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CASE NO.: Appeal (crl.)  630 of 2005

PETITIONER: RAVIKUMAR alias KUTTI RAVI                    

RESPONDENT: STATE OF TAMIL NADU                          

DATE OF JUDGMENT: 22/02/2006

BENCH: S.B. SINHA & P.P. NAOLEKAR

JUDGMENT: JUDGMENT

P.P. NAOLEKAR, J.

       The accused-appellant was convicted by the Sessions  Court under Section 302 of IPC to undergo imprisonment  for life and to pay a fine of Rs.1000/- and in default to  undergo R.I. for a period of three months.  He was further  found guilty of charge under Section 449 IPC and  sentenced to undergo imprisonment for ten years and to  pay a fine of Rs.1000/-, in default to undergo R.I. for a  period of three months.  The sentence imposed on the  appellant was confirmed by the High Court.  Aggrieved by  the said order of conviction, the present appeal is  preferred by the accused-appellant.   The relevant facts from the evidence of the  prosecution are that Pushpa (deceased), her brother  Selvaraj (PW-3) and Radha (PW-2 wife of PW-3), were  residing at Bagalur in a rented house.  On 15th January,  1998 at about 5.00 P.M., when PW-2 was returning from  Sandai (market), she heard hue and cry from her house  and when she rushed towards the house, she saw the  accused Ravikumar alias Kutti Ravi running away from her  residence.  She saw that deceased came out of their  house in flames.  She raised alarm and several  neighbours came to the spot and put off the fire with the  help of a blanket. The deceased narrated the incident to  PW-2 that the accused along with his girl friend Mala alias  Mallesi committed house trespass with the intention to  outrage the modesty of the deceased and since she  resisted, the accused-appellant at the instigation of Mala  poured kerosene over her and set her on fire.  The  deceased thereafter was taken to the government hospital  at Hosur.  PW-9 Dr. Jayraman Raju, the resident doctor  admitted her at 5.45 P.M.  PW-9 gave intimation to the  police and immediately thereafter the Head Constable  Govindraj (since deceased) came to the hospital and  recorded the statement of the deceased (Exh.P-9)  The  doctor gave a certificate that the deceased was conscious  at that time and that he had translated her version given  in Telugu to Tamil so as to enable the constable to record  the statement.  The statement was received at the police  station and a case was registered under Section 376 read  with Sections 511 and 307, IPC.  PW-9, doctor intimated  to the Judicial Magistrate PW-8  (Thiru. Muthuraj) of the  incident who in turn came to the hospital and recorded  the dying declaration (Exh. P-4) of the deceased at 6.35  P.M. on the date of occurrence.  PW-9 (doctor) translated  the dying declaration given by the deceased in Telugu to

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Tamil and also certified that at the time of giving the  dying declaration she was conscious and in a fit state of  mind to give the dying declaration.  Later on Pushpa  succumbed to her injuries and died on 21.1.98 at 4.30  P.M. in the government hospital, Hosur.  PW-10 (R.  Naresh) conducted the autopsy on the body and issued  the postmortem certificate.  The following injuries were  found on the deceased :-         External Injuries:         "Grade 4 dermo epidermal burns  extending as shown in figure, in front of chest  and abdomen burns upto muscle deep-deep  burns.  Pus formation on both axilla and in  thigh region present."

The doctor opined that Pushpa died due to septicaemia.   He had opined that on account of 90% burn injuries  suffered by the injured, septicaemia would have been  caused amid in the ordinary course of events, which could  have caused her death.         The case of the prosecution is primarily based upon  the dying declaration of the deceased which found  corroboration by the statement of PW-2.   Section 32 of the Indian Evidence Act, 1872 is an  exception to the general rule against hearsay.  Clause (1)  of Section 32 makes the statement of the deceased  admissible which is generally described as ‘dying  declaration’.  The dying declaration essentially means  statements made by the person as to the cause of his  death or as to the circumstances of the transaction  resulting in his death.  The admissibility of the dying  declaration is based upon the principle that the sense of  impending death produces in man’s mind the same feeling  as that the conscientious and virtuous man under oath.   The dying declaration is admissible upon consideration  that the declarant has made it in extremity, when the  maker is at the point of death and when every hope of  this world is gone, when every motive to the falsehood is  silenced and mind induced by the most powerful  consideration to speak the truth.  Notwithstanding the  same, care and caution must be exercised in considering  the weight to be given to these species of evidence on  account of the existence of many circumstances which  may affect their truth.  The court has always to be in  guard to see that the statement of the deceased was not  the result of either tutoring or prompting or a product of  imagination.  The court has also to see and ensure that  deceased was in a fit state of mind and had the  opportunity to observe and identify the assailant.   Normally, therefore, the court in order to satisfy itself that  the deceased was in fit mental condition to make the  dying declaration, has to look for the medical opinion.   Once the court is satisfied that the declaration was true  and voluntary, it undoubtedly, can base its conviction on  dying declaration 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 the rule of prudence.  These well settled  principles have been recognized and reiterated by this  Court in the cases Smt. Paniben  v.  State of Gujarat  (1992) 2 SCC 474; Uka Ram  v.  State of Rajasthan  (2001) 5 SCC 254; Laxman  v.  State of Maharashtra  (2002) 6 SCC 710; P.V. Radhakrishna  v.  State of  Karnataka  (2003) 6 SCC 443; State of Maharashtra  v.  

