Case Summary
| Citation | Khushal Rao v. State of Bombay 1958 SCR 552 : AIR 1958 SC 22 |
| Keywords | Sec 32 (1) IEA, Admisibility of dying declaration |
| Facts | This landmark judgment deals with evidentiary value of dying declaration. The Hon’ble Supreme Court in this case held that there is no absolute rule of law, or even a rule of prudence that a dying declaration unless corroborated by other independent evidence is not fit to be acted upon and made the basis of a conviction. Facts – were 2 factions in Nagpur, and there were always quarrels between them. Kushal of one faction was not friendly with Baboolal of the other faction. Tukaram, Kushak, Sampat, and Mahadeo suddenly attacked Baboolal and inflicted injuries with swords and a spear. He was then taken to the hospital. The doctor examined him and stated that he was assaulted by a sword and a spear. A complaint was then made to the police by telephone. The police visited the hospital and took the dying declaration of the deceased. Baboolal made 3 successive dying declarations to the sub-inspector and to the Magistrate. The next morning, he died. However, these oral dying declarations were set aside by the High Court and have not been acted upon. |
| Issues | Whether the accused could be convicted only on the basis of DD? Whether it is settled law that a dying declaration by itself can in no circumstances, be basis of a conviction? Whether an accused can be convicted solely based on DD without corroboration with material particulars? |
| Contentions | The appellant contended that he should not be convicted solely on the basis of a dying declaration without any further corroboration because it is not under oath and cannot be cross-examined. The person making a dying declaration might draw from his imagination at the time of making the dying declaration. The prosecution contended that Kushal was on bad terms with Baboolal and inflicted injuries causing his death. Therefore, the accused should be convicted based on the dying declaration. It was also contended that the accused were absconding from the police so that they could not be arrested. |
| Law Points | Section 32(1) is an exception to the general rule ‘Hearsay is not an evidence.’ When a person makes a dying declaration, they are not expected to tell lies, so the test of cross-examination would not be available. A special sanctity should be respected as a dying declaration is granted by the legislature, unless clear circumstances are given in the evidence to show that the person was not anticipating death. It is not correct that if some part of a dying declaration is false, the whole declaration should be disregarded. It is not acceptable that a dying declaration should be accepted in part and rejected in another part (Emperor vs Permananda Dutt). Courts provide some guidelines for the admissibility of a dying declaration: – *Dying declaration can convict an accused solely based on this. *Circumstances in which the dying declaration was made should be examined. *Dying declaration is a weaker kind of evidence. *Dying declaration should be recorded in a proper manner *The court should check the reliability of the dying declaration according to the circumstances. |
| Judgement | The dying declaration was made in a mentally fit condition by the deceased and made three successive DDs. The deceased saw the accused killing him and had a good memory. He made the dying declaration within half an hour after reaching the hospital and was able to recognize the accused. This shows that the dying declaration was the truthful version and there was no tutoring. The dying declaration was sufficient to convict Khushal of murder. The appeal was dismissed.The Court held that the necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, but from the fact that the court, in a given case, has come to the conclusion that the particular dying declaration was free from the infirmities. Thus, 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. Finally, the Hon’ble Supreme Court in this case convicted the Appellant under Section 302 of IPC. |
| Ratio Decidendi & Case Authority |
Full Case Details
SINHA, J. -This appeal on a certificate of fitness under Article 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 Section 302 of the 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.
2. 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, PW 4, Inayatullah, PW 1, and Tantu, PW 5, are
said to be the leaders 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,
Inayatullah 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, Inayatulah alias Kalia and Tantu, that they had attacked the former with
sharp-edged weapons. 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 suddenly attacked Baboolal
with swords and spears and inflicted injuries on different parts of his body. The occurrence
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 9.25 p.m. The doctor in
attendance Dr Kanikdale (PW 14) at once questioned him about the incident and Baboolal 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 Khushal 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 SubInspector A.K. Khan recorded and registered an offence under Section 307 of the Indian Penal
Code, and immediately went to the Mayo hospital along with a head-constable and several
constables. He found Baboolal in a serious condition and suspecting that he might not survive
and apprehending that it might take time for the Magistrate to be informed and to be at the
spot, to record the dying declaration, he consulted 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 between 11.15 and 11.35 p.m., in the presence of Dr Ingle who certified
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that he had examined Baboolal and had found him mentally in a fit condition to make his
dying declaration. Besides these three dying declarations recorded in quick succession, as
aforesaid, by responsible public servants, 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 shall have to advert, later, to the recorded dying
declarations 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.
3. Having come to know the names of two of the alleged assailants 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 outhouse locked from outside, 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.
