REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.     435           OF 2009 (Arising out of SLP (Crl.) No. 665 of 2008)

Satish Ambanna Bansode ...Appellant

Versus

State of Maharashtra  ...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

Bombay High Court dismissing the appeal filed by the appellant who was

convicted for  offence punishable   under Section 302 of  the Indian Penal

Code, 1860 (in  short  the  ‘IPC’)  and was sentenced to  undergo rigorous

imprisonment for life and to pay a fine of Rs.100/- with default stipulation.  

3. Prosecution version in a nutshell is as follows:

Satyawwa (hereinafter referred to as `the deceased’) aged 28 years at

the time of alleged incident was married to the accused about 15 years ago

and it can be said that it was a child marriage. At the time of incident, the

couple was gifted with two daughters, namely, Renuka and Chandrawwa.

But the daughters were staying in Indira Nagar locality of Sangli, where the

parents of deceased Satyawwa were residing. Satyawwa and accused were

staying at Visa Pure Galli Miraj.

4. The incident took place on the night of 4th  and 5th  October, 1999 at

about 2.30 a.m. on 5th  ” October, 1999. As stated by Satyawwa before her

death, accused - husband was drunk; he abruptly woke up at about 2.30 a.m.

and started beating her and she got scared.  Accused picked up kerosene tin

from the house, poured it on her person and ignited her by using a match-

stick. She also stated that as the saree caught fire, she started shouting. At

this  juncture,  husband tried to  remove saree from her person and in  that

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process,  he  suffered  burn  injuries  on  both  his  hands.  Neighbours  also

gathered and both were taken to Civil Hospital, Sangli in a rickshaw.  

5. Subhash  Koli,  Police  Head  Constable  (P.W.3)  attached  to

Vishrambaug Police  Station,  was posted  on duty at  Civil  Hospital.  After

admission  of  Satyawwa  at  about  4.00  a.m.,  intimation  was  sent  by  the

hospital to the police station and therefore, he was instructed by the police

officials  to  record  the  statement  of  patient.  He  accordingly  recorded

statement of Satyawwa, only after obtaining opinion from Dr. M.G. Madhu

Kumar between 6.30 a.m. to 7.00 a.m. on 5.10.1999. Satyawwa succumbed

to  burn  injuries  at  about  10  a.m.  It  appears  that  dying  declaration  was

treated as an F.I.R. by Miraj police station, and Crime No.194 of 1999 was

registered. The investigation was carried out in parts by P.S.I. Shri Ramesh

Bhokare (P.W.6) and A.I.P. Shri. Baliram Waghchavre (P.W.7). The dying

declaration  was  treated  as  an  First  Information  Report  by  Miraj  Police

Station   and  the  case  was  registered.  After  completion  of  investigation

charge sheet was filed. The accused pleaded innocence, therefore trial was

held.  It is needless to say that the trial ended in conviction by the judgment

which was challenged before the High Court.

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6.  Apart from P.W.3 Subhash Koli Police Head Constable, Dr. Madhu

Kumar (P.W.4) Medical Officer was present when the patient was admitted

and also when the dying declaration was recorded.  Shabbir Gulab Mulla

(P.W. 1) who is the neighbour of the accused and victim, and Mohd. Hanif

Dastgir (P.W.2), who is the landlord of the accused provided some details

about the incident. Dr. Nandkurnar Banage (P.W.5) was the medical officer

attached to Civil Hospital,  Sangli at the material time. He had performed

autopsy and by post mortem notes he has recorded his opinion regarding

cause of death due to ‘Septicemia’ shock due to 95% of superficial to deep

burns.   

7. Stand of the accused appellant before the trial Court was that on the

basis  of  the  dying  declaration   the  conviction  should  not  have  been

recorded.  Further,  the  deceased   was  not  fit  to  make any statement  and,

therefore, the so called dying declaration is not trustworthy. The trial Court

did not accept the plea. Before the High Court the plea taken before the trial

Court was re-iterated which came to be rejected by the impugned judgment

and the appeal was dismissed.  

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8. In support of the appeal learned counsel for the appellant submitted

that  the evidence of doctor clearly indicated that the victim was not  in a

condition to give dying declaration and that the statement was the result of

tutoring.  

