2006 Supreme(SC) 804

2006(6) Supreme 714
SUPREME COURT OF INDIA
(From Bombay High Court)
Arijit Pasayat and C.K. Thakker, JJ.
Sham Shankar Kankaria—Appellant
versus
State of Maharashtra—Respondent
Criminal Appeal No. 661 of 2005
With
Criminal Appeal Nos. 358 of 2005, 634-636 of 2005, and 700-702 of 2005
Decided on 1-9-2006
Counsel for the Parties :
For the Appellant : Sremik Singhvi, Mohd. Faisal, Ms. Indra Sawhney, Mrs. Rekha Palli (N.P.) and A.S. Bhasme (N.P.), Advocates.
For the Respondent : A.P. Mayee and V.N. Raghupathuy, Advocates.

IMPORTANT POINT
If after careful scrutiny the Court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it basis of conviction, even if there is no corroboration.

Headnote:Indian Penal Code, 1860—Section 302/34—Six accused were charge-sheeted under and trial Court convicted accused appellant No. 1 u/s 304 Part II and rest five accused u/s 325/34 IPC and all six accused u/s 342/34—All six accused tied deceased to the cot assaulted him with weapons like iron pipe, wooden stick on allegation that deceased had stolen a bicycle—Doctor opined that death was due to shock, intra-cranial haemorrhage and due to fracture of skull—Conviction was based on dying declaration made to brother and mother by deceased—High Court dismissed appeal of accused and allowed State appeal and convicted all accused u/s 302/34 IPC—Appeal—Sustainability of conviction on dying declaration—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 statement was not as a result of either tutoring or prompting or a product of imagination—Dying declaration in the case was true, free from any effort to induce deceased to make false statement and made by deceased voluntarily—No reason that PWs 9 and 10, brother and mother of deceased to whom dying declaration was made would falsely implicate accused and shield real culprit—Prosecution proved that vital blow was given by accused No. 1 who was stated to be armed with iron pipe—No material to show that other accused shared common intention of causing any injury to deceased to cause his death—Appellant No. 1 alone was liable to be convicted for culpable homicide and offence attracted in facts was u/s 304 Part I IPC and sentence of 10 years imprisonment awarded—Conviction of rest of accused u/s 325/34 IPC and sentence of 4 years imprisonment called for no interference.

       Held : This is a case where the basis of conviction of the accused is the dying declaration. The situation in which a person is on deathbed is so solemn and serene when he is dying that the grave position in which he is placed, is the reason in law to accept veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Besides, should the dying declaration be excluded it will result in miscarriage of justice because the victim being generally the only eye-witness in a serious crime, the exclusion of the statement would leave the Court without a scrap of evidence. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of deceased was not as a result of either tutoring, or prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction 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 a rule of prudence.(Paras 10 and 11)

       There is no material to show that dying declaration was result of 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. Criticism that PWs 9 and 10 being relatives have falsely implicated the accused persons needs rejection for the simple reasons that no material has been brought on record to show as to why they would falsely implicate the accused and shield actual culprit.(Paras 13 and 14)

       Judged in the background and the principle set out above, the inevitable conclusion is that the prosecution has clearly established that the vital blow was given by the accused No.1 Sham Shankar Kankaria. The question is what is the appropriate provision for his conviction. Taking into account the surroundings facts and the nature of the weapon allegedly used, in our considered view the correct provision for conviction would be Section 304 Part I, IPC and custodial sentence of 10 years would meet the ends of justice. His conviction under Section 342 IPC as well as the sentence are maintained. The sentences shall run concurrently. On the facts of the case Section 34 IPC has no application for the offence punishable under Section 304 Part-I IPC. There is no material to show that the accused persons shared common object of causing any injury to the deceased or to cause his death. That being so Section 34 IPC has no application. It is the prosecution case that the accused persons wanted to extract a confession from the deceased of his having committed theft of a cycle. So far as accused persons 2, 4 and 6 are concerned considering their role they have to be convicted under Section 342 read with Section 34 IPC, as also Section 325 read with Section 34 IPC. The corresponding sentences imposed by the trial Court and maintained by the High Court need no interference.(Para 16)

       (ii) Evidence Act, 1872—Section 32—Dying declaration—If Court is satisfied that declaration was true, voluntarily, it could base conviction without corroboration—Corroboration was merely a rule of prudence.

       Held : Clause (1) of Section 32 makes relevant what is generally described as dying declaration, though such an expression has not been used in any Statute. It essentially means statements made by a person as to the cause of his death or as to the circumstances of the transaction resulting in his death. The grounds of admission are: firstly, necessity for the victim being generally the only principal eye-witness to the crime, the exclusion of the statement might deflect the ends of justice; and secondly, the sense of impending death, which creates a sanction equal to the obligation of an oath. The general principle on which this species of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth; a situation so solemn and so lawful is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a Court of justice.(Para 8)