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Thursday, January 10, 2013

oral dying declaration of the deceased = Whether such a person receiving certain injuries would be in a position to speak or not has not been brought out any where in the evidence. In this backdrop, the testimonies of the witnesses who have deposed in respect of the oral dying declaration are to be scrutinized. -the wife, the father-in-law and the two other relatives have clearly stated that the deceased had informed them about the names of the assailants. Nothing worth has been elicited in the cross-examination. They have deposed in a categorical manner that by the time they arrived at the place of occurrence, the deceased was in a fit state of health to speak and make a statement and, in fact, he did make a statement as to who assaulted him. Nothing has been suggested to these witnesses about the condition of the deceased. As has been mentioned earlier, PW-4, the doctor, who had performed the post mortem, has not been cross- examined. In this backdrop, it can safely be concluded that the deceased was in a conscious state and in a position to speak. Thus, it is difficult to accept that the wife, the father-in-law and other close relatives would implicate the accused-appellants by attributing the oral dying declaration to the deceased. That apart, in the absence of any real discrepancy or material contradiction or omission and additionally non cross-examination of the doctor in this regard makes the dying declaration absolutely credible and the conviction based on the same really cannot be faulted. 21. Having said that the discrepancies which have been brought out are not material, we may address to the issue of delay in lodging of the F.I.R. It is perceptible from the evidence that the father-in-law of the deceased had gone to the police station and lodged the ezahar and, thereafter, an FIR was lodged. The learned trial Judge has analysed the said aspect in an extremely careful and cautious manner and on a closer scrutiny, we find that the analysis made by him is impeccable. 22. In view of our aforesaid analysis, we conclude and hold that the appeal is sans substratum and, accordingly, the same has to pave the path of dismissal which we direct.


IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL  APPEAL NO. 1037 OF 2008


Parbin Ali and Another                       ... Appellants

                                   Versus

State of Assam                                      ...Respondent






                               J U D G M E N T


Dipak Misra, J.



      The present appeal by special leave is directed against  the  judgment
of conviction and order of sentence passed by  the  Gauhati  High  Court  in
Criminal Appeal Nos. 52(J) of 1999 and 53(J) of 1999  whereby  the  Division
Bench of the High Court  gave  the  stamp  of  approval  to  the  conviction
recorded by the learned Additional Sessions Judge, Silchar in Sessions  Case
No. 28/96 under Section 302/34 of the Indian  Penal  Code  (for  short  “the
IPC”)  and  order  of  sentence   sentencing   the   accused-appellants   to
imprisonment for life and to pay a fine of Rs.500/-, in default,  to  suffer
further rigorous imprisonment for one month.  It may be mentioned here  that
the accused-appellants  (hereinafter  referred  to  as  “the  accused”)  had
preferred two separate appeals against  the  common  judgment  but  a  joint
appeal has been preferred from jail.

     2. The facts giving rise to this appeal are that on  17.7.1994,  about
        9.00 p.m., deceased, Sakat Ali, was found lying injured on the road
        side.  
Coming to know about the same, a  large  number  of  persons
        including the father-in-law of the deceased, his  wife  and  others
        came to the spot and at that juncture, the injured Sakat  Ali  told
        them that he was assaulted by the accused persons  along  with  one
        Asiquddin.  
He remained lying on  the  road  side  as  neither  the
        relatives nor his wife could arrange any  conveyance  for  carrying
        him to the hospital and, eventually, he succumbed to  the  injuries
        around 11.00 p.m.  
While he was on the road, his father-in-law went
        to the police station wherein an “ezahar” was recorded.  
After  the
        injured died, an FIR was lodged on 18.7.1994.
After  the  criminal
        law was set in motion, the accused were arrested, the dead body  of
        the deceased was sent for post mortem, statements of nine witnesses
        were recorded under Section 161 of the Code of  Criminal  Procedure
        and, eventually, after completing the  investigation,  the  charge-
        sheet was placed before the competent Court under Section 302/34 of
        the IPC  against  the  accused  persons.  
The  learned  magistrate
        dropped the case against Asiquddin as he had died by that time  and
        committed the matter to the Court of  Session  and  ultimately  the
        case was tried by the learned Additional Sessions Judge, Cachar  at
        Silchar.

