IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL  APPEAL NO.  1136  OF 2002

Kamalavva & Anr. …. Appellants

Versus

State of Karnataka    …. Respondent

JUDGMENT

Dr. MUKUNDAKAM SHARMA, J.

1. The present appeal arises out of the judgment and final order passed  

by  the  High  Court  of  Karnataka  at  Bangalore  whereby  and  

whereunder  the  High  Court  set  aside  the  judgment  and  order  of  

acquittal  passed  by  the  I  Addl.  Sessions  Judge,  Belgaum  under  

Section 302 read with Section 34 of the Indian Penal Code, 1860 (in

short ‘the IPC’).  However,  the High Court maintained the order of  

acquittal passed by the trial court under Section 498-A IPC.  

2. In  order  to  appreciate  the  contentions  advanced by the  parties  and  

legal issues involved, it is necessary to state brief facts of the case :

Deceased Shoba was the daughter  of the sister  of Somappa Irappa  

Hunji (PW-1).  As the mother of the deceased Shoba was suffering from  

typhoid  fever  after  six  months  of  the  birth  of  Shoba,  Shoba  was  being  

maintained and looked after by PW-1.  Shoba studied upto VII standard.  

Subsequently,  PW-1  arranged  the  marriage  of  deceased  Shoba  with  one  

Prakash (PW-5) as per their customs when she was 18 years old. PW – 1  

gave certain articles and Rs. 5,000/- at the time of her marriage. For about 6  

months after the marriage both Shoba and her husband were living happily.  

Thereafter,  Kamalavva  (A-1)  who  is  the  mother-in-law  of  the  deceased  

Shoba and Siddawwa (A-2) who is the sister-in-law of A-1 started illtreating  

Shoba by asking her to bring more money as dowry and also by alleging that  

Shoba was not attending the household work etc.  

3. On 09.04.1995 at  about 6.00 p.m. a person from Hannikeri  village  

where Shoba was then residing with her husband informed PW-1 that  

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Shoba had sustained burn injuries and was admitted to Civil Hospital  

at Belgaum.  On receipt of this information, PW-1 along with his wife  

Tangewwa (PW-2),  his son Ishwar (PW-3),  and others went to the  

hospital at about 10.30 p.m. and found that Shoba had sustained burn  

injuries and then they came to know from Shoba that A-1 had poured  

petrol over her and A-2 had set fire to her as a result of which she had  

sustained burn injuries.  The neighbours came to the spot and put off  

the fire  and she was taken to the hospital  by her  husband Prakash  

(PW-5).  While admitting her at the hospital,  the Resident Medical  

Officer  sent  a  requisition  to  the  outpost  of  APMC Police  Station,  

Belgaum  located at Civil Hospital, Belgaum on 09.04.1995 at about  

4.00 p.m. to the effect that the Shoba had been admitted to the hospital  

with burn injuries and her condition was serious and, therefore, her  

dying declaration should be recorded.  On receiving the said request  

PW-15  sent  a  requistition  to  the  Tehsildar  requesting  him  for  

recording  the  dying  declaration  of  the  deceased  Shoba.   The  said  

Tehsildar, who is also the Taluk Executive Magistrate, recorded the  

dying declaration of the deceased Shoba on 09.04.1995 at the District  

Hospital,  Belgaum.  The said Taluk Executive Magistrate was also  

examined in the trial as PW-17 who has deposed extensively on the  

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recording  of  the  aforesaid  dying  declaration.   The  said  dying  

declaration was in the question-answer form.  The following question  

was put to the deceased Shoba as question No. 5 to which the answer  

was given by the deceased in the following manner :  

“Question – 5 Who is responsible for the assault on you or for    your present condition ?

Answer In the afternoon, my mother-in-law and sister-in- law poured Petrol on me and have lit fire.”

In  response  to  another  question,  she  had  correctly  given  the  names  and  

addresses of her mother-in-law (A-1) and sister-in-law of her mother-in-law  

(A-2) who had poured petrol on her and lit the fire.  Subsequently, Shoba  

died on 11.04.1995 at 7.00 p.m.  Thereafter, the police converted the case  

which was registered against both the Accused Nos. 1 and 2 to a case for the  

offences punishable under Section 498-A, 302 read with Section 34 IPC.  

