Introduction

• In this case Supreme Court observed that in order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination.
• But once the court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration.

Facts

• There were two rival factions in the Mill area of Nagpur. Kushal (appellant) and Tukaram were the leaders of one faction and three other persons named Ramgopal, Inayatullah and Tantu were the leaders of another faction.
• There is another person named Baboolal who had very friendly terms with Ramgopal etc. But Kushal had bad terms with Baboolal.
• According to prosecution because Baboolal associated with the opposite faction, the leaders of other faction Kushal, Sampat, Mahadeo and Tukaram attacked Baboolal with swords and spears and inflicted injuries on different parts of his body.
• He was taken to hospital by his father and other people.
• When the doctor attended him, the doctor asked about the incident. Baboolal made a statement that he was assaulted by Kushal and Tukaram with swords and spears.
• After this statement the doctor called the police station and information was noted.
• Sub-Inspector registered an offence against the accused persons under Section 307 of the Indian Penal Code, 1860 (IPC).
• Thereafter, the Sub-Inspector went to the hospital and found Baboolal was in severe condition. He immediately recorded the dying declaration without any delay after consulting with the doctor whether Baboolal was in a fit condition to make a statement.
• He recorded the dying declaration in question-answer form.
• Meanwhile a Magistrate of first class had also come and recorded the dying declaration in the presence of the doctor who examined Baboolal that he was in fit condition to make his dying declaration.
• In the next morning Baboolal died in the hospital.
• Kushal and Tukaram both were arrested by the police.
• After investigation the charge was framed against the four accused. The Additional Sessions Judge (trial court) acquitted two accused and convicted Kushal and Tukaram under Section 302 read with Section 34 of IPC.
• The trial court sentenced Kushal to death as he caused Baboolal’s death intentionally and there were no extenuating circumstances. And sentenced Tukaram to imprisonment for life because he acted under the instigation of the appellant.
• The trial court made reference to the High Court for the confirmation of death sentence. The appeal was also filed by the convicted accused before the High Court.
• After examining eyewitnesses and evidence the High Court acquitted Tukaram, he got benefit of doubt and two other accused were also acquitted.
• The High Court upheld the appellant's conviction and sentence because of the dying declarations. He was convicted for the offence of murder and sentenced to death.
• Appellant moved to High Court for the certificate of fitness under Article 134(1)(c) of the Constitution of India, 1950 (COI). The High Court granted the same.
• Appeal was filed before the Supreme Court.

Issues Involved

• Whether the accused could be convicted on the sole basis of Dying Declarations without any corroboration?

Observations

• The Supreme Court held that the certificate of fitness granted by the High Court does not satisfy the requirements of Article 134 (1) (c) of COI.
• The Supreme Court examined the principles governing acceptance of dying declaration. After examining the relevant provisions of the IEA and various judicial pronouncements, the Court laid down the following conclusions:
  • it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated,
  • each case must be determined on its own facts, keeping in view the circumstances in which the dying declaration was made,
  • it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence,
  • a dying declaration stands on the same footing as another piece of evidence. It has to be judged in the light of surrounding circumstances and with reference to the principles governing weighing of evidence,
  • a dying declaration which has been recorded by a competent Magistrate in the proper manner stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character,
  • in order to test the reliability of a dying declaration, the court has to keep in view various circumstances including the condition of the person concerned to make such a statement; that it has been made at the earliest opportunity and was not the result of tutoring by interested parties.
• The Supreme Court observed that in this case there is three successive dying declarations made in the course of about two hours, by the deceased, is that he consistently named the appellant and Tukaram as the persons who had assaulted him with sword and spear. No part of his dying declarations has been shown to be false. Tukaram got the benefit of the doubt created by the similarity of names in that locality. Regarding the two other accused, Baboolal in his statement did not tell their name.
• Hence, we have no reason to doubt the truth of the dying declaration and its reliability. The Court held that the dying declarations of the deceased Baboolal are sufficient to sustain the appellant's conviction for murder.
• It was a case of a deliberate cold-blooded murder. Supreme Court uphold the judgment of the High Court and appellant was convicted for murder and sentenced to death.

Conclusion

Thus, the necessity for corroboration, does not arises from any inherent weakness of a dying declaration as a piece of evidence, but from the fact that the court, in a given case, has come to the conclusion that particular dying declaration was not free from the infirmities referred to above or from such other infirmities as may be disclosed in evidence in that case.

Notes

• Section 32 (1) of Indian Evidence Act, 1872 and Section 26 (a) of Bharatiya Sakshya Adhiniyam, 2023 covers the following:

Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant. –

Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:-

(1) When it relates to cause of death. – When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question.

Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.