ON 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 15 of 1956 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
554 J N Banerjee and P C Agarwala for the appellant
Jindra Lal and RHDhebdr for the respondent
September 25
The following Judgment of the Court was delivered by SINHA J
This appeal on a certificate of fitness under article 1341c granted by the High Court at Nagpur as it then was is directed against the concurrent judgment and orders of the courts below so far as the appellant Khushal is concerned convicting and sentencing him to death under section 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 PW 4 Inaya tullah PW 1 and Tantu PW 5 are said to be the lead ers 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 Inayatul lah 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 930 pm on the same date February 12 1956 against Inayatullah alias Kalia and Tantu that they had attacked the former with sharp edged weapons exhibit 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 555 suddenly attacked Baboolal with swords and spears and in flicted injuries on different parts of his body
The occur rence took place in a narrow lane of Nagpur at about 9 pm Baboolal was taken by his father and other persons to the Mayo hospital where he reached at about 925 pm
The doctor in attendance Dr Kanikdale PW 14 at once questioned him about the incident and Baboolat is said to have made a statement to the doctor which the latter noted in the bed head ticket exhibit P 17 that he had been assaulted by Khu shal 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 945 pm
On receiving the information Sub Inspec tor A K Khan recorded exhibit P 1 and registered an offence under section 307 Indian Penal Code and immediately went to the Mayo hospital along with a head constable and several con stables
He found Baboolal in a serious condition and suspecting that he might not survive and apprebending that it might take time for the magistrate to be informed and to be at the spot to record the dying declaration he consult ed 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 exhibit P 2 at 10 15 pm
In the meantime Shri M section Khetkar a magistrate first class was called in and he recorded the dying declaration exhibit P 16 between 11 15 and 11 35 pm 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 declara tion
Besides these three dying declarations recorded in quick succession as aforesaid by responsible public serv ants 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 has not acted upon those oral dying declarations
We 71 556 shall have to advert later to the recorded dying declara tions in some detail in the course of this judgment
It 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 am in hospital
Having come to know the names of two of the alleged assail ants of Baboolal from his recorded dying declarations the police became busy apprehending those persons
They could not be found at their respective houses
The appellant was arrested four days later in an out house locked from out side 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 acquitted two of them and convict ed the remaining two the appellant and Tukaram under section 302
Indian Penal Code or in the alternative tinder section 302 read with section 34 Indian Penal Code
He sentenced the appel lant to death because in his opinion he had caused Baboolal s death intentionally and there were no extenuat ing 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 Pradesh against the two accused per sons 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 557 by a Bench consisting of Hidayatullah C J and Mangalmurti J The High Court apparently with a view to understanding the evidence adduced in the case on behalf of the parties made a local inspection on September 17 1956 and recorded their impressions 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 exhibit 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 neigh bourhood and some of them are Telis
The High Court exam ined in meticulous details the evidence of the eye wit nesses Inayatullah PW 1 and Sadashiv PW 3 and agreed with 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 appel lant had been absconding and keeping out of the way of the police and had been arrested under very suspicious circum stances
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 reluctant ly  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 Maha deo 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 Gov ernment appeal and 558 application in revision were dismissed
As against the appellant the reference made by the learned trial judge was accepted and his appeal dismissed
Thus under the orders of the High Court only the appellant stood convicted on the charge of murder with a sentence of death against him
He moved the High Court for a certificate under article 1341c of the Constitution and the High Court granted a  certifi cate of fitness 
Hence this appeal
At the outset we must repeat what this Court has observed in a number of appeals coming up to this Court on certifi cates of fitness granted by High Courts mainly on questions of fact
The main ground for the grant of the certificate may be reproduced in the words of the High Court itself The main ground is that there is not enough evidence against the accused and that there is an error in our judg ment in holding that there was no evidence to show that Khushal whose absconding has been held to corroborate the dying declaration was involved in a liquor case
