Ramakrishan Vs. State of A.P  INSC 239 (13 April 1994)
B.L. (J) Hansaria B.L. (J) Sahai, R.M. (J)
1994 SCC (4) 182 JT 1994 (3) 232 1994 SCALE (2)569
Judgment of the Court was delivered by HANSARIA, J.- This appeal on certificate
would require our decision, inter alia, on the question of evidentiary value of
dying declaration made by + From the Judgment and Order dated 26-9-1986 of the
Andhra Pradesh High Court in Crl, A. No. 286 of 1985 183 gestures. This
question arises, because from what is being stated later, it would be clear
that the conviction of the appellant under Section 302 IPC is principally based
on dying declaration of deceased, Meesala Ramanamma alias M. Venkata Ramanamma,
who was none else than the wife of the appellant. As the deceased was not in a
position to speak at the relevant time her dying declaration came to be
recorded by a Magistrate on the basis of some nods and gestures made by her. It
is this dying declaration which has led in the main to find the appellant
guilty of murder of his wife which has resulted in his being sentenced to RI
for life the minimum punishment provided by law.
appellant alone had faced the trial relating to murder of his wife. The
Sessions Judge, Visakhapatnam, found the appellant guilty under
Section 302 and sentenced him as aforesaid. On appeal being preferred before
the High Court of Andhra Pradesh, the same came to be heard by a Division Bench
consisting of Justice Jayachandra Reddy (as he then was) and Justice Sardar Ali
Khan. The learned Judges differed in their ultimate conclusions. Justice Reddy
gave the benefit of doubt and ordered to acquit the appellant. Justice Khan on
the other hand was of the view that the charge of murder has been brought home
and so he dismissed the appeal. On the papers being placed before the Chief
Justice of the High Court, it was ordered to place the appeal for hearing
before Justice Rama Rao who agreed with the view expressed by Justice Khan,
because of which the appeal ultimately came to be dismissed by the High Court.
being of the view that the case is fit for appeal to this Court on the question
mentioned above, a certificate was granted under Article 134(1)(c) of the
Before addressing ourselves on the question on which certificate has been
granted, we have to see whether the conviction as ultimately upheld by the High
Court is sustainable on the basis of materials on record. As already indicated,
the principal evidence is the dying declaration to which we shall advert a
little later to decide whether on the basis of the declaration as made the
conviction was warranted.
Though the law is well settled that conviction can be founded solely on the
basis of dying declaration if the same were to inspire full confidence, which
has been the view of this Court ever since the decision in Khushal Rao case',
which view was reiterated in Kusa v. State of Orissa2, which legal position has
not been questioned by the learned counsel for the appellant, we may
nonetheless state that apart from the dying declaration there are materials on
record to lend credence to the prosecution case that it is the appellant who
had murdered his wife. This material has been provided by PWs 1, 2 and 3 who
are immediate neighbours of the appellant. According to PW I he heard some
shouts coming from the house of the deceased on the day of occurrence (17-6-84) at about 12.30 p.m. when he was taking lunch. This brought him to the house of the
appellant and 1 Khushal Rao v. State of Bombay, AIR 1958 SC 22: 1958 SCR 552:
1958 Cri LJ 106 2 (1980) 2 SCC 207: 1980 SCC (Cri) 389: AIR 1980 SC 559 184
entering inside the house he found the appellant standing by the side of his
wife who was in flames. On being questioned, the appellant stated that he could
not put down the flames as he was afraid. It is this witness who covered the
deceased thereafter with a bedsheet and put down the flames and then took her
inside the main room in which action he was assisted by the appellant. On advice
being given to the appellant to take his wife to the hospital it was so done.
According to PW 2 she heard shouts and saw the deceased in flames and the
appellant standing near the door.
course, she admitted in cross-examination that she did not enter the house and
that she had peeped through the window. To the similar effect is the evidence
of PW 3.
aforesaid shows that though what was stated by PWs 2 and 3 is not material, the
statement of PW I that the appellant had done nothing to put down the flames
does show his guilty mind, as otherwise, if a husband would have seen his wife
in flames he would have made all efforts to put down the flames. It may,
however, be stated that PW I when examined during the course of investigation
had stated that the accused on being asked why he had not put down the flames
had replied that he had covered the deceased with a 'Bontha' (blanket). This
statement is however not admissible. Even if some benefit is given to the
appellant about his probable act of having covered his wife with blanket at
some point of time, that is not very material inasmuch as on the face of the
burnt injuries sustained by the deceased which ultimately proved fatal, he must
have taken steps to remove the deceased to the hospital which was only done
when asked by PW I and not voluntarily. We do, therefore, think that the
appellant had stood almost as a silent spectator when his wife was in flames.
