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Supreme Court, Criminal Appellate jurisdiction of--Certif- icate of fitness, if can be granted by High Court on a question of fact Dying declaration evidiantry value of-If must be corroborated in order to sustain conviction-Consti- tution of India, Art. 134(1)(c)- Indian Evidence Act (.1 of 1872), s. 32(1).= HEADNOTE: The Supreme Court does not ordinarily function as a Court of criminal appeal, and it is not competent for a High Court under Art. 134(1)(c) of the Constitution to grant a certifi- cate of fitness for appeal to this Court on a ground which is essentially one of fact. Haripada Dey v. The -State of West Bengal" - (1956) S.C.R. 639, followed. There is no absolute rule of law, not even a rule of pru- dence that has- ripened -into a: rule of law- that a dying declaration in order-that it may sustain an order of convic- tion must be corroborated by, other independent evidence. The observations made by this Court in Madhoprasad v. The State of Madhya Pradesh are in the nature of obiter dicta and do not lay down the law. Madhoprasad v. The State of Madhya Pradesh, A.I.R. (1953) S.C. 420, considered. In re Guruswami Tevar, I.L.R. (1940) Mad. I58, approved. Case-law reviewed.The provision of s. 32(I) of the Indian Evidence Act " which makes the statement in a dying declaration as to the cause of death and the circumstances that brought it about rele- vant, is an exception to the general rule of exclusion of hearsay evidence and evidence untested by cross-examination. The special sanctity which the Legislature attaches to such a declaration must be respected unless such declaration can be shown not to have been made in expectation of death or to be otherwise unreliable and any evidence adduced for this purpose can only detract from its value but not affect its admissibility. Although a dying declaration has to be very closely scruti-nised, and tested as any other piece of evidence, once the Court comes to the conclusion, in any particular case, that it is true, no question of corroboration arises. A dying declaration cannot be placed in the same category as the evidence of an accomplice or a confession. Consequently, in a case where the trial judge as also the High Court founded their orders of conviction of an accused person under S. 302 Of the Indian Penal Code mainly on three dying declarations made by the murdered person in quick succession one after the other, and the High Court, relying on a decision of this Court, sought for corroboration of such dying declarations in the fact that the accused person had absconded and was arrested in suspicious circumstances, but was in doubt as to the sufficiency of such evidence of corroboration and granted the certificate of fitness under= Held, that the certificate granted by the High Court was incompetent and as the case disclosed no grounds on which this Court could possibly grant special leave to appeal under Art. 136 of the Constitution, the appeal must be dismissed.

reported in/ published in judis.nic.in/supremecourt/filename=609
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 12
PETITIONER:
KUSHAL RAO
 Vs.
RESPONDENT:
THE STATE OF BOMBAY
DATE OF JUDGMENT:
25/09/1957
BENCH:
SINHA, BHUVNESHWAR P.
BENCH:
SINHA, BHUVNESHWAR P.
MENON, P. GOVINDA
KAPUR, J.L.
CITATION:
 1958 AIR 22 1958 SCR 552
ACT:
 Supreme Court, Criminal Appellate jurisdiction of--Certif-
 icate of fitness, if can be granted by High Court on a
 question of fact Dying declaration evidiantry value of-If
 must be corroborated in order to sustain conviction-Consti-
 tution of India, Art. 134(1)(c)- Indian Evidence Act (.1 of
 1872), s. 32(1).
HEADNOTE:
 The Supreme Court does not ordinarily function as a Court of
 criminal appeal, and it is not competent for a High Court
 under Art. 134(1)(c) of the Constitution to grant a certifi-
 cate of fitness for appeal to this Court on a ground which
 is essentially one of fact.
 Haripada Dey v. The -State of West Bengal" - (1956) S.C.R.
 639, followed.
 There is no absolute rule of law, not even a rule of pru-
 dence that has- ripened -into a: rule of law- that a dying
 declaration in order-that it may sustain an order of convic-
 tion must be corroborated by, other independent evidence.
 The observations made
 553
 by this Court in Madhoprasad v. The State of Madhya Pradesh
 are in the nature of obiter dicta and do not lay down the
 law.
 Madhoprasad v. The State of Madhya Pradesh, A.I.R. (1953)
 S.C. 420, considered.
 In re Guruswami Tevar, I.L.R. (1940) Mad. I58, approved.
 Case-law reviewed.
 The provision of s. 32(I) of the Indian Evidence Act " which
 makes the statement in a dying declaration as to the cause
 of death and the circumstances that brought it about rele-
 vant, is an exception to the general rule of exclusion of
 hearsay evidence and evidence untested by cross-examination.
 The special sanctity which the Legislature attaches to such
 a declaration must be respected unless such declaration can
 be shown not to have been made in expectation of death or to
 be otherwise unreliable and any evidence adduced for this
 purpose can only detract from its value but not affect its
 admissibility.
