P.V. Radhakrishna vs State Of Karnataka

Accused-appellant allegedly committed uxoricide was

found guilty of offence punishable under Section 302 Indian

Penal Code, 1860 (for short 'IPC'); and sentenced to undergo

imprisonment for life and a fine of Rs.1,000/- with default

stipulation of one month imprisonment by 22nd Additional

City Civil and Sessions Judge, Bangalore. The appeal before

the High Court of Karnataka having yielded no success, this

appeal has been filed.

Accusations which led to trial of the accused-appellant

in essence are as follows:

On 7.2.1993 Smt. Dharni (hereinafter referred to as

'the deceased') was in the house with the accused-appellant

when they quarrelled over certain domestic differences, and

the accused poured kerosene and set her on fire. On hearing

her screams and seeing smoke coming out of the room, their

landlord V.N. Guptha (PW1) rushed to the spot. He did not

find the accused there; but was told by the deceased that

the accused had poured kerosene and set her on fire and run

away. On receiving of information about the incident

Srinivasa Murthy, ASI, (PW6) arrived at the spot along with

Sivanna (PW4) Police constable. The deceased was taken to

the Victoria Hospital for treatment. At the hospital PW6

recorded statement of the deceased in the presence of Dr. M.

Narayana Reddy (PW7). This was treated as FIR. After

registering the case, investigation was started. In the

hospital the deceased breathed her last while undergoing

treatment on 8.2.1993 at about 10.25 p.m.

Dr. Thirunavukkarasu (PW3) conducted the post-mortem

and found that the deceased had sustained about 80 to 85%

ante-mortem burns. On completion of investigation, charge

sheet was placed. Learned Trial Judge on consideration of

the evidence on record found the accused guilty, as afore-

mentioned, and convicted and sentenced him.

Reliance was placed on the dying declaration which was

recorded by PW6 in the presence of PW7 and was marked as

Exhibit P-7. In appeal before the High Court, the accused-

appellant contended that the so-called dying declaration was

not credible and acceptable. But the High Court did not

find any substance in the plea, and dismissed the appeal by

the impugned judgment.

Learned counsel appearing for the accused-appellant

submitted that the so-called dying declaration (Exhibit P-7)

cannot by any stretch of imagination be considered to be a

dying declaration in the sense it is understood in law. The

same was recorded by PW6, a police official. Though there

was ample time, as the factual scenario shows, no effort was

made to secure the presence of a magistrate if really a

dying declaration was to be recorded. Furthermore PW7 has

himself stated that the deceased had suffered 100% burns. It

is highly improbable that the deceased was in a fit state of

health and mind to give the dying declaration. There is no

mention in the document treated as dying declaration that

the deceased was in fit state of mind to give the statement.

PW6 stated that attempt was made to get permission from the

Chief Medical Officer. There is no material to substantiate

the claim. On the contrary PW7 stated that though there was

no requisition, being the doctor at the spot he had given

the permission to record the dying declaration on request by

PW6.

The post-mortem report stated that the burns suffered

were second and third degree burns and with those types of

burns it is unlikely that the condition of the deceased

permitted making of a statement and putting of signature.

On the basis of uncorroborated dying declaration, conviction

should not have been made.

Strong reliance was placed on Munnu Raja and Anr. v.

The State of Madhya Pradesh (1976 (3) SCC 104), Laxmi

(Smt.) v. Om Prakash and Ors. (2001 (6) SCC 118) and Chacko

v. State of Kerala (2003 (1) SCC 113) to contend that

evidence recorded by a police official as dying declaration

is of no probative value.

Further, it was contended that conviction is

impermissible solely on the basis of dying declaration.

By way of reply, learned counsel for the State

submitted that dying declaration can be the sole basis for

conviction if it is found to be credible and cogent. There

is no hard and fast rule that the dying declaration should

be recorded by a magistrate only. As a rule of caution it

has been said that it would be advisable to have the

statement recorded by a magistrate. There is nothing

irregular or illegal if a police officer records a dying

declaration.

