DASHRATH@ CHAMPA AND ORS. v. STATE OF MADHYA PRADESH

Citation: [2007] 11 S.C.R. 642

Court: Supreme Court of India

Bench: ARIJIT PASAYAT, D.K. JAIN

Case summary

DASHRATH@ CHAMPA AND ORS. v. STATE OF MADHYA PRADESH.pdf

Judgment text

DASHRATH@ CHAMPA AND ORS. v. STATE OF MADHYA PRADESH OCTOBER 24, 2007 [DR. ARIJIT PASAYAT AND D. K. JAIN, JJ. ] Evidence Act, 1872: S. 32-Dyingdeclaration-Statementfor recording FIR andalso u/s 161 Cr. P. C. by deceased-Based on it trial court convicting accused, treating the statements as dying declaration-C. orrectness of-Held: Conviction ofaccusedjustffied since dying declarations not result of product ofimagination tutoring or prompting and was trustworthy- 1 Penal Code, 1860-s. 304 (Part I) r/w s. 34. s. 32-Dyingdeclaration-Governingprinciples-Stated 'Y According to the prosecution case, accused persons attacked R with weapons and R sustained numerous injuries on his person. RK-PW 18 and B-PW 19 intervened. R was taken to the police station where he lodged FIR which was recorded by the Head Constable. Thereafter, R was admitted to hospital where on examination doctor-PW 11 found 18 injuries on R's body.

Same day R was referred to another Hospital for further treatment where four days later he expired. Doctor-PW 16 carried out postmortem. The .. ,,),.. _ eye-witnesses-R's mother and maternal grandmother and others, did not admit to having seen the incident. Trial Court treated the statement made by deceased to the Head Constable for recording FIR and the statement ofthe deceased under section 161 Cr. P. C. to be statements under section 32(1) of the Evidence Act. It relied on both the statements and the medical evidence and convicted and sentenced the appellants under section 304 (Part I) read with section /-1 34 IPC. High Court upheld the order. Hence the present appeal. Dismissing the appeal, the Court ) DASHRATH@CHAMPA v. STATE 643 HELD: 1. 1 The principles governing dying declaration are as under: (i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. Munnu Raja and Anr. v.

The Stale ofMadhya Pradesh, (1976] 2 SCR 764, referred to. r• (ii) Ifthe Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. State of Uttar Pradesh v. Ram Sagar Yadav and Ors. , AIR ~ (1985) SC 416; Ramavati Devi v. State ofBihar, AIR (19S3) SC 164, referred to. (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. K Ramachandra Reddy andAnr. v. The Public Prosecutor, AIR (1976) SC 1994, referred to. (iv) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. ... W- 19 stated that he and Ramesh's mother carried him to the police station. 8.

Santosh Kumar, Head Constable (PW-20) had testified tha~ the deceased was fully conscious when he was brought to the police chowki and it was the deceased who had lodged the complaint which was recorded by him. The statement ofthe deceased was marked as Ex. P. 32. The trial Court and the High Court relying on the evidence of PW-20 concluded that the statement given by the deceased was to be treated as a dying declaration. The bed head ticket of District Hospital, Sagar, (Ex. P. 27) shows that when the deceased was brought he was conscious and his general condition was satisfactory. These materials were sufficient to discard the stand of the accused persons that the deceased was unconscious when he was brought to the hospital. As the deceased died on 30. 4. 1987 the trial Court and the High Court treated the first information report (Ex. P. 10) to be in the nature ofthe dying declaration; so was the statement ofthe deceased (Ex. P. 32).

In both these statem~nts the three accused persons have been named as the assailants. The trial Court and the High Court analysed the evidence in great detail and found that the prosecution established its stand because ofthe dying declaration. 9. At this juncture, it is relevant to take note of Section 32 ofthe r J. _ , ' Evidence Act, which deals with cases in which statement ofrelevant fact by person who is dead or cannot be found, etc. is relevant. The general rule is that all oral evidence must be direct viz. , ifit refers to a fact which could be seen it must be the evidence ofthe witness who says he saw it, ifit refers to a fact which could be heard, it must be the evidence ofthe witness who says he heard it, ifit refers to a fact which could be perceived by any other sense, it must be the evidence of the witness who says he perceived it by that sense. Similar is the case with opinion. lbese aspects are elaborated in Section 60.

The eight clauses of Section 32 are exceptions to the general mle against hearsay just stated. Clause (1) of Section 32 makes relevant what is generally described as dying declaration, though such an expression has not been used in any Statute. It essentially means statements made by a person as to the cause ofhis death or as to the circumstances ofthe transaction resulting in his death. The grounds of admission are: firstly, necessity for the victim being generally the only principal eye-witness to the crime, the exclusion ofthe statement might deflect the ends ofjustice; and secondly, the sense ofimpending death, which creates a sanction equal to the obligation ofan oath.