Thereafter,  Piroji  Jotiba  Ghatagennavar,  DSP  (PW-20)  took  up  further  

investigation  and  after  completing  the  investigation  filed  a  charge  sheet  

against the accused persons.  As the offences alleged against the accused  

persons  were  exclusively  triable  by  the  Court  of  Sessions,  the  learned  

Magistrate committed the case to the Court of Sessions at Belgaum in S.C.  

No. 4/96 on the file of the I Addl. Sessions Judge, Belgaum.

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4. The  learned  Sessions  Judge  framed  charges  against  the  accused  

persons for the offences punishable under Section 498-A, 302 read  

with  Section  34  IPC.   The  accused  persons  denied  the  allegations  

made  against  them and claimed to  be  tried.   During  the  trial,  the  

prosecution  examined in  all  20 witnesses  and documents  produced  

were exhibited as Exs. P-1 to P-24 and M.Os. 1 to 4.  The accused  

persons did not lead any evidence in their defence. After examining  

the witnesses and hearing rival arguments, the learned Sessions Judge  

by his judgment dated 20.02.1998 acquitted both the accused persons  

holding that the prosecution had failed to establish the charges against  

the accused persons.   

5. Aggrieved by the judgment and order of the trial court the State of  

Karnataka  preferred  the  appeal  being  Criminal  Appeal  No.  533 of  

1998 in the High Court of Karnataka at Bangalore. The High Court by  

its impugned judgment and order dated 20.08.2002 allowed the appeal  

and  partly  set  aside  the  judgment  of  the  trial  court.  By  the  said  

judgment both the accused persons were convicted under Section 302  

read  with  Section  34  of  IPC  and  sentenced  to  undergo  rigorous  

imprisonment  for  life  and  also  to  pay  a  fine  of  Rs.  500/-  each in  

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default to undergo rigorous imprisonment for two months. However,  

the High Court maintained the order of acquittal under Section 498-A  

of IPC.  

6. The learned counsel appearing for the appellants forcefully submitted  

that  the High Court  committed an error  of  fact  and also of  law in  

convicting the appellants  for offence punishable  under Section 302  

read  with  Section  34  of  IPC.    It  was  submitted  that  there  was  

inordinate delay in lodging the FIR and there is no proper explanation  

for the same.  The LTI of the deceased was also not attested and the  

person recording the same did not come forward to give evidence.  It  

was  further  submitted  that  as  the  upper  limb of  the  deceased  was  

burnt, the possibility of her putting LTI was highly improbable.

7. It was contended that the dying declaration although was a recorded  

dying declaration but it suffers from many infirmities and therefore the same  

should  not  have  been  acted  upon  and  should  have  been  rejected  as  not  

reliable by the courts below.  It was submitted that the dying declaration was  

not properly recorded as the PW-17 who recorded the dying declaration was  

not the regular Taluka Executive Magistrate of Belgaum, and he was only  

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in-charge and that the signature of the deceased was also not attested.  It was  

further  contended  that  as  the  said  dying  declaration  did  not  have  any  

certificate of the doctor attached to it certifying that the deceased was in a fit  

condition to make a statement, the aforesaid dying declaration should have  

been  discarded.   It  was  also  submitted  that  there  was  a  long  delay  in  

recording the FIR by the police having jurisdiction to record such statement  

and to investigate.

8. On the other hand, learned counsel appearing for the State refuted the  

above submissions and supported the judgment of the High Court.

9. In the light of the aforesaid submissions of the counsel appearing for  

the parties, the main issues that arise for our consideration are twofold; (i)  

Delay, if any in lodging the FIR and its effect on the prosecution case and  

(ii) Whether the dying declaration referred to and relied upon by the High  

Court is reliable, trustworthy and could be acted upon ?