Another supporting material is the motive of the crime which, in the present
case, according to the prosecution, was the strained relationship between the
couple about which evidence has been given by PW 5, the mother of the deceased.
her evidence the appellant was addicted to drinking and used to squander his
earnings in drinks and the in-laws' family would therefore be asked to provide
fund for maintenance which used to be done to the extent possible.
ill-treatment even led the deceased to live with her parents, A fortnight prior
to the occurrence, the appellant is said to have come in drunken state and
abused PW 5 apart from beating the deceased. This shows that the appellant was
left with no love and affection for his wife and would not have at all been
unhappy if she were to leave the world.
now come to the main material which according to the prosecution fastens the
guilt of murder on the appellant.
same is, as already indicated the dying declaration of the deceased which
consisted of nods and gestures made when the deceased was questioned by the
Magistrate who recorded the declaration. The Magistrate started recording the
same from about 4.45
p.m. on 17-6-1984 and finished the same at about 5.25 p.m. It would be necessary to note the entire recording
as put on record by the Magistrate, who was examined as PW I 1. The same reads
as below :
"O What is your name? A She nods as if to say she cannot speak.
I am IInd
Additional Munsif Magistrate, Visakhapatnam,
understand? A She nods her head as if she understood.
is your body burnt? A She nods as if she cannot speak.
your body burnt due to accident? A She nods in the negative (nods head
anyone bum you? A She nods in assent (from above downwards).
you say who he was? A She makes signs showing her neck and gesturing as if tying
around her neck and placing her hands on her chest.
showed as tying around your neck.
you opine it as 'Thali'? A She nods her head in assent.
you write? A She nods as if in assent.
Write about the particulars of that person? A She made some squabbles on the
paper, vide paper enclosed herewith. (Her) eyes remain closed.
I asked you whether anyone burnt you, you answered yes in gestures, when I
asked you who he is, you showed your neck tying, and placed your hands on the
chest, when I asked you did it mean 'Thali' you said 'yes' by gesture. Did you
mean that he is your husband? A She nods assent (from above downwards).
you sign now? A She nods in the negative (sideways).
M. Venkata Ramanamma.
questions put to the patient and the gestures made by the patient are recorded
and read out to the deponent and admitted by her to be correct."
Prior to the recording of the aforesaid statement the Magistrate had really
been requisitioned once earlier. That was around 3.30 p.m., whereupon the
Magistrate had come but finding that the deceased was not able to speak and was
able to indicate the answers by nodding head, no statement was recorded. A
second requisition was sent at about 4.35 p.m. and on being certified by the doctor that the injured was conscious,
the aforesaid statement was recorded.
This being the position, the first submission to be advanced by the learned
counsel for the appellant is that the recording of dying declaration at 186 the
second attempt is suspicious. We do not find anything to suspect the recording
inasmuch as on the second occasion also recording was on the basis of nods and
gestures and not on the strength of any oral statement made. It may be that on
the first occasion the Magistrate thought it was not advisable to record any
statement on the basis of nods but on request being made again he made an
effort and recorded the aforesaid statement.
perusal of the statement as recorded does not leave anything to doubt that
deceased meant the appellant as the person who set her on fire. This is
absolutely clear from the answer to the question as to who had burnt her to
which the answer recorded was : "She makes sign showing her neck and
gesturing around her neck and placing her hand on chest." On being further
asked as to whether by showing sign around her neck, did she mean 'Thali' (also
known as Mangalsutra) a nod in assent was given. We have been informed from the
Bar that the custom among the class of people from which the couple came was,
and still is, that the husband at the time of marriage ties a Thali (Mangalsutra)
around the neck of his would-be wife and the wife places the same on her chest.
It is after these signs and nods were given that the Magistrate finally asked
as to whether she meant the person who set fire to her was her husband and a
nod from above to downward was given, which has to be taken to be a sign of
is because of the above that the majority of the Judges in the High Court took
the view that the deceased did want to say that it was the appellant, her
husband, who had set her on fire. In this connection learned counsel for the appellant,
however reads out to us that part of judgment of Jayachandra Reddy, J. in which
he had dealt with the dying declaration and the reasons given by the learned
Judge in not being satisfied fully about the same meaning that it was the
appellant who had set fire on her. We are not satisfied if the reasons assigned
by the learned Judge are adequate and cogent to reject the dying declaration as
having clearly indicated that it was the appellant who had murdered. This would
be apparent from two observations made by the learned Judges in this
connection. The first is related to first question and answer which is as below
"Q What is your name? A She nods as if she cannot speak."
The learned Judge has observed that though it has been recorded that the
deceased "nods" it has not been mentioned whether it is sideways,
upward or downward. But then, there is further observation in the first answer
that the deceased nodded as if to say she cannot speak. This clearly brings
home what the nodding was meant to convey. We may then refer to the observation
made by the learned Judge regarding the answer given to the last but one question
which was whether the deceased meant her husband to which the Magistrate
recorded : "She nods assent (from above downwards)". As to this the
learned Judge observed that from this "can we say definitely that from
this nodding that she meant that the accused killed her or that the accused did
not kill her". We do not think if this question really arises ,is the 187
nod being from above to downward has to be an answer in affirmative to the
have, therefore, no hesitation in endorsing the view taken by Justices Ali Khan
and Rama Rao that the deceased meant her husband as the person who had burnt
her. We do not find any suspicious circumstance also to disbelieve the dying
declaration. This apart, there are corroborating materials to implicate the
appellant to which we have already referred.
now advert to the question relating to the evidentiary value of a dying
declaration based on gestures.