 Although a dying declaration has to be very closely scruti-
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 12
 nised, and tested as any other piece of evidence, once the
 Court comes to the conclusion, in any particular case, that
 it is true, no question of corroboration arises.
 A dying declaration cannot be placed in the same category as
 the evidence of an accomplice or a confession.
 Consequently, in a case where the trial judge as also the
 High Court founded their orders of conviction of an accused
 person under S. 302 Of the Indian Penal Code mainly on three
 dying declarations made by the murdered person in quick
 succession one after the other, and the High Court, relying
 on a decision of this Court, sought for corroboration of
 such dying declarations in the fact that the accused person
 had absconded and was arrested in suspicious circumstances,
 but was in doubt as to the sufficiency of such evidence of
 corroboration and granted the certificate of fitness under
 Art. I34(I)(c):
 Held, that the certificate granted by the High Court was
 incompetent and as the case disclosed no grounds on which
 this Court could possibly grant special leave to appeal
 under Art. 136 of the Constitution, the appeal must be
 dismissed.
JUDGMENT:
 CRIMINAL APPELLATE JURISDICTION: criminal Appeal No. 184 of
 1956.
 Appeal.. from the judgment and order dated October 15, 1956,
 of the former Nagpur High Court in Criminal Appeal No. 205
 of 1956 and Criminal Reference No. 15 of 1956, arising out
 of the judgment and order dated July 10, 1956, of the First
 Additional District Judge, Nagpur in Sessions Trial No. 34
 of 1956.
 554
 J. N. Banerjee and P. C. Agarwala, for the appellant.
 Jindra Lal and R.H.Dhebdr, for the respondent.
 1957. September 25. The following Judgment of the Court
 was delivered by
 SINHA J.-This appeal on a certificate of fitness under Art.
 134(1)(c), granted by the High Court at Nagpur (as it then
 was), is directed against the concurrent judgment and orders
 of the courts below, so far as the appellant Khushal is
 concerned, convicting and sentencing him to death under s.
 302, Indian Penal Code, for the pre-meditated murder of
 Baboolal on the night of February 12, 1956, in one of the
 quarters of the city of Nagpur.
 It appears that there are two rival factions in what has
 been called the Mill area in Nagpur. The appellant and
 Tukaram who has been acquitted by the High Court, are the
 leaders of one of the factions, and Ramgopal, P.W. 4, Inaya-
 tullah, P.W. 1, and Tantu, P.W. 5, are said to be the lead-
 ers of the opposite faction. Before the time and date of
 the occurrence, there had been a number of incidents between
 the two rival factions in respect of some of which Inayatul-
 lah and Tantu aforesaid had been prosecuted. Even on the
 date of the occurrence, apart from the one leading to the
 murder of Baboolal, which is the subject-matter of the
 present appeal, Tantu and Inayatullah had made two separate
 reports about the attacks on them by Khushal’s party. There
 was another report lodged by Sampat-one of the four persons
 placed on trial along with the appellant, for the murder of
 Baboolal. That report was lodged at Ganeshpeth police
 station at about 9.30 p.m. on the same date-February 12,
 1956-against Inayatullah alias Kalia and Tantu, that they
 had attacked the former with sharp-edged weapons (Ex. P-http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 12
 26). The prosecution case is that the appellant Khushal was
 on bad terms with Baboolal who was on very friendly terms
 with the leaders of the opposite faction aforesaid. Being
 infuriated by the conduct of Baboolal in associating with
 the enemies of the party of the accused, Sampat, Mahadeo,
 Khushal and Tukaram
 555
 suddenly attacked Baboolal with swords and spears and in-
 flicted injuries on different parts of his body. The occur-
 rence took place in a narrow lane of Nagpur at about 9 p.m.
 Baboolal was taken by his father and other persons to the
 Mayo hospital where he reached at about 925 p.m. The doctor
 in attendance Dr. Kanikdale (P.W. 14) at once questioned him
 about the incident and Baboolat is said to have made a
 statement to the doctor which the latter noted in the bed-
 head ticket (Ex. P-17) that he had been assaulted by Khu-
 shal and Tukaram with swords and spears. After noting the
 statement aforesaid, of Baboolal, the doctor telephoned to
 the Ganeshpeth police station where the information was
 noted at 9.45 p.m. On receiving the information, Sub-Inspec-
 tor A. K. Khan recorded ’Ex. P-1) and registered an offence
 under s. 307, Indian Penal Code, and immediately went to the
 Mayo hospital along with a head-constable and several con-
 stables. He found Baboolal in a serious condition and
 suspecting that he might not survive and apprebending that
 it might take time for the magistrate to be informed and to
 be at the spot, to record the dying declaration, he consult-
 ed Dr. Ingle, the attending doctor, whether Baboolal was in
 a fit condition to make a statement. The doctor advised him
 to have the dying declaration recorded by a magistrate. The
 Sub-Inspector decided that it would be more advisable for
 him to record the dying declaration without any delay.
