KHUSHAL RAO v. THE STATE OF BOMBAY
Citation: [1958] 1 S.C.R. 552; 1957 INSC 79
Court: Supreme Court of India
Bench: BHUVNESHWAR PRASAD SINHA , P. GOVINDA MENON, J.L. KAPUR
Judgment date:
Case summary
1957 INSC 79. Supreme Court of India judgment dated 1957-09-25. KHUSHAL RAO v. THE STATE OF BOMBAY. Read the judgment and case details on LawSphereX.
Judgment text
appeal. In that event the infirmity in the appellant's case due to the want of proper attestation of the will under s. 63(l)(c) of the Indian Succession Act would be removed. Because of the view we have taken the other objection raised by the respondents becomes wholly inefficacious. The finding of the High Cpurt on this point is therefore reversed. We, therefore, allow this appeal, set aside the judgment and decree of the Punjab High Court and remit the case to the High Court for decision of the other issues which had not been decided. As the appellants did not obtain the probate till after the appeal was filed in this court and made the application for the admission of additional evidence at such a late stage, they will pay Rs. 500 as costs of this court to the respondents within two months. In default of such payment the appeal shall stand dismissed ·with costs, i. e. , Rs. 500. Appeal allowed. KHUSHAL RAO v. THE STATE OF BOMBAY (B. P. SINHA, GOVINDA MENON and J. L. KAPUR JJ).
Supreme Court, Criminal Appellate Jurisdiction of-Certificate of fitness, if can be granted by High Court on a question of fact- Dying declaration, evldentiary value of-If must be corroborated in order to sustain conviction-Constitution of India, Art. 134(1)(c)- Indlan Evidence Act (I ofl872), s. 32 (! ). The Supreme Court does not ordinarily function as a Court of criminal appeal, and it is not competent for a High Court under Art, 134(l)(c) of the Constitution to grarit a certificate of fitness for appeal to this Court on a ground which is essentially one of fact. Haripada Dey v. The State of West Bengal, (1956) S. C. R. 639, followed. There is no absolute rule of Jaw, not even a rule of prudence that has ripened into a rule of Jaw, that a dying declaration in order that it may sustain an order of conviction must be cor· roborated by other independent evidence. The observations made by this Court in Madhoprasadv.
The State of Madhya Pradesh are 1957 in the nature of obiter dieta and do not lay down the law. · - Kltruhal Rao Madhoprasad v. The State of Madhya Pradesh, A. I. R. (1953) v. S. C. 420, considered. State ofBomba; In re Guruswami Tevar, I. L. R. (1940) Mad. 158, approved. Case-law reviewed. The provision of s. 32(1) of the Indian Evidence Act, which makes the statement in a dying declaration as to the cause of death and the circumstances that brought it about relevant, _is an exception to the general rule of exclusion of hearsay evidence and evidence untested by cross-examination. The special sanctity whi¢h the Legislature attaches to such a declaration inust be respected unless such declaration can be shown not to have been made in expectation of death or to be otherwise unreliable and any evidence adduced for this purpose can only detract from its value but not affect its admissibility.
Although a dying declaration has to be very closely scrutinsed, and tested as any other piece of evidence, once the Court comes to the conclusion, in any particular case, that it is true, no question of corroboration arises. A dying declaration cannot be placed in the same category as the evidence of an accomplice or a confession. Consequently, in a case where the trial Judge as also the High Court founded their orders of conviction of an accused person under s. 302 of the Indian Penal Code mainly on three dying declarations made by the murdered person in quick -succession one after the other, and the High Court, relying on a decision of this Court, sought for corroboration of such dying declarations in the fact that the accused person had absconded and was arrested in suspicious circumstances, but was in doubt as to the sufficiency of such evidence of corroboration and granted the certificate of fitness under Art.
