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CASE NO.: Appeal (crl.)  1018 of 2002

PETITIONER: P.V. Radhakrishna                                                

RESPONDENT: Vs. State of Karnataka                                               

DATE OF JUDGMENT: 25/07/2003

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT:

J U D G M E N T

ARIJIT PASAYAT, J.

       Accused-appellant allegedly committed uxoricide was  found guilty of offence punishable under Section 302 Indian  Penal Code, 1860 (for short ’IPC’); and sentenced to undergo  imprisonment for life and a fine of Rs.1,000/- with default  stipulation of one month imprisonment by 22nd Additional  City Civil and Sessions Judge, Bangalore.  The appeal before  the High Court of Karnataka having yielded no success, this  appeal has been filed.

       Accusations which led to trial of the accused-appellant  in essence are as follows:

       On 7.2.1993 Smt. Dharni (hereinafter referred to as  ’the deceased’) was in the house with the accused-appellant  when they quarrelled over certain domestic differences, and  the accused poured kerosene and set her on fire. On hearing  her screams and seeing smoke coming out of the room, their  landlord V.N. Guptha (PW1) rushed to the spot.  He did not  find the accused there; but was told by the deceased that  the accused had poured kerosene and set her on fire and run  away. On receiving of information about the incident  Srinivasa Murthy, ASI, (PW6) arrived at the spot along with  Sivanna (PW4) Police constable. The deceased was taken to  the Victoria Hospital for treatment.  At the hospital PW6  recorded statement of the deceased in the presence of Dr. M.  Narayana Reddy (PW7). This was treated as FIR. After  registering the case, investigation was started.  In the  hospital the deceased breathed her last while undergoing  treatment on 8.2.1993 at about 10.25 p.m.  

       Dr. Thirunavukkarasu (PW3) conducted the post-mortem  and found that the deceased had sustained about 80 to 85%  ante-mortem burns. On completion of investigation, charge  sheet was placed. Learned Trial Judge on consideration  of  the evidence on record found the accused guilty, as afore- mentioned, and convicted and sentenced him.

       Reliance was placed on the dying declaration which was  recorded by PW6 in the presence of PW7 and was marked as  Exhibit P-7.  In appeal before the High Court, the accused-

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appellant contended that the so-called dying declaration was  not credible and acceptable.  But the High Court did not  find any substance in the plea, and dismissed the appeal by  the impugned judgment.

       Learned counsel appearing for the accused-appellant  submitted that the so-called dying declaration (Exhibit P-7)  cannot by any stretch of imagination be considered to be a  dying declaration in the sense it is understood in law.  The  same was recorded by PW6, a police official.  Though there  was ample time, as the factual scenario shows, no effort was  made to secure the presence of a magistrate if really a  dying declaration was to be recorded. Furthermore PW7 has  himself stated that the deceased had suffered 100% burns. It  is highly improbable that the deceased was in a fit state of  health and mind to give the dying declaration.  There is no  mention in the document treated as dying declaration that  the deceased was in fit state of mind to give the statement.   PW6 stated that attempt was made to get permission from the  Chief Medical Officer.  There is no material to substantiate  the claim.  On the contrary PW7 stated that though there was  no requisition, being the doctor at the spot he had given  the permission to record the dying declaration on request by  PW6.

       The post-mortem report stated that the burns suffered  were second and third degree burns and with those types of  burns it is unlikely that the condition of the deceased  permitted making of a statement and putting of signature.   On the basis of uncorroborated dying declaration, conviction  should not have been made.   

       Strong reliance was placed on Munnu Raja and Anr. v.  The State of Madhya Pradesh  (1976 (3) SCC 104), Laxmi  (Smt.) v. Om Prakash and Ors. (2001 (6) SCC 118) and Chacko  v. State of Kerala  (2003 (1) SCC 113) to contend that  evidence recorded by a police official as dying declaration  is of no probative value.

       Further, it was contended that conviction is  impermissible solely on the basis of dying declaration.           By way of reply, learned counsel for the State  submitted that dying declaration can be the sole basis for  conviction if it is found to be credible and cogent.  There  is no hard and fast rule that the dying declaration should  be recorded by a magistrate only.  As a rule of caution it  has been said that it would be advisable to have the  statement recorded by a magistrate.  There is nothing  irregular or illegal if a police officer records a dying  declaration.

       At this juncture, it is relevant to take note of  Section 32 of the Indian Evidence Act, 1872 (in short  ’Evidence Act’) which deals with cases in which statement of  relevant fact by person who is dead or cannot be found, etc.  is relevant. The general rule is that all oral evidence must  be direct viz., if it refers to a fact which could be seen  it must be the evidence of the witness who says he saw it,  if it refers to a fact which could be heard, it must be the  evidence of the witness who says he heard it, if it refers  to a fact which could be perceived by any other sense, it  must be the evidence of the witness who says he perceived it  by that sense. Similar is the case with opinion. These  aspects are elaborated in Section 60. The eight clauses of

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Section 32 are exceptions to the general rule against  hearsay just stated. 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. These aspects have been eloquently stated by Lyre  LCR in R. v. Wood Cock (1789) 1 Leach 500. Shakespeare makes  the wounded Melun, finding himself disbelieved while  announcing the intended treachery of the Dauphin Lewis  explain:

               "Have I met hideous                                 death within my view,                 Retaining but a quantity of life,                 Which bleeds away,

                               Even as a form of wax,                 Resolveth from his figure,                                 Against the fire?                 What is the world should                                 Make me now deceive,                 Since I must lose the use of all deceit?                 Why should I then be false,

                               Since it is true                 That I must die here,                                 Live hence by truth?"                                 (See King John, Act 5, Sect.4)

The principle on which dying declaration is admitted in  evidence is indicated in legal maxim "nemo moriturus  proesumitur mentiri â\200\223 a man will not meet his maker with a  lie in his mouth."

