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PETITIONER: KUSA & ORS.

       Vs.

RESPONDENT: STATE OF ORISSA

DATE OF JUDGMENT17/01/1980

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA KOSHAL, A.D.

CITATION:  1980 AIR  559            1980 SCR  (2) 801  1980 SCC  (2) 207  CITATOR INFO :  R          1987 SC  98  (7)

ACT:      Supreme  Court   (Enlargement  of   Criminal  Appellate Jurisdiction) Act 1970, S. 2 (a)-Scope.      Indian Evidence Act 1872, S. 32(1).      Dying  declaration-Evidentiary  value  of-Eye-witnesses account   inconsistent    with    dying    declaration-Dying declaration if could be relied upon.      Dying declaration-Evidence  of doctor that deceased was in a state of shock-Inability of deceased to answer the last question   of    doctor-Whether   invalidates    the   dying declaration.      Dying declaration-Deceased  naming some  other  persons than accused-Such  persons not  challaned-Validity of  dying declaration.

HEADNOTE:      The appellants  along with  other accused  persons were tried under section 302/149 I.P.C. for causing murder of two persons. While  one of  the deceased  died on  the spot  the other who  was removed to hospital, gave a dying declaration to the  doctor before dying. The Sessions Judge finding that none of  the eye-witnesses  examined was reliable and as the accused could  not  be  convicted  on  the  basis  of  their testimony acquitted  all the  accused. He  further held that the evidence  of the  eye-witnesses was  rendered improbable and was in fact falsified by the dying declaration Ex. 9. On appeal by  the State,  the High  Court held  that the  dying declaration Ex.  9 was  absolutely true and reliable and was sufficient to establish the prosecution case. It accordingly convicted and  sentenced the  appellants to imprisonment for life.      In the appeal to this Court, it was contended on behalf of the appellants that (1) as the deceased was in a state of shock, it  was unsafe  to rely on the dying declaration, (2) as the  dying declaration  was incomplete  it could  not  be acted upon,  and (3)  as the  deceased had  implicated  some persons other  than the accused, the dying declaration could not be said to be true.      Dismissing the appeal, ^

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    HELD: 1.  The High Court was right in holding that even excluding  the  evidence  of  the  eye-witnesses  the  dying declaration is true and reliable and sufficient to found the conviction of the appellants. [808 F]      2. The  Sessions Judge  committed an  error in  law  in rejecting the  dying declaration  because if the evidence of the eye-witnesses  was to  be rejected on the ground that it was inconsistent  with the  dying declaration,  it would not necessarily follow  that  the  dying  declaration  was  also unreliable and unworthy of credence. [804 C] 802      3. (a)  This Court  has held that whenever a particular view  taken   by  authors   of  Medical   Jurisprudence,  is adumbrated, the same must be put to the doctor to assess how far the  view taken by the experts apply to the facts of the particular case. [805 G]      In the  instant case though the doctor who had recorded the dying  declaration had stated that the deceased was in a state of  shock because  he had received a serious injury in the abdomen  which had  to be  stitched, he  was however not crossed-examined as  to the  fact whether or not despite the shock, the  deceased had  retained his  mental faculties. On the other  hand, the  last certificate  given by  the doctor towards the  end of  the dying  declaration that the patient became semi-conscious  clearly shows  that the  deceased was fully conscious when he started making the dying declaration before the doctor. [804 H, 805 G]      (b) A  perusal of  the entire dying declaration clearly shows that  the doctor had asked all the necessary questions that could  be asked from the deceased and the last question "what more  you want  to say"  was merely in the nature of a formality. Having narrated the full story, there was nothing more that  the deceased could add. The dying declaration was therefore not incomplete one. [806 B]      Cyril Waugh v. The King, 54 CWN 503, distinguished.      (c) Merely  because some  other persons  named  in  the dying declaration  were not  challaned would  not by  itself prove the  falsity of  the dying declaration. It may be that these, persons were left out from the category of accused in the F.I.R.  or the  challan due to ulterior motives. [806 E, 805 C]      4. A  person on  the verge of death is most unlikely to make an  untrue statement  unless prompted or tutored by his friends or  relatives. The  shadow of immediate death is the best guarantee  of the  truth of  the statement  by a  dying person regarding  the causes or circumstances leading to his death  which  are  absolutely  fresh  in  his  mind  and  is untainted or  discoloured by  any other consideration except speaking the truth. It is for these reasons that the Statute (The Evidence  Act) attaches  a special  sanctity to a dying declaration. [808 B-C]      5.  It  is  well  established  that  although  a  dying declaration should be carefully scrutinised if after perusal the Court  is satisfied  that the  dying declaration is true and is free from any effort to prompt the deceased to make a statement and  is coherent and consistent, there is no legal impediment in  founding  the  conviction  on  such  a  dying declaration even if there is no corroboration. [808 D-E]      Khushal Rao  v. The  State of  Bombay [1958]  SCR 552,; Tarachand Damu  Sutar v.  The State  of Maharashtra [1962] 2 SCR 775; Mannu Raja & Anr. v. State of M.P. [1976] 3 SCC 104 referred to.      Ram Nath  Madhoprasad &  Ors. v. State of M.P. AIR 1953 SC 420, overruled. 803

