Munlappan Vs. State of Madras  INSC
286 (27 September 1961)
CITATION: 1962 AIR 1252 1962 SCR (3) 869
CITATOR INFO :
RF 1983 SC 274 (8,9)
Dying Declaration-Thumb impression of dead personAdmissibility.
It was alleged that the appellant had stabbed
the deceased E. Soon after E was stabbed, he was taken to the Police Station
where the Sub-Inspector immediately started recording his statement. After E
had spoken one complete sentence, he could not speak any further and it was
found that he had in fact died. Thereupon the Sub-Inspector took the, thumb
impression of B upon the statement as recorded, which was treated as the dying
Question was that, when the dying declaration
was interrupted by death ensuing suddenly, then, whether such declaration would
be admissible in evidence; and the probative value of such dying declaration,
which was described as an incomplete document.
Held, that the thumb impression taken on the
dying declaration after the man was dead, must be ignored. Corroboration would
not always be necessary if the dying declaration was complete in its accusation
and there is nothing to show that the maker of the statement had anything
further to add.
In this case the dying declaration was a
completed statement which was catagoric in character and there was nothing to
show that the victim had anything more to say. It there.
fore, needed no corroboration and could be
Khushal Rao v. State of Bombay, ,
S.C.R. 552, relied Cyril Waugh v. The King . A.C. 203, explained and
CRIMINAL APPELLATE JURISDICTION Criminal Appeal
No. 49 of 1961.
Appeal by special leave from the judgment and
order dated August 30, 1960, of the Madras High Court 'in Criminal Appeal No.
468 of 1960 and referred Trial No. 38 of 1960.
V. N. Sethi, for the appellant., R. Ganpathy
Iyer and T. M. Sen, for the respondent.
870 1961. September 27. The Judgment of the
Court was delivered by HIDAYATULLAH, J.-This is an appeal against the judgment
of the High Court of Madras, with special leave granted by this Court. The
appellant was convicted under s. 302, I.P.C., and sentenced to death for the
murder of one Elumalai on January 24, 1960, at Kannankurichi. The facts of the
case are simple Two days before this occurrence the appellant Muniappan and
Elumalai had a quarrel at a tea. stall. Though the quarrel really was between
the appellant and some others, Elumalai had intervened in that quarrel, and made
some remarks about the appellant, and had advised the party opposite to him to
make a complaint. Two reports of that incident were made, one by the appellant
and the other by his rivals. On January 24, 1960, at about 12.30 P.m., P.W. I
Muthuswami Udayar was having a bath when he heard Elumalai calling out to him
','Mama". Muthuswami Udayar ran to the place from which this cry had come
and found Elumalai with several stab wounds on his body. Muthuawami Udayar
questioned Elumalai, and the latter told him that it was the appellant
Muniappan who had caused injuries to him. Muthuswami gave first aid to
Elumalai, and meanwhile Elian alias Kundaswami (P.W.2) and K.R. Perumal (P.W.3)
also, arrived on the scene. These persons carried Elumalai to the Police Station
House which was at a distance of about 80 yards. The Sub-Inspector was seen..
approaching from the opposite direction and Elumalai was taken to the verandah
of the Police Station House. The Sub-Inspector immediately started recording
the statement of Elumalai. After Elumalai had spoken one compete sentence, he
could not speak any further, and though he was given some soda-water to drink,
it was found that he could not swallow it and bad, in fact, died. The
Sub-Inspector thereupon took the thumb-impression of Elumalai upon the
statement as recorded, and 871 four other witnesses also signed or put their
thumb marks on it. Muniappan also reached the Police Station House after a few
minutes and virtually surrendered himself to the police.
One of his clothes, which was stained with
blood, was seized and in one of his pockets was found a sheath which was also
seized as presumably belonging to the knife with which the stab injuries were
caused. On a statement by Muniappan the Police went to a garden and recovered
from there a knife which later ,Was found to be stained with human blood.
Investigation disclosed that this knife
together with the sheath was purchased by Muniappan from Ameer Khan (P.W. 6) on
the evening of January 23, 1960.
The police therefore charged Muniappan with
an offence under s. 302 I.P.C. The evidence led against him consisted of the
testimony of Ameer Khan (P.W. 6) about the purchase of the knife complete with
a sheath for Rs. 6/-; the testimony of witnesses about the incident which took
place two days before the murder; the dying declaration made to Muthuswami
(P.W. 1); the dying declaration recorded by the SubInspector in the presence of
witnesses; an alleged statement made by the accused to the doctor when he was
examined for an injury on his thumb and the evidence of the alleged eye witness
Elian alias Kundaswami (P.W. 2). The two courts below convicted the appellant
of the offence of murder and sentenced him to death.
