Sasikumar Vs. State of
Tamil Nadu  INSC 1006 (8 May 2009)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 966 OF 2009
(Arising out of SLP (Crl.) No.8007 of 2008) Sasikumar ....Appellant Versus The
State of Tamil Nadu ....Respondent
Dr. ARIJIT PASAYAT,
in this appeal is to the judgment of a Division Bench of the Madras High Court
upholding the conviction of the appellant for offences punishable under Section
302 of the Indian Penal Code, 1860 (in short `IPC') while setting aside the
conviction in terms of Section 307 IPC.
Appellant faced trial
in the Court of Sessions, Vellore and was convicted in terms of Sections 302
and 307 IPC. He was acquitted of the charges relating to Section 498A IPC.
version in a nutshell is as follows :
On 10.11.2003, the
accused poured kerosene on his wife Menaka;
set fire to her as a
result of which she died on 30.11.2003 and in the course of the same
transaction he attempted to murder his child aged about 9 months by pouring
kerosene on her and setting fire to her also. But luckily she survived.
Therefore, the trial went on against the accused not only under Section 302 and
307 IPC but also under Section 498-A IPC. The prosecution examined PWs 1 to 8
besides marking Exs. P1 to P15 and MOs. 1 and 2.
3. On completion of
investigation charge sheet was filed and since accused pleaded innocence, trial
trial court placed reliance on the evidence of PWs 5, 6 and 7 and on the dying
declaration recorded to hold the appellant guilty. In appeal, the High Court
upheld the conviction under Section 302 IPC while upsetting the conviction in
terms of Section 307 IPC.
support of the appeal, learned counsel for the appellant submitted that since
the mother of the deceased PW1 did not support the prosecution version, the
trial Court and the High Court should not have placed reliance on the so called
counsel for the State supported the judgment.
is to be noted that PW5 was the Judicial Magistrate who recorded the dying
declaration in the presence of the duty doctor PW6. From the evidence of PW5 it
is clear that he received the requisition from the hospital Ex.P5 at 12.30 p.m.
to record dying declaration of the deceased in the hospital from Menaka and proceeded
to record statement by putting question to her. PW5 was fully satisfied that
the deceased was in a fit and conscious state of mind to give the statement
which was also endorsed by PW6.
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):
(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)] 6 (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
(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).
being the position, the conclusions of the Trial Court and the High Court
placing reliance on the dying declaration cannot be faulted. We find no merit
in this appeal which is accordingly dismissed.
(Dr. ARIJIT PASAYAT)
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