REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.       168     OF 2009 (Arising out of SLP (Crl.) No. 8054 of 2007)

Varikuppal Srinivas ..Appellant

Versus

State of A.P. .. 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 the Andhra Pradesh

High  Court  upholding  the  conviction  of  the  appellant  for  offences

punishable under Sections 498A and 304B of the Indian Penal Code, 1860

(in short the ‘IPC’).  Learned 4th Additional Metropolitan Sessions Judge,

Hyderabad had convicted both the accused persons for offences punishable

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under  Sections  498A  and  304B   IPC  and  sentenced  each  to  undergo

rigorous imprisonment for one year and seven years respectively and to pay

a fine of Rs.200/- with default stipulation. In appeal, A2 was acquitted by

the High Court.

3. Prosecution version in a nutshell is as follows:

A1  the  present  appellant  is  the  son  of  A2  who  married  Manjula

(hereinafter referred to as the ‘deceased’) the daughter of PWs.1 & 2 about

six years prior to the date of incident.  Sub Inspector of Police (PW9) of

Osmania  University  Police  Station  received  a  message  at  6.45  P.M.  on

8.2.1999 from Gandhi Hospital stating that one Manjula was admitted in the

hospital allegedly having consumed unknown acid at her residence on the

said date.  He entered the same in G.D., went to the hospital and found that

the deceased was unable to speak due to acid burns in her throat. All his

visits  on subsequent  dates proved futile. Therefore, he deputed Constable

(P.W.3) on 13-2-1999 to the hospital. Accordingly, he went to the hospital

at  11  A.M.  and  recorded  her  statement-Ex.P2  and  handed  over  the  said

statement to P.W.9. On the basis of the said statement P.W.9 registered a

case in Cr.No.34 of 1999 under Sections 498-A and 307 IPC and issued

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FIR-Ex.P12 to all concerned. He visited the Gandhi Hospital and recorded

statement under Section 161 of the Code of Criminal Procedure, 1973 (in

short  the  ‘Code’)  of  the  deceased  under  Ex.P13.  He  further  examined

P.Ws.1, 2 and others, visited the scene of offence, which is the house of the

deceased  at  Manikanteswar  Nagar,  but  did  not  find  any  incriminating

material  at  the scene of offence and examined the neighbours.  He sent a

requisition-Ex.P3 to  P.W.4-XXII Metropolitan  Magistrate,  Hyderabad for

recording the dying declaration of the deceased. On receipt of requisition

the  Magistrate  visited  the  hospital  at  7.20  P.M.  and  after  obtaining

endorsement of the doctor that patient was conscious and coherent and also

after putting some preliminary questions he recorded the dying declaration-

(Ex.P4).  Thereafter,  P.W.9 arrested  the  accused  on 23-03-1999  and  sent

them to court, subsequently on 13-04-1999 on the instructions of Assistant

Commissioner  of  Police  he  along  with  P.Ws.8  and  7  proceeded  to

Golanukonda village and exhumed the dead body of the deceased PW 7, the

M.R.O. conducted inquest over the dead body of the deceased and Professor

(PW 8), Forensic Medicine, Kakatiya Medical College, Waranga conducted

postmortem examination. After completion of investigation police laid the

charge sheet for the offence as aforementioned.

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On committal,  charges were framed against  the accused;  read over

and explained to them in Telugu and they pleaded not guilty.

The prosecution in order- to prove its  case examined P.Ws.1 to 13

and  marked  Exs.P1  to  P16.  No  oral  or  documentary  evidence  has  been

adduced on defense side.

The learned Sessions Judge after evaluating the evidence on record

found the accused guilty and convicted for the offence, as aforementioned.

The trial court relied primarily on the statement made before the Head

Constable  (PW3).   The  statement  recorded  by  him  is  Exh.P2.  The

Magistrate (PW 4) recorded the dying declaration. Placing reliance on the

evidence  more  particularly  on  the  dying  declaration,  the  conviction  was

recorded.

In appeal, the primary stand was that the evidence was insufficient to

convict A2 and that the dying declaration should not have been acted upon.

The  High  Court  found  substance  in  the  plea  that  the  evidence  was  not

sufficient to convict A2, but found the evidence to be sufficient so far as A1

i.e. present appellant is concerned.

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4. Learned counsel for the appellant submitted that the evidence of the

magistrate  (PW  4)  should  not  have  been  accepted  so  far  as  the  dying

declaration  is  concerned.  The  medical  evidence  does  not  show  that  the

victim was in a position to give any statement.

5. In response,  learned  counsel  for  the  respondent  submitted  that  the

statements made by the deceased that is Exhs.P2, P4 and P13 are consistent

with  regard  to  the A1 pouring  acid  in  the  mouth  of  the  deceased  which

resulted in her death.

6. The  deceased  breathed  her  last  on  9.4.1999.   The  dead  body was

exhumed on 13.4.1999.

7. 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

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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.  

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 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

plurality of dying declarations could be held to be trustworthy and reliable,

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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).    

9. In  the  background  of  the  principles  set  out  above,  the  inevitable

conclusion is that the trial court and the High Court have rightly convicted

the appellant for offence punishable under Sections 498A and 304B IPC.  

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

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

……………………………………J. (ASOK KUMAR GANGULY)

New Delhi, January 28, 2009

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