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CASE NO.: Appeal (crl.)  346 of 2008

PETITIONER: Shaik Nagoor

RESPONDENT: State of A.P. rep. by its Public Prosecutor, High Court of A.P., Hyderabad

DATE OF JUDGMENT: 20/02/2008

BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO. 346 OF 2008 (Arising out of SLP(Crl.) NO. 3019 of 2007)

Dr. ARIJIT PASAYAT, J.

1.      Leave granted. 2.      Challenge in this appeal is to the judgment of a  learned Single Judge of the Andhra Pradesh High Court.  By  the impugned judgment conviction of the appellant for  offences punishable under Sections 354 and 448 of the  Indian Penal Code, 1860 (in short the ’IPC’) was upheld, but  the conviction for offence punishable under Section 306 IPC  was set aside.  However the sentence of three years  imprisonment for offence punishable under Section 354 IPC  which was imposed by the trial court was reduced to two  years.  The sentence of six months imprisonment and fine  for offences relatable to Section 448 IPC were maintained by  the High Court. 3.      Prosecution version in a nutshell is as follows: Shaik Khasim Bee (hereinafter referred to as the  ’deceased’) is daughter of Shaik Nagoor (PW5) and Shaik  Nazer Bee (PW 1).  Accused, Shaik Nagoor was at the  relevant point of time the tenant in their house at  Singhnagar, Vijayawada.  Accused as a tenant in a small  hut in the same compound of the house of PW 1.  It appears  that accused was soliciting the deceased for sexual  intercourse.  On 12.11.1999 around 1.00 pm. PW 1 and the  deceased went for Namaz and thereafter deceased returned  home while PW-1 was coming behind after talking to one  Kursheed begum for some time.  When the deceased came  home and went into middle portion of the house, which was  vacant for collecting dried clothes, accused allegedly came  behind, caught hold of her, and when she threatened him  saying that she would complain to her mother about the  acts of the accused, he in turn replied that he himself,  would complain to her mother saying that she herself called  him and thereby, would defame her and her family.  Feeling  disturbed and suffering from emotional turmoil, deceased  went into room, poured kerosene and set fire to herself.  On  receipt of intimation from the Hospital, police of Nunna  Rural Police Station, Vijayawada City, registered a case  against the accused in Crime No. 258 of 1999 for the  offences punishable under Sections 448, 354 and 306 IPC  and after investigation filed charge sheet and the same was

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taken on file in S.C. No. 181 of 2001. Accused pleaded  innocence and false implication.  4.      In order to further its version prosecution examined 12  witnesses and marked several documents.  The trial court  placed reliance on the dying declaration (Exh. P4 \026 P9)  recorded by the learned 7th Additional Senior Civil Judge,  City Civil Court, Hyderabad and the Head Constable  respectively on 12.11.1999.  The High Court found that  offence under Section 306 IPC as noted above was not made  out. However, concurred with the learned trial judge that  the offences punishable under Sections 354 and 448 IPC  were clearly made out.  Accordingly the impugned judgment  was passed. 5.      In support of the appeal, learned counsel for the  appellant submitted that the dying declarations should not  have been relied upon by the trial court and the High Court.   It was his case that considering the extent of burns  sustained by the deceased it was impossible on her part to  give any dying declaration. 6.      Learned counsel for the respondent on the other hand  supported the impugned judgment of the High Court. 7.      We see no reason to doubt the veracity of the dying  declarations especially since there is consistency between  them. We see no reason why the judicial officer should make a  false statement about the dying declaration.

8.      As observed by this Court in Narain Singh v. State of  Haryana   AIR vide para 7: (SCC p.   267, para 7)  "A dying declaration made by a person on the  verge of his death has a special sanctity as at  that solemn moment a person is most unlikely  to make any untrue statement. The shadow of  impending death is by itself guarantee of the  truth of the statement of the deceased  regarding the circumstances leading to his  death. But at the same time the dying  declaration like any other evidence has to be  tested on the touchstone of credibility to be  acceptable. It is more so, as the accused does  not get an opportunity of questioning veracity  of the statement by cross-examination. The  dying declaration if found reliable can form the  base of conviction."  

9.      In Babulal v. State of M.P. (2003 (12) SCC 490) this Court  observed vide in para 7 of the said decision as under: (SCC p.    494)  "A person who is facing imminent death, with  even a shadow of continuing in this world  practically non-existent, every motive of  falsehood is obliterated. The mind gets altered  by most powerful ethical reasons to speak only  the truth. Great solemnity and sanctity is  attached to the words of a dying person  because a person on the verge of death is not  likely to tell lies or to concoct a case so as to  implicate an innocent person. The maxim is ’a  man will not meet his Maker with a lie in his  mouth’ (nemo moriturus praesumitur mentiri).  Mathew Arnold said, ’truth sits on the lips of a  dying man’. The general principle on which the  species of evidence is admitted is that they are  declarations made in extremity, when the  party is at the point of death, and when every  hope of this world is gone, when every motive

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to falsehood is silenced and mind induced by  the most powerful consideration to speak the  truth; situation so solemn that law considers  the same as creating an obligation equal to  that which is imposed by a positive oath  administered in a court of justice."  

10.     In Ravi v. State of T.N. ((2004 (10) SCC 776) this Court  observed that: (SCC p.   777, para 3)  "If the truthfulness of the dying declaration  cannot be doubted, the same alone can form  the basis of conviction of an accused and the  same does not require any corroboration,  whatsoever, in law."  

11.     In Muthu Kutty v. State (2005 (9) SCC 113) vide para 15  this Court observed as under: (SCC pp.   120-21)  "15. 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 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 Paniben v. State of  Gujarat (1992 (2) SCC 474) : (SCC pp.   480-81,  paras 18-19)   (emphasis supplied)  (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 and  Ramawati Devi v. State of Bihar (1985 (1) SCC  552)  (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)   

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(iv) Where 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) (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.(1981Supp. 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 deceased was in a fit mental condition  to make the dying declaration look 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)    (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 statement  in the nature of dying declaration, one first in  point of time must be preferred. Of course, if  the plurality of 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)"

12.     So far as the practicability of the deceased giving dying  declaration is concerned it is significant that the learned  Additional Senior Civil Judge who has examined PW 7 and  the constable PW 10 have described in detail as to what the  deceased has stated to each one of them.  There was not  even any suggestion to either of the witnesses that the  deceased was not in a fit condition to give any statement as  claimed.  That being so, there is no substance in the plea of  learned counsel for the appellant that the deceased was not  in a physical condition to give a statement. 13.     The trial Court and the High Court have analysed the  evidence of these witnesses and the statements made in the  dying declaration referred to above to hold the accused  guilty.   14.     That being so, no interference is called for. The appeal  fails and is dismissed.