     3. The accused abjured their guilt and  desired  to  face  the  trial.
        During the trial, the prosecution, in order to establish its  case,
        examined nine witnesses and brought on exhibit number of documents.
         After completion of the prosecution evidence, the accused  persons
        were examined under Section 313 CrPC.  They had not put  forth  any
        substantial plea except a bald denial and chose not to  adduce  any
        evidence.

     4. The learned trial judge, considering the entire  evidence,  placing
        reliance on the oral dying declaration of the deceased  and  taking
        note of the weapon used and the nature of the injury  caused,  came
        to hold that the prosecution had  been  able  to  substantiate  the
        charge beyond reasonable doubt and, accordingly, convicted them and
        imposed the sentence.

     5. In appeal, the High Court took note of the fact that there  was  no
        direct evidence to implicate the accused and the minor omissions or
        contradictions and discrepancies which had been highlighted by  the
        defence did not create any kind of dent in the prosecution version;
        that ample explanation had been offered by the prosecution for  not
        getting the dying declaration recorded as the deceased was lying on
        the road side and could not be taken to a hospital; and that  there
        was no reason to disbelieve the oral  dying  declaration,  and  the
        same  being  absolutely  credible,  the  judgment  and   conviction
        rendered  by  the  learned  trial  Judge  did   not   warrant   any
        interference.

     6. We have heard Mr. Mithlesh Kumar Singh,  learned  counsel  for  the
        accused-appellants, and Mr. Avijit Roy, learned  counsel  appearing
        for the respondent-State.

     7. Questioning the correctness of the conviction, it is urged  by  Mr.
        Singh, learned counsel for the appellants, that the  learned  trial
        Judge as well as the  High  Court  has  gravely  erred  in  placing
        reliance on the oral dying  declaration  as  it  does  not  inspire
        confidence, for it is highly unnatural that the wife and the father-
        in-law of the deceased coming  to  the  spot  could  not  take  the
        injured to any nearby hospital for treatment though  he  lived  for
        few hours after the assault.   That  apart,  submitted  Mr.  Singh,
        though the police station is quite nearby, yet there was  delay  in
        lodging the FIR which casts a doubt in the case of the  prosecution
        and, eventually, creates a concavity in the testimonies  of  PWs-1,
        2, 3, 5 and 6 who have testified about the oral dying declaration.

     8. Mr. Avijit Roy, learned counsel appearing for  the  State,  on  the
        contrary, contended that the material on  record  do  clearly  show
        that the father-in-law had rushed to the police station and  lodged
        the “ezahar” which was registered and after the death, an  FIR  was
        registered under Section 302/34 of I.P.C. and, hence, the  plea  of
        delay in lodging the FIR has no legs to stand upon.
It is urged by
        him that 
by the time the witnesses arrived on  the  scene,  he  was
        conscious but despite the best efforts,  the  relatives  could  not
        arrange a conveyance to remove  the  deceased  to  a  hospital  for
        treatment and there is no justification to discard the said version
        in the absence of any kind of contradiction or discrepancy in their
        evidence.  The learned counsel for the State would emphatically put
        forth that the present case is one  where  the  courts  below  have
        justifiably given credence to the  oral  dying  declaration  as  it
        inspires unimpeachable and unreproachable confidence.

     9. Before we proceed to dwell upon the issue of acceptability of  oral
        dying declaration in the case at hand, it is apposite to  refer  to
        the post mortem report which has been  proven  by  PW-4,  Dr.  K.K.
        Chakraborty, who has  stated  the  injuries  on  the  body  of  the
        deceased that has caused the death.  They are as follows: -

           “Injuries:

              1) Bandage of right elbow joint remove and found a cut  injury
                 on right elbow medialy  and  along  with  crease  of  elbow
                 measuring 4 c.m. x 2 c.m. x 1 c.m.  with  cut  in  muscles,
                 margins of the wound regular.

