[2009] 3 S.C.R. 187

KALAWATI W/O DEVAJI DHOTE A

STATE OF MAHARASHTRA (Criminal Appeal No. 267 of 2009)

FEBRUARY 11, 2009 B

[DR. ARIJIT PASAYAT AND ASOK KUMAR

GANGUL Y, JJ.] • Penal Code, 1860: c -

S.302 - Murder - Trial Court convicting accused on the basis of evidence ofa child witness and the dying declaration

- Affirmed by High Court - On appeal, Held: In view of the credible and cogent evidence of the child witness and the dying declaration, no merit in the appeal.

"" The appellant was convicted by the Trial Court for offence under s.302 IPC, relying on the evidence of a child witness and the dying declaration. The conviction was affirmed by the High Court. Hence the appeal.

E Dismissing the appeal, the Court

HELD: 1.1 Though 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 F 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 G deceased was not as a result of either tutoring or j 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

187 H

A 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 B unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. [Para 6] [194-C]

1.2. The principles governing dying declaration, are:

(i) There is neither rule of law nor of prudence C that dying declaration cannot be acted upon without corroboration.

(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base

0 conviction on it, without corroboration.

(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.

(iv) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence.

(v) Where the deceased was unconscious and could never make any dying declaration, the evidence with regard to it is to be rejected.

(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction.

(vii) Merely because a dying declaration does H contain the details as to the occurrence, it is

I '

KALAWATI W/O DEVAJI DHOTE v. STATE OF 189

MAHARASHTRA

not to be rejected.

(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.

(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 c

conscious state to make the dying declaration, the medical opinion cannot prevail.

' (x) Where the prosecution version differs from the version as given in the dying declaration, the D said declaration cannot be acted upon.

(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 E plurality of dying declarations could be held to be trustworthy and reliable, it has to be

\ . accepted. [Para 6] [194-G; 196-A] • Smt. Paniben v. State of Gujarat AIR 1992 SC 1817; Munnu Raja & Anr. v. The State of Madhya Pradesh (1976) F 2 SCR 764; State of Uttar Pradesh v. Ram Sagar Yadav and Ors. AIR 1985 SC 416; Ramavati Devi v. State of Bihar AIR 1983 SC 164; K. Ramachandra Reddy and Anr. v. The Public Prosecutor AIR 1976 SC 1994; Rasheed Beg v. State of Madhya Pradesh 1974 (4) SCC 264; Kaka Singh v. State G l of M.P. AIR 1982 SC 1021; Ram Manora th and Ors. v. State ' of U.P. 1981 (2) SCC 654; State of Maharashtra v.

Krishnamurlh1 Laxmipati Naidu AIR 1981 SC 617; Surajdeo

Oza and Ors. v. State of Bihar AIR 1979 SC 1505; Nanahau Ram and Anr. v. State of Madhya Pradesh AIR 1988 SC 912; H

> A State of U.P. v. Madan Mohan and Ors. AIR 1989 SC 1519; Mohan/a/ Gangaram Gehani v. State of Maharashtra AIR 1982 SC 839 and Mohan Lal and Ors. v. State of Haryana 2007 (9) sec 151, relied on.

B Case Law Reference:

AIR 1992 SC 1817 relied on Para 6

(1976) 2 SCR 764 relied on Para 6 ..

AIR 1985 SC 416 relied on Para 6 c

AIR 1983 SC 164 relied on Para 6 -

AIR 1976 SC 1994 relied on Para 6

1974 (4) sec 264 relied on Para 6

AIR 1982 SC 1021 relied on Para 6

1981 (2) sec 654 relied on Para 6

AIR 1981 SC 617 relied on Para 6

AIR 1979 SC 1505 relied on Para 6

AIR 1988 SC 912 relied on Para 6

AIR 1989 SC 1519 relied on Para 6

AIR 1982 SC 839 relied on Para 6 F

2001 (9) sec 151 relied on Para 6

CRIMINAL AP PELLA TE JURISDICTION : Criminal Appeal No. 267 of 2009.

G From the Judgment and Order dated 11.4.2007 of the High • Court of Judicature at Bombay, Nagpur Bench, Nagpur in •

Criminal Appeal No. 126 of 1992.

Kishor Lambat, R.S. Lambat and Deven Lambat for the

H Appellant.

KALAWATI W/O DEVAJI DHOTE v. STATE OF 191

MAHARASHTRA -<.,

Ravindra Keshavrao Adsure for the Respondent.

A ,

The Judgment of the Court was delivered by

DR. ARIJIT PASAYAT, J. 1. Leave granted.