10. So far as the first issue with regard to the delay in filing the FIR is  

concerned, true and correct position that emerges on a careful reading of the  

entire  evidence  on  record  before  the  Court  is  that  immediately  after  

admission  of  the  patient  (the  deceased)  into  the  hospital,  the  Resident  

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Medical  Officer  of  the  Civil  Hospital,  Belgaum sent  a  requisition  to  the  

police outpost located at the hospital itself requesting for getting the dying  

declaration of the patient recorded as her condition was serious.  The police  

in the outpost in terms of the said request sent a requisition to the Taluka  

Executive Magistrate who in terms of the request got the dying declaration  

recorded  on  09.04.1995  itself  at  the  District  Hospital,  Belgaum.   On  

10.04.1995, the statement of the patient (the deceased) was recorded at the  

District Hospital, Belgaum by the police wherein she specifically stated that  

her mother-in-law took the petrol that had been kept in the house for the  

purpose of putting to the engine used for sprinkling medicine and also lit the  

fire  on  her.   She  also  stated  that  the  sister-in-law  of  the  mother-in-law  

instigated  her  to  kill  her  i.e.  the  deceased  Shoba.   The  patient  died  on  

11.04.1995.  PW-13 who was initially  the investigating officer  being the  

SHO at  Nesargi  Police  Station    was examined in this  connection,  who  

stated that on 12.04.1995 he received a Crime bearing No. 31 of 1995 from  

APMC Police Station which was registered as an offence punishable under  

Section 498-A, 109 read with Section 34 IPC.  He also stated that since the  

said patient namely, the deceased Shoba later on died he registered the same  

on 12.04.1995 in Crime No. 33 of 1995 for offence under Section 498-A,  

302, 109 and 34 IPC.  He was also cross-examined and he stated that as per  

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the FIR of APMC the said case was registered on 10.04.1995 at 1.00 p.m.  

He also stated that all the papers were handed over on 12.04.1995.  In view  

of the aforesaid evidence, a submission was made that there was a delay in  

filing the FIR in as much as although the alleged incident of burning had  

taken place on 09.04.1995 the same came to be recorded in the form of a  

formal FIR only on 12.04.1995.  On going through the records and its proper  

examination  we  are  unable  to  accept  the  said  contention  for  the  simple  

reason that information was received about the incident of burning at the  

police  outpost  of  APMC Police  Station  located  in  the  hospital  itself  on  

09.04.1995 when requisition was sent for recording the dying declaration  

pursuant to which the dying declaration was recorded on 09.04.1995.  On  

10.04.1995, a statement was taken from the deceased by the police officer  

himself.   Consequently,  it  is  established that  the  formal  FIR came to  be  

recorded on 12.04.1995 although the incident was reported on 09.04.1995 on  

the  basis  of  which  the  police  started  the  investigation  by  sending  a  

requisition to the Taluka Executive Magistrate which was followed up by  

recording of the statement of the deceased by the police.  Delay, therefore, in  

recording the formal FIR stands explained.

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11. The next and the most vital issue which was raised is regarding the  

admissibility  of  the  dying  declaration  stated  to  have  been  made  by  the  

deceased before her death.   Before dealing with the factual aspect of the  

dying declaration, it  would be necessary to know the exact legal position  

which has been laid down and reiterated by this Court time and again.

12. The question as to admissibility of a dying declaration came up before  

this Court in several cases.    In Laxman v. State of Maharashtra (2002) 6  

SCC 710, wherein also a question regarding the admissibility of the dying  

declaration was raised.   The Constitution Bench held that the Court must  

decide that the declarant was in a fit state of mind to make the declaration,  

but  where  the  eye  witnesses’  evidence  including  the  evidence  of  a  

Magistrate  who  had  recorded  the  dying  declaration  to  that  effect  was  

available,  mere  absence  of  doctor’s  certification  as  to  the  fitness  of  the  

declarant’s state of mind, would not ipso facto render the dying declaration  

unacceptable.   It was further held that the evidentiary value of such dying  

declaration  would  depend  upon  the  facts  and  circumstances  of  the  each  

particular case.