 Hence, he actually recorded Baboolal’s statement in answer
 to the questions put by him (Ex. P-2) at 10-15 p.m. In the
 meantime, Shri M. S. Khetkar, a magistrate, first class, was
 called in, and he recorded the dying declaration (Ex. P-16)
 between 11-15 and 11-35 p.m. in the presence of Dr. Ingle
 who certified that he had examined Baboolal and had found
 him mentally in a fit condition to make his dying declara-
 tion. Besides these three dying declarations recorded in
 quick succession, as aforesaid, by responsible public serv-
 ants, Baboolal is said to have made oral statements to a
 number of persons, which it is not necessary to set out
 because the High Court has not acted upon those oral dying
 declarations. We
 71
 556
 shall have to advert, later, to the recorded dying declara-
 tions in some detail, in the course of this judgment. It is
 enough to say at this stage that the courts below have
 founded their orders of conviction of the appellant mainly
 on those dying declarations. Baboolal died the next morning
 at about 10 a.m. in hospital.
 Having come to know the names of two of the alleged assail-
 ants of Baboolal from his recorded dying declarations, the
 police became busy apprehending those persons. They could
 not be found at their respective houses. The appellant was
 arrested four days later in an out-house locked from out-
 side, of a bungalow on Seminary Hill in Nagpur. The other
 person named as one of the assailants, Tukaram, was arrested
 much later. The prosecution case is that these persons were
 absconding and keeping out of the way of the police.
 After investigation and the necessary inquiry, four persons
 were placed on trial and the appellant was one of them. The
 Additional Sessions Judge acquitted two of them and convict-http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 12
 ed the remaining two the appellant and Tukaram-under s. 302.
 Indian Penal Code, or in the alternative, tinder s. 302,
 read with s. 34, Indian Penal Code. He sentenced the appel-
 lant to death because in his opinion, he had caused
 Baboolal’s death intentionally, and there were no extenuat-
 ing circumstances. He sentenced Tukaram to imprisonment for
 life, because in the learned Judge’s view of the case,
 Tukaram had acted under the instigation of the appellant.
 Accordingly, the learned Additional Sessions Judge made a
 reference to the High Court for confirmation of the sentence
 of death. That reference was heard along with the appeal
 filed by the condemned prisoner. The reference, the appeal
 by the convicted accused persons, as also the appeal by the
 Government of Madhya Pradesh, against the two accused per-
 sons who had been acquitted by the learned trial Judge, and
 the revisional application for enhancement of sentence
 passed upon Tukaram, also filed by the State Government,
 were all heard together and disposed of by one judgment,
 557
 by a Bench consisting of Hidayatullah C. J. and Mangalmurti
 J. The High Court, apparently with a view to understanding
 the evidence adduced in the case on behalf of the parties,
 made a local inspection on September 17, 1956, and recorded
 their impressions in a note which forms part of the record
 of the High Court. In a very well-considered judgment, the
 High Court, by its judgment and orders dated October 13,
 1956, acquitted Tukaram, giving him the benefit of the doubt
 caused chiefly by the fact that in the dying declaration
 (Ex. P-16) recorded by the magistrate as aforesaid, he has
 been described as a Teli, whereas Tukaram before the Court
 is a Kolhi, as stated in the charge-sheet. The doubt was
 further accentuated by the fact that there were three or
 four persons of the name of Tukaram, residing in the neigh-
 bourhood and some of them are Telis. The High Court exam-
 ined, in meticulous details, the evidence of the eye-wit-
 nesses Inayatullah, P.W. 1, and Sadashiv, P.W. 3, and agreed
 with the trial Judge in his estimate of their testimony that
 those witnesses being partisan, their evidence could not be
 relied upon, to base a conviction. The High Court went
 further and came to the. conclusion that their evidence
 being suspect, could not be used even as corroboration, if
 corroboration was needed of the three dying declarations
 made by Baboolal, as aforesaid. They upheld the conviction
 and sentence of the appellant on the ground that the dying
 declarations were corroborated by the fact that the appel-
 lant had been absconding and keeping out of the way of the
 police, and had been arrested under very suspicious circum-
 stances. These circumstances and the alleged absconding by
 Tukaram were not so suspicious. as to afford corroboration
 against him. In that view, the High Court " very reluctant-
 ly " gave the benefit of the doubt to Tukaram and allowed
 his appeal. The High Court also agreed with the trial Judge
 in acquitting the other two accused persons Sampat and Maha-
 deo-because these two persons had not been named in the
 dying declarations, and the oral testimony was not of such a
 character as to justify conviction. Accordingly, the Gov-
 ernment appeal and
 558
 application in revision were dismissed. As against the
 appellant, the reference made by the learned trial judge was
 accepted and his appeal dismissed. Thus, under the orders
 of the High Court, only the appellant stood convicted on the
 charge of murder with a sentence of death against him. He
 moved the High Court for a certificate under art. 134(1)(c)
 of the Constitution, and the High Court granted a " certifi-http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 12
 cate of fitness ". Hence, this appeal.