At this juncture, it is relevant to take note of

Section 32 of the Indian Evidence Act, 1872 (in short

'Evidence Act') which deals with cases in which statement of

relevant fact by person who is dead or cannot be found, etc.

is relevant. The general rule is that all oral evidence must

be direct viz., if it refers to a fact which could be seen

it must be the evidence of the witness who says he saw it,

if it refers to a fact which could be heard, it must be the

evidence of the witness who says he heard it, if it refers

to a fact which could be perceived by any other sense, it

must be the evidence of the witness who says he perceived it

by that sense. Similar is the case with opinion. These

aspects are elaborated in Section 60. The eight clauses of

Section 32 are exceptions to the general rule against

hearsay just stated. Clause (1) of Section 32 makes relevant

what is generally described as dying declaration, though

such an expression has not been used in any Statute. It

essentially means statements made by a person as to the

cause of his death or as to the circumstances of the

transaction resulting in his death. The grounds of admission

are: firstly, necessity for the victim being generally the

only principal eye-witness to the crime, the exclusion of

the statement might deflect the ends of justice; and

secondly, the sense of impending death, which creates a

sanction equal to the obligation of an oath. The general

principle on which this 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 to falsehood is silenced, and the

mind is induced by the most powerful considerations to speak

the truth; a situation so solemn and so lawful is considered

by the law as creating an obligation equal to that which is

imposed by a positive oath administered in a Court of

justice. These aspects have been eloquently stated by Lyre

LCR in R. v. Wood Cock (1789) 1 Leach 500. Shakespeare makes

the wounded Melun, finding himself disbelieved while

announcing the intended treachery of the Dauphin Lewis

explain:

"Have I met hideous

death within my view,

Retaining but a quantity of life,

Which bleeds away,

Even as a form of wax,

Resolveth from his figure,

Against the fire?

What is the world should

Make me now deceive,

Since I must lose the use of all deceit?

Why should I then be false,

Since it is true

That I must die here,

Live hence by truth?"

(See King John, Act 5, Sect.4)

The principle on which dying declaration is admitted in

evidence is indicated in legal maxim "nemo moriturus

proesumitur mentiri – a man will not meet his maker with a

lie in his mouth."

This is a case where the basis of conviction of the

accused is the dying declaration. The situation in which a

person is on 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 veracity of his statement. It is for

this reason 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.

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 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):

(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 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)]

(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

deceased was in a fit mental condition to make the dying

declaration look 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 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 (AIR 1982 SC 839)]

In the light of the above principles, the acceptability

of 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 basis of conviction, even

if there is no corroboration. [See Gangotri Singh v. State

of U.P.{JT 1992 (2)SC 417), Goverdhan Raoji Ghyare v. State

of Maharashtra (JT 1993 (5) SC 87), Meesala Ramakrishan v.

State of Andhra Pradesh (JT 1994 (3) SC 232) and State of

Rajasthan v. Kishore (JT 1996 (2) SC 595)]

There is no material to show that dying declaration was

result of 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. It was observed by a Constitution Bench of this Court

in Laxman v. State of Maharashtra (2002(6) SCC 710) that

where the medical certificate indicated that the patient was

conscious, it would not be correct to say that there was no

certification as to state of mind of declarant. Moreover,

state of mind was proved by testimony of the doctor who was

present when the dying declaration was recorded. In the

aforesaid background it cannot be said that there was any

infirmity. Further if the person recording the dying

declaration is satisfied that the declarant is in a fit

medical condition to make a dying declaration then such

dying declaration will not be invalid solely on the ground

that is not certified by the doctor as to the condition of

the declarant to make the dying declaration. [See Rambai v.

State of Chhattisgarh (2002 (8) SCC 83)].

The residuary question whether the percentage of burns

suffered is determinative factor to affect the credibility

of the dying declaration and the improbability of its

recording. There is no hard and fast rule of universal

application in this regard. Much would depend upon the

nature of the burn, part of the body affected by the burn,

impact of the burn on the faculties to think and convey the

idea or facts coming to mind and other relevant factors.

Percentage of burns alone would not determine the

probability or otherwise of making dying declaration. As

noted in Rambai's case (supra) physical state or injuries on

the declarant do not by themselves become determinative of

mental fitness of the declarant to make the statement.

On the facts of the present case the Trial Court and

the High Court were justified in placing reliance on the

dying declaration for the purpose of convicting the accused-

appellant. We find no infirmity to warrant interference in

this appeal, which is accordingly dismissed.