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Sanjay D. Rajhans  AIR 2005 SC 97; and Muthu Kutty and  Another  v.  State by Inspector of Police, Tamilnadu  (2005) 9 SCC 113.         In Kanchy Komuramma  v.  State of A.P. (1995)  Supp. 4 SCC 118 at para 11, it is laid down that there are  certain safeguards which must be observed by the  Magistrate when he is requested to record the dying  declaration.  The Magistrate before recording the dying  declaration must satisfy himself that deceased is in a  proper mental state to make the statement.  He must  record that satisfaction before recording the dying  declaration.  He must also obtain the opinion of the  doctor, if one is available, about the fitness of the patient  to make the statement and the prosecution must prove  that opinion at the trial in the manner known to law.  In  Laxman v.  State of Maharshtra (supra), a Constitution  Bench  of this Court while affirming an earlier ruling of a  3-Judge Bench of this Court in Koli Chunilal  Savji and  Anr.  v.  State of Gujarat (1999) 9 SCC 562 held that if  the person recording the dying declaration is satisfied that  the declarant was in fit mental condition to make the  dying declaration then such dying declaration would not  be invalid solely on the ground that the doctor has not  certified as to the condition of the declarant to make the  dying declaration.         In the light of the guidelines set out by this Court,  we have to consider the acceptability of the dying  declaration of the deceased in the present case.           It is urged by the learned counsel for the appellant  that dying declaration was not free from suspicion as the  deceased mentioned the presence of three accused  whereas only two accused have alleged to have  committed the offence.  It is further urged that the  Magistrate did not know Telugu and the dying declaration  recorded by him on the basis of the translation made by  PW-9 (doctor) cannot be relied upon for convicting the  accused, particularly so when the doctor, at the time of  admission of the deceased in the hospital, recorded in the  accident register that the deceased was admitted as she  had immolated herself which was later on struck off.         Pushpa, the deceased, was admitted in the hospital.   Treating  Doctor  Dr. Jayraman Raju was examined as  PW-9.  He has categorically stated that when the  deceased was admitted in the hospital she was in  conscious state of mind.  He had informed the police as  well as the Judge about the incident.  On information  being sent to the police, the declaration of Pushpa was  recorded by the Head Constable at the hospital.  At that  time she was in conscious state of mind.  He was present  when the statement of Pushpa was recorded.  The  statement recorded by the Head Constable is marked as  Ex. P-9.  In the statement, the deceased has stated that  Kutty alias Ravi had taken kerosene cane, poured the  kerosene on her and lit the fire with matchbox and that  she was admitted in the hospital by her father and  brother.  The declaration contained the note by Head  Constable that Pushpa had narrated the incident in Telugu  which was taken by the Head Constable in Tamil and that  he knew Telugu.  The Head Constable could not be  examined since he had died.  The doctor has certified that  the patient was conscious while giving the declaration.  In  pursuance of the information sent to the Magistrate, the  Magistrate came to the hospital and recorded the dying  declaration of the deceased.   The  Magistrate Thiru  Muthuraj was examined as PW-8.  In his statement, he