9. Learned counsel for the respondent-State on the other hand supported

the judgment.  

10. So far as the statement of doctor is concerned, a hypothetical answer

was given to a question regarding the effect of the patient who suffered burn

of  a  very  high  percentage.   The  doctor  has  categorically  stated  that  the

patient who gave dying declaration was in a position to do so.  The stand

taken before the trial Court and before the High Court was rejected as there

was  no  accidental  burn  due  to  fall  of  small  lantern.  This  plea  is  clearly

without substance as rightly noted by the trial Court and the High Court.  

11. This  is  a case where  the  basis  of  conviction  of  the  accused  is  the

dying declaration. The situation in which a person is on the deathbed is so

solemn and serene when he is dying that the grave position in which he is

placed, is the reason in law to accept the veracity of his statement. It is for

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this  reason  that  the  requirements  of  oath  and  cross-examination  are

dispensed with. Besides, should the dying declaration be excluded, it will

result  in the miscarriage of justice because the victim being generally the

only eyewitness in a serious crime, the exclusion of the statement would

leave the court without a scrap of evidence.

12. 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 a 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 on the same 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.

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This  Court  has  laid  down in  several  judgments  the  principles  governing

dying  declaration,  which  could  be  summed up  as  under  as  indicated  in

Paniben v. State of Gujarat (1992(2) SCC 474) (SCC pp.480-81, paras 18-

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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 v. State of M.P.(1976 (3) SCC 104)]

(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 U.P. v. Ram Sagar Yadav (1985(1) SCC 552) and Ramawati

Devi v. State of Bihar 1983(1) SCC 211))

(iii) The court has to scrutinise 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 v. Public Prosecutor(1976

(3) SCC 618)])

(iv) Where a dying declaration is suspicious, it should not be acted

upon without corroborative evidence. [See:  Rasheed Beg v.  State of

M.P.(1974(4) SCC 264)]

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(v) Where the deceased was unconscious and could never make

any dying declaration the evidence with regard to it is to be rejected.

[See: Kake Singh v. State of M.P.(1981 Supp. SCC 25)]

(vi) A dying declaration which suffers from infirmity cannot form

the basis of conviction. [See: Ram Manorath v. State of U.P.(1981(2)

SCC 654]

(vii)  Merely  because  a  dying  declaration  does  not  contain  the

details  as  to  the  occurrence,  it  is  not  to  be rejected.  (See  State  of

Maharashtra v.  Krishnamurti  Laxmipati  Naidu  [1980  Supp.  SCC

455)]

(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  Ojha v.  State  of  Bihar  (1980

Supp.SCC 769)]

(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  eyewitness  said  that  the

deceased  was  in  a  fit  and  conscious  state  to  make  the  dying

declaration, the medical opinion cannot prevail. [See: Nanhau Ram v.

State of M.P.(1988 Supp. SCC 152)]

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(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 (1989 (3) SCC 390)]

(xi)  Where  there  are  more than  one  statements  in  the  nature  of

dying declaration, the one first in point of time must be preferred. Of

course, if the plurality of the dying declaration could be held to be

trustworthy  and  reliable,  it  has  to  be  accepted.  [See:  Mohanlal

Gangaram Gehani v. State of Maharashtra (1982 (1) SCC 700)]

13. In the light of the above principles, the acceptability of the alleged

dying  declaration  in  the  instant  case  has  to  be  considered.  The  dying

declaration is  only a piece of untested evidence and must,  like any other

evidence, satisfy the court that what is stated therein is the unalloyed truth

and that it is absolutely safe to act upon it. If after careful scrutiny, the court

is satisfied that it is true and free from any effort to induce the deceased to

make a false statement and if it is coherent and consistent, there shall be no

legal  impediment  to  make it  the  basis  of  conviction,  even  if  there  is  no

corroboration.  (See  Gangotri  Singh v.  State  of  U.P.(1993  Supp(1)SCC

327).

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14. When the evidence on record has been examined in great detail by the

trial Court and the High Court to place reliance on the dying declaration, the

conclusions cannot be in any way faulted.  

15. The appeal is without merit, deserves dismissal which we direct.  

………………………….J. (Dr. ARIJIT PASAYAT)

………………………….J. (ASOK KUMAR GANGULY)

New Delhi, March 05, 2009   

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