In this appeal it is contended that the
evidence of the eye witness (P.W. 2) and the statement of the appellant made to
the Doctor, who examined him, having been excluded, there was not sufficient
evidence in the case if the dying declaration recorded by, the Sub-Inspector is
excluded. The main argument in this case is,therefore, about the admissibility
and the probative value of the dying declaration which is described as an
incomplete document completed dishonestly by getting the thumb impression of
Elumalai when he was dead, 872 No doubt thethumbimpression of Elumalai was
taken on the dying declaration after he was dead and to that extent the thumb
impression must be ignored. We do not agree with the learned counsel for the
appellant that this was done from an improper or dishonest motive to give a
colour of completion to an incomplete document. The reason for that is not far
to seek. The Sub-inspector after recording what Elumalai had to say noted that
',-'soon after Elumalai had said those words his speech stopped. His life was
gone." The thumb impression followed this endorsement. It appears to us
that the Sub-Inspector who was nonplussed by the sudden collapse of Elumalai,
did not know what to do and he thought that it was proper to take the thumb
impression on the statement as it had been made. The Sub-Inspector should have
left the document as it was, without taking the thumb mark' of the dead man,
but we do not feel compelled to hold that. he did so out of any improper
motive, inasmuch as he had noted that the man was dead before the thumb
impression was taken. That also was his testimony in court, and that of the
attesting witnesses. The fact, however, remains that the dying declaration was
interrupted by death ensuing suddenly. The question is whether this dying
declaration is admissible in evidence.
The learned counsel for the appellant has
relied on a case of the Privy Council from Jamaica reported in Cyril Waugh v.
The King(1). In that case, one Phillip Newby
was shot and he made a dying declaration which was taken down but which was not
complete because New by suddenly fell into a coma from which he never
recovered. The Privy Council ruled out that dying declaration on the ground
that being incomplete it could not be taken into account after ignoring the
lost sentence which was incomplete because in the middle of it New by fell into
a coma and died. That dying declaration, if examined clearly shows that Newby
had not (1)  A.C. 203.
873 charged any: person by name but had
described his assailant as "'a man". In the sentence which was
incomplete in his statement Newby had begun' to say ,The man had an old grudge
for me simply. because..." It is quite clear that if that sentence had
been completed, a clue would have been furnished as to the identity of the
assailant by the facts about the old grudge which Newby wanted to disclose. The
dying declaration, therefore, was an incomplete statement and in so far as it
went, had no value unless it was completed by some other evidence which of
course would not have been a part of Newby's statement. The reason for excluding
that dying declaration was, therefore, quite clear, and if the present dying
declaration can be said to be of a similar character, then the argument. of the
counsel for the appellant must prevail.
The dying declaration in the present case was
as follows "Sir, This day 24th January, 1960, in the noon at 12.30
Muniappan, son of Kola Goundan of Kannankurichi stabbed me in my body with
Soon after be said these words, his speech
stopped. His life was gone.
(Left thumb impression of) Elumalai.
witnesses1. (Signed in Tamil) Muthuswami
2. (Signed) K. R. Perumal.
3. (Signed in Tamil) C. Kannan.
4. (Left thumb impression of) Kundaswami 24th
January, 1960. (Signed) S. A. Amir Sub-Inspector, Here, the accusation against
the appellant was complete, and there is nothing to show that Elumalai wished
to say anything more or that he had any' thing more to add. In so far as the
dying declaration, goes, it is a complete.
Statement and makes a 874 very clear
accusation against the appellant. If this dying declaration is taken into
account, then it hardly needs corroboration in view of the decision of this
Court in Khushal Rao v. State of Bombay(,). The Privy Council case, therefore,
is clearly distinguishable on facts and does not apply to the dying declaration
with which we have to deal.
The Privy Council case was considered by this
Court in Abdul Sattar v. Mysore State (2), where also the dying declaration was
incomplete but was quite categoric in character and definitely indicated that
it was the accused in that case who had shot the deceased. The dying
declaration was, therefore, acted upon. The learned counsel for the appellant
attempted to distinguish Abdul Sattar's case(2) on the ground that in that case
there was corroboration of the dying declaration and contended that an
incomplete dying declaration, if categoric in character, may be acted upon if
corroborated but not if not so corroborated. In our opinion, corroboration
would not always be necessary if the dying declaration is complete in its
accusation and there is nothing to show that the maker of the statement had
anything further to add. That is the case here. In this case, however, there is
some other evidence to incriminate the accused. The injuries were caused with a
knife and a knife was found at some distance from the scene of occurrence on
information furnished to the police by the accused. That knife was found to be
stained with human blood and the accused had in his possession a sheath which
was identified as belonging to the knife by the shopkeeper who had the day
previous sold the knife and the sheath to the appellant Muniappan. There is
also the conduct of the appellant in surrendering himself to the police at
12.40 P.m. that is to say, within ten minutes of the occurrence. The appellant
had an injury on his thumb which he apparently got in attempting to stab
Elumalai. The injury was situated on the thumb of his left hand on the lateral
side and must have been (1)  S. C. R. 552.
(2) A. I. R. (1958) S. C. 168 875 caused when
he struck Elumalai repeatedly holding him with his left hand and wielding the
weapon with his right hand.
There is also evidence of motive in the shape
of a quarrel which had taken place only two days previously and in respect of
which the rival parties had made their respective reports to the police. There
was also corroboration in the shape of a dying declaration made by Elumalai to
the first prosecution witness Muthuswami when he reached the spot after
Elumalai had raised a cry for help.
In view of all these circumstances we are
satisfied that the evidence in this case is sufficient to warrant the
conviction of the appellant on a charge of murder. The dying declaration is, in
our opinion, Categoric in character and unmistakably accuses the appellant of
the crime and we have no hesitation in accepting it.
In the result, the appeal fails and is