During the course of the argument neither side drew our attention to the documents which were in the record nor was any point made of it though we questioned why the absconding should not be taken into consideration
Now it seems that there are one or two defence exhibits in which it has been shown that Khushal was not found in his house when he was wanted in a liquor case after a search on 5th February 1956
In view of the fact that there is this error and the sufficien cy of the evidence might be a matter for consideration in the light of this additional evidence we think this is a fit case for a special certificate under article 1341c of the Constitution
 It is clear that the High Court granted the certificate of fitness under article 1341c of the Constitution not on any difficult question of law or procedure which it thought required to be settled by this Court but on a question which is essentially one of fact namely whether there was sufficient evidence of the guilt of the accused
The latest reported case of this Court bearing on this aspect of this appeal is Haripada 559 Dey vs The State of West Bengal1 to the effect that a High Court exceeds its power of granting a certificate of fitness under that article if the certificate discloses that the main ground on which it was based related to a question of fact and that the High Court is not justified in sending up such a case for further consideration by this Court which does not ordinarily concern itself with deciding mere questions of fact unless such questions arise on a certifi cate granted under cls
a or b of article 134 1 of the Constitution
In other words this Court does not function  ordinarily as a Court of Criminal Appeal
Under the Con stitution it has the power and it is its duty to hear appeals as a Regular Court of Appeal on facts involved in cases coming up to this Court on a certificate under article 1341a or b
To the same effect are the other deci sions of this Court referred to in the reported decision aforesaid for example Narsingh vs The State of Uttar Pradesh 2 Baladin vs The State of Uttar Pradesh3 sunder Singh vs State of Uttar Pradesh4 It is therefore incumbent upon the High Courts to be vigilant in cases coming up before them by way of an appli cation for a certificate of fitness under article 1341 c of the Constitution
In view of these considerations it has got to be held that the certificate of fitness granted by the High Court does not satisfy the requirements of article 1341c of the Con stitution
The appeal on such a certificate has therefore to be dismissed in limine but we have to satisfy ourselves whether there are such grounds as would justify this Court in granting special leave to appeal to this Court if the appellant had approached this Court in that behalf
We have therefore examined the record of this case from that point of view
It appears from the judgments of the courts below that the prosecution case rests mainly upon the three dying declarations of Baboolal who died shortly after making those statements as to his assailants in quick succession within about two and a half hours of the 1 I956 SCR 639
2 1955 i SCR 238
3 AIR 1956 SC 181
4 AIR 1956 SC411
560 occurrence indeed the first one to the doctor was made within half an hour as also upon the evidence of two per sons Inayatullah PW I and Sadashiv PW 3 who figure as eye witnesses and Trimbak PW 2 and Ramgopal PW 4 who claimed to have turned up in the nick of time to witness the last stages of the occurrence
Though the trial Judge did not disbelieve the oral testimony of the witnesses aforesaid and only insisted upon corroboration the High Court was more pronounced in its view that the testimony of those four witnesses was not trustworthy
The High Court has discussed their evidence in great detail and was not prepared to accept any part of their testimony on the ground that they were strongly partisan witnesses and that they did not come to the rescue of the victim of the murderous as sault if they were really in the neighbourhood of the place of the occurrence as claimed by them
If we had to assess the value of that body of oral evidence we may not have come to the same conclusion but we proceed on the assump tion that the High Court is right in its estimate of the oral testimony adduced on behalf of the prosecution
After discussing all that evidence the High Court took the view that it could not place any reliance on the oral testimony of what Baboolal had spoken to PWs 2 and 19 when they deposed that Baboolal had named two of his assailants namely the appellant and Tukaram
The High Court reiied upon the three dying declarations recorded at the hospital first by the attending doctor second by the Sub Inspector of police and the third by the magistrate first class between 9 25 and 11 35 p m
As regards authenticity of the record of those three statements of the deceased the High Court had no doubt nor has any doubt been cast upon them by counsel for the appellant
The High Court then considered the question whether the conviction of the accused could be based on those dying declarations alone
It pointed out that in that High Court as also in other High Courts con victions on dying declarations alone had been rested if the Court was satisfied that the dying declaration was true and therefore could be acted upon