              2) Cut injury along the 11th Thorax vertebrae on left  side  1
                 c.m. away from the mid line measuring 3 c.m. x 1 c.m.  x  1
                 c.m. margins of the wound regular.

              3) Cut injury on back side 5 c.m. above the iliac creast and 6
                 c.m. lateral to the 3rd lumber vertebrae with  prolapse  of
                 intestine through the wound measuring 6 c.m.  x  2  c.m.  x
                 abdominal cavity deep.  Margins of the wounds  are  regular
                 and inverted.

              4) Cut injury in front of the abdominal wall ½ c.m. below  the
                 neivous 1 c.m. away from the mid line to right side through
                 which intestine prolapsed.  Measuring 3 c.m.  x  2  c.m.  x
                 abdominal cavity deep.  Margins are inverted and regular.

                 All the injuries are fresh and antemortem caused  by  sharp
                 pointed weapon.

                 THORAX      -    All healthy.

                 ABDOMEN – Peritoneal cavity contain about  2  ½  litrs.  of
                 liquid  and  clotted  blood.  Stomach  congested.    Mouth,
                 pharynx, ocsophagus  healthy.   Cut  injury  in  the  small
                 intestine n the three parts  are  present.   Liver,  splin,
                 kidneys are all healthy.  Scalp, skull, vertebrae membrane,
                 brain – all healthy.

                 MUSCLES, BONES & JOINTS :

                       Muscles injury as described.  Fracture –  not  found.
                 Fresh no abnormality found.”

    10.  The final opinion of the doctor is that the death was  caused  due
        to shock and haemorrhage as a result of the ante mortem injuries in
        the abdomen caused by sharp weapon and homicidal  in  nature.   The
        said opinion was not challenged either before the  trial  Judge  or
        before the High Court.  We may fruitfully note here that  the  said
        witness has not been at all cross-examined.
Whether such a  person
        receiving certain injuries would be in a position to speak  or  not has not been brought out  any  where  in  the  evidence.  
 In  this
        backdrop, the testimonies of the  witnesses  who  have  deposed  in respect of the oral dying declaration are to be scrutinized.

    11. PW-1, Mooti Mia, a relative,  PW-2,  Sarifun  Meesa,  wife  of  the
        deceased, PW-3, Mohd. Abdul Wajid Ali, and  PW-5,  Aftaruddin,  the
        father-in-law of the deceased, have deposed that the  deceased  had
        named three accused persons as assailants.  PW-6, Arafan  Ali,  who
        came later to the place of occurrence, had found that the  deceased
        was not in a position to speak.  PW-8, Faizuluddin, did not support
        the prosecution case in entirety.  Thus, the real witnesses to  the
        oral dying declaration are  PWs-1,  2,  3  and  5  and  hence,  the
        veracity of their version is required to be scrutinised.

    12. Before we proceed to scrutinize the legal acceptability of the oral
        dying declaration, we think it seemly to refer to certain decisions
        in regard to the admissibility and evidentiary  value  of  a  dying
        declaration.  In Khushal Rao v. State of Bombay[1], Kusa  v.  State
        of Orissa[2] and in Meesala Ramakrishan v. State of A.P.[3], it has
        been held that the law is well settled that the conviction  can  be
        founded solely on the  basis  of  dying  declaration  if  the  same
        inspires full confidence.

    13. In Ranjit Singh v. State of Punjab[4], it has been  held  that  the
        conviction can be recorded on the basis of dying declaration alone,
        if the same is wholly reliable, but in the event there  exists  any
        suspicion as regards the correctness or otherwise of the said dying
        declaration, the courts, in arriving at the judgment of conviction,
        shall look for some corroborating evidence.  In  this  context,  we
        may also notice the judgment in Nanhau  Ram  v.  State  of  M.P.[5]
        wherein it has been stated that 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.