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13. In paragraph 3 of the said judgment, this Court discussed the juristic  

theory  regarding  acceptability  of  a  dying  declaration  in  the  following  

manner:-

“3. The juristic theory regarding acceptability of a dying  declaration is that such declaration is 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 man is induced by the most powerful  consideration to speak only the truth.   Notwithstanding the  same, great caution must be exercised in considering the  weight to be given to this species of evidence on account  of the existence of many circumstances which may affect  their truth.   The situation in which a man is on the deathed  is so solemn and serene, is the reason in law to accept the  veracity of his statement…..”

14. The Constitution Bench in that case also referred to an earlier decision  

of this Court in Koli Chunilal Savji  v . State of Gujarat (1998) 9 SCC 303,  

wherein it was held that the ultimate test with regard to the admissibility of a  

dying  declaration  is  whether  the  dying  declaration  can  be  held  to  be  a  

truthful one and voluntarily given.  In the said decision it was also held that  

before recording the declaration,  the officer  concerned must find that  the  

declarant was in a fit condition to make the statement.      The aforesaid ratio  

of the said decision was affirmed by the Constitution Bench in Laxman case  

(supra).

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15. In Vikas and Others v. State of Maharashtra reported in (2008) 2 SCC  

516 wherein this Court elaborately discussed the previous relevant decision  

governing  the  legality  of  dying  declaration  and  observed  in  para  45  as  

follows :  

“45. The Court, referring to earlier case law, summed  up  principles  governing  dying  declaration  as  under:  (Paniben case4, SCC pp. 480-81, para 18)

“18. (i) There is neither rule of law nor of prudence  that  dying  declaration  cannot  be  acted  upon  without  corroboration.

(ii) If the court is satisfied that the dying declaration is  true and voluntary it can base conviction on it, without  corroboration.

(iii) This Court has to scrutinise the dying declaration  carefully and must ensure that the declaration is not the  result  of  tutoring,  prompting  or  imagination.  The  deceased  had  opportunity  to  observe  and  identify  the  assailants and was in a fit state to make the declaration.  

(iv)  Where dying declaration is  suspicious it  should  not be acted upon without corroborative evidence.

(v)  Where the  deceased was unconscious and could  never  make  any  dying  declaration  the  evidence  with  regard to it is to be rejected.

(vi) A dying declaration which suffers from infirmity  cannot form the basis of conviction.

(vii)  Merely  because  a  dying  declaration  does  not  contain the details as to the occurrence,  it  is not to be  rejected.

(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.

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(ix) Normally the court in order to satisfy whether the  deceased was in a fit mental condition to make the dying  declaration looks up to the medical opinion. But where  the eyewitness has said that the deceased was in a fit and  conscious  state  to  make  this  dying  declaration,  the  medical opinion cannot prevail.

(x)  Where  the  prosecution  version  differs  from the  version  as  given  in  the  dying  declaration,  the  said  declaration cannot be acted upon.”

16. After referring to the decision of this Court in Khushal Rao v. State of  

Gujarat  reported in AIR 1958 SC 22, this Court in Vikas & Ors. (supra)  

reiterated the legal position that where a dying declaration is recorded by a  

competent Magistrate, it would stand on a much higher footing inasmuch as  

a competent Magistrate has no axe to grind against the person named in the  

dying declaration of the victim and in absence of circumstances showing  

anything to the contrary, he should not be disbelieved by the court.

17. In the case of  Nallapati  Sivaiah v.  Sub-Divisional  Officer,  Guntur,  

A.P.  reported in AIR 2008 SC 19, in paragraph 18 it was stated thus;

“18. It is equally well settled and needs no restatement at  our hands that dying declaration can form the sole basis  for conviction. But at the same time due care and caution  must be exercised in considering weight to be given to  dying  declaration  in  as  much  as  there  could  be  any  number of circumstances which may affect the truth. This  Court in more than one decision cautioned that the courts  

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have  always  to  be  on  guard  to  see  that  the  dying  declaration  was  not  the  result  of  either  tutoring  or  prompting or a product of imagination. It is the duty of  the courts to find that the deceased was in a fit state of  mind to make the dying declaration. In order to satisfy  itself that the deceased was in a fit mental condition to  make the dying declaration, the courts have to look for  the medical opinion.”