But the decision of 561 this Court in Ram Nath Madhoprasad vs State of Madhya Pra desh 1 was brought to their notice and in view of that decision the High Court looked for corroboration of the dying declarations aforesaid
It found that corroboration in the subsequent conduct of the appellant in that as deposed to by prosecution witness 31 the Sub Inspector in charge of Ganeshpetli police station the appellant could not be traced till February 16 1956 on which day the police obtained information to the effect that the accused had been concealing himself in the premises of Ganesh dhobi at Hazari Pahar
He went there and found the appellant sitting in a room which had been locked from the front side
He arrested the accused
The High Court did not believe the defence suggestion that the appellant bad been concealing himself for fear of the police in connection with an excise case in which be had been suspected
The records in connection with that case have been placed before us and after examining those records we do not find any good reasons for differing from the High Court in its appreciation of the circumstances connected with the absconding of the accused
The High Court took the view that the circumstance of the appellant s conduct in concealing himself and evading the police for a number of days was consistent with the prosecution case that he was concerned in the crime which was the subject matter of the charge against him
Thus in effect the High Court found corroboration which according to the ruling of this Court referred to above was necessary in order to base the conviction upon the dying declarations of Baboolal
The question whether the circumstances of the appellant s alleged keeping out of the way of the police for a number of days after the occurrence can be used as corroboration of the dying declarations is not free from doubt and diffi culty
The argument on behalf of the accused that he had been keeping out of the way of the police because he was suspected in the excise case is not entirely unfounded
He had not left the city of Nagpur and gone out of the juris diction of the local police
In those circumstances we are not 1 AIR 1953 SC 420 562 prepared to say that the alleged absconding of the accused could afford sufficient corroboration if corroboration of the dying declarations was needed
In this Court a good deal of argument was addressed to us to the effect that the ruling of this Court lays down a sound proposition of law which should have been followed by the High Court and that the alleged fact of the accused absconding and keeping out of the way of the police could not be used as corroboration of the dying declaration
The decision of this Court in Ram Nath Madhoprasad vs State of Madhya Pradesh 1 contains the following observations at p 423 which have been very strongly relied upon on behalf of the appellant as having a great bearing upon the value to be placed upon the dying declarations It is settled law that it is not safe to convict an accused person merely on the evidence furnished by a dying declara tion without further corroboration because such a statement is not made on oath and is not subject to cross examination and because the maker of it might be mentally and physically in a state of confusion and might well be drawing upon his imagination while he was making the declaration
It is in this light that the different dying declarations made by the deceased and sought to be proved in the case have to be considered 
We have therefore to examine the legal position whether it is settled law that a dying declaration by itself can in no circumstances be the basis of a conviction
In the first place we have to examine the decision aforesaid of this Court from this point of view
This Court examined the evidence in detail with a view to satisfying itself that the dying declarations relied upon in that case were true
In that case apart from the dying declarations there was the evidence of the approver
This Court found that the evi dence of the approver and other oral testimony had been rightly rejected by the High Court
In that case also the Court had mainly relied upon the dying declarations for basing the conviction under section 302 i AIR 1953 SC 420
563 read with section 34 Indian Penal Code
This Court examined for itself the dying declarations and the other evidence bear ing upon the truth and reliability of the dying declara tions and after an elaborate discussion of all that evi dence came to the conclusion that the dying declarations did not contain a truthful version of what actually hap pened
Thus after a very careful and cautious examination of the facts of the case connected with the recording of the dying declaration and of the other evidence in the case and of the fact that it was a dark night without any lights available at the place of occurrence this Court distinctly came to the conclusion that the dying declaration was not true and could not be relied upon to base upon that alone the conviction of the appellants
It is thus  clear that the observations quoted above of this Court are in the nature of obiter dicta
But as it was insisted that those observations were binding upon the courts in India and upon us we have to examine them with the care and caution they rightly deserve