    14. While dealing with  the  evidence  of  the  declarant’s  mind,  the
        Constitution Bench, in Laxman v. State of Maharashtra[6], has  laid
        down thus: -

           “3. The juristic  theory  regarding  acceptability  of  a  dying
           declaration is that such declaration is 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 man is induced by the most powerful consideration  to  speak
           only the truth. Notwithstanding the same, great caution must  be
           exercised in considering the weight to be given to this  species
           of evidence on account of the existence  of  many  circumstances
           which may affect their truth. The situation in which a man is on
           the deathbed is so solemn and serene, is the reason  in  law  to
           accept the veracity of his statement. It is for this reason  the
           requirements of oath and cross-examination are  dispensed  with.
           Since the accused has no power of cross-examination, the  courts
           insist that the dying declaration should be of such a nature  as
           to inspire full confidence of the court in its truthfulness  and
           correctness. The court, however, has always to be  on  guard  to
           see that the statement of the deceased was not as  a  result  of
           either tutoring or prompting or a product  of  imagination.  The
           court also must further decide that the deceased was  in  a  fit
           state of mind and had the opportunity to  observe  and  identify
           the assailant.  Normally,  therefore,  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 eyewitnesses state that the deceased was in a fit  and
           conscious state to make the  declaration,  the  medical  opinion
           will not prevail, nor can it be said  that  since  there  is  no
           certification of the doctor as to the fitness of the mind of the
           declarant, the dying declaration  is  not  acceptable.  A  dying
           declaration can be oral or in writing and any adequate method of
           communication whether by words or by  signs  or  otherwise  will
           suffice provided the indication is positive and definite.”



15.   In this context, it will be useful to refer to the decision  in  Puran
Chand v. State of Haryana[7] wherein it has been stated  that  a  mechanical
approach in relying upon a dying declaration just because  it  is  there  is
extremely dangerous and it is the duty of  the  court  to  examine  a  dying
declaration scrupulously with a microscopic eye  to  find  out  whether  the
dying declaration is voluntary, truthful, made in a conscious state of  mind
and  without  being  influenced  by  the  relatives  present   or   by   the
investigating agency who may be interested in the success  of  investigation
or which may be negligent while recording the dying declaration.  The  Court
further opined that the law is now well settled  that  a  dying  declaration
which has been found to be voluntary and truthful and  which  is  free  from
any doubts can be the sole basis for convicting the accused.

  16. Regard being had to the  aforesaid  principles,  we  shall  presently
      advert how to weigh the veracity of an oral  dying  declaration.   As
      has been laid down in Laxman (supra) by  the  Constitution  Bench,  a
      dying  declaration  can  be  oral.   The  said  principle  has   been
      reiterated by the Constitution Bench.  Here we may refer  to  a  two-
      Judge Bench decision in  Prakash  and  another  v.  State  of  Madhya
      Pradesh[8] wherein it has been held as follows: -

           “In the ordinary course, the members of the family including the
           father were  expected  to  ask  the  victim  the  names  of  the
           assailants at the first opportunity and if the victim was  in  a
           position to communicate, it is reasonably expected that he would
           give the names of  the  assailants  if  he  had  recognised  the
           assailants. In the instance case there is no  occasion  to  hold
           that the  deceased  was  not  in  a  position  to  identify  the
           assailants because it is nobody's case that the deceased did not
           know the accused persons. It is therefore quite likely  that  on
           being asked the deceased would name the assailants. In the facts
           and circumstances of the case the High Court  has  accepted  the
           dying declaration and we do not think that  such  a  finding  is
           perverse and requires to be interfered with.”

  17. It is worthy to note that in the aforesaid case this Court  had  laid
      down that when it is not borne out from the evidence  of  the  doctor
      that the injuries were so grave and the condition of the patient  was
      so critical that it  was  unlikely  that  he  could  make  any  dying
      declaration, there was no justification or  warrant  to  discard  the
      credibility of such a dying declaration.

