Paneerselvam Vs. State of
Tamilnadu [2008]
INSC 943 (15 May 2008)
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1167 OF 2006 Panneerselvam
..Appellant Versus State of Tamil Nadu ..Respondent And CRIMINAL APPEAL NO.
1168 OF 2006
Dr. ARIJIT PASAYAT, J.
1. These two appeals have their
matrix in a common judgment of a Division Bench of the Madras High Court
disposing of three criminal appeals preferred under Section 374 of the Code of
Criminal Procedure, 1973 (in short `Cr.PC'), against the judgment of the
Principal Sessions Judge, Thanjavur in Sessions case no.65 of 1994 dated
13.5.1997.
Five persons had faced trial for
alleged commission of murder of one Arunbharathi @ Jynarab (hereinafter
referred to as the `deceased'). They were convicted for offences punishable
under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short
`IPC'). So far as A1, A2 and A5 are concerned, each was sentenced to undergo
imprisonment for life. A1, A2 and A5 were convicted for offence punishable
under Section 348 IPC and sentenced to one year RI each. A1 was charged for
commission of offence punishable under Section 201 IPC and sentenced to undergo
one year RI and A2 and A5 were convicted for offence punishable under Section 201
read with Section 34 IPC and each was sentenced to undergo RI for life.
2. A1 was Head Constable, while A2
was a Constable A3 was a Writer, and A4 was a Pere Constable. All of them were
attached to Ammapet Police Station, and they were on duty on 14.12.1992 and
15.12.1992. A5 was a native of Udaiyur Kovil 2
3. After the case was committed to
the Court of Sessions charges were framed since the accused persons pleaded
innocence they were put to trial. In order to substantiate the charges 14
witnesses were examined. On consideration of the material on record the Trial
Court recorded the conviction and imposed sentences as aforesaid.
4. Stand of the appellant before
the High Court was that the deceased had put himself on fire and in fact, all
the accused persons immediately quenched the fire and had taken him to the
Government Primary Health Hospital, Ammapet, where PW3 doctor was available.
The deceased made a voluntary statement to PW3 wherein he categorically stated
that he had poured petrol on himself and set himself on fire. Thereafter the
deceased with the burn injuries was taken to the Medical College Hospital where
also he made a similar statement to PW4 the doctor. Subsequently, another
doctor PW6 examined him where also he made a similar statement. Therefore, it 3
was submitted that the Trial Court was not justified in convicting them relying
on the purported dying declaration alleged to have been given by the deceased
to the Revenue Divisional Officer (PW14) on 16.12.1992 i.e. four days prior to
his death. The same was nothing but a tutored one. The High Court held that the
so called statements made before the doctors cannot be accepted in view of the
dying declaration recorded by PW14 the RDO. The High Court did not attach any
importance to the statements purportedly given before PWs, 3, 4 and 6 and also
relied on the dying declaration purportedly made by the deceased before the
PW14. The High Court found that the allegations against A2, A3 were not proved
beyond reasonable doubt and they were entitled to acquittal. Accordingly, the
appeals filed by these accused persons were allowed and those filed by the
appellants in these two appeals were dismissed.
4
5. In support of the appeal
learned counsel for the appellants submitted that the High Court proceeded on
presumptions that because the statements of the deceased to PWs, 3, 4 and 6
were made in the presence of a Constable, therefore, they were not voluntary.
On the contrary at the time when the statements were made, the relatives of the
deceased were present is evident from the evidence of PW1 who took the deceased
to the hospital. He had categorically admitted that he was accompanied by
several persons when the deceased was taken to and was at the hospital. PW1 and
others were there with him. PW1 has categorically admitted that this was the
situation in the Ammapet hospital and Thanjavur Medical College Hospital. He
has categorically stated that several persons were present at the hospital. It
was, therefore, submitted that the voluntary statement made right from the
beginning should not have been lightly brushed aside. It is also pointed out
that the High Court came to an erroneous conclusion by misreading dying
declaration purported to be made before RDO that it was either A1 or A5 5 (the
present appellants) who had poured petrol and set him on fire.
