REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 639 OF 2008

Subhash Soni & Anr.                 ….Appellants

Versus

State of M.P. ….Respondent

J U D G M E N T

DR. ARIJIT PASAYAT, J.

1. Challenge in this appeal is to the judgment of a Division Bench of the  

Madhya  Pradesh  High Court,  Indore  Bench,  upholding  conviction  of  the  

appellant for offence punishable under Sections 302 read with Section 34  

the Indian Penal Code, 1860 (in short the ‘IPC’).  

2. Prosecution version, in a nutshell, is as follows:

On 20.9.1995 Anil (hereinafter referred to as the ‘deceased’) left his  

house for some work and told his brother Rajendra (PW.1) that he will be  

returning within 10 minutes.  He left  the house at 8.30 p.m. Just after  15  

minutes of his departure, somebody informed Rajendra (PW.1) that deceased  

was assaulted with a sword. Having heard the news, Rajendra immediately  

rushed in the direction where the deceased had gone on his motor cycle. He  

saw a crowd of people in front of Laxmi Market surrounding the deceased  

who having suffered many injuries on his person was lying on the road. At  

the same time Dr. Komal Chandra Kothari (PW.4) reached near the crowd  

and on request deceased was taken to Civil Hospital in his car. On the way  

to the Hospital deceased was questioned by Rajendra (PW.1) as to who had  

assaulted him, deceased replied that accused Ramesh, Subhash and Heeralal  

had assaulted him by sword. Deceased was admitted in the hospital where he  

succumbed to the injuries during treatment. The FIR (Ex. P.l) was recorded  

in the night at 9.40 p.m. Police recorded the statements of two eye witnesses  

Radhesyam (PW.2) and Prakash Jadhav (PW.3) on 9.10.1995 along with  

other  eye  witnesses  Manohar  @  Babu,  Balraj,  Premsingh  and  Satish  

Shrivastave on 21.9.1995. On 22.09.1995 statements of witnesses Nankdas,  

Ghanshyam, Parmanand, Govindram and Jaikishore were also recorded by  

Investigating Officer R.S.  Chundavat (PW.8).  Postmortem was performed  

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by Dr. D.K. Rathore (PW.7). Report is Ex.10. Police also seized the true  

copy  of  the  documents  (Ex.  P.2-C)  regarding  civil  litigation  pending  

between deceased Anil Soni, his brother Rajendra Soni (PW. l) and appellant  

Heeralal.  Crime  No.  715/  1995  was  registered  by  the  police  and  after  

necessary  investigation,  the  charge  sheet  was  filed  against  the  accused  

persons for commission of offence punishable under Section 302 read with  

34 of the IPC and under Section 4 read with Section 25 (1-B), and 27 of  

Arms Act, 1959 (in short the ‘Arms Act’).

The  appellants  abjured  their  guilt  and  their  defence  was  of  false  

implication, therefore, they were put on trial. They stated in their statements  

recorded under Section 313 of the Code of Criminal Procedure,  1973 (in  

short ‘Cr. P.C.’) that deceased and his brother Rajendra (PW.1) were doing  

colonizing business and on their behalf Radheshyam (PW.2) and Parkash  

(PW.3) used to collect money from the concerned persons. About three years  

ago one Babulal was got murdered by the deceased and Rajendra (PW.1).  

Dr. Komal Chandra Kothari (PW.4) was having family terms with deceased  

and his brother Rajendra (PW.1). They also submitted that Prakash Jadhav  

(PW.3) was convicted for murder of one Prabhakar Kadam and sentenced to  

life imprisonment by the learned Sessions Court of Dewas. In the said case,  

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appellant Ramesh appeared as a witness against Parkash Jadhav. Because of  

all  these  reasons,  appellants  pleaded  their  false  implication.  Appellants  

examined  Balraj  Tiwari  (DW.  1)  in  their  defence  whereas  prosecution  

examined eight witnesses and proved 17 documents to prove its case.

The trial Court while acquitting Ramesh under Sections 4 read with  

25(1-B), (b) and 27 of the Arms Act convicted the three appellants under  

Section 302 read with Section 34 IPC.  The trial Court mainly relied on the  

evidence  of  PWs.  2  and  3  who  were  eye  witnesses  and  the  dying  

declarations.         

In appeal, the primary stand was the evidence of PWs. 2 and 3 should  

not have been relied upon by the trial Court because of their conduct in not  

informing the police being eye witnesses of the incident and keeping mum.  

