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PETITIONER: MUNLAPPAN

       Vs.

RESPONDENT: STATE OF MADRAS

DATE OF JUDGMENT: 27/09/1961

BENCH: HIDAYATULLAH, M. BENCH: HIDAYATULLAH, M. KAPUR, J.L.

CITATION:  1962 AIR 1252            1962 SCR  (3) 869  CITATOR INFO :  RF         1983 SC 274  (8,9)

ACT: Dying   Declaration-Thumb   impression   of   dead   person- Admissibility.

HEADNOTE: It  was alleged that the appellant had stabbed the  deceased E.  Soon  after E was stabbed, he was taken  to  the  Police Station   where   the  Sub-Inspector   immediately   started recording  his statement.  After E had spoken  one  complete sentence,  he could not speak any further and it  was  found that he had in fact died.  Thereupon the Sub-Inspector  took the,  thumb impression of B upon the statement as  recorded, which was treated as the dying declaration. Question  was  that, when the dying declaration  was  inter- rupted by death ensuing suddenly, then, whether such  decla- ration  would be admissible in evidence; and  the  probative value  of such dying declaration, which was described as  an incomplete document. Held,   that  the  thumb  impression  taken  on  the   dying declaration after the man was dead, must be ignored.  Corro- boration  would  not  always  be  necessary  if  the   dying declaration  was  complete in its accusation  and  there  is nothing to show that the maker of the statement had anything further to add. In this case the dying declaration was a completed statement which  was catagoric in character and there was  nothing  to show  that the victim had anything more to say.   It  there. fore, needed no corroboration and could be relied upon. Khushal Rao v. State of Bombay, [1958], S.C.R. 552, relied Cyril  Waugh  v. The King [1950].  A.C. 203,  explained  and distinguished.

JUDGMENT: CRIMINAL   APPELLATE JURISDICTION CriminalAppeal No.  49  of 1961. Appeal  by special leave from the judgment and  order  dated August  30,  1960,  of the Madras High  Court  ’in  Criminal Appeal No. 468 of 1960 and referred Trial No. 38 of 1960.

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V.   N. Sethi, for the appellant., R.   Ganpathy Iyer and T. M. Sen, for the respondent. 870 1961.   September  27.   The  Judgment  of  the  Court   was delivered by HIDAYATULLAH,  J.-This is an appeal against the judgment  of the High Court of Madras, with special leave granted by this Court.   The appellant was convicted under s.  302,  I.P.C., and  sentenced  to death for the murder of one  Elumalai  on January  24, 1960, at Kannankurichi.  The facts of the  case are simple Two days before this occurrence the appellant Muniappan  and Elumalai had a quarrel at a tea. stall.  Though the  quarrel really  was between the appellant and some others,  Elumalai had intervened in that quarrel, and made some remarks  about the appellant, and had advised the party opposite to him  to make  a complaint.  Two reports of that incident were  made, one  by  the  appellant and the other  by  his  rivals.   On January  24,  1960, at about 12.30 P.m., P.W.  I  Muthuswami Udayar was having a bath when he heard Elumalai calling  out to  him ’,’Mama".  Muthuswami Udayar ran to the  place  from which this cry had come and found Elumalai with several stab wounds on his body.  Muthuawami Udayar questioned  Elumalai, and the latter told him that it was the appellant  Muniappan who  had caused injuries to him.  Muthuswami gave first  aid to  Elumalai, and meanwhile Elian alias  Kundaswami  (P.W.2) and K.R. Perumal (P.W.3) also, arrived on the scene.   These persons  carried Elumalai to the Police Station House  which was at a distance of about 80 yards.  The Sub-Inspector  was seen.. approaching from the opposite direction and  Elumalai was taken to the verandah of the Police Station House.   The Sub-Inspector immediately started recording the statement of Elumalai.   After Elumalai had spoken one compete  sentence, he could not speak any further, and though he was given some soda-water to drink, it was found that he could not  swallow it and bad, in fact, died.  The Sub-Inspector thereupon took the  thumb-impression  of  Elumalai upon  the  statement  as recorded, and 871 four other witnesses also signed or put their thumb marks on it.  Muniappan also reached the Police Station House after a few minutes and virtually surrendered himself to the police. One of his clothes, which was stained with blood, was seized and in one of his pockets was found a sheath which was  also seized  as presumably belonging to the knife with which  the stab injuries were caused.  On a statement by Muniappan  the Police  went  to a garden and recovered from there  a  knife which  later  ,Was  found to be stained  with  human  blood. Investigation  disclosed that this knife together  with  the sheath  was purchased by Muniappan from Ameer Khan (P.W.  6) on the evening of January 23, 1960. The police therefore charged Muniappan with an offence under s. 302 I.P.C. The evidence led against him consisted of  the testimony  of Ameer Khan (P.W. 6) about the purchase of  the knife  complete with a sheath for Rs. 6/-; the testimony  of witnesses  about  the  incident which took  place  two  days before the murder; the dying declaration made to  Muthuswami (P.W.  1);  the  dying  declaration  recorded  by  the  Sub- Inspector in the presence of witnesses; an alleged statement made  by the accused to the doctor when he was examined  for an  injury on his thumb and the evidence of the alleged  eye witness  Elian  alias Kundaswami (P.W. 2).  The  two  courts below  convicted the appellant of the offence of murder  and sentenced him to death. In this appeal it is contended that the evidence of the  eye