18. In the aforesaid decision this Court while referring to the decision of  

the  Constitution  Bench  in  Laxman  case  reiterated  that  there  is  no  

requirement  of  law that  the  dying declaration  must  necessarily  contain  a  

certification by the doctor that the patient was in a fit state of mind specially  

when the dying declaration was recorded by a Magistrate.   It was also held  

in  the  said  decision  that  it  is  the  testimony  of  the  Magistrate  that  the  

declarant was fit to make statement gains the importance and reliance can be  

placed  upon  declaration  even  in  the  absence  of  the  doctor’s  certificate  

provided the court ultimately holds the same to be voluntary and truthful.

19. In the backdrop of the aforesaid legal principles  laid down by this  

Court, we will now examine the admissibility of the dying declaration in the  

case in hand.

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20. PW-17 (Tahsildar) has stated that he was asked by the police to record  

the dying declaration of the deceased Shoba who was undergoing treatment  

in the hospital.   He proceeded to the hospital and recorded the statement in  

the presence of  Dr. M.S. Sangolli (PW-18) which was marked as Ext. P.17.  

The aforesaid statement was recorded in the form of questions and answers.  

From the nature of the answers the deceased has given, it cannot be said that  

she  has  not  understood  the  questions  and has  not  given  proper  answers.  

Therefore,  it  is  not  difficult  to  conclude  that  the  mental  capacity  of  the  

deceased was sound and she was capable of giving answers to the questions  

put forth by PW-17.   The aforesaid dying declaration was recorded by PW-

17 in the presence of PW-18 who is a doctor attached to the same hospital.  

He has categorically  stated in his evidence that  the doctor  had given the  

certificate  to  the  effect  that  the  injured  was  in  a  position  to  give  the  

declaration.   P.W. 18 also  signed Ext.  P.  17 (Dying Declaration).    The  

thumb impression of the deceased Shoba was also taken on Ext. P.17.  The  

doctor  (PW-18)  who  was  present  at  the  time  of  recording  the  dying  

declaration has also attached a certificate to the effect that the said dying  

declaration was recorded in his presence.

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21. In view of the aforesaid clear and unambiguous factual position we  

are of the considered opinion that the High Court was totally justified in  

relying  upon  the  dying  declaration  recorded  by  the  Taluka  Executive  

Magistrate (PW-17)   The technical objection raised by the counsel for the  

appellant  regarding  the  unavailability  of  doctor’s  certification  and  

endorsement as to mental fitness of the deceased, is liable to be rejected in as  

much as the same has been held by this Court in numerous decisions as a  

mere rule of prudence and not the ultimate test as to whether or not the said  

dying declaration was truthful or voluntary.

22. PW-17,  who  recorded  the  dying  declaration  had  in  his  deposition  

categorically stated that the deceased while making the aforesaid statement  

was conscious and in a fit mental condition to make such a statement.   PW-

17 being a Public Officer, we find no reason as to why he will implicate a  

person falsely.  Accordingly, the aforesaid dying declaration could be relied  

upon as the same was truthfully recorded and the said statement gave a vivid  

account of the manner in which the incident had taken place.  The same also  

corroborates in all respect with the statement given by the deceased to the  

police on 10.04.1995.  The said statement was also recorded by the police  

officer of the rank of ASI and the deceased also put her LTI in it.  In our  

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considered  opinion,  the  dying  declaration  is  reliable  and trustworthy  and  

gives an accurate version of the manner  in which the incident  had taken  

place.

23. In view of the aforesaid discussion and taking an overall view of all  

the facts and circumstances of the case and also the evidence on record, we  

find  no  ground  to  interfere  with  the  order  of  conviction  and  sentence  

recorded  by  the  High Court  holding  the  appellants  guilty  of  the  offence  

under  Section  302  read  with  Section  34  of  IPC.    The  present  appeal  

therefore  deserves  to  be  dismissed  which  we hereby  do.    The  order  of  

conviction and sentence recorded against the appellants by the High Court  

is, therefore, upheld.

…................………………..J.   [Dalveer Bhandari]

…......………………………J.       [Dr. Mukundakam Sharma]

   New Delhi, July 29, 2009

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