It was also submitted that the FIR Ex. P1 was ante time. The High Court  

held that  the core question was whether  the evidence of  PWs.2 and 3 is  

credible and whether it was in line with the evidence of Rajendra Soni (PW-

1) and doctor (PW-4) on the point of oral dying declaration. The High Court  

held that the eye witnesses version should not have been relied upon because  

of highly unnatural conduct of the accused and unexplained silence for long  

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19 days. However, the High Court found that the evidence relating to dying  

declaration was reliable. Accordingly, the appeal was allowed in part as the  

conviction of Hiralal was set aside.  However, the appeal was dismissed qua  

accused Ramesh.      

3. In support of the appeal learned counsel for the appellant submitted  

that after having discarded the version of the so-called eye witnesses, the  

High  Court  should  not  have  placed  reliance  on  the  so-called  dying  

declaration.      

4. Learned counsel for the respondent, on the other hand, supported the  

judgment.   

5. 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 the deceased was not as a result of  

either tutoring, or prompting or a product of imagination. The court must be  

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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 on the same 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 Paniben v. State of Gujarat (1992(2)   

SCC 474) (SCC pp.480-81, paras 18-19)

(i)  There  is  neither  rule  of  law  nor  of  prudence  that  dying  

declaration cannot be acted upon without corroboration. [See: Munnu  

Raja v. State of M.P.(1976 (3) SCC 104)]

(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 U.P. v. Ram Sagar Yadav (1985(1) SCC 552) and Ramawati   

Devi v. State of Bihar 1983(1) SCC 211))

(iii) The 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  an  opportunity  to  observe  and  

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identify the assailants and was in a fit state to make the declaration.  

[See:  K.  Ramachandra  Reddy v.  Public  Prosecutor(1976(3)  SCC  

618)])

(iv) Where a dying declaration is suspicious, it should not be acted  

upon without corroborative evidence. [See:  Rasheed Beg v.  State of   

M.P.(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: Kake Singh v. State of M.P.(1981 Supp. SCC 25)]

(vi) A dying declaration which suffers from infirmity cannot form  

the  basis  of  conviction.  [See:  Ram  Manorath v.  State  of   

U.P.(1981(2)SCC 654]

(vii)  Merely  because  a  dying  declaration  does  not  contain  the  

details  as  to  the  occurrence,  it  is  not  to  be rejected.  (See  State  of   

Maharashtra v.  Krishnamurti  Laxmipati  Naidu  [1980  Supp.  SCC  

455)]

(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  Ojha v.  State  of  Bihar  (1980  

Supp.SCC 769)]

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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 said that the deceased  

was in a fit  and conscious state to make the dying declaration,  the  

medical  opinion  cannot  prevail.  [See:  Nanhau  Ram v.  State  of   

M.P.(1988 Supp. SCC 152)]

(x) Where the prosecution version differs from the version as given  

in the dying declaration, the said declaration cannot be acted upon.  

[See: State of U.P. v. Madan Mohan (1989 (3) SCC 390)]

(xi)  Where  there  are  more  than one statements  in  the  nature  of  

dying declaration, the one first in point of time must be preferred. Of  

course, if the plurality of the dying declaration could be held to be  

trustworthy  and  reliable,  it  has  to  be  accepted.  [See:  Mohanlal   

Gangaram Gehani v. State of Maharashtra (1982 (1) SCC 700)]

6. In the instant case opinion of Dr. Srivastava was given after admission  

of deceased in the intensive care ward during course of treatment.  On the  

basis of this it cannot be said that while taking him to the hospital Rajendra  

Son (PW1) and Komalchandra Kothari (PW.4) could not have spoken to him  

or that the deceased was in an unconscious condition.  Place of injuries were  

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thigh  and  leg.   Therefore,  loss  of  unconscious  can  be  progressive.  

Therefore,  the conclusions of the trial  Court and the High Court that the  

deceased was not unconscious and was in a position to give name of the  

assailants while he was being taken to the hospital cannot be faulted.  In the  

instant case it has to be noted that one dying declaration was made before  

the Doctor Kothari (PW.4), an independent witness who had no reason to  

falsely implicate the accused persons.  Doctor (PW4) has categorically stated  

that he was driving the car himself when he heard the deceased telling PW1,  

the names of the assailants. Doctor (PW4) has also stated that there was loss  

of  consciousness  for  a  few  minutes  whereafter  the  deceased  regained  

consciousness.

7. That  being so there  is  no infirmity in  the  conclusions  of  the  High  

Court.            

8. There is no merit in this appeal which is accordingly dismissed.  

……..……………………….J (Dr. ARIJIT PASAYAT)

………..…………….............J. (ASOK KUMAR GANGULY)          

New Delhi, May 06, 2009

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