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