134 (l)(c) : Held, that the certificate granted by the High Court wa:s incompetent and as the case disclosed on grounds on which this Court could possibly grant special leave to appeal under Art. 136 of the Constitution, the appeal must be dismissed. CRIMINAL - APPELLATE JURISDICTION: Criminal Appeal No. 184 of 1956. Appeal from the judgment_ and order dated October 15, 1956, of the former Nagpur High Court in Criminal Appeal No. 205 of 1956 and Criminal Reference No. 15of1956, arising out of the judgment and order dated July 10, 1956 of the First Additional District Judge, Nagpur in Sessions Trial No. 34 of 1956. M2SC/61-7 J. N. Banerjee and P. C. Agarwala, for the appellant. Jindra Lal and R. H. Dhebar, for the respondent. 1957. September 25. The following Judgment of the Court was delivered by SINHA J. -This appeal on a certificate of fitness under Art.
134 (l)(c), granted by the High Court at Nagpur (as it then was), is directed against the con-current judgment and orders of the courts below, so far as the appellant Khushal is concerned, convicting and sentencing him to death under s. 302, Indian Penal Code, for the pre-meditated murder of Baboolal on the night of February 12, 1956, in one of the quarters of the city of Nagpur. It appears that there are two rival factions in what has been called the Mill area in Nagpur. The appellant and Tukaram who has been acquitted by the High Court, are the leaders of one of the factions, and Ramgopal, P. W. 4, Inayatullah, P. W. 1, and Tantu, P. W. 5, are said to be the leaders of the opposite faction. Before the time and date of the occurrence, there had been a number of incidents between the two rival factions in respect of some of which lnayat-ullah and Tantu aforesaid had been prosecuted.
Even on the date of the occurrence, apart from the one leading to the murder of Baboolal, which is the subject-matter of the present appeal, Tantu and Inayatullah had made two separate reports about the attacks on them by Khushal's party. There was another report lodged by Sampat-one of the four persons placed on trial along with the appellant, for the murder of Baboolal. That report was lodged at Ganeshpeth police station at about 9. 30 p. m. on the same date-February 12, 1956-against Inayatullah alias Kalia and Tantu, that they had attacked the former with sharp-edged weapons (Ex. P-26). The prosecution case is that the appellant Khushal was on bad terms with Baboolal who was on very friendly terms, with the leaders of the opposite faction aforesaid.
Being infuriated by the conduct of Baboolal in associating with the enemies of the party of the accused, Sampat, Mahadeo, Khushal and Tukaram suddenly attacked Baboolal with swords and spears and inflicted injuries on different parts of his body. The occurrence took place in a narrow lane of Nagpur at about 9 p. m. Baboolal was taken by his father and other persons to the Mayo hospital where he reached 'at about 9. 25 p. m. The doctor in attendance Dr. Kanik-dale (P. W. 14) at once questioned him about the incident and Baboolal is said to have made a statement to the doctor which the latter noted in the bed-head ticket (Ex. P-17) that the had been assaulted by Khushal and Tukaram with swords and spears. After noting the statement aforesaid, of Baboolal, the doctor telephoned to the Ganeshpeth police station where the information was noted at 9. 45 p. m. On receiving the information, Sub-Inspector A. K. Khan recorded (Ex. P-1) and registered an offence under s.
307, Indian Penal Code, and immediately went to the Mayo hospital along with a head-constable and several constables. He found Baboolal in a serious condition and suspecting that he might not survive and appre-hending that it might take time for the magistrate to be informed and to be at the spot, to record the dying declaration, he consulted Dr. Ingle, the attending doctor, whether Baboolal was in a fit condition to make a statement. The doctor advised him to have the dying declaration recorded by a magistrate. The Sub-Inspector decided that it would be more advisable for him to record the dying declaration without any delay. Hence, he actually recorded Baboolal's statement in answer to the questions put by him (Ex. P-2) at 10. 15 p. m. In the meantime, Shri M. S. Khetkar, a magistrate, first class, was called in, and he recorded the dying declaration (Ex. P-16) between 11. 15 and 11. 35 p. m. in the presence of Dr.
