Shaik Nagoor
Vs. State of A.P. Rep. by Its Public Prosecutor, High Court of [2008] Insc 229
(20 February 2008)
Dr.
Arijit Pasayat & P. Sathasivam
CRIMINAL
APPEAL NO. 346 OF 2008 (Arising out of SLP(Crl.) NO. 3019 of 2007) Dr. ARIJIT
PASAYAT, J.
1.
Leave granted.
2.
Challenge in this appeal is to the judgment of a learned Single Judge of the
Andhra Pradesh High Court. By the impugned judgment conviction of the appellant
for offences punishable under Sections 354 and 448 of the Indian Penal Code,
1860 (in short the 'IPC') was upheld, but the conviction for offence punishable
under Section 306 IPC was set aside. However the sentence of three years
imprisonment for offence punishable under Section 354 IPC which was imposed by
the trial court was reduced to two years. The sentence of six months
imprisonment and fine for offences relatable to Section 448 IPC were maintained
by the High Court.
3.
Prosecution version in a nutshell is as follows:
Shaik Khasim
Bee (hereinafter referred to as the 'deceased') is daughter of Shaik Nagoor
(PW5) and Shaik Nazer Bee (PW 1). Accused, Shaik Nagoor was at the relevant
point of time the tenant in their house at Singhnagar, Vijayawada.
Accused
as a tenant in a small hut in the same compound of the house of PW 1. It
appears that accused was soliciting the deceased for sexual intercourse. On
12.11.1999 around 1.00
pm. PW 1 and the
deceased went for Namaz and thereafter deceased returned home while PW-1 was
coming behind after talking to one Kursheed begum for some time. When the
deceased came home and went into middle portion of the house, which was vacant
for collecting dried clothes, accused allegedly came behind, caught hold of
her, and when she threatened him saying that she would complain to her mother
about the acts of the accused, he in turn replied that he himself, would
complain to her mother saying that she herself called him and thereby, would
defame her and her family. Feeling disturbed and suffering from emotional
turmoil, deceased went into room, poured kerosene and set fire to herself. On
receipt of intimation from the Hospital, police of Nunna Rural Police Station, Vijayawada City, registered a case against the accused in Crime No. 258 of
1999 for the offences punishable under Sections 448, 354 and 306 IPC and after
investigation filed charge sheet and the same was taken on file in S.C. No. 181
of 2001. Accused pleaded innocence and false implication.
4. In
order to further its version prosecution examined 12 witnesses and marked
several documents. The trial court placed reliance on the dying declaration (Exh.
P4 P9) recorded by the learned 7th Additional Senior Civil Judge, City Civil Court, Hyderabad and the Head Constable respectively on 12.11.1999. The High
Court found that offence under Section 306 IPC as noted above was not made out.
However, concurred with the learned trial judge that the offences punishable
under Sections 354 and 448 IPC were clearly made out. Accordingly the impugned
judgment was passed.
5. In
support of the appeal, learned counsel for the appellant submitted that the
dying declarations should not have been relied upon by the trial court and the
High Court.
It was
his case that considering the extent of burns sustained by the deceased it was
impossible on her part to give any dying declaration.
6.
Learned counsel for the respondent on the other hand supported the impugned
judgment of the High Court.
7. We
see no reason to doubt the veracity of the dying declarations especially since
there is consistency between them. We see no reason why the judicial officer
should make a false statement about the dying declaration.
8. As
observed by this Court in Narain Singh v. State of Haryana AIR vide para 7:
(SCC p. 267, para 7) "A dying declaration made by a person on the verge of
his death has a special sanctity as at that solemn moment a person is most
unlikely to make any untrue statement. The shadow of impending death is by
itself guarantee of the truth of the statement of the deceased regarding the
circumstances leading to his death. But at the same time the dying declaration
like any other evidence has to be tested on the touchstone of credibility to be
acceptable. It is more so, as the accused does not get an opportunity of
questioning veracity of the statement by cross-examination. The dying
declaration if found reliable can form the base of conviction."
9. In Babulal
v. State of M.P. (2003 (12) SCC 490) this Court
observed vide in para 7 of the said decision as under: (SCC p. 494) "A
person who is facing imminent death, with even a shadow of continuing in this
world practically non-existent, every motive of falsehood is obliterated. The
mind gets altered by most powerful ethical reasons to speak only the truth.
Great solemnity and sanctity is attached to the words of a dying person because
a person on the verge of death is not likely to tell lies or to concoct a case
so as to implicate an innocent person. The maxim is 'a man will not meet his
Maker with a lie in his mouth' (nemo moriturus praesumitur mentiri).
Mathew
Arnold said, 'truth sits on the lips of a dying man'. The general principle on
which the species of evidence is admitted is that they are declarations made in
extremity, when the party is at the point of death, and when every hope of this
world is gone, when every motive to falsehood is silenced and mind induced by
the most powerful consideration to speak the truth; situation so solemn that
law considers the same as creating an obligation equal to that which is imposed
by a positive oath administered in a court of justice."