 At the outset, we must repeat what this Court has observed
 in a number of appeals coming up to this Court on certifi-
 cates of fitness granted by High Courts, mainly on questions
 of fact. The main ground for the grant of the certificate
 may be reproduced in the words of the High Court itself:
 "The main ground is that there is not enough evidence
 against the accused and that there is an error in our judg-
 ment in holding that there was no evidence to show that
 Khushal whose absconding has been held to corroborate the
 dying declaration, was involved in a liquor case. During
 the course of the argument neither side drew our attention
 to the documents which were in the record; nor was any point
 made of it, though we questioned why the absconding should
 not be taken into consideration. Now it seems that there
 are one or two defence exhibits in which it has been shown
 that Khushal was not found in his house when he was wanted
 in a liquor case after a search on 5th February, 1956. In
 view of the fact that there is this error and the sufficien-
 cy of the evidence might be a matter for consideration in
 the light of this additional evidence, we think this is a
 fit case for a special certificate under art. 134(1)(c) of
 the Constitution."
 It is clear that the High Court granted the certificate of
 fitness under Art. 134(1)(c) of the Constitution not on any
 difficult question of law or procedure which it thought
 required to be settled by this Court, but on a question
 which is essentially one of fact, namely, whether there was
 sufficient evidence of the guilt of the accused. The latest
 reported case of this Court, bearing on this aspect of this
 appeal, is Haripada
 559
 Dey v. The State of West Bengal(1), to the effect that a
 High Court exceeds its power of granting a certificate of
 fitness under that article if the certificate discloses that
 the main ground on which it was based related to a question
 of fact, and that the High Court is not justified in sending
 up such a case for further consideration by this Court which
 does not, ordinarily, concern itself with deciding mere
 questions of fact unless such questions arise on a certifi-
 cate granted under cls. (a) or (b) of Art. 134 (1) of the
 Constitution. In other words, this Court does not function’
 ordinarily, as a Court of Criminal Appeal. Under the Con-
 stitution, it has the power, and it is its duty, to hear
 appeals, as a Regular Court of Appeal, on facts involved in
 cases coming up to this Court on a certificate under Art.
 134(1)(a) or (b). To the same effect are the other deci-
 sions of this Court, referred to in the reported decision
 aforesaid, for example,
 Narsingh v. The State of Uttar Pradesh (2)
 Baladin v. The State of Uttar Pradesh(3)
 sunder Singh v. State of Uttar Pradesh(4)
 It is, therefore, incumbent upon the High Courts to be
 vigilant in cases coming up before them, by way of an appli-
 cation for a certificate of fitness under Art. 134(1) (c) of
 the Constitution.
 In view of these considerations, it has got to be held -that
 the certificate of fitness granted by the High Court does
 not satisfy the requirements of Art. 134(1)(c) of the Con-
 stitution. The appeal on such a certificate has, therefore,
 to be dismissed in limine; but we have to satisfy ourselves
 whether there are such grounds as would justify this Court
 in granting special leave to appeal to this Court, if the
 appellant had approached this Court in that behalf. We
 have, therefore, examined the record of this case from thathttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 12
 point of view. It appears from the judgments of the courts
 below that the prosecution case rests mainly upon the three
 dying declarations of Baboolal who died shortly after making
 those statements as to his assailants, in quick succession
 within about two and a half hours of the
 (1) [I956] S.C.R. 639.
 (2) [1955] i S.C.R. 238.
 (3) A.I.R. 1956 S.C. 181.
 (4) A.I.R. 1956 S.C.411.