Judges of the High Court themselves have noted some decisions in this regard.
These are :
Alexander Perera Chandarasekera v. King3;
Potdarin v. Emperor4; and
Kar v. State of Orissa5.
The Privy Council decision is however the main judgment on which the learned
Judges of the High Court have relied inasmuch as the two other decisions have
relied on what was held by the Privy Council. In that case as well (which came
from Ceylon) the appellant had been convicted of murder, The victim's throat
had been cut and she was not in a position to speak but on being questioned
regarding the person who committed it, she answered by signs and nods. The
question which was examined by the Privy Council was whether the statement was
relevant and admissible. It was held that the statement constituted a verbal
statement resembling the case of a dumb person and was relevant and admissible.
It was pointed out at p. 26 that Section 32 of the Ceylon Evidence Ordinance
(which is in pari materia with Section 32 of our Evidence Act) has used the
word "verbal" and not "oral".
was made to Sections 3 and 119 of the Ordinance in this connection. (Parallel
sections in our Evidence Act being also Sections 3 and 119). In Section 3, which
is the interpretation clause, while defining "Evidence" it has been
stated that it means and includes, inter alia, "oral evidence".
Section 119 deals with dumb witnesses and states that he may give his evidence
in any manner in which he can make it intelligible, as by writing or by signs.
As to this evidence it has been stated the same shall be deemed to be oral
evidence. These show that evidence given by signs as well is admissible and is
taken to be oral evidence.
the Patna case4 the victim was in a serious
condition and had made dying declaration by signs of hand and head and the same
was held to be admissible by relying on the above Privy Council case3. The Court,
however stated that the recording must be of the precise nature of the signs
and not interpretation of the same. 'Here, we have recording of the nature of
nods and gestures. In the Orissa case-' some signs and gestures were made,
which were taken to be verbal statement encompassed by Section 32.
are, however, not much at the admissibility of the statement but its
evidentiary value. As to this, we would state that the "sign language"
has 3 AIR 1937 PC 24: 38 Cri L,J 281: (1937) 1 MLJ 600 4 AIR 1938 Pat 153: 39 Cri
LJ 394: 1938 PWN 266 5 1973 Cri LJ 1058: 39 Cut LT 186: 1973 Cut LR (Cri) 109
188 developed so much by now that it speaks quite well. We may refer in this
connection to what has been mentioned about this language at pp. 120 to 123 of Encyclopaedia
Britannica, Vol. 7, 1968 Edn., wherein the history of the education of the deaf
has been dealt with. A perusal of the same shows that the educators of the deaf
are divided into those who favour the manual (sic language) system supplemented
by articulation and those who favour the speech and lip reading, vetoing the
manual language. At p. 796 of Vol. IO of the aforesaid Encyclopaedia, something
more has been said about "sign language". Reference has even been
made to what a certain Mehar Baba, an Indian religious figure, had done in this
regard. As to this Baba it has been noted that he abstained from speech in the
last decades of his life, but "dictated" voluminous writings to his
disciples, at first by pointing to letters on an English language alphabet
after evolving a suitable sign language of gestures, he relied on that alone.
If volumes can be dictated by this method, a short message of the type at hand
can definitely be conveyed by gestures.
may also refer to what has been stated at pp. 558 to 560 of Encyclopaedia
Americana, Vol. 8 (1983). These pages contain a discussion on "Education
and training of the deaf'. It traces the history of modem education of deaf and
speaks about sign language. It states that even today there are educators of
deaf who favour the manual system which includes use of finger or sign
language. At p. 800 of Vol. 24 of this Encyclopaedia there is a detailed
discussion of "Sign Language" and it has been stated that this
language can "convey information, issue commands or tell stories".
reader is further informed about the use of this language for utilitarian,
ritual, theatrical and comparative purposes. It has also been stated that
complete sign languages are still in use in parts of Asia and the Americas.
may not be out of place to mention that the viewers of television would find
that even news are telecast for the deaf through sign language and lip
the basis of what has been noted above, we hold that dying declaration recorded
on the basis of nods and gestures is not only admissible but possesses
evidentiary value, the extent of which shall depend upon who recorded the
statement, what is his educational attainment, what gestures and nods were
made, what were the questions asked whether they were simple or complicated and
how effective or understandable the nods and gestures were.
the present case, the questions being simple and short, the recorder being a
Magistrate, the certifier of mental conscious state of the deceased being a
doctor, nods being effective and meaningful, we are satisfied that full
reliance could have been placed on the statement of the deceased as recorded by
PW 11 to find the appellant guilty under Section 302.
view of the aforesaid, we confirm the majority judgment of the High Court and
dismiss the appeal.