4. 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
convicted the remaining two – the appellant and Tukaram – under Section 302 of the Indian
Penal Code, or in the alternative, under Section 302 read with Section 34 of the Indian Penal
Code. He sentenced the appellant to death because in his opinion, he had caused Baboolal’s
death intentionally, and there were no extenuating 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 persons 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, 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 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 neighbourhood and some of them are
Telis. The High Court examined, in meticulous details, the evidence of the eyewitnesses,
Inayatullah, PW 1, and Sadashiv, PW 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
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sentence of the appellant on the ground that the dying declarations were corroborated by the
fact that the appellant had been absconding and keeping out of the way of the police, and had
been arrested under very suspicious circumstances. The circumstances and the alleged
absconding by Tukaram, were not so suspicious as to afford corroboration against him. In that
view, the High Court “very reluctantly” 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 Mahadeo – 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 Government appeal and 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 Article 134(l)(c) of the Constitution, and the High Court granted
a “certificate of fitness”. Hence, this appeal.
5. At the outset, we must repeat what this Court has observed in a number of appeals
coming upto this Court on certificates 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 judgment 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
sufficiency 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 Article
134(l)(c) of the Constitution.”
7. 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 Article 134(1)(c) of the
Constitution. 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 that 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 occurrence —
indeed, the first one to the doctor, was made within half an hour; as also upon the evidence of
two persons Inayatullah, PW 1 and Sadashiv, PW 3, who figure as eyewitnesses, and
Trimbak, PW 2 and Ramgopal, PW 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
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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 assault 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 assumption 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 PWs 2 and 19 when they deposed that Baboolal had named two of his
assailants, namely, the appellant and Tukaram. The High Court relied upon the three dying
declarations recorded at the hospital — first, by the attending doctor, second, by the SubInspector 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, convictions 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
this Court in Ram Nath Madhoprasad v. State of Madhya Pradesh [AIR 1953 SC 420] 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
Ganeshpeth 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 had been
concealing himself for fear of the police in connection with an excise case in which he had
been suspected. The records in connection with 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 circumstances 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.
8. 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 difficulty. 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
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jurisdiction of the local police. In those circumstances we are not prepared to say that the
alleged absconding of – the accused could afford sufficient corroboration, if corroboration of
the dying declarations was needed.
9. 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 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 declaration 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….”
10. 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 evidence 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 Section 302, read
with Section 34 of the Indian Penal Code. This Court examined for itself, the dying
declarations and the other evidence bearing upon the truth and reliability of the dying
declarations, and after an elaborate discussion of all that evidence, came to the conclusion that
the dying declarations did not contain “a truthful version of what actually happened”. 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.
11. The legislature in its wisdom has enacted in Section 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
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the general rule that hearsay is no evidence and that evidence which has not been tested by
cross-examination, 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 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 circumstances 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 had 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 circumstances 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 corroborated by other independent
evidence, is not 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 proposition 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 [ILR (1932) 58 Bom 31] that a statement which is
covered by Section 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 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 declaration 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 declaration 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 [ILR (1925) 52 Cal 987] 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 [AIR 1938 Rang 282]. In that case, the positive evidence led on
behalf of the prosecution, 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
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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 prate and without the accused having the opportunity of
cross-examining him. If, on such an examination, the Court was satisfied that the dying
declaration was the true version of the occurrence, conviction could be based solely upon it.
12. 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, ILR (1940) Mad 158, 170],
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 if 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 convinced 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.”
13. The Judicial Committee of the Privy Council had to consider, in Chandrasekera alias
Alisandiri v. King, [12. LR (1937) AC 220, 229], 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 Section 32 of the Ceylon
Evidence Ordinance, which was analogous to Section 32(1) of the Indian Evidence Act. The
Privy Council affirmed the decision of the Supreme Court of Ceylon, and made the following
observations 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:
“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 a 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.”
15. Sometimes, attempts have been made to equate a dying declaration 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 Section 133 of the Evidence Act, it is not illegal to convict a
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person on the uncorroborated testimony of an accomplice, Illustration (b) to Section 114 of
the Act, lays down as a rule of prudence based on experience, that an accomplice is unworthy
of credit unless his evidence is corroborated in material particulars and this has now been
accepted as a rule of law. The same cannot be said of a dying declaration because a dying
declaration may not, unlike a confession, or the testimony of an approver, come from a tainted
source. If a dying 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.
16. 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 declaration 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 principles governing the weighing of evidence; (5) that a dying
declaration which has been recorded by a competent Magistrate 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 statement, by circumstances beyond his control; that the statement has been
consistent throughout if he had several opportunities of making a dying declaration apart from
the official record of it; and that the statement had been made at the earliest opportunity and
was not the result of tutoring by interested parties.
17. 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 crossexamination. 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 corroboration arises not from
any inherent weakness of a dying declaration as a piece of evidence, as held in some of the
reported cases, but from the fact that the court, in a given case, has come to the conclusion
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that that particular dying declaration was not free from the infirmities referred to above or
from such other infirmities as may be disclosed in evidence in that case.
18. Having made the general observations bearing on the question of the legality of
basing a conviction on a dying declaration 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 consistently 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 consistent 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 by the High Court which very reluctantly gave him the benefit 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
declarations. The courts below also agreed in holding that Baboolal 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 throughout 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 remember
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
justifying 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.
19. 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.