The Legislature in its wisdom has enacted in section 321 of the Evidence Act that 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 a statement written or verbal made by a person who is dead omitting the unnecessary words is itself a relevant fact
This provision has been made by the Legislature advisedly as a matter of sheer necessity by way of an exception to the general rule that hearsay is no evidence and that evidence which has not been tested by cross exami nation is not admissible
The purpose of cross examination is to test the veracity of the statements made by a witness
In the view of the Legislature that test is supplied by the solemn occasion when it was made namely at a time when the person making the statement was in danger of losing his life
At such a serious and solemn moment that person is not expected to tell lies and secondly the test of cross examination would not be available
In such a case the necessity of oath also has been 72 564 dispensed with for the same reasons
Thus a statement made by a dying person as to the cause of death has been accorded by the Legislature a special sanctity which should on first principles be respected unless there are clear circum stances brought out in the evidence to show that the person making the statement was not in expectation of death not that that circumstance would affect the admissibility of the statement but only its weight
It may also be shown by evidence that a dying declaration is not reliable because it was not made at the earliest opportunity and thus there was a reasonable ground to believe its having been put into the mouth of the dying man when his power of resistance against telling a falsehood was ebbing away or because the statement has not been properly recorded for example the statement bad been recorded as a result of prompting by some interested parties or was in answer to leading questions put by the recording officer or by the person purporting to reproduce that statement
These may be some of the circum stances which can be said to detract from the value of a dying declaration
But in our opinion there is no absolute rule of law or even a rule of prudence which has ripened into a rule of law that a dying declaration unless corrobo rated by other independent evidence is Dot fit to be acted upon and made the basis of a conviction
No decision of this Court apart from the decision already noticed has been pointed out to us as an authority for the proposition that a dying declaration in order to be acted upon by a court must be corroborated by independent evidence
On the other hand the different High Courts in India including Burma have taken conflicting views as to the value of a dying declaration in part or in its entirety without any independent corroboration
For example a Division Bench of the Bombay High Court presided over by Sir John Beaumont CJ has laid down in the case of Emperor vs Akbarali Karimbhai I that a statement which is covered by section 321 of the Evidence Act is relevant evidence and has to be judged on the same principles as other evidence bearing in mind that such a i ILR 565 declaration was not made on oath and was not subject to cross examination and is therefore a weaker type of evidence than that given by a witness on oath
Therefore if a part of a dying declaration is deliberately false it will not be safe to act upon the other part of the declara tion without very definite corroboration That Bench also ruled that it is not correct to postulate that because some part of the dying declaration is false the whole declara tion must necessarily be disregarded
The Bombay High Court thus did not agree with the observations of the Calcutta High Court in the case of Emperor vs Premananda Dutt 1 to the effect that it is not permissible to accept a dying declaration in part and to reject the other part and that a dying declaration stood on a widely different footing from the testimony of a witness given in court
On the other hand we have the decision of the Rangoon High Court reported in the case of the King vs Maung Po Thi 2
In that case the positive evidence led on behalf of the prose cution was found to have been tampered with and unreliable
The Court set aside the order of acquittal passed by the trial judge and recorded an order of conviction for murder practically on the dying declaration of the victim of the crime
The Court observed that there was
no such rule of prudence as had been invoked in aid of the accused by the trial judge who had observed that an accusation by a dying man without corroboration from an independent source could not be the sole basis for conviction
The learned Judges of the High Court further observed that in order to found on a dying declaration alone a judgment of conviction of an accused person the Court must be fully satisfied that the dying declaration has the impress of truth on it after examining all the circumstances in which the dying person made his statement ex parte and without the accused having the opportunity of cross examining him
If on such an examination the Court was satisfied that the dying declara tion was the true version of the occurrence conviction could be based solely upon it
1 Cal
2 AIR 1938 Rang
282 566 In the High Court of Madras there was a difference of judicial opinion as expressed in certain unreported cases which resulted in a reference to a Full Bench
