reported in/ published in judis.nic.in/supremecourt/filename=609
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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-
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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
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