 560
 occurrence-indeed, the first one to the doctor, was made
 within half an hour; as also upon the evidence of two per-
 sons Inayatullah, P.W. I and Sadashiv, P.W. 3, who figure as
 eye-witnesses, and Trimbak, P.W. 2 and Ramgopal, P.W. 4, who
 claimed to have turned up in the nick of time, to witness
 the last stages of the occurrence. Though the trial Judge
 did not disbelieve the oral testimony of the witnesses
 aforesaid, and only insisted upon corroboration, the High
 Court was more pronounced in its view that the testimony of
 those four witnesses was not trustworthy. The High Court
 has discussed their evidence in great detail, and was not
 prepared to accept any part of their testimony on the ground
 that they were strongly partisan witnesses and that they did
 not come to the rescue of the victim of the murderous as-
 sault if they were really in the neighbourhood of the place
 of the occurrence, as claimed by them. If we had to assess
 the value of that body of oral evidence, we may not have
 come to the same conclusion, but we proceed on the assump-
 tion that the High Court is right in its estimate of the
 oral testimony adduced on behalf of the prosecution. After
 discussing all that evidence, the High Court took the view
 that it could not place any reliance on the oral testimony
 of what Baboolal had spoken to P.Ws. 2 and 19 when they
 deposed that Baboolal had named two of his assailants,
 namely, the appellant and Tukaram. The High Court reiied
 upon the three dying declarations recorded at the hospital-
 first, by the attending doctor, second, by the Sub-Inspector
 of police and the third, by the magistrate, first class,
 between 9-25 and 11-35 p. m. As regards authenticity of the
 record of those three statements of the deceased, the High
 Court had no doubt, nor has any doubt been cast upon them by
 counsel for the appellant. The High Court then considered
 the question whether the conviction of the accused could be
 based on those dying declarations alone. It pointed out
 that in that High Court as also in other High Courts, con-
 victions on dying declarations alone had been rested if the
 Court was satisfied that the dying declaration was true and,
 therefore, could be acted upon. But the decision of
 561
 this Court in Ram Nath Madhoprasad v. State of Madhya Pra-
 desh (1) was brought to their notice, and in view of that
 decision, the High Court looked for corroboration of the
 dying declarations aforesaid. It found that corroboration
 in the subsequent conduct of the appellant in that, as
 deposed to by prosecution witness 31-the Sub-Inspector in-
 charge of Ganeshpetli police station-the appellant could not
 be traced till February 16, 1956, on which day, the police
 obtained information to the effect that the accused had been
 concealing himself in the premises of Ganesh dhobi at Hazari
 Pahar. He went there and found the appellant sitting in a
 room which had been locked from the front side. He arrested
 the accused. The High Court did not believe the defence
 suggestion that the appellant bad been concealing himself
 for fear of the police in connection with an excise case in
 which be had been suspected. The records in connection withhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 12
 that case have been placed before us, and, after examining
 those records, we do not find any good reasons for differing
 from the High Court in its appreciation of the circumstances
 connected with the absconding of the accused. The High
 Court took the view that the circumstance of the appellant’s
 conduct in concealing himself and evading the police for a
 number of days was consistent with the prosecution case that
 he was concerned in the crime which was the subject-matter
 of the charge against him. Thus, in effect, the High Court
 found corroboration which, according to the ruling of this
 Court referred to above, was necessary in order to base the
 conviction upon the dying declarations of Baboolal.
 The question whether the circumstances of the appellant’s
 alleged keeping out of the way of the police, for a number
 of days after the occurrence, can be used as corroboration
 of the dying declarations, is not free from doubt and diffi-
 culty. The argument on behalf of the accused that he had
 been keeping out of the way of the police because he was
 suspected in the excise case is not entirely unfounded. He
 had not left the city of Nagpur and gone out of the juris-
 diction of the local police. In those circumstances we are
 not
 (1) A.I.R. 1953 S.C. 420.
 562
 prepared to say that the alleged absconding of the accused
 could afford sufficient corroboration, if corroboration of
 the dying declarations was needed.
 In this Court, a good deal of argument was addressed to us,
 to the effect that the ruling of this Court lays down a
 sound proposition of law which should have been followed by
 the High Court, and that the alleged fact of the accused
 absconding and keeping out of the way of the police could
 not be used as corroboration of the dying declaration. The
 decision of this Court in Ram Nath Madhoprasad v. State of
 Madhya Pradesh (1), contains the following observations, at
 p. 423, which have been very strongly relied upon, on behalf
 of the appellant, as having a great bearing upon the value
 to be placed upon the dying declarations:
 "It is settled law that it is not safe to convict an accused
 person merely on the evidence furnished by a dying declara-
 tion without further corroboration because such a statement
 is not made on oath and is not subject to cross-examination
 and because the maker of it might be mentally and physically
 in a state of confusion and might well be drawing upon his
 imagination while he was making the declaration. It is in
 this light that the different dying declarations made by the
 deceased and sought to be proved in the case have to be
 considered.........
 We have, therefore, to examine the legal position whether it
 is settled law that a dying declaration by itself can, in no
 circumstances, be the basis of a conviction. In the first
 place, we have to examine the decision aforesaid of this
 Court from this point of view. This Court examined the
 evidence in detail with a view to satisfying itself that the
 dying declarations relied upon in that case were true. In
 that case, apart from the dying declarations, there was the
 evidence of the approver. This Court found that the evi-
 dence of the approver and other oral testimony had been
 rightly rejected by the High Court. In that case also, the
 Court had mainly relied upon the dying declarations for
 basing the conviction under s. 302,
 (i) A.I.R. 1953 S.C. 420.
 563
 read with s. 34, Indian Penal Code. This Court examined for
 itself, the dying declarations and the other evidence bear-http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 12
 ing upon the truth and reliability of the dying declara-
 tions, and after an elaborate discussion of all that evi-
 dence, came to the conclusion that the dying declarations
 did not contain "a truthful version of what actually hap-
 pened". Thus after a very careful and cautious examination
 of the facts of the case, connected with the recording of
 the dying declaration, and of the other evidence in the case
 and of the fact that it was a dark night without any lights
 available at the place of occurrence, this Court distinctly
 came to the conclusion that the dying declaration was not
 true and could not be relied upon to base, upon that alone,
 the conviction of the appellants. It is, thus’ clear that
 the observations quoted above, of this Court, are in the
 nature of obiter dicta. But as it was insisted that those
 observations were binding upon the courts in India and upon
 us, we have to examine them with the care and caution they
 rightly deserve.