Sir Lionel Leach C J presiding over the Full Bench In re Guruswami Tevar 1  delivered the unanimous opinion of the Court after examining the decisions of that High Court and of other High Courts in India
His conclusions are expressed in the penultimate paragraph of his judgment thus  In my judgment it is not possible to lay down any hard and fast rule when a dying declaration should be accepted beyond saying that each case must be decided in the light of the other facts and the surrounding circumstances but if the Court after taking everything into consideration is convinced that the statement is true it is its duty to convict notwithstanding that there is no corroboration in the true sense
The Court must of course be fully con vinced of the truth of the statement and naturally it could not be fully convinced if there were anything in the other evidence or in the surrounding circumstances to raise suspicion as to its credibility
 To the same effect are the decisions of the Patna High Court in the case of Mohamad Arif vs Emperor2 and of the Nag pur
High Court in Gulabrao Krishnajee Maratha vs King Emperor3
The Judicial Committee of the Privy Council had to consider in the case of Chandrasekera alias Alisandiri vs The King4 the question whether mere signs made by the victim of a murderous attack which had resulted in the cutting of the throat thus disabling her from speaking out could come within the meaning of section 32 of the Ceylon Evidence Ordinance which was analogous to section 321 of the Indian Evidence Act
The Pi ivy Council affirmed the decision of the Supreme Court of Ceylon and made the following observa tions in the course of their judgment which would suggest that a dying declaration if found reliable by a jury may by itself sustain a conviction 1 ILR 170
2 AIR 1941 Patna 409
3 ILR 1945 Nag 613 AIR 1945 Nag
4 I937 AC 220 229
567 
Apart from the evidence proceeding from the deceased woman the other evidence was not sufficient to warrant a conviction but at the same time that other evidence was not merely consistent with the deceased s statement but pointed in the same direction  It was case in which if the deceased s statement was received and was believed as it evidently was by the jury to be clear and unmistakable in its effect then a conviction was abundantly justified and indeed inevitable
 In Phipson on Evidence  9th ed p 335 the author has discussed the question Whether a dying declaration without other evidence in corroboration could be sufficient for a conviction and has made the following observations which are pertinent to this case  
The deceased then signed a statement implicating the prisoner but which was not elicited by question and answer and died on March 20
It was objected that being begun in that form it was inadmissible Held 1 the questions and answers as to his state of mind were no part of the dying declaration 2 that even if they were they only affected its weight not its admissibility  and 3 that the decla ration was sufficient without other evidence for convic tion R vs Fitzpatrick 1910 46 Ir
LTR 173 CCR
 Sometimes attempts have been made to equate a dying decla ration with the evidence of an accomplice or the evidence furnished by a confession as against the maker if it is retracted and as against others even though not retracted
Butin our opinion it is not right in principle to do so
Though under section 133 of the Evidence Act it is not illegal to convict a person on the uncorroborated testimony of an accomplice illustration b to section 114 of the Act lays down as a rule of prudence based on experience that an accom plice is unworthy of credit unless his evidence is corrobo rated in material particulars and this has now been accepted as a rule of law
The same cannot be said of a dying decla ration because a dying declaration may not unlike a confes sion or the testimony of an approver come from a tainted source
If a dying 568 declaration has been made by a person whose antecedents are as doubtful as in the other cases that may be a ground for looking upon it with suspicion but generally speaking the maker of a dying declaration cannot be tarnished with the same brush as the maker of a confession or an approver
On a review of the relevant provisions of the Evidence Act and of the decided cases in the different High Courts in India and in this Court we have come to the conclusion in agreement with the opinion of the Full Bench of the Madras High Court aforesaid 1 that 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 2 that each case must be determined on its own facts keeping in view the circumstances in which the dying decla ration was made  3 that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence 4 that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the princi ples governing the weighing of evidence 5 that a dying declaration which has been recorded by a competent magis trate in the proper manner that is to say in the form of questions and answers and as far as practicable in the words of the maker of the declaration 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 and 6 that in order to test the reliability of a dying declaration the Court has to keep in view the
