2021 Supreme(SC) 244

SUPREME COURT OF INDIA
SURYA KANT, ANIRUDDHA BOSE, JJ.
JAYAMMA & ANR. – APPELLANT
VERSUS
STATE OF KARNATAKA - RESPONDENT
CRIMINAL APPEAL No. 758 OF 2010
WITH
LACHMA S/O CHANDYANAIKA & ANR. – APPELLANT
VERSUS
STATE OF KARNATAKA - RESPONDENT
CRIMINAL APPEAL No. 573 of 2016
Decided on : 07-05-2021

IMPORTANT POINTS
(1) Dying declaration is only a piece of untested evidence and must like any other evidence satisfy Court that what is stated therein is unalloyed truth and that it is absolutely safe to act upon it.
(2) Law does not compulsorily require presence of a Judicial or Executive Magistrate to record a dying declaration.
(3) Appeal against acquittal – Unless High Court finds that there is complete misreading of material evidence which has led to miscarriage of justice, view taken by trial court which can also possibly be a correct view, need not be interfered with.

Headnote:

(A) Indian Evidence Act, 1872 – Section 32(1) – Dying declaration – Dying declaration is only a piece of untested evidence and must like any other evidence satisfy Court that what is stated therein is unalloyed truth and that it is absolutely safe to act upon it – Court has to scrutinise dying declaration carefully and must ensure that declaration is not result of tutoring, prompting or imagination – When dying declaration has been recorded in accordance with law, and it gives a cogent and plausible explanation of occurrence, Court can rely upon it as solitary piece of evidence to convict accused – Dying declaration is admitted in evidence on premise that anticipation of brewing death breeds same human feelings as that of a conscientious and guiltless person under oath – It is a statement comprising of last words of a person before his death which are presumed to be truthful, and not infected by any motive or malice – Dying declaration is admissible in evidence on principle of necessity as there is very little hope of survival of maker, and if found reliable, it can certainly form basis for conviction – Although there is neither a rule of law nor of prudence that dying declaration cannot be acted upon without corroboration, Court must nonetheless be satisfied that dying declaration is true and voluntary, and only then could it be sole basis for conviction without corroboration. (Paras 14(C), 15 and 16)

(B) Indian Evidence Act, 1872 – Section 32(1) – Dying declaration – Judicial/Executive Magistrate are judicially trained to record dying declarations after complying with all mandatory pre-requisites, including certification or endorsement from Medical Officer that victim was in a fit state of mind to make a statement – Law does not compulsorily require presence of a Judicial or Executive Magistrate to record a dying declaration or that a dying declaration cannot be relied upon as solitary piece of evidence unless recorded by a Judicial or Executive Magistrate – It is only as a rule of prudence, and if so permitted by facts and circumstances, dying declaration may preferably be recorded by a Judicial or Executive Magistrate so as to muster additional strength to prosecution case. (Para 22)

(C) Criminal Procedure Code, 1973 – Section 378 – Appeal against acquittal – Scope of interference – Unless High Court finds that there is complete misreading of material evidence which has led to miscarriage of justice, view taken by trial court which can also possibly be a correct view, need not be interfered with – This self-restraint doctrine does not denude High Court of its powers to re-appreciate evidence, including in an appeal against acquittal and arrive at a different firm finding of fact. (Para 23)

(D) Indian Penal Code, 1860 – Section 302 read with Section 34 – Murder – Common intention – Reversal of acquittal by High Court – Deceased died of burn injuries – High Court in appeal reversed findings of trial Court and held that evidence consisting of dying declaration was clinching and sufficient to bring guilt home – Narration of events in dying declaration is so accurate, that even a witness in normal state of mind, cannot be expected to depose with such precision – Although it is stated that deceased was questioned by Police officer, purported dying declaration is not in a questions and answers format – Direct or indirect dominance of Police Officer appears to have influenced answers only in one direction – Injured victim was an illiterate old person and it appears beyond human probabilities that she would have been able to narrate minutes of incident with such a high degree of accuracy – There is sufficient evidence on record that victim had been administered highly sedative painkillers – Owing to 80% burn injuries suffered by victim on all vital parts of body, it can be legitimately inferred that she was reeling in pain and was in great agony and possibility of her being in a state of delusion and hallucination cannot be completely ruled out – Alleged motive for homicidal death is highly doubtful – There is not an iota of evidence and prosecution has made no effort to verify truth in statement that appellants poured kerosene and lit victim on fire only because her son had assaulted husband of Appellant No.1 – Evidence of doctor and police officer suggest that while son, daughter-in-law and neighbour of deceased were present in hospital, none approached police to report such a ghastly crime – It is difficult to accept that son and daughter-in-law of deceased were won over by accused persons within hours of occurrence – This unusual conduct and behaviour lends support to parallel version that victim might have committed suicide – There is no other evidence led by prosecution to connect appellants with crime – Impugned order High Court set aside and appellants set free. (Paras 7, 22, 24, 25, 26 and 27)

Facts of the case:

Instant Criminal Appeals, which have been heard through video conferencing, are directed against the common judgment dated 29.07.2008 passed by the High Court of Karnataka at Bangalore whereby the findings of the trial Court were reversed and after setting aside the appellants’ acquittal, they have been convicted for offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 and consequently sentenced to life imprisonment.

Findings of Court:

We fully endorse the view taken by trial court. The reasons which we have assigned in paragraph 22 of this Order are sufficient to cast clouds on the genuineness of the prosecution case. We find it difficult to uphold the conviction only on the basis of dying declaration.

Result : Appeals allowed.