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JUDGMENT:      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 53 of 1974.      From the  Judgment and  Order dated  2-11-1973  of  the Orissa High Court in Govt. Appeal No. 10/1971.      Y. S. Chitle, and U. P. Singh for the Appellant.      D.  Mookherjee   and  B.   P.  Parthasarthi   for   the Respondent.      The Judgment of the Court was delivered by      FAZAL ALI  J.-This appeal  under s. 2(a) of the Supreme Court (Enlargement  of Criminal  Appellate Jurisdiction) Act 1970 is  directed against  the judgment of the High Court of Orissa  dated   2-11-1973  convicting  the  appellants  u/s. 302/149  of   Indian  Penal  Code  and  sentencing  them  to imprisonment for life.      The appellants  along with  other accused  person  were tried before the Sessions Judge under s. 302/149 for causing murder of  two  persons  namely  Ghansham  and  his  brother Antarjami. The  Trial Court  after considering  the evidence acquitted all  the accused  of the  charges  framed  against them. Thereafter  the State of Orissa filed an appeal before the High  Court against the order of acquittal passed by the Sessions Judge  and  in  the  said  appeal  the  High  Court reversed the  judgment of  the Sessions  Judge so far as the appellants were  concerned and  convicted and sentenced them as indicated above. Hence this appeal before us.      The facts  of the  case are detailed in the judgment of the High  Court and  it is  not necessary  for us  to repeat them. It appears that shortly before the date of occurrence, there was a partition suit between the parties in respect of certain properties  enjoyed by  accused Banshi and Ghana. On 2-12-1968, according to the prosecution, the accused persons armed with  lathis, Bhusas  and valies  came to the house of the deceased  Ghansham and  called him  out.  When  Ghansham opened the  door, the accused Banshi stabbed Ghansham on the chest as  a result  of which Ghansham fell down and died. On hearing the  alarm, the  other deceased  Antarjami  who  was brother of  Ghansham went  to  the  spot  and  he  was  also assaulted by  the accused persons. This occurrence had taken place near  about 7.00  a.m. F. I. R. was sent to Bramhagiri Police  Station   where  it   was  lodged  and  a  case  was registered. After  the usual investigation, police submitted charge-sheet against  all the accused persons who were tried by the Sessions Judge with the result mentioned above.      It appears  that the  Trial Court after considering the evidence of  the eye  witness examined  before it  came to a clear finding that none 804 of the  eye witnesses  were reliable  and hence  the accused could not  be convicted on the basis of their testimony. One of the main considerations which swayed with the trial Court in coming  to this  conclusion was that in view of the dying declaration-Ex. 9 made by Antarjami, the evidence of the eye witnesses becomes  improbable, and is in fact falsified. The learned  Sessions   Judge   also   disbelieved   the   dying declaration as  it was  inconsistent with the oral evidence. We might  mention here  that the Sessions Judge committed an error of  law in  rejecting the dying declaration because if the evidence  of the eye witnesses was to be rejected on the ground that  it was  inconsistent with the dying declaration then it  would in  the circumstances  not necessarily follow that the  dying declaration was also unreliable and unworthy