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witness (P.W. 2) and the statement of the appellant made  to the  Doctor, who examined him, having been  excluded,  there was  not  sufficient  evidence  in the  case  if  the  dying declaration recorded by, the Sub-Inspector is excluded.  The main  argument  in  this  case  is,-  therefore,  about  the admissibility   and  the  probative  value  of   the   dying declaration  which  is described as an  incomplete  document completed  dishonestly  by getting the thumb  impression  of Elumalai when he was dead, 872 No  doubt  thethumbimpression of Elumalai was taken  on  the dying  declaration after he was dead and to that extent  the thumb impression must be ignored.  We do not agree with  the learned counsel for the appellant that this was done from an improper or dishonest motive to give a colour of  completion to  an incomplete document.  The reason for that is not  far to  seek.  The Sub-inspector after recording  what  Elumalai had to say noted that ’,-’soon after Elumalai had said those words  his  speech stopped.  His life was gone."  The  thumb impression followed this endorsement.  It appears to us that the Sub-Inspector who was nonplussed by the sudden  collapse of Elumalai, did not know what to do and he thought that  it was proper to take the thumb impression on the statement  as it  had been made.  The Sub-Inspector should have  left  the document  as it was, without taking the thumb mark’  of  the dead man, but we do not feel compelled to hold that. he  did so out of any improper motive, inasmuch as he had noted that the man was dead before the thumb impression was taken. That also  was his testimony in court, and that of the  attesting witnesses.   The  fact,  however,  remains  that  the  dying declaration was interrupted by death ensuing suddenly.   The question is whether this dying declaration is admissible  in evidence. The  learned counsel for the appellant has relied on a  case of the Privy Council from Jamaica reported in Cyril Waugh v. The  King(1).  In that case, one Phillip Newby was shot  and he  made a dying declaration which was taken down but  which was  not complete because New by suddenly fell into  a  coma from which he never recovered.  The Privy Council ruled  out that  dying declaration on the ground that being  incomplete it  could not be taken into account after ignoring the  lost sentence  which was incomplete because in the middle  of  it New  by fell into a coma and died.  That dying  declaration, if examined clearly shows that Newby had not (1)  [1950] A.C. 203.                             873 charged any: person by name but had described his  assailant as  "’a man".  In the sentence which was incomplete  in  his statement Newby had begun’ to say ,The man had an old grudge for  me simply. because..." It is quite clear that  if  that sentence  had  been  completed,  a  clue  would  have   been furnished  as to the identity of the assailant by the  facts about  the old grudge which Newby wanted to  disclose.   The dying  declaration, therefore, was an  incomplete  statement and  in  so  far  as it went, had no  value  unless  it  was completed  by some other evidence which of course would  not have  been  a  part of Newby’s statement.   The  reason  for excluding  that  dying  declaration  was,  therefore,  quite clear,  and if the present dying declaration can be said  to be of a similar character, then the argument. of the counsel for the appellant must prevail. The dying declaration in the present case was as follows "Sir,               This  day 24th January, 1960, in the  noon  at               12.30  Muniappan,  son  of  Kola  Goundan   of