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has stated that he had received a letter from the doctor of  Government Hospital, Hosur for recording the dying  declaration of Pushpa.  In pursuance thereof, he went to  hospital at 6.30 P.M.  He had satisfied himself before  recording the dying declaration that the deceased was in  a position to give the statement.  He asked her name, her  father’s name, etc. and specifically put a question to her  whether she would  be able to give the declaration and  she said "yes".  After satisfying that she would be able to  give the declaration, he recorded the statement.  Pushpa  gave dying declaration in Telugu.  The duty doctor  informed that he knows Telugu and, therefore, whatever  was said by Pushpa in Telugu was translated into Tamil by  the duty doctor PW-9.  After recording the declaration in  Tamil, the same was translated by the duty doctor in  Telugu to Pushpa and Pushpa had accepted the same and  to that effect a certificate had been given by him.  He had  obtained the thumb impression of Pushpa, the deceased,  on the dying declaration.   From the evidence of these witnesses, it is apparent  that Pushpa did not know Tamil and, therefore, the doctor  who knew Telugu and Tamil translated the questions put  by the Magistrate in Tamil into Telugu and the answers  given in Telugu were translated into Tamil.  The  statement so recorded was read over and explained by  the doctor to Pushpa and she admitted the same to be  true and correct.    The endorsement to that effect was  made by the Magistrate.  As the statement recorded by  the Magistrate as translated by the doctor, was narrated  to the deceased which she admitted, there cannot be any  manner of doubt that whatever was stated by the  deceased, was correctly recorded by the Magistrate in the  dying declaration.  We do not find any cross-examination  of the two witnesses by the defence as regards the  translation of the statement given in Telugu into Tamil by  the doctor and recording the same in Tamil by the  Magistrate.  The dying declaration as recorded was corroborated  by the statement of PW-2 who has deposed that she  returned to her house at about 5 p.m. from the market.   She heard shouting at her house and she saw the accused  running away from the place.  She saw that the deceased  was burning and on hearing her shouts neighbours rushed  to the place and somebody gave a blanket and the fire  was extinguished.  After that she along with her uncle  enquired from the deceased about what had happened  and the deceased told them that Kutti Ravi Was making  advances time and again and she had not yielded.  Kutti  Ravi pushed the deceased and poured kerosene and lit  fire and thereafter he ran away.  The suggestion made by  the defence that due to non-settlement of the marriage of  Pushpa with the accused, Pushpa has poured kerosene on  herself and lit fire, was denied.   It is contended by the counsel for the appellant that  the dying declaration recorded by the Magistrate  contained the names of Ravi, Kumar and Mallesi, but the  charge is only against the accused appellant and,  therefore, the dying declaration cannot be relied upon.  It  may be seen that while recording the statement in  between the name of the accused Ravi-kumar, comma  has been put and therefore it gives an impression that  Ravi and Kumar are two persons whereas the name of the  accused is Ravikumar.  No question has been put to the  Magistrate as regards the recording of the name of the  accused as Ravi and putting comma thereafter and then

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putting the name of Kumar.  It is apparent from the dying  declaration that it is a mistake committed by the  Magistrate in splitting the name of Ravikumar into two  names on the basis of which this argument has been  advanced that there were three persons who were  involved in commission of the crime.  Two courts below  have considered this submission and rejected the same,  and rightly so.   It is also urged by the counsel for the appellant that  when Pushpa was admitted in the hospital the doctor has  written in the Accident Register that she has lit fire on  herself which indicates that it was a case of suicide and  not the homicide.  In the statement of the doctor (PW-9),  he has explained the position that alongwith Pushpa her  father came to the hospital and when he enquired how  the accident happened he said that he did not know.  In  this state of affairs, it can very well be presumed that the  doctor assumed that the burn injuries were caused due to  some act on her part and he, therefore, wrote in the  register that she had lit fire on herself.  When he came to  know about the correct state of affairs, he erased that  entry.  In the factual scenario, it appears to us that the  doctor made enquiries from the father and as the cause of   injuries was not informed to him he by himself put the  entry in the Accident Register that the deceased lit fire on  herself and when the correct picture got emerged he  erased the entry.  The entry made in the Accident  Register has been explained by the doctor in his  statement.  On the basis of this entry, the defence version  of suicide cannot be accepted on the face of the two dying  declarations of the deceased Pushpa recorded by the  Magistrate and the Head Constable on the basis of which  the FIR was registered.  The evidence of the Magistrate  PW-8 and the doctor PW-9 is absolutely clear and  unambiguous.   As regards the manner in which the Magistrate  recorded the statement of the deceased with the help of  the doctor PW-9, there is no reason or material to show  that the dying declaration was the result of either a  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.         For the aforesaid reasons, we do not find any good  or sufficient reason to take a different view of the matter  than what has been held by the Sessions Judge and the  High Court.  The appeal is, accordingly, dismissed.