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of credence.      The High  Court while  endorsing the  findings  of  the Trial Court  that no  reliance could  be placed  on the  eye witnesses appears  to have  founded the  conviction  of  the appellants mainly  on the basis of the dying declaration-Ex. 9 recorded  by Dr. Mohanty on 3-12-1968 at the hospital. The High Court  has given  cogent reasons  for holding  that the dying declaration  is absolutely  true and  reliable and was sufficient to  establish the  prosecution case  against  the appellants. We  have also  gone  through  the  entire  dying declaration-Ex. 9  very  carefully  and  we  find  that  the statement made  by Antarjami  is straight-forward, rational, consistent and  absolutely coherent.  There appears  to be a ring of  truth in  the statement  made by Antarjami. Counsel for the  appellant has  fairly conceded  that  there  is  no evidence  whatsoever   to  indicate   that  there   was  any possibility of  prompting the  deceased to  make  a  tainted statement. The dying declaration was attacked by the counsel for the  appellant on  three grounds. In the first place, it was submitted  that as the deceased Antarjami was in a state of shock,  it was  unsafe to  rely on the dying declaration; secondly it  was contended that as the dying declaration was incomplete, it  should not  be acted upon and thirdly it was pointed out that Antarjami had implicated some persons other than the accused also in the assault on him and his brother, therefore the  dying declaration  could not  be said  to  be true.      So far  as the  first contention  is concerned;  namely whether the  deceased was  in a  state of  shock, it is true that the  doctor who  had recorded the dying declaration had stated that  the deceased was in a state of shock because he had received a serious injury in the abdomen which has to be stitched. The  doctor was  however not  cross-examined as to the fact  whether or not despite the shock, the deceased had retained his mental faculties. On the other hand; a 805 bare perusal  of the  dying declaration and the coherent and consistent statement  made by  Antarjami clearly reveals the fact that  the deceased  was fully  conscious  and  was  not suffering from  any confusion or hallucination. The deceased has clearly  stated the  motive for  the  occurrence  namely dispute about  the partition.  He has  also named  the  four appellants and stated that he and his brother were assaulted by  valies  and  lathis  and  it  is  not  disputed  by  the prosecution  that  the  appellants  were  armed  with  these weapons. It  is true  that while  naming the appellants, the deceased has also named some other persons but the mere fact that those  persons were not challaned does not detract from the value  of the  dying declaration  because it may well be that what  the deceased  was saying was true and the persons who were left out from the category of accused in the F.I.R. or the challan may be due to ulterior motives.      Dr. Chitale  however relied  on a  passage in  Taylor’s ’Principles and  Practice of  Medical Jurisprudence’-Twelfth Edition particularly on the following passage:           ’Assess very carefully the mental condition of the      patient. When  shock ensues  upon violence,  especially      when severe  loss of blood or some grievous head injury      is leading  to death, the intellect of the dying person      becomes confused.  If the doctor observes any wandering      or want  of clearness  in the  mind of  the patient, he      must mention  it in  connection with  his evidence; but      this does  not absolve  him from  his duty, although it      should make  him particularly careful when interpreting      his notes."

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    We  are   unable  to   place  any   reliance  on  these observations in absence of any question put to the doctor by the accused  in his  cross-examination  regarding  the  view expressed by  the author  regarding the state of mind of the deceased. It  has been  held by  this Court in several cases that whenever  a particular view taken by authors of medical jurisprudence is  adumbrated, the  same must  be put  to the doctor to assess how far the view taken by the experts apply to the  facts of the particular case. On the other hand, the last certificate  given by the doctor towards the end of the dying declaration  that the  patient became semi-unconscious clearly shows that the deceased was, fully conscious when he started making  the dying declaration before the doctor. For these reasons  therefore, the  first  ground  taken  by  the appellant fails and is not tenable. As to the second ground, namely that  the dying  declaration was  incomplete, we  are unable to  accept this  contention because  we find that the deceased 806 Antarjami could not answer the last question which was "what more you want to say" because he became semi-unconscious and was unable  to answer any further question. A perusal of the entire dying  declaration would clearly show that the doctor had asked  all the  necessary questions  that could be asked from the  deceased and  the last  question was merely in the nature of  a formality.  It is  obvious that having narrated the full  story there  was nothing  more that  the  deceased could add.  We are therefore unable to hold that the present dying declaration  is an incomplete one. Reliance was placed by the  counsel for the appellant in the case of Cyril Waugh v. The King,(1)wherein it was held that no reliance could be placed where  a dying  declaration was incomplete. Reference to the  facts of the case would show that the statement made by the  deceased was  really incomplete  in as  much as  the deceased was  unable to  complete the main sentence where he was trying  to  describe  the  genesis  and  motive  of  the occurrence. The  deceased in  that case  stated as  "when he fired the short, he missed the other man. The man has an old grudge for  me simply  because.. ".  It is  clear  from  the statement of  the deceased  in that  case that  the deceased wanted to  give the  motive for  the  occurrence  and  other relevant facts  which he  could not  say  before  the  dying declaration was  closed. This  case therefore  would have no application to the facts of the case.      As regards  the last  contention that  the deceased had implicated some  other persons  also show  that it  was  not true, we  have already  pointed out that merely because some other persons  were named  and not  challaned would  not  by itself prove  the falsity  of the dying declaration. Finally on  the  question  of  law,  it  was  argued  that  a  dying declaration unless  corroborated should  not be  acted upon. Reliance was  placed on a decision of this Court in Ram Nath Madhoprasad &  Ors. v.  State of  M.P.(2). This decision, no doubt, supports  the contention  of the  appellant but since then this Court has departed from the view taken in the case referred to above and has held that if the dying declaration is believed,  it can  be  relied  upon  for  convicting  the accused even if there is no corroboration.      In Khushal  Rao v.  The  State  of  Bombay,(3)  it  was pointed out  that s.  32(1) of  the  Evidence  Act  attaches special sanctity  to a  dying declaration  and unless such a dying declaration can be shown to be unreliable, it will not affect its admissibility. It was further 807 held that  although a  dying declaration  has to  be closely

