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SUPREME COURT OF INDIA
Surya Kant, J.B. Pardiwala, JJ.
Kamal Khudal – Appellant
Versus
State Of Assam – Respondent
Criminal Appeal No. 470 of 2015
Decided on : 14-07-2022
(A) Indian Evidence Act, 1872 – Section 32 – Dying declaration – It is believed that when a man is at the point of death and when every expectation of this world is gone, it hushes away every motive of lie – A dying declaration, oral or written, before it could be relied upon, must pass a test of reliability as it is a statement made in absence of accused and there is no opportunity to accused even to put it through fire of cross examination to test its genuinity or veracity – Court has to subject it to close scrutiny – But once court is satisfied that it is a truthful version as to circumstances in which death resulted and persons causing injuries, law does not expect that there should be corroboration before it can be relied upon – However, if there are infirmities and court does not find it safe to base any conclusion on it without some further evidence to support it, question of corroboration arises. (Paras 21 and 24)
(B) Indian Penal Code, 1860 – Sections 302/34 – Murder – Common intention – Life sentence – High Court, upon reappreciation of entire evidence, concurred with reasons assigned by trial court in its judgment and order holding appellant herein guilty of offence of murder – High Court accepted oral dying declaration to be true and trustworthy said to have been made by deceased to PW2 – Having regard to evidence on record, High Court was justified in accepting oral dying declaration made by deceased before PW2 as one reliable and inspiring confidence – Medical evidence on record would suggest that there were 75% burn injuries on chest of deceased – Burn injuries were suffered by deceased as accused persons are said to have poured hot raw material used for preparing liquor – There is no good reason to interfere in present appeal – No fundamental or basic infirmity in impugned judgment of High Court going to root of matter calling for any interference by Supreme Court – Appeal dismissed. (Paras 19, 20, 25, 28 and 29)
Facts of the case:
Present appeal, by special leave, is at the instance of a convict accused of the offence of murder and is directed against the judgment and order passed by the Gauhati High Court dismissing the Criminal Appeal No. 86 of 2010 by which it affirmed the judgment and order of conviction passed by trial Court. All the three accused were charged with the offence punishable under Section 302 read with Section 34 of the Indian Penal Code. Trial court, vide its judgment dated 10.06.2010, held the appellant herein along with A1 guilty of the offence of murder punishable under Section 302 IPC and sentenced them to undergo life imprisonment with fine of Rs. 2,000/- each and in default of payment of fine, further rigorous imprisonment for a period of two months. Third co-accused was given the benefit of doubt and he came to be acquitted.
Findings of Court:
Something went wrong while deceased and the accused persons were inside the liquor factory. It appears to be a case of sudden fight. It could be on account of some verbal altercation between the deceased and the accused persons while they were inside the liquor factory.
Result : Appeal dismissed.
JUDGMENT
J.B. Pardiwala, J.
This appeal, by special leave, is at the instance of a convict accused of the offence of murder and is directed against the judgment and order passed by the Gauhati High Court dismissing the Criminal Appeal No. 86 of 2010 by which it affirmed the judgment and order of conviction passed by the Additional Sessions Judge (FTC), Sivasagar in the Sessions Case No. 57 of 2008 dated 10.06.2010.
2. It appears from the materials on record that in all three accused persons were put on trial in the Court of the Additional Sessions Judge (FTC), Sivasagar, including the appellant herein. All the three accused were charged with the offence punishable under Section 302 read with Section 34 of the Indian Penal Code (for short, "IPC"). The trial court, vide its judgment dated 10.06.2010, held the appellant herein along with one Munna Bhoi (A-1) guilty of the offence of murder punishable under Section 302 IPC and sentenced them to undergo life imprisonment with fine of Rs. 2,000/- each and in default of payment of fine, further rigorous imprisonment for a period of two months. The third co-accused Bipon Bhoi was given the benefit of doubt and he came to be acquitted.
3. The case of the prosecution may be summarized as under:
4. On 15.07.2007 at about 7 oclock in the morning the appellant herein along with the co-accused (Munna Bhoi) came to the house of the deceased, namely, Uttam Dutta. The accused persons took the deceased along with them for the purpose of paddy plantation. When the deceased left with the accused persons in the morning, his brother Utpal Dutta was present at the house. The deceased did not return to his house till late evening. The family members of the deceased got worried and started searching for him. The dead body of the deceased was found lying in a drain of Duribam Tea Estate with various injuries on the body, including burn injuries. No sooner the dead body of the deceased was recovered, then his brother Utpal Dutta went to the police station and registered the First Information Report (FIR). The FIR was registered as Kakatibari P.S. Case No. 24/2007 for the offence punishable under Section 302 of the IPC.
5. Upon registration of the FIR, the investigation started. The investigation revealed that the co-accused Munna Bhoi was running a liquor (local) factory situated adjacent to his paddy field. The deceased after working for sometime in the paddy field accompanied the accused persons to the liquor factory. Something went wrong while the accused persons and the deceased were in the liquor factory. The locals working in the vicinity of the liquor factory heard some commotion coming from the liquor factory. After sometime, the locals saw the deceased coming out of the factory with burn injuries on his body. One of the prosecution witnesses Hanu Khetrapal (PW-2), who was present in the nearby agricultural field, enquired with the deceased as to what had happened. At that point of time, the deceased is said to have informed the PW-2 that the accused persons had poured hot lali (raw material used for preparing local liquor) on his body as a result of which he had suffered burn injuries. Saying so, the deceased left and thereafter his dead body was recovered from the drain of Duribam Tea Estate.
6. During the course of investigation, the investigating agency arrested three persons, namely, Munna Bhoi, Kamal Khudal (appellant herein) and Bipon Bhoi. On completion of the investigation, charge sheet was filed against all the three accused for the offence of murder. As the offence was exclusively triable by the Sessions Court, the Magistrate in whose court the charge sheet was filed committed the case to the court of the Sessions Judge, Sivasagar under Section 209 of the Code of Criminal Procedure, 1973 (for short, "CrPC"). The trial court proceeded to frame charge against all the three accused persons for the offence punishable under Section 302 read with Section 34 of the IPC vide order dated 11.09.20
Dying declaration – Once court is satisfied that it is a truthful version as to circumstances in which death resulted and persons causing injuries, law does not expect that there should be corroborat....
Murder – Non-examination of Doctor who conducted autopsy on dead body of deceased and who prepared post-mortem report is not fatal to case of prosecution.
(1) Dying declaration while carrying presumption of being true must be wholly reliable and inspire confidence – Where there is any suspicion over veracity of same or evidence on record shows that dyi....
Dying declaration – In cases where Court finds that there exist more than one dying declarations, each one of them must be examined with care and caution and only after satisfying itself as to which ....
A dying declaration can serve as the sole basis for conviction if it is credible and corroborated, emphasizing its legal admissibility in murder cases.
Dying declarations can serve as the sole basis for conviction if found credible, with no strict requirement for corroboration.
Point of Law : oral dying declaration made the deceased ought to be treated with care and caution since the maker of the statement cannot be subjected to any cross-examination.
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