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                                              REPORTABLE              IN THE SUPREME COURT OF INDIA

          CRIMINAL APPELLATE JURISDICTION

           CRIMINAL APPEAL NO. 1167 OF 2006

Panneerselvam                                  ..Appellant

                           Versus

State of Tamil Nadu                            ..Respondent

                            And

           CRIMINAL APPEAL NO. 1168 OF 2006

                      JUDGMENT

Dr. ARIJIT PASAYAT, J.

1.   These two appeals have their matrix in a common

judgment of a Division Bench of the Madras High Court

disposing of three criminal appeals preferred under Section

374 of the Code of Criminal Procedure, 1973 (in short ‘Cr.PC’),

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against the judgment of the Principal Sessions Judge,

Thanjavur in Sessions case no.65 of 1994 dated 13.5.1997.

Five persons had faced trial for alleged commission of murder

of one Arunbharathi @ Jynarab (hereinafter referred to as the

‘deceased’).   They were convicted for offences punishable

under Section 302 read with Section 34 of the Indian Penal

Code, 1860 (in short ‘IPC’). So far as A1, A2 and A5 are

concerned, each was sentenced to undergo imprisonment for

life.   A1, A2 and A5 were convicted for offence punishable

under Section 348 IPC and sentenced to one year RI each. A1

was charged for commission of offence punishable under

Section 201 IPC and sentenced to undergo one year RI and A2

and A5 were convicted for offence punishable under Section

201 read with Section 34 IPC and each was sentenced to

undergo RI for life.

2.      A1 was Head Constable, while A2 was a Constable A3

was a Writer, and A4 was a Pere Constable. All of them were

attached to Ammapet Police Station, and they were on duty on

14.12.1992 and 15.12.1992. A5 was a native of Udaiyur Kovil                                                           2

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3.   After the case was committed to the Court of Sessions

charges were framed since the accused persons pleaded

innocence they were put to trial. In order to substantiate the

charges 14 witnesses were examined. On consideration of the

material on record the Trial Court recorded the conviction and

imposed sentences as aforesaid.

4.   Stand of the appellant before the High Court was that the

deceased had put himself on fire and in fact, all the accused

persons immediately quenched the fire and had taken him to

the Government Primary Health Hospital, Ammapet, where

PW3 doctor was available.    The deceased made a voluntary

statement to PW3 wherein he categorically stated that he had

poured petrol on himself and set himself on fire. Thereafter

the deceased with the burn injuries was taken to the Medical

College Hospital where also he made a similar statement to

PW4 the doctor. Subsequently, another doctor PW6 examined

him where also he made a similar statement.      Therefore, it                                                            3

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was submitted that the Trial Court was not justified in

convicting them relying on the purported dying declaration

alleged to have been given by the deceased to the Revenue

Divisional Officer (PW14) on 16.12.1992 i.e. four days prior to

his death. The same was nothing but a tutored one. The High

Court held that the so called statements made before the

doctors cannot be accepted in view of the dying declaration

recorded by PW14 the RDO. The High Court did not attach

any importance to the statements purportedly given before

PWs, 3, 4 and 6 and also relied on the dying declaration

purportedly made by the deceased before the PW14. The High

Court found that the allegations against A2, A3 were not

proved beyond reasonable doubt and they were entitled to

acquittal.   Accordingly, the appeals filed by these accused

persons were allowed and those filed by the appellants in

these two appeals were dismissed.

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5.   In support of the appeal learned counsel for the

appellants submitted that the High Court proceeded on

presumptions that because the statements of the deceased to

PWs, 3, 4 and 6 were made in the presence of a Constable,

therefore, they were not voluntary.   On the contrary at the

time when the statements were made, the relatives of the

deceased were present is evident from the evidence of PW1

who took the deceased to the hospital. He had categorically

admitted that he was accompanied by several persons when

the deceased was taken to and was at the hospital. PW1 and

others were there with him. PW1 has categorically admitted

that this was the situation in the Ammapet hospital and

Thanjavur Medical College Hospital.     He has categorically

stated that several persons were present at the hospital.       It

was, therefore, submitted that the voluntary statement made

right from the beginning should not have been lightly brushed

aside. It is also pointed out that the High Court came to an

erroneous   conclusion   by   misreading   dying   declaration

purported to be made before RDO that it was either A1 or A5

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(the present appellants) who had poured petrol and set him on

fire.

6.      In response, learned counsel for the respondent-State

submitted that the High Court had rightly relied upon the

dying declaration made before the RDO. According to him the

fact that police officials were present when the statements

were made by the deceased before the doctors made the

position clear that the deceased was not speaking the truth.

7.      This is a case where the basis of conviction of the

accused is the dying declaration. The situation in which a

person is on his deathbed, being exceedingly solemn, serene

and grave, is the reason in law to accept the veracity of his

statement. It is for this reason that 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

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in a serious crime, the exclusion of the statement would leave

the Court without a scrap of evidence.

8.   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

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

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

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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.

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Ramachandra Reddy and Anr. v. The Public Prosecutor (AIR

1976 SC 1994)]

    (iv)    Where the 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

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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 the

deceased was in a fit mental condition to make the dying

declaration looks 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 declaration

cannot be acted upon. [See State of U.P. v. Madan Mohan and

Ors. (AIR 1989 SC 1519)].      (xi)   Where there is 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 declarations

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)]

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9.   We find that the High Court has erroneously discarded

the statements made by PWs. 3, 4 and 6 to the effect that the

deceased voluntarily told each one of them that he had set

himself on fire. As rightly contended by learned counsel for

the appellant, even though one police official was present

when the statement was made to PWs. 3, 4 and 6, yet large

number of relatives of the deceased, more particularly, PW1

who had taken him to the hospital were present also.

Additionally, the High Court has misconstrued the dying

declaration. The deceased had categorically stated therein that

he did not know who set him on fire.          The High Court

observed, as if, the deceased had said that either A1 or A5 did

so. The conclusions have been arrived at by misreading the

evidence.   Therefore, the impugned judgment of the High

Court cannot be maintained and is set aside. The appellant in

each case is acquitted of the charges.     The appellants be

released from custody forthwith unless required in any other

case. The appeals are allowed.

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                                            ...................................J.                                                             (Dr.        ARIJIT PASAYAT)

      ..................................J                                              (P. SATHASIVAM)

                                                   ............. .......................J.                                              (Dr. MUKUNDAKAM SHARMA) New Delhi, May 15, 2008

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