Sasikumar vs State Of Tamil Nadu

Sasikumar ....Appellant

Versus

The State of Tamil Nadu ....Respondent JUDGMENT

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

2 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

7 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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