       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

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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. This Court has laid down in  several judgments the principles governing dying  declaration, which could be summed up as under as indicated  in Smt. Paniben v. State of Gujarat (AIR 1992 SC 1817):

       (i)     There is neither rule of law nor of prudence that  dying declaration cannot be acted upon without  corroboration. [See Munnu Raja & Anr. v. The State of Madhya  Pradesh (1976) 2 SCR 764)]

       (ii)    If the Court is satisfied that the dying  declaration is true and voluntary it can base conviction on  it, without corroboration. [See State of Uttar Pradesh v.  Ram Sagar Yadav and Ors. (AIR 1985 SC 416) and Ramavati Devi  v. State of Bihar (AIR 1983 SC 164)]

       (iii)   The Court has to scrutinize the dying  declaration carefully and must ensure that the declaration  is not the result of tutoring, prompting or imagination. The  deceased had an opportunity to observe and identify the  assailants and was in a fit state to make the declaration.  [See K. Ramachandra Reddy and Anr. v. The Public Prosecutor  (AIR 1976 SC 1994)]

       (iv)     Where dying declaration is suspicious, it should  not be acted upon without corroborative evidence. [See  Rasheed Beg v. State of Madhya Pradesh (1974 (4) SCC 264)]

       (v)     Where the deceased was unconscious and could never  make any dying declaration the evidence with regard to it is  to be rejected. [See Kaka Singh v State of M.P. (AIR 1982 SC  1021)]         (vi)    A dying declaration which suffers from infirmity  cannot form the basis of conviction. [See Ram Manorath and  Ors. v. State of U.P. (1981 (2) SCC 654)         (vii)   Merely because a dying declaration does  contain the details as to the occurrence, it is not to be  rejected. [See State of Maharashtra v. Krishnamurthi  Laxmipati Naidu (AIR 1981 SC 617)]         (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. [See  Surajdeo Oza and Ors. v. State of Bihar (AIR 1979 SC 1505)         (ix)    Normally the Court in order to satisfy whether  deceased was in a fit mental condition to make the dying  declaration look up to the medical opinion. But where the  eye-witness said that the deceased was in a fit and  conscious state to make the dying declaration, the medical  opinion cannot prevail. [See Nanahau Ram and Anr. v. State  of Madhya Pradesh (AIR 1988 SC 912)]         (x)     Where the prosecution version differs from the  version as given in the dying declaration, the said

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declaration cannot be acted upon. [See State of U.P. v.  Madan Mohan and Ors. (AIR 1989 SC 1519)]         (xi)    Where there are more than one statement in the  nature of dying declaration, one first in point of time must  be preferred. Of course, if the plurality of dying  declaration could be held to be trustworthy and reliable, it  has to be accepted. [See Mohanlal Gangaram Gehani v.State of  Maharashtra (AIR 1982 SC 839)]   

       In the light of the above principles, the acceptability  of alleged dying declaration in the instant case has to be  considered. The dying declaration is only a piece of  untested evidence and must like any other evidence, satisfy  the Court that what is stated therein is the unalloyed truth  and that it is absolutely safe to act upon it. 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. [See Gangotri Singh v. State  of U.P.{JT 1992 (2)SC 417), Goverdhan Raoji Ghyare v. State  of Maharashtra (JT 1993 (5) SC 87), Meesala Ramakrishan v.  State of Andhra Pradesh (JT 1994 (3) SC 232) and State of  Rajasthan v. Kishore (JT 1996 (2) SC 595)]

       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.  

       It was observed by a Constitution Bench of this Court  in Laxman v. State of Maharashtra  (2002(6) SCC 710) that  where the medical certificate indicated that the patient was  conscious, it would not be correct to say that there was no  certification as to state of mind of declarant. Moreover,  state of mind was proved by testimony of the doctor who was  present when the dying declaration was recorded. In the  aforesaid background it cannot be said that there was any  infirmity. Further if the person recording the dying  declaration is satisfied that the declarant is in a fit  medical condition to make a dying declaration then such  dying declaration will not be invalid solely on the ground  that is not certified by the doctor as to the condition of  the declarant to make the dying declaration. [See Rambai v.  State of Chhattisgarh (2002 (8) SCC 83)].

       The residuary question whether the percentage of burns  suffered is determinative factor to affect the credibility  of the dying declaration and the improbability of its  recording.  There is no hard and fast rule of universal  application in this regard.  Much would depend upon the  nature of the burn, part of the body affected by the burn,  impact of the burn on the faculties to think and convey the  idea or facts coming to mind and other relevant factors.  Percentage of burns alone would not determine the  probability or otherwise of making dying declaration.  As  noted in Rambai’s case (supra) physical state or injuries on  the declarant do not by themselves become determinative of  mental fitness of the declarant to make the statement.   

On the facts of the present case the Trial Court and  the High Court were justified in placing reliance on the  dying declaration for the purpose of convicting the accused-

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appellant.  We find no infirmity to warrant interference in  this appeal, which is accordingly dismissed.