10. In
Ravi v. State of T.N. ((2004 (10) SCC 776) this Court observed that: (SCC p.
777, para 3) "If the truthfulness of the dying declaration cannot be
doubted, the same alone can form the basis of conviction of an accused and the
same does not require any corroboration, whatsoever, in law."
11. In
Muthu Kutty v. State (2005 (9) SCC 113) vide para 15 this Court observed as
under: (SCC pp. 120-21) "15. Though a dying declaration is entitled to
great weight, it is worthwhile to note that the accused has no power of
cross-examination.
Such a
power is essential for eliciting the truth as an obligation of oath could be.
This is the reason the court also insists that the dying declaration should be
of such a nature as to inspire full confidence of the court in its correctness.
The court has to be on guard that the statement of the deceased was not as a
result of either tutoring, or prompting or a product of imagination. The court
must be further satisfied that the deceased was in a fit state of mind after a
clear opportunity to observe and identify the assailant. Once the court is
satisfied that the declaration was true and voluntary, undoubtedly, it can base
its conviction without any further corroboration. It cannot be laid down as an
absolute rule of law that the dying declaration cannot form the sole basis of
conviction unless it is corroborated. The rule requiring corroboration is
merely a rule of prudence. This Court has laid down in several judgments the
principles governing dying declaration, which could be summed up as under as
indicated in Paniben v. State of Gujarat (1992 (2) SCC 474) : (SCC pp. 480-81, paras 18-19) (emphasis supplied)
(i)
There is neither rule of law nor of prudence that dying declaration cannot be
acted upon without corroboration. (See Munnu Raja v. State of M.P. (1976 (3) SCC 104)
(ii)
If the Court is satisfied that the dying declaration is true and voluntary it
can base conviction on it, without corroboration. (See State of U.P. v. Ram Sagar Yadav and Ramawati Devi v. State of Bihar (1985 (1) SCC 552)
(iii)
The court has to scrutinise the dying declaration carefully and must ensure
that the declaration is not the result of tutoring, prompting or imagination.
The deceased had an opportunity to observe and identify the assailants and was
in a fit state to make the declaration. (See K. Ramachandra Reddy v. Public
Prosecutor (1976 (3) SCC 618)
(iv)
Where dying declaration is suspicious, it should not be acted upon without
corroborative evidence. (See Rasheed Beg v. State of M.P. (1974 (4) SCC 264)
(v)
Where the deceased was unconscious and could never make any dying declaration
the evidence with regard to it is to be rejected. (See Kake Singh v. State of M.P.(1981Supp. SCC 25)
(vi) A
dying declaration which suffers from infirmity cannot form the basis of
conviction. (See Ram Manorath v. State of U.P.(1981
(2) SCC 654)
(vii)
Merely because a dying declaration does not contain the details as to the
occurrence, it is not to be rejected. (See State of Maharashtra v. Krishnamurti Laxmipati Naidu
(1980 Supp. SCC 455)
(viii)
Equally, merely because it is a brief statement, it is not to be discarded. On
the contrary, the shortness of the statement itself guarantees truth. (See Surajdeo
Ojha v. State of Bihar (1980 Supp. SCC 769))
(ix)
Normally the court in order to satisfy whether deceased was in a fit mental
condition to make the dying declaration look up to the medical opinion. But
where the eyewitness said that the deceased was in a fit and conscious state to
make the dying declaration, the medical opinion cannot prevail. (See Nanhau Ram
v. State of M.P. (1988 Supp. SCC 152)
(x)
Where the prosecution version differs from the version as given in the dying
declaration, the said declaration cannot be acted upon. (See State of U.P. v. Madan Mohan (1989 (3) SCC 390 )
(xi)
Where there are more than one statement in the nature of dying declaration, one
first in point of time must be preferred. Of course, if the plurality of dying
declaration could be held to be trustworthy and reliable, it has to be accepted.
(See Mohanlal Gangaram Gehani v. State of Maharashtra (1982 (1) SCC 700)"
12. So
far as the practicability of the deceased giving dying declaration is concerned
it is significant that the learned Additional Senior Civil Judge who has
examined PW 7 and the constable PW 10 have described in detail as to what the
deceased has stated to each one of them. There was not even any suggestion to
either of the witnesses that the deceased was not in a fit condition to give
any statement as claimed. That being so, there is no substance in the plea of
learned counsel for the appellant that the deceased was not in a physical
condition to give a statement.
13.
The trial Court and the High Court have analysed the evidence of these
witnesses and the statements made in the dying declaration referred to above to
hold the accused guilty.
14.
That being so, no interference is called for. The appeal fails and is
dismissed.
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