6. In response, learned counsel
for the respondent-State submitted that the High Court had rightly relied upon
the dying declaration made before the RDO. According to him the fact that
police officials were present when the statements were made by the deceased
before the doctors made the position clear that the deceased was not speaking
the truth.
7. This is a case where the basis
of conviction of the accused is the dying declaration. The situation in which a
person is on his deathbed, being exceedingly solemn, serene and grave, is the
reason in law to accept the veracity of his statement. It is for this reason
that the requirements of oath and cross-examination are dispensed with. Besides
should the dying declaration be excluded it will result in miscarriage of
justice because the victim being generally the only eye-witness 6 in a serious
crime, the exclusion of the statement would leave the Court without a scrap of
evidence.
8. 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 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 7 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
Smt. Paniben v. State of Gujarat (AIR 1992 SC 1817):
(i) There is neither rule of law
nor of prudence that dying declaration cannot be acted upon without
corroboration.
[See Munnu Raja & Anr. v. The
State of Madhya Pradesh (1976) 2 SCR 764)] (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 Uttar Pradesh v. Ram Sagar Yadav and Ors.
(AIR 1985 SC 416) and Ramavati Devi v. State of Bihar (AIR 1983 SC 164)] (iii)
The Court has to scrutinize 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.
8 Ramachandra Reddy and Anr. v.
The Public Prosecutor (AIR 1976 SC 1994)] (iv) Where the dying declaration is suspicious,
it should not be acted upon without corroborative evidence. [See Rasheed Beg v.
State of Madhya Pradesh (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 Kaka Singh v State of M.P. (AIR 1982 SC
1021)] (vi) A dying declaration which suffers from infirmity cannot form the
basis of conviction. [See Ram Manorath and Ors. v. State of U.P. (1981 (2) SCC
654) (vii) Merely because a dying declaration does contain the details as to
the occurrence, it is not to be rejected. [See State of Maharashtra v.
Krishnamurthi Laxmipati Naidu (AIR 1981 SC 617)] (viii) Equally, merely because
it is a brief statement, it is not to be discarded. On the contrary, the
shortness of the 9 statement itself guarantees truth. [See Surajdeo Oza and
Ors.
v. State of Bihar (AIR 1979 SC
1505).
(ix) Normally the Court in order
to satisfy whether the deceased was in a fit mental condition to make the dying
declaration looks up to the medical opinion. But where the eye-witness said
that the deceased was in a fit and conscious state to make the dying
declaration, the medical opinion cannot prevail. [See Nanahau Ram and Anr. v.
State of Madhya Pradesh (AIR 1988 SC 912)].
(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 and Ors.
(AIR 1989 SC 1519)].
(xi) Where there is 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 declarations could be held
to be trustworthy and reliable, it has to be accepted. [See Mohanlal Gangaram
Gehani v.State of Maharashtra (AIR 1982 SC 839)] 10
9. We find that the High Court has
erroneously discarded the statements made by PWs. 3, 4 and 6 to the effect that
the deceased voluntarily told each one of them that he had set himself on fire.
As rightly contended by learned counsel for the appellant, even though one
police official was present when the statement was made to PWs. 3, 4 and 6, yet
large number of relatives of the deceased, more particularly, PW1 who had taken
him to the hospital were present also.
Additionally, the High Court has
misconstrued the dying declaration. The deceased had categorically stated
therein that he did not know who set him on fire. The High Court observed, as
if, the deceased had said that either A1 or A5 did so. The conclusions have
been arrived at by misreading the evidence. Therefore, the impugned judgment of
the High Court cannot be maintained and is set aside. The appellant in each
case is acquitted of the charges. The appellants be released from custody
forthwith unless required in any other case. The appeals are allowed.
11
...................................J.
(Dr. ARIJIT PASAYAT)
..................................J (P. SATHASIVAM) .............
.......................J.
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