 The Legislature in its wisdom has enacted in s. 32(1) of the
 Evidence Act that "When the statement is made by a person as
 to the cause of his death, or as to any of the circumstances
 of the transaction which resulted in his death, in cases in
 which the cause of that person’s death comes into question",
 such a statement written or verbal made by a person who is
 dead (omitting the unnecessary words) is itself a relevant
 fact. This provision has been made by the Legislature,
 advisedly, as a matter of sheer necessity -by way of an
 exception to the general rule that hearsay is no evidence
 and that evidence, which has not been tested by cross-exami-
 nation, is not admissible. The purpose of cross-examination
 is to test the veracity of the statements made by a witness.
 In the view of the Legislature, that test is supplied by the
 solemn occasion when it was made, namely, at a time when the
 person making the statement was in danger of losing his
 life. At such a serious and solemn moment, that person is
 not expected to tell lies; and secondly, the test of cross-
 examination would not be available. In such a case, the
 necessity of oath also has been
 72
 564
 dispensed with for the same reasons. Thus, a statement made
 by a dying person as to the cause of death has been accorded
 by the Legislature a special sanctity which should, on first
 principles, be respected unless there are clear circum-
 stances brought out in the evidence to show that the person
 making the statement was not in expectation of death, not
 that that circumstance would affect the admissibility of the
 statement, but only its weight. It may also be shown by
 evidence that a dying declaration is not reliable because it
 was not made at the earliest opportunity, and, thus, there
 was a reasonable ground to believe its having been put into
 the mouth of the dying man, when his power of resistance
 against telling a falsehood was ebbing away; or because the
 statement has not been properly recorded, for example, the
 statement bad been recorded as a result of prompting by some
 interested parties or was in answer to leading questions put
 by the recording officer, or, by the person purporting to
 reproduce that statement. These may be some of the circum-
 stances which can be said to detract from the value of a
 dying declaration. But in our opinion, there is no absolute
 rule of law, or even a rule of prudence which has ripened
 into a rule of law, that a dying declaration unless corrobo-
 rated by other independent evidence, is Dot fit to be acted
 upon, and made the basis of a conviction. No decision of
 this Court, apart from the decision already noticed, has
 been pointed out to us as an authority for the propositionhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 12
 that a dying declaration, in order to be acted upon by a
 court, must be corroborated by independent evidence. On the
 other hand, the different High Courts in India (including
 Burma) have taken conflicting views as to the value of a
 dying declaration in part or in its entirety, without any
 independent corroboration. For example, a Division Bench of
 the Bombay High Court, presided over by Sir John Beaumont
 C.J., has laid down in the case of Emperor v. Akbarali
 Karimbhai (I), that a statement which is covered by s. 32(1)
 of the Evidence Act is relevant evidence and has to be
 judged on the same principles as other evidence, bearing in
 mind that such a
 (i) I.L.R. (1932) 56 Bom. 31.
 565
 declaration was not made on oath and was not subject to
 cross-examination, and is, therefore, a weaker type ,of
 evidence than that given by a witness on oath. Therefore,
 if a part of a dying declaration is deliberately false, it
 will not be safe to act upon the other part of the declara-
 tion without very definite corroboration, That Bench also
 ruled that it is not correct to postulate that because some
 part of the dying declaration is false, the whole declara-
 tion must necessarily be disregarded. The Bombay High
 Court, thus, did not agree with the observations of the
 Calcutta High Court in the case of Emperor v. Premananda
 Dutt (1) to the effect that it is not permissible to accept
 a dying declaration in part and to reject the other part and
 that a dying declaration stood on a widely different footing
 from the testimony of a witness given in court. On the
 other hand, we have the decision of the Rangoon High Court,
 reported in the case of the King v. Maung Po Thi (2). In
 that case, the positive evidence led on behalf of the prose-
 cution was found to have been tampered with and unreliable.
 The Court set aside the order of acquittal passed by the
 trial judge, and recorded an order of conviction for murder,
 practically on the dying declaration of the victim of the
 crime. The Court observed that there was. no such rule of
 prudence as had been invoked in aid of the accused by the
 trial judge who had observed that an accusation by a dying
 man, without corroboration from an independent source, could
 not be the sole basis for conviction. The learned Judges of
 the High Court further observed that in order to found on a
 dying declaration alone, a judgment of conviction of an
 accused person, the Court must be fully satisfied that the
 dying declaration has the impress of truth on it, after
 examining all the circumstances in which the dying person
 made his statement ex-parte and without the accused having
 the opportunity of cross-examining him. If, on such an
 examination, the Court was satisfied that the dying declara-
 tion was the true version of the occurrence, conviction
 could be based solely upon it.
