REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL  APPEAL NO.     966       OF 2009 (Arising out of SLP (Crl.) No.8007 of 2008)

Sasikumar ….Appellant

Versus

The State of Tamil Nadu ….Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

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

Madras High Court upholding the conviction of the appellant for offences  

punishable  under  Section  302  of  the  Indian  Penal  Code,  1860  (in  short  

‘IPC’)  while  setting  aside  the  conviction  in  terms  of  Section  307  IPC.  

Appellant faced trial in the Court of Sessions, Vellore and was convicted in  

terms  of  Sections  302  and  307  IPC.   He  was  acquitted  of  the  charges  

relating to Section 498A IPC.      

2. Prosecution version in a nutshell is as follows :

On 10.11.2003, the accused  poured kerosene  on his wife Menaka;  

set fire to her as a result of which she died on 30.11.2003 and in the course  

of  the  same  transaction  he  attempted  to  murder  his  child  aged  about  9  

months by pouring kerosene on her and setting fire to her also. But luckily  

she survived. Therefore, the trial went on against the accused not only under  

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Section  302  and  307  IPC  but  also  under  Section  498-A  IPC.   The  

prosecution  examined PWs 1 to  8 besides   marking Exs.  P1 to  P15 and  

MOs. 1 and 2.  

3. On  completion  of  investigation  charge  sheet  was  filed  and  since  

accused pleaded innocence, trial was held.

4. The trial court placed reliance on the evidence of PWs 5, 6 and 7 and  

on the dying declaration recorded to hold the appellant guilty.  In appeal, the  

High Court  upheld the conviction under Section 302 IPC while upsetting  

the conviction in terms of Section 307 IPC.  

5. In support of the appeal, learned counsel for the appellant submitted  

that since the mother of the deceased PW1 did not support the prosecution  

version, the trial Court and the High Court should not have placed reliance  

on the so called dying declaration.    

6. Learned counsel for the State supported the judgment.  

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7. It is to be noted that PW5 was the Judicial Magistrate who recorded  

the dying declaration in the presence of the duty doctor PW6.  From the  

evidence of PW5 it is clear that he received the requisition from the hospital  

Ex.P5  at  12.30  p.m.  to  record  dying  declaration  of  the  deceased  in  the  

hospital  from  Menaka  and  proceeded  to  record  statement  by  putting  

question to her. PW5 was fully satisfied that the deceased was in a fit and  

conscious state of mind to give the statement which was also endorsed by  

PW6.    

8. This is a case where the basis of conviction of the accused by the trial  

Court was the dying declarations. 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 in a serious  

crime, the exclusion of the statement would leave the Court without a scrap  

of evidence.  

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9. 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 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):

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(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.  

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)]

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(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 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  

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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)  and  Mohan  Lal  and  Ors. v.  State  of  

Haryana (2007 (9) SCC 151).    

10. Above being the position, the conclusions of the Trial Court and the  

High Court placing reliance on the dying declaration cannot be faulted.  We  

find no merit in this appeal which is accordingly dismissed.      

……………………..…………J. (Dr. ARIJIT PASAYAT)

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

New Delhi, May 08, 2009

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