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             Kannankurichi  stabbed  me  in  my  body  with               knife.               Soon  after  be said these words,  his  speech               stopped.  His life was gone.               (Left    thumb   impression   of)    Elumalai.               witnesses-               1.    (Signed in Tamil) Muthuswami Udayar.               2.    (Signed) K. R. Perumal.               3.    (Signed in Tamil) C. Kannan.               4.    (Left thumb impression of) Kundaswami               24th  January, 1960.                  (Signed)               S. A. Amir                                      Sub-Inspector, Here, the accusation against the appellant was complete, and there  is  nothing  to  show that  Elumalai  wished  to  say anything more or that he had any’ thing more to add.  In  so far  as  the  dying declaration, goes,  it  is  a  complete. Statement and makes a 874 very clear accusation against the appellant.  If this  dying declaration  is  taken into account, then  it  hardly  needs corroboration  in  view  of the decision of  this  Court  in Khushal Rao v. State of Bombay(,).  The Privy Council  case, therefore, is clearly distinguishable on facts and does  not apply  to the dying declaration with which we have to  deal. The Privy Council case was considered by this Court in Abdul Sattar v. Mysore State (2), where also the dying declaration was  incomplete  but was quite categoric  in  character  and definitely  indicated that it was the accused in  that  case who  had  shot  the deceased.  The  dying  declaration  was, therefore,   acted  upon.   The  learned  counsel  for   the appellant attempted to distinguish Abdul Sattar’s case(2) on the ground that in that case there was corroboration of  the dying  declaration  and contended that an  incomplete  dying declaration, if categoric in character, may be acted upon if corroborated  but  not  if  not  so  corroborated.   In  our opinion, corroboration would not always be necessary if  the dying declaration is complete in its accusation and there is nothing to show that the maker of the statement had anything further  to  add.   That is the case here.   In  this  case, however,  there  is some other evidence to  incriminate  the accused.  The injuries were caused with a knife and a  knife was  found at some distance from the scene of occurrence  on information  furnished to the police by the  accused.   That knife  was  found  to be stained with human  blood  and  the accused had in his possession a sheath which was  identified as belonging to the knife by the shopkeeper who had the  day previous  sold  the knife and the sheath  to  the  appellant Muniappan.   There is also the conduct of the  appellant  in surrendering himself to the police at 12.40 P.m. that is  to say,  within ten minutes of the occurrence.   The  appellant had  an  injury  on his thumb which  he  apparently  got  in attempting to stab Elumalai.  The injury was situated on the thumb  of  his left hand on the lateral side and  must  have been (1)  [1958] S. C. R. 552. (2)  A. I. R. (1958) S. C. 168 875 caused  when he struck Elumalai repeatedly holding him  with his  left hand and wielding the weapon with his right  hand. There  is also evidence of motive in the shape of a  quarrel which  had  taken  place only two  days  previously  and  in respect of which the rival parties had made their respective reports to the police.  There was also corroboration in  the shape  of a dying declaration made by Elumalai to the  first

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prosecution  witness  Muthuswami when he  reached  the  spot after Elumalai had raised a cry for help. In view of all these circumstances we are satisfied that the evidence   in  this  case  is  sufficient  to  warrant   the conviction  of  the appellant on a charge  of  murder.   The dying declaration is, in our opinion, Categoric in character and  unmistakably accuses the appellant of the crime and  we have no hesitation in accepting it. In the result, the appeal fails and is dismissed. Appeal dismissed. 876