 (1) (1925) I.L.R. 52 Cal. 987. (2) A.I.R. 1938 Rang. 282
 566
 In the High Court of Madras, there was a difference of
 judicial opinion, as expressed in certain unreported cases,
 which resulted in a reference to a Full Bench. Sir Lionel
 Leach C. J. presiding over the Full Bench (In re, Guruswami
 Tevar (1) ), delivered the unanimous opinion of the Court
 after examining the decisions of that High Court and of
 other High Courts in India. His conclusions are expressed
 in the penultimate paragraph of his judgment, thus:-
 " In my judgment it is not possible to lay down any hard and
 fast rule when a dying declaration should be accepted,
 beyond saying that each case must be decided in the light of
 the other facts and the surrounding circumstances, but ifhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 12
 the Court, after taking everything into consideration, is
 convinced that the statement is true, it is its duty to
 convict, notwithstanding that there is no corroboration in
 the true sense. The Court must, of course, be fully con-
 vinced of the truth of the statement and, naturally, it
 could not be fully convinced if there were anything in the
 other evidence or in the surrounding circumstances to raise
 suspicion as to its credibility."
 To the same effect are the decisions of the Patna High Court
 in the case of Mohamad Arif v. Emperor(2), and of the Nag-
 pur. High Court in Gulabrao Krishnajee Maratha v. King
 Emperor(3).
 The Judicial Committee of the Privy Council had to consider,
 in the case of Chandrasekera alias Alisandiri v. The
 King(4), the question whether mere signs made by the victim
 of a murderous attack which had resulted in the cutting of
 the throat, thus, disabling her from speaking out, could
 come within the meaning of s. 32 of the Ceylon Evidence
 Ordinance, which was analogous to S. 32(1) of the Indian
 Evidence Act. The Pi-ivy Council affirmed the decision of
 the Supreme Court of Ceylon, and made the following observa-
 tions in the course of their judgment, which would suggest
 that a dying declaration, if found reliable by a jury, may,
 by itself, sustain a conviction:
 (1) I.L.R. [1940] Mad. 158,170.
 (2) A.I.R. 1941 Patna 409.
 (3) I.L.R. [1945] Nag. 613; A.I.R. 1945 Nag. 153.
 (4) [I937] A.C. 220, 229.
 567
 "...... Apart from the evidence proceeding from the deceased
 woman, the other evidence was not sufficient to warrant a
 conviction, but at the same time that other evidence was not
 merely consistent with the deceased’s statement but pointed
 in the same direction.’ It was.% case in which, if the
 deceased’s statement was received, and was believed, as it
 evidently was by the jury, to be clear and unmistakable in
 its effect, then a conviction was abundantly justified and,
 indeed, inevitable."
 In ’Phipson on Evidence’, 9th ed., p. 335, the author has
 discussed the question Whether, a dying declaration without
 other evidence in corroboration, could be sufficient for a
 conviction, and has made the following observations which
 are pertinent to this case :
 "...... The deceased then signed a statement implicating the
 prisoner, but which was not elicited by question and answer,
 and died on March 20. It was objected that being begun in
 that form, it was inadmissible:-Held (1) the questions and
 answers as to his state of mind were no part of the dying
 declaration; (2) that even if they were, they only affected
 its weight, not its admissibility ; and (3) that the decla-
 ration was sufficient, without other evidence, for convic-
 tion (R. v. Fitzpatrick (1910) 46 Ir. L.T.R. 173, C.C.R)."
 Sometimes, attempts have been made to equate a dying decla-
 ration with the evidence of an accomplice or the evidence
 furnished by a confession as against the maker, if it is
 retracted, and as against others, even though not retracted.
 But,,in our opinion, it is not right in principle to do so.
 Though under s. 133 of the Evidence Act, it is not illegal
 to convict a person on the uncorroborated testimony of an
 accomplice, illustration (b) to s. 114 of the Act lays down
 as a rule of prudence based on experience, that an accom-
 plice is unworthy of credit unless his evidence is corrobo-
 rated in material particulars and this has now been accepted
 as a rule of law. The same cannot be said of a dying decla-
 ration because a dying declaration may not, unlike a confes-http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 12
 sion, or the testimony of an approver, come from a tainted
 source. If a dying
 568
 declaration has been made by a person whose antecedents are
 as doubtful as in the other cases, that may be a ground for
 looking upon it with suspicion, but generally speaking, the
 maker of a dying declaration cannot be tarnished with the
 same brush as the maker of a confession or an approver.