2. Challenge in this appeal is to the judgment of a Division B Bench of the Bombay High Court, Nagpur Bench, upholding the

' conviction of the appellant for offence punishable under Section .. 302 of the Indian Penal Code, 1860 (in short 'IPC') as was recorded by the learned Sessions Judge, Wardha, and the sentence of life imprisonment was awarded. c

3. The prosecution version is as follow:

Appellant was prosecuted for the offence punishable under Section 302 IPC on the allegations that on 17th March, 1989, • at about 5.00 P.M. at Mouja Shekapur (Mozari) she committed D murder by intentionally causing death of Babital, wife of Pandurang Lokhande on account of a preceding quarrel.

Deceased Babital was residing in the neighbourhood of appellant at Mouja Shekapur. On the date of incident, her husband P.W.3 Pandurang had gone to the field of one E Murlidhar Barade. At about 5.00 P.M. he returned home. He noticed his wife in the burnt condition. The fire was extinguished

• and she was led on the cot. There was quarrel between the deceased Babital and the appellant at about 4.00 P.M. which was witnessed by son of the deceased Sharad (PW 1 ). The F quarrel was also witnessed by Bhaurao (PW 2) the neighbour.

After this quarrel and exchange of ugly abuse, the appellant brought kerosene bottle from her house and poured the same on the deceased. She also lit her by matchstick from matchbox.

Thus appellant se\' the deceased on fire. When she tried to go G -', by the side of shed she also caught fire. Shard (PW 1) poured water on the person of his mother and tried to extinguish the fire. Meanwhile because of ugly unbearable abuses between the deceased and the appellant Bhaurao (PW2) had left the said place. He, however, returned back from his house after H

KALAWATI W/O DEVAJI DHOTE v. STATE OF 193

MAHARASHTRA [DR. ARIJIT PASAYAT, J.]

-'.' for postmortem. Autopsy was conducted by Dr. Divekar at A Medical hospital. After due investigation, charge sheet against the appellant was submitted for the offence under Section 302

IPC, before the court of Judicial Magistrate First Class, Hinganghat, who in turn committed this case to the court of Sessions.

Since the accused person pleaded innocence, trial was

""' held. Nine witnesses were examined to further the prosecution # version. Sha rad (PW1) is the eye-witness. Bhaurao (PW2) is the neighbour of the deceased and the appellant, who after c hearing ugly abuses between the appellant and the deceased went to his house and returned after hearing shouts of Sharad (PW1). Pandurang is the husband of the deceased. The accused to establish the plea of innocence examined two

, I persons. The trial court accepted the evidence of Sha rad (PW1) D " as trustworthy and to have been corroborated by the evidence of Bhaurao (PW2) and other evidence on record for the sake of dying declaration before the police office and the Executive Magistrate.

Accordingly, the accused was found guilty. In appeal, it was E stated that PW1 's evidence could not have been accepted because he was a young boy and PW2's evidence also not believable. It was primarily stated that PW1 did not tell PW3, • the father, as to who was the author of the crime. The High Court found no substance in the stand. The evidence of the child F .J witness was cogent and credible.

It is to be noted that the defence took the plea that the deceased had committed suicide while setting herself on fire because of the allegation of illicit relations with the saintly G person . ...

4. In support of the appeal, learned counsel for the appellant submitted that the evidence of PW1 ought not to be

relied upon. Moreover, he was a child witness. The fact that he

,• did not disclose to his father who was the alleged author of the H ' - -c

A crime shows that the prosecution version was based on after '

thought. Learned counsel for the respondent, on the other hand, supported the judgment. -

5. The reason as to why PW1 did not tell PW3 has been

B explained by PW3 himself. The said witness stated PW1 did not disclose him as to how deceased caught fire because he himself had no time to ask about it and was busy in making arrangement for taking the injured to the hospital where she

subsequently breathed her last. ' c

6. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of crossexamination. 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 D 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 E 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

F 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. t

[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 .,

' ..

KALAWATI W/O DEVAJI DHOTE v. STATE OF 195

MAHARASHTRA [DR. ARIJIT PASAYAT, J.]

and voluntary it can base conviction on it, without A 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 8 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 C 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)] D

(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)]

(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. [See Ram Manorath and Ors.

v. State of UP. (1981 (2) SCC 654)

(vii) Merely because a dying declaration does contain the f 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 G

•. 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 1505).

(ix) Normally the Court in order to satisfy whether the deceased was in a fit mental condition to make the dying

A 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 UP. 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 Mohan/al Gangaram Gehani v.State of D Maharashtra (AIR 1982 SC 839) and Mohan Lal and Ors.

v. State of Haryana (2007 (9) SCC 151).

7. In view of the credible and cogent evidence of PW1 and the dying declaration, we find no merit in the present appeal E which deserves dismissal, which we direct.

G.N.

Appeal dismissed.