene on herself and lit fire, was denied. (Paras 8 to 10)

       As regards the manner in which the Magistrate recorded the statement of the deceased with the help of the doctor PW-9, there is no reason or material to show that the dying declaration was the result of either a product of imagination, tutoring or prompting. On the contrary, the same appears to have been made by the deceased voluntarily, it is trustworthy and has credibility. (Para 13)

       (ii) Evidence Act, 1872—Section 32—Dying declaration—Admissibility—Guidelines for recording conviction based on dying declaration—Court has always to be in guard to see that statement of the deceased was not the result of either tutoring or prompting or a product of imagination—Court has also to see and ensure that deceased was in a fit state of mind and had the opportunity to observe and identify the assailant.

       Held : Section 32 of the Indian Evidence Act, 1872 is an exception to the general rule against hearsay. Clause (1) of Section 32 makes the statement of the deceased admissible which is generally described as ‘dying declaration’. The dying declaration essentially means statements made by the person as to the cause of his death or as to the circumstances of the transaction resulting in his death. The admissibility of the dying declaration is based upon the principle that the sense of impending death produces in man’s mind the same feeling as that the conscientious and virtuous man under oath. The dying declaration is admissible upon consideration that the declarant has made it in extremity, when the maker is at the point of death and when every hope of this world is gone, when every motive to the falsehood is silenced and mind induced by the most powerful consideration to speak the truth. Notwithstanding the same, care and caution must be exercised in considering the weight to be given to these species of evidence on account of the existence of many circumstances which may affect their truth. The court has always to be in guard to see that the statement of the deceased was not the result of either tutoring or prompting or a product of imagination. The court has also to see and ensure that deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy itself that the deceased was in fit mental condition to make the dying declaration, has to look for the medical opinion. Once the court is satisfied that the declaration was true and voluntary, it undoubtedly, can base its conviction on dying declaration without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely the rule of prudence. (Para 4)

       (iii) Indian Penal Code, 1860—Section 302—Evidence Act, 1872—Conviction based on dying declaration—Dying declaration recorded by Magistrate contained names of Ravi, Kumar and Mallesi—Charge is only against accused Ravi-kumar—While recording the statement in between the name of the accused Ravi-kumar, comma has been put, therefore, it gives an impression that Ravi and Kumar are two persons whereas name of the accused is Ravi Kumar—Mistake committed by Magistrate in splitting name of the accused into two names—Whether dying declaration is liable to be rejected—(No). (Para 11)

       (iv) Evidence Act, 1872—Section 32—Dying declaration—When deceased was admitted in the hospital the doctor had written in the Accident Register that she has lit fire on herself—Subsequently, doctor erased that entry which has been explained by him—Whether defence version of suicide can be accepted on the face of two dying declarations of the deceased recorded by Magistrate and Head Constable implicating accused—(No).

       Held : In the factual scenario, it appears to us that the doctor made enquiries from the father and as the cause of injuries was not informed to him he by himself put the entry in the Accident Register that the deceased lit fire on herself and when the correct picture got emerged he erased the entry. The entry made in the Accident Register has been explained by the doctor in his statement. On the basis of this entry, the defence version of suicide cannot be accepted on the face of the two dying declarations of the deceased Pushpa recorded by the Magistrate and the Head Constable on the basis of which the FIR was registered. The evidence of the Magistrate PW-8 and the doctor PW-9 is absolutely clear and unambiguous. (Para 12)