Varikuppal Srinivas Vs.
State of A.P.  INSC 183 (28 January 2009)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 168 OF 2009
(Arising out of SLP (Crl.) No. 8054 of 2007) Varikuppal Srinivas ..Appellant
Versus State of A.P. ..
Dr. ARIJIT PASAYAT,
in this appeal is to the judgment of the Andhra Pradesh High Court upholding
the conviction of the appellant for offences punishable under Sections 498A and
304B of the Indian Penal Code, 1860 (in short the `IPC'). Learned 4th
Additional Metropolitan Sessions Judge, Hyderabad had convicted both the
accused persons for offences punishable under Sections 498A and 304B IPC and
sentenced each to undergo rigorous imprisonment for one year and seven years
respectively and to pay a fine of Rs.200/- with default stipulation. In appeal,
A2 was acquitted by the High Court.
version in a nutshell is as follows:
A1 the present
appellant is the son of A2 who married Manjula (hereinafter referred to as the
`deceased') the daughter of PWs.1 & 2 about six years prior to the date of
incident. Sub Inspector of Police (PW9) of Osmania University Police Station
received a message at 6.45 P.M. on 8.2.1999 from Gandhi Hospital stating that
one Manjula was admitted in the hospital allegedly having consumed unknown acid
at her residence on the said date. He entered the same in G.D., went to the
hospital and found that the deceased was unable to speak due to acid burns in
her throat. All his visits on subsequent dates proved futile. Therefore, he
deputed Constable (P.W.3) on 13-2-1999 to the hospital. Accordingly, he went to
the hospital at 11 A.M. and recorded her statement-Ex.P2 and handed over the
said statement to P.W.9. On the basis of the said statement P.W.9 registered a
case in Cr.No.34 of 1999 under Sections 498-A and 307 IPC and issued FIR-Ex.P12
to all concerned. He visited the Gandhi Hospital and recorded statement under
Section 161 of the Code of Criminal Procedure, 1973 (in short the `Code') of
the deceased under Ex.P13. He further examined P.Ws.1, 2 and others, visited
the scene of offence, which is the house of the deceased at Manikanteswar
Nagar, but did not find any incriminating material at the scene of offence and
examined the neighbours. He sent a requisition-Ex.P3 to P.W.4-XXII Metropolitan
Magistrate, Hyderabad for recording the dying declaration of the deceased. On
receipt of requisition the Magistrate visited the hospital at 7.20 P.M. and
after obtaining endorsement of the doctor that patient was conscious and
coherent and also after putting some preliminary questions he recorded the
dying declaration- (Ex.P4). Thereafter, P.W.9 arrested the accused on
23-03-1999 and sent them to court, subsequently on 13-04-1999 on the
instructions of Assistant Commissioner of Police he along with P.Ws.8 and 7
proceeded to Golanukonda village and exhumed the dead body of the deceased PW
7, the M.R.O. conducted inquest over the dead body of the deceased and
Professor (PW 8), Forensic Medicine, Kakatiya Medical College, Waranga
conducted postmortem examination. After completion of investigation police laid
the charge sheet for the offence as aforementioned.
3 On committal,
charges were framed against the accused; read over and explained to them in
Telugu and they pleaded not guilty.
The prosecution in
order- to prove its case examined P.Ws.1 to 13 and marked Exs.P1 to P16. No
oral or documentary evidence has been adduced on defense side.
The learned Sessions
Judge after evaluating the evidence on record found the accused guilty and
convicted for the offence, as aforementioned.
The trial court
relied primarily on the statement made before the Head Constable (PW3). The
statement recorded by him is Exh.P2. The Magistrate (PW 4) recorded the dying
declaration. Placing reliance on the evidence more particularly on the dying
declaration, the conviction was recorded.
In appeal, the
primary stand was that the evidence was insufficient to convict A2 and that the
dying declaration should not have been acted upon.
The High Court found
substance in the plea that the evidence was not sufficient to convict A2, but
found the evidence to be sufficient so far as A1 i.e. present appellant is
counsel for the appellant submitted that the evidence of the magistrate (PW 4)
should not have been accepted so far as the dying declaration is concerned. The
medical evidence does not show that the victim was in a position to give any
response, learned counsel for the respondent submitted that the statements made
by the deceased that is Exhs.P2, P4 and P13 are consistent with regard to the
A1 pouring acid in the mouth of the deceased which resulted in her death.
deceased breathed her last on 9.4.1999. The dead body was exhumed on 13.4.1999.
is a case where the basis of conviction of the accused by the trial Court was
the dying declarations. 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 in a serious crime, the exclusion of the
statement would leave the Court without a scrap of evidence.
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 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):
6 (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. 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)] 7 (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 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) and Mohan Lal
and Ors. v. State of Haryana (2007 (9) SCC 151).
the background of the principles set out above, the inevitable conclusion is
that the trial court and the High Court have rightly convicted the appellant
for offence punishable under Sections 498A and 304B IPC.
appeal is without merit, deserves dismissal, which we direct.
(Dr. ARIJIT PASAYAT)
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