circumstances like the opportunity of the dying man for observation for example whether there was sufficient light if the crime was committed at night whether the capacity of the man to remember the facts stated had not been impaired at the time he was making the state ment by circumstances beyond his control that the state ment has been consistent throughout if he had several oppor tunities of making a dying declaration apart from the offi cial record of it  and that the statement had been made at the 569 earliest opportunity and was not the result of tutoring by interested parties
Hence 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
If on the other hand the court after examining the dying declaration in all its aspects and testing its veracity has come to the conclusion that it is not reliable by itself and that it suffers from an infirmity then without corroboration it cannot form the basis of a conviction
Thus the necessity for corrobora tion arises not from any inherent weakness of a dying decla ration as a piece of evidence as held in some of the re ported cases but from the fact that the court in a given case has come to the conclusion that 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
Having made the general observations bearing on the question of the legality of basing a conviction on a dying declara tion alone and keeping in view the tests set out above let us examine the dying declarations now in question before us
The most remarkable fact which emerges from an examination of the three successive dying declarations made in the course of about two hours by the deceased is that he con sistently named the appellant and Tukaram as the persons who had assaulted him with sword and spear
The injuries found on his person namely the punctured wounds and the incised wounds on different parts of his body are entirely con sistent with his statement that he was attacked by a number of persons with cutting and piercing weapons
No part of his dying declarations has been shown to be false
Of the two assailants named by him Tukaram was convicted by the learned trial judge but acquitted 570 by the High Court which very reluctantly gave him the bene fit of the doubt created by the similarity of names in that locality as already stated
There was no such confusion in the case of the appellant
The deceased indicated that there were two more persons concerned in the crime but he could not name them
The other two accused persons who were acquitted by the courts below had not been named in the dying declarations and therefore their acquittal did not in any way militate against the truth of the dying declara tions
The courts below also agreed in holding that Babool al was in a position to see his assailants and to identify them in the light of the electric lamp nearby
They have also pointed out that there was no coaching
There is no doubt therefore that Baboolal had been consistent through out in naming the appellant as one of his assailants and he named him within less than half an hour of the occurrence and as soon as he reached the Mayo Hospital
There was thus no opportunity or time to tutor the dying man to tell a lie
At all material times he was in a proper state of mind in spite of multiple injuries on his person to remem ber the names of his assailants
Hence we have no reasons to doubt the truth of the dying declarations and their reliability
We have also no doubt that from the legal and from the practical points of view the dying declarations of the deceased Baboolal are sufficient to sustain the appellant s conviction for murder
The only other question that remains to be considered is whether there are any extenuating circumstances in favour of the accused justify ing the lesser of the two sentences prescribed by law
In our opinion there are none
It was a case of a deliberate cold blooded murder
For the reasons given above we uphold the judgment and order of the High Court convicting the appellant of murder and sentencing him to death
The appeal is accordingly dismissed
Appeal dismissed


Summary:
The Supreme Court does not ordinarily function as a Court of criminal appeal and it is not competent for a High Court under article 1341c of the Constitution to grant a certifi cate of fitness for appeal to this Court on a ground which is essentially one of fact
Haripada Dey vs The State of West Bengal 1956 SCR 639 followed
There is no absolute rule of law not even a rule of pru dence that has ripened into a rule of law that a dying declaration in order that it may sustain an order of convic tion must be corroborated by other independent evidence
The observations made 553 by this Court in Madhoprasad vs The State of Madhya Pradesh are in the nature of obiter dicta and do not lay down the law
Madhoprasad vs The State of Madhya Pradesh AIR 1953 SC 420 considered
In re Guruswami Tevar ILR  approved
Case law reviewed
The provision of section 32I 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 rele vant is an exception to the general rule of exclusion of hearsay evidence and evidence untested by cross examination
The special sanctity which the Legislature attaches to such a declaration must 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 scruti nised 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 section 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 article I34Ic Held that the certificate granted by the High Court was incompetent and as the case disclosed no grounds on which this Court could possibly grant special leave to appeal under article 136 of the Constitution the appeal must be dismissed