  18. In Darshana Devi v. State of Punjab[9], this Court  referred  to  the
      evidence of the doctor who had stated that  the  deceased  was  semi-
      conscious, his pulse was not palpable and his blood pressure was  not
      recordable and had certified that he was not in a  fit  condition  to
      make a statement after the police had arrived  at  the  hospital  and
      expressed the view that the deceased could  not  have  made  an  oral
      statement that he had been burnt by his  wife.   Thus,  emphasis  was
      laid on the physical and mental condition of  the  deceased  and  the
      veracity of the testimony of the witnesses who depose as regards  the
      oral dying declaration.

  19. In Pothakamuri Srinivasulu alias Mooga Subbaiah v. State of A.P.[10],
      this Court, while dealing with the  issue  whether  reliance  on  the
      dying declaration made by the deceased to  PWs-1,  2  and  3  therein
      could be believed, observed thus: -

           “7. We find no reason to disbelieve the dying  declaration  made
           by the deceased to the witnesses PWs 1, 2 and 3.  They  are  all
           residents of the same village and are natural witnesses  to  the
           dying declaration made by the deceased. No reason  is  assigned,
           nor even suggested to any of the three witnesses, as to  why  at
           all any of them would tell a lie and attribute falsely  a  dying
           declaration to the deceased implicating  the  accused-appellant.
           Though each of the three witnesses has been  cross-examined  but
           there is nothing brought out in their statements to shake  their
           veracity.”



      We may also note with profit that the Court did not  accept  that  the
injured could not have been in a conscious state on the ground that no  such
suggestion had been made to any of the witnesses including  the  doctor  who
conducted the post mortem examination of the deceased.

  20. Coming to the case at hand, the wife, the father-in-law and  the  two
      other relatives have clearly stated that the  deceased  had  informed
      them about the names of  the  assailants.   Nothing  worth  has  been
      elicited  in  the  cross-examination.   
They  have   deposed   in   a
      categorical manner that by the time they  arrived  at  the  place  of
      occurrence, the deceased was in a fit state of health  to  speak  and
      make a statement and, in fact, he did make  a  statement  as  to  who
      assaulted him.
Nothing has been suggested to these  witnesses  about
      the condition of the deceased.
As has been mentioned earlier,  PW-4,
      the doctor, who had performed the post mortem, has  not  been  cross- examined.  In this backdrop, it can  safely  be  concluded  that  the deceased was in a conscious state and in a position to speak.   Thus,
      it is difficult to accept that the wife, the father-in-law and  other
      close relatives would implicate the accused-appellants by attributing
      the oral dying declaration to  the  deceased.   That  apart,  in  the
      absence of any real discrepancy or material contradiction or omission
      and additionally non cross-examination of the doctor in  this  regard
      makes the dying declaration absolutely credible  and  the  conviction
      based on the same really cannot be faulted.

  21. Having said that the discrepancies which have been  brought  out  are
      not material, we may address to the issue of delay in lodging of  the
      F.I.R.  It is perceptible from the evidence that the father-in-law of
      the deceased had gone to the police station  and  lodged  the  ezahar
      and, thereafter, an FIR was lodged.   The  learned  trial  Judge  has
      analysed the said aspect in an extremely careful and cautious  manner
      and on a closer scrutiny, we find that the analysis made  by  him  is
      impeccable.

  22. In view of our aforesaid analysis, we  conclude  and  hold  that  the
      appeal is sans substratum and, accordingly, the same has to pave  the
      path of dismissal which we direct.


                                                             ……………………………….J.
                            [K. S. Radhakrishnan]



                                                             ……………………………….J.
                                                     [Dipak Misra]

New Delhi;
January 07, 2013
-----------------------
[1] AIR 1958 SC 22
[2] AIR 1980 SC 559
[3] (1994) 4 SCC 182
[4] (2006) 13 SCC 130
[5] 1988 Supp SCC 152
[6] (2002) 6 SCC 710
[7] (2010) 6 SCC 566
[8] (1992) 4 SCC 225
[9] 1995 Supp (4) SCC 126
[10] (2002) 6 SCC 399

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