Judgment Case ID: 528

Judgment:
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 R.H.Dhebdr	 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 134(1)(c)	 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	 P.W. 4	 Inaya tullah	 P.W. 1	 and Tantu	 P.W. 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 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 (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 p.m. Baboolal was taken by his father and other persons to the Mayo hospital where he reached at about 925 p.m. The doctor in attendance Dr. Kanikdale (P.W. 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 9.45 p.m. 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 p.m. 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 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 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 a.m. 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	 P.W. 1	 and Sadashiv	 P.W. 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 134(1)(c) 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 134(1)(c) of the Constitution. " It is clear that the High Court granted the certificate of fitness under article 134(1)(c) 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 Bengal(1)	 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 134(1)(a) 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 Pradesh(3) sunder Singh vs State of Uttar Pradesh(4) 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 134(1) (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 134(1)(c) 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] S.C.R. 639. (2) [1955] i S.C.R. 238. (3) A.I.R. 1956 S.C. 181. (4) A.I.R. 1956 S.C.411. 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	 P.W. I and Sadashiv	 P.W. 3	 who figure as eye witnesses	 and Trimbak	 P.W. 2 and Ramgopal	 P.W. 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 P.Ws. 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) A.I.R. 1953 S.C. 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) A.I.R. 1953 S.C. 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 32(1) 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 C.J.	 has laid down in the case of Emperor vs Akbarali Karimbhai (I)	 that a statement which is covered by section 32(1) 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) I.L.R. 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) A.I.R. 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 Emperor(2)	 and of the Nag pur. High Court in Gulabrao Krishnajee Maratha vs King Emperor(3). The Judicial Committee of the Privy Council had to consider	 in the case of Chandrasekera alias Alisandiri vs The King(4)	 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 32(1) 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) I.L.R. 	170. (2) A.I.R. 1941 Patna 409. (3) I.L.R. [1945] Nag. 613; A.I.R. 1945 Nag. (4) [I937] A.C. 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. L.T.R. 173	 C.C.R). " 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. But		in 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 134(1)(c) 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) S.C.R. 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	 A.I.R. (1953) S.C. 420	 considered. In re Guruswami Tevar	 I.L.R. 	 approved. Case law reviewed. The provision of section 32(I) 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 I34(I)(c): 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.