 On a review of the relevant provisions of the Evidence Act
 and of the decided cases in the different High Courts in
 India and in this Court, we have come to the conclusion, in
 agreement with the opinion of the Full Bench of the Madras
 High Court, aforesaid, (1) that it cannot be laid down as
 an absolute rule of law that a dying declaration cannot
 form the sole basis of conviction unless it is corroborated;
 (2) that each case must be determined on its own facts
 keeping in view the circumstances in which the dying decla-
 ration was made ; (3) that it cannot be laid down as a
 general proposition that a dying declaration is a weaker
 kind of evidence than other pieces of evidence; (4) that a
 dying declaration stands on the same footing as another
 piece of evidence and has to be judged in the light of
 surrounding circumstances and with reference to the princi-
 ples governing the weighing of evidence; (5) that a dying
 declaration which has been recorded by a competent magis-
 trate in the proper manner, that is to say, in the form of
 questions -and answers, and, as far as practicable, in the
 words of the maker of the declaration, stands on a much
 higher footing than a dying declaration which depends upon
 oral testimony which may suffer from all the infirmities of
 human, memory and human character, and (6) that in order to
 test the reliability of a dying declaration, the Court has
 to keep in view the. circumstances like the opportunity of
 the dying man for observation, for example, whether there
 was sufficient light if the crime was committed at night;
 whether the capacity of the man to remember the facts stated
 had not been impaired at the time he was making the state-
 ment, by circumstances beyond his control; that the state-
 ment has been consistent throughout if he had several oppor-
 tunities of making a dying declaration apart from the offi-
 cial record of it-; and that the statement had been made at
 the
 569
 earliest opportunity and was not the result of tutoring by
 interested parties.
 Hence, in order to pass the test of reliability, a dying
 declaration has to be subjected to a very close scrutiny,
 keeping in view the fact that the statement has been made in
 the absence of the accused who had no opportunity of testing
 the veracity of the statement by cross-examination. But
 once the court has come to the conclusion that the dying
 declaration was the truthful version as to the circumstances
 of the, death and the assailants of the victim, there is no
 question of further corroboration. If, on the other hand,
 the court, after examining the dying declaration in all its
 aspects, and testing its veracity has come to the conclusion
 that it is not reliable by itself, and that it suffers from
 an infirmity, then, without corroboration it cannot form the
 basis of a conviction. Thus, the -necessity for corrobora-
 tion arises not from any inherent weakness of a dying decla-
 ration as a piece of evidence, as held in some of the re-
 ported cases, but from the fact that the court, in a given
 case, has come to the conclusion that that particular dying
 declaration was not free from the infirmities referred to
 above or from such other infirmities as may be disclosed inhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 12
 evidence in that case.
 Having made the general observations bearing on the question
 of the legality of basing a conviction on a dying declara-
 tion alone, and keeping in view the tests set out above, let
 us examine the dying declarations now in question before us.
 The most remarkable fact which emerges from an examination
 of the three successive dying declarations made in the
 course of about two hours, by the deceased, is that he con
 sistently named the appellant and Tukaram as the persons who
 had assaulted him with sword and spear. The injuries found
 on his person, namely, the punctured wounds and the incised
 wounds on different parts, of his body, are entirely con-
 sistent with his statement that he was attacked by a number
 of persons with cutting and piercing weapons. No part of
 his dying declarations has been shown to be false. Of the
 two assailants named by him, Tukaram was convicted by the
 learned trial judge, but acquitted
 570
 by the High Court which very reluctantly gave him the bene-
 fit of the doubt created by the similarity of names in that
 locality, as already stated. There was no such confusion in
 the case of the appellant. The deceased indicated that
 there were two more persons concerned in the crime, but he
 could not name them. The other two accused persons who were
 acquitted by the courts below had not been named in the
 dying declarations and, therefore, their acquittal did not,
 in any way militate against the truth of the dying declara-
 tions. The courts below also agreed in holding that Babool-
 al was in a position to see his assailants and to identify
 them in the light of the electric lamp nearby. They have
 also pointed out that there was no "coaching". There is no
 doubt, therefore, that Baboolal had been consistent through-
 out in naming the appellant as one of his assailants, and he
 named him within less than half an hour of the occurrence
 and as soon as he reached the Mayo Hospital. There was,
 thus, no opportunity or time to tutor the dying man to tell
 a lie. At all material times, he was in a proper state of
 mind in spite of multiple injuries on his person, to remem-
 ber the names of his assailants. Hence, we have no reasons
 to doubt the truth of the dying declarations and their
 reliability. We have also no doubt that from the legal and
 from the practical points of view, the dying declarations of
 the deceased Baboolal are sufficient to sustain the
 appellant’s conviction for murder. The only other question
 that remains to be considered is whether there are any
 extenuating circumstances in favour of the accused justify-
 ing the lesser of the two sentences prescribed by law. In
 our opinion, there are none. It was a case of a deliberate
 cold-blooded murder.
 For the reasons given above, we uphold the judgment and
 order of the High Court convicting the appellant of murder
 and sentencing him to death. The appeal is, accordingly,
 dismissed.
 Appeal dismissed.
 571

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