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scrutinised, once  the Court comes to the conclusion that it is true,  no  question  of  corroboration  arises.  In  this connection, the Court made the following observations:-           "The Legislature  in its  wisdom has enacted in s.      32(1) of  the Evidence  Act that "When the statement is      made by a person as to the cause of his death, or as to      any of  the  circumstances  of  the  transaction  which      resulted in  his death,  in cases in which the cause of      that  person’s  death  comes  into  question",  such  a      statement written  or verbal  made by  a person  who is      dead  (omitting   the  unnecessary  words)  it  self  a      relevant fact.  This provision  has been  made  by  the      Legislature, advisedly,  as a matter of sheer necessity      by way of an exception to the general rule that hearsay      is no  evidence and  that evidence,  which has not been      tested by  cross-examination, is  not  admissible.  The      purpose of cross-examination is to test the veracity of      the statements  made by  a witness.  In the view of the      Legislature,  that  test  is  supplied  by  the  solemn      occasion when  it was  made, namely, at a time when the      person making the statement was in danger of losing his      life. At  such a serious and solemn moment, that person      is not  expected to tell lies and secondly, the test of      cross-examination would  not be  available. In  such  a      case, the  necessity of  oath also  has been  dispensed      with for  the same reasons. Thus, a statement made by a      dying person as to the cause of death has been accorded      by the  Legislature a special sanctity which should, on      first principles, be respected.           ...             ...        ...           ...           But in  our opinion,  there is no absolute rule of      law, or  even a rule of prudence which has ripened into      a  rule   of  law,  that  a  dying  declaration  unless      corroborated by  other independent evidence, is not fit      to be acted upon, and made the basis of a conviction."      In this case this Court did not approve of the law laid down in  the earlier  decision which  is reported  in A.I.R. 1953, p. 420. To the same effect is a later decision of this Court in  the case  of Tarachand  Damu Sutar v. The State of Maharashtra(1) which  is a  decision rendered by five Judges of this  Court which  has also  taken the  view that  once a dying declaration is found to be true, it can be 808 acted upon  without any  corroboration. Thus, the view taken by this  Court by  the three  judges in  A.I.R. 1953, p. 420 stands overruled  by this  decision. Same  view was taken by this Court  in the  case of  Mannu Raja  & Anr.  v. State of M.P.(1) which  has been  relied upon  by Mr.  D. Mookherjee, counsel for the State.      There are a number of later decision of this Court also to the  same  effect  but  it  is  unnecessary  to  multiply authorities. It  is thus manifest that a person on the verge of death is most unlikely to make an untrue statement unless prompted or tutored by his friends or relatives. In fact the shadow of immediate death is the best guarantee of the truth of the statement made by a dying person regarding the causes or circumstances  leading to  his death which are absolutely fresh in  his mind  and is  untainted or  discoloured by any other consideration  except speaking  the truth.  It is  for these reasons that the Statute (The Evidence Act) attaches a special sanctity  to  a  dying  declaration.  Thus,  if  the statement of  a dying  person passes  the  test  of  careful scrutiny applied  by the  Courts, it becomes a most reliable piece of  evidence which does not require any corroboration. Suffice it  to say that it is now well established by a long

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course of  decisions of  this Court  that although  a  dying declaration should  be carefully  scrutinised but  if  after perusal of  the same,  the Court is satisfied that the dying declaration is  true and  is free  from any effort to prompt the deceased  to  make  a  statement  and  is  coherent  and consistent, there  is no  legal impediment  in founding  the conviction on  such a  dying declaration even if there is no corroboration.      For these  reasons, therefore,  we  find  ourselves  in complete agreement  with the  opinion of the High Court that even excluding  the evidence of the eye witnesses, the dying declaration is true and reliable and sufficient to found the conviction of the appellant.      For these  reasons therefore  the appeal  fails and  is accordingly dismissed. N.V.K.                                     Appeal dismissed. 809