The general principle on which this species ofevidence is admitted is that they ate 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 the mind is induced by the most powerful considerations to speak the truth; a situation so solemn and so lawful is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a Court ofjustice. These aspects have been eloquently stated by Lyre LCR in R. v. Wood Cock (1789) I Leach 500. Shakespeare makes the wounded Melun, finding himselfdisbelieved while ~ouncing the intended treachery ofthe Dauphin Lewis explain: "Have I met hideous death within my VIew, Retaining but a quantity oflife, Which bleeds away even as a form of wax, Resolveth from his figure 'gainst the fire? / ; 'r- What is the world should make me now deceive, Since I must lose the use ofall deceit?

Why should I then be false since it is true That I must die here and live hence by truth? " (See King John, Act 5, Sect. 4) ). . .. ,. ' 10. The principle on which dying declaration is admitted in evidence is indicated in legal maxim "nemo moriturus proesumitur mentiri - a ipan will not meet his maker with a lie in his mouth. " 11. This is a case where the basis of conviction ofthe accused is the dying declaration. The situation in which a person is on deathbed is so solemn and serene when he is dying that the grave position in wlμch he is placed, is the reason in law to accept veracity ofhis statement. It is for this reason the requirements of oath and cross-examination are 1 dispensed with. Besides, should the dying declaration be excluded it will y ' result in miscarriage ofjustice because the victim being generally the only eye-witness in a serious crime, the exclusion ofthe statement would tekve the Court without a scrap ofevidence. 12.

Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no scope ofcross-examinatipn. Such a scope is essential for eliciting the truth as an obligation ofo~th could be. This is the reason the Court also insists that the dying declaratjon should be ofsuch a nature as to inspire full confidence ofthe Court in its f' correctness. The Court has to be on guard that the statement ofdeceased 1 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 furtlii. er corroboration. It cannot be laid down as an absolute rule oflaw that the ~-,... _ dying declaration cannot form the sole basis ofconviction 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 ofGujarat, 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 ofMadhya Pradesh, [1976] 2 SCR 764)] ,_;,_ (ii) Ifthe 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 ofBihar, AIR (1983) SC 164] (iii) The Court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result oftutoring, 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 y Public Prosecutor, AIR (1976) SC 1994] (iv) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. [See Rasheed Beg v. State ofMadhya 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 ofMP.. AIR (1982) SC 1021] (vi) Adying declaration which suffers from infirmity cannot form . Jthe basis of conviction. [See Ram Manorath and Ors. v. State of UP. , [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. Krishnamurthi Laxmipati Naidu, AIR (1981) ;I SC 617] (viii) Equally, merely because it is a briefstatement, it is not to be discarded.

On the contrary, the shortness ofthe statement itself I \~ guarantees truth. [See Surajdeo Oza and Ors. v. State ofBihar, AIR (1979) SC 1505). (ix) Nonnally 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 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 y 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 ofUP. v. Madan Mohan and Ors. , AIR (1989> SC 1519)]. (xi) Where there are more than one statement in the nature of dying declaration, one first in point oftime must be preferred. Of course, ifthe plurality of dying declaration could be held to be trustworthy and reliable, it has to be accepted.

[See Mohan/al Gangaram Gehani v. State ofMaharashtra, AIR (1982) SC 839] 13. In the light ofthe above principles, the acceptability ofalleged dying declaration in the instant case has to be considered. The dying declaration is only a piece ofuntested evidence and must like any otheJ1 evidence, satisfy the Court that what is stated therein is the unalloyed truth --<,_,, and that it is absolutely safe to act upon it. Ifafter careful scrutiny the 1 Court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and ifit is coherent and consistent, there shall be no legal impediment to make it basis ofconviction, even if I there is no corroboration. [See Gangotri Singh v. State of UP. , JT (1992) 2 SC 417, Goverdhan Raqji Ghyare v. State ofMaharashtra, JT (1993) 5 SC 87, Meesala Ramakrishan v. State of Andhra ~ .... , Pradesh, JT (1994) 3 SC 232 and State ofRlrjasthan v. Kishore, JT (1996) 2 SC 595]. 14.

111ere is no material to show that dying declarations were result ofproduct ofimagination, tutoring or prompting. On the contrary, they appear to have been made by the deceased voluntarily. It is trustworthy and has credibility. 15. In view ofthe factual scenario as analysed in the background and the principles set out above the inevitable conclusion is that the trial Court and the High Court were justified in finding the accused persons guilty. There is no merit in this appeal which is dismissed accordingly. The appellants who are on bail shall surrender to custody forthwith to serve remainder ofsentence, ifany. N. J. Appeal dismissed.