Ingle who certified that he had examined Baboolal and had found him mentally in a. fit condition to make his dying declaration. Besides these three dying declarations recorded in quick succession, as aforesaid, by responsible public servants, Baboolal is said to have made oral statements to a number of persons, which it is not necessary to set out because the High Court h. as not acted upon those oral dying declarations. We shall have to advert, later, to the recorded dying declarations in some detail, in the course of this judgment. Jt is enough to say at this stage that the courts below have founded their orders of conviction of the appellant mainly on those dying declarations. Baboolal died the next morning at about 10 a. m. in hospital. Having come to know the names of two of the alleged assailants of Baboolal from his recorded dying declarations, the police became busy·apprehend-ing those persons. They could not be found at their respective houses.
The appellant was arrested four days later in an out-house locked from outside, of a bungalow on Seminary Hill in Nagpur. The other person named as one of the assailants, Tukaram, was arrested much later. The prosecution case is that these persons were absconding and keeping out of the way of the police. After investigation and the necessary inquiry, four persons were placed on trial and the appellant was one of them. The Additional Sessions Judge aquitted two of them and convicted the remaining two-the appellant and Tukar/clm-under s. 302, Indian Penal Code, or in the alternative, under s. 302, read with s. 34, Indian Penal Code. He sentenced the appellant to death because in his opinion, he had caused Baboolal's death intentionally, and there were no extenuating circumstances. He sentenced Tukaram to imprisonment for life, because in the learned Judge's view of the case, Tukaram had acted under the instigation of the appellant.
Accordingly, the learned Additional Sessions Judge made a reference to the High Court for confirmation of the sentence of death. That reference was heard along with the appeal filed by the condemned prisoner. The reference, the appeal by the convicted accused persons, as also the appeal by the Government of Madhya fradesh, against the two accused persons who had been acquitted by the learned trial Judge, and the revisional application for enhancement of sentence passed upon Tukaram, also filed by the State Government, were all heard together and disposed of by one judgment, by a bench consisting of Hidayatullah C. J. and 1957 Mangalmurti J. The High Court, apparently with i:Au11io11Wo a view to understanding the evidence adduced in the v. State of/Joml>ay case on behalf of the parties, made a local inspee-tion on September 17, 1956, and recorded their impres- S/Ma I. si. ons in a note which forms part of the record of the High Court.
In a very well-considered judgment, the High Court, by its judgment and orders dated October 13, 1956, acquitted Tukaram, giving him the benefit of the doubt caused chiefly by the fact that in the dying declaration (Ex. P-16) recorded by the magistrate _as aforesaid, he has been described as a Teli, whereas Tukaram before the Court is a Kolhi, as stated in the charge-sheet. The doubt was further accentuated by the fact that there were three or four persons of the name of Tukaram, residing in the neighbourhood and some of I. hem are Te/is. The High Court examined, in meticulous details, the evidence of the eye-witnesses Inayatullah, P. W. 1, and Sadashiv, P. W. 3, and agreed wjth the trial Judge in his estimate of their testimony that those witnesses being partisan, their evidence could not be relied upon to base a conviction.
The High Court went further and came to the conclusion that their evidence being suspect, could not be used even as corroboration, if corroboration was needed of the three dying declarations made by Baboolal, as aforesaid. They upheld the conviction and sentence of the appellant on the ground that the dying declarations were corroborated by the fact that the appellant had been absconding and keeping out of the way of the police, and had been arrested under very suspicious circumstances. These circumstances and the alleged absconding by Tukaram were not so suspicious as to afford corroboration against him. In that view, the High Court "very reluctantly" gave the benefit of the doubt to Tukaram and allowed his appeal. The High Court also agreed with the trial Judge in acquitting the other two accused persons-. Sampat and Mahadeo-because these two persons had not been named in the dying declarations, and the oral testimony was not of such a character as to justify conviction.
Accordingly, the Government appeal and 1951 application in revision were dismissed. As against Khus/uJI Rao the appellant, the reference made by the learned trial s v. Bo Judge was accepted and his appeal dismissed. Thus, 01 tate mbay under the orders of the High Court, only the appellant Sinha J. stood convicted on the charge of murder with a sentence of death against him. He moved the High Court for a certificate under art. 134(l)(c) of the Constitution, and the High Court granted a "certificate of fitness". Hence, this appeal. At the outset, we must repeat what this Court has observed in a number of appeals ath. The appeal is, accordingly, dismissed. Appeal dismissed
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