1951

Surlnder X-ar

and OtMrs

v.

Gltlll~haNI

andOtlwr1

Kapvr J.

1951

Septembtr 25.

552 SUPREME COURT REPORTS [1958}

appeal. In that event the infirmity in the appellant's

case due to the want

of proper attestation of the will

under

s. 63(l)(c) of the Indian

Succession Act would be

removed. Because

of the view we have taken the

other objection raised by the respondents becomes

wholly inefficacious. The finding

of the High

Cpurt

on this point is therefore reversed.

We, therefore, allow this appeal, set aside the judg­

ment and decree

of the Punjab High Court and remit

the case to the High Court for decision

of the other

issues which had not

been decided.

As the appellants did not obtain the probate till

after the appeal was filed in this court and made the

application for the admission

of additional evidence at

such a late stage, they will pay Rs. 500 as costs of this

court to the respondents within two months.

In

default of such payment the appeal shall stand dismis­

sed

·with costs, i.e., Rs. 500.

Appeal allowed.

KHUSHAL RAO

v.

THE STATE OF BOMBAY

(B. P. SINHA, GOVINDA MENON and J. L. KAPUR JJ).

Supreme Court, Criminal Appellate Jurisdiction of-Certificate

of fitness, if can be granted by High Court on a question of fact­

Dying declaration, evldentiary value of-If must be corroborated in

order

to sustain conviction-Constitution of India, Art.

134(1)(c)­

Indlan Evidence Act (I ofl872), s. 32 (!).

The Supreme Court does not ordinarily function as a Court of

criminal appeal, and it is not competent for a High Court under

Art, 134(l)(c) of the Constitution to grarit a certificate of fitness

for appeal

to this Court on a ground which is essentially one of

fact.

Haripada Dey v. The

State of West Bengal, (1956) S.C.R. 639,

followed.

There

is no absolute rule of Jaw, not even a rule of prudence

that has ripened into a rule of Jaw, that a dying declaration

in

order that it may sustain an order of conviction must be cor·

roborated by other independent evidence. The observations made

S.C.R. SUPREME COURT REPORTS 553

by this Court in Madhoprasadv. The State of Madhya Pradesh are

in the nature of

obiter

dieta and do not lay down the law. · -

Madhoprasad v. The State of Madhya Pradesh, A.I.R. (1953)

S.C. 420, considered.

In re Guruswami Tevar, I.L.R. (1940) Mad. 158, approved.

Case-law

reviewed.

The provision of s. 32(1) of the Indian Evidence Act, which

makes the statement in a dying declaration

as to the cause of

death and the circumstances that brought it about relevant, _is an

exception to the general rule

of exclusion of hearsay evidence

and evidence untested by cross-examination. The special sanctity

whi¢h the Legislature attaches to such a declaration inust be res­

pected unless such declaration can be shown not to have been

made in expectation

of death or to be otherwise unreliable and any evidence adduced for this purpose can only detract from its

value but not affect its admissibility.

Although a dying declaration has to

be very closely scrutinsed,

and tested

as any other piece of evidence, once the Court comes

to

the conclusion, in any particular case, that it is true, no ques­

tion of corroboration arises.

A dying declaration cannot

be placed in the same category as

the evidence of an accomplice or a confession.

Consequently, in a

case where the trial Judge as also the

High Court founded their orders

of conviction of an accused person

under

s.

302 of the Indian Penal Code mainly on three dying

declarations made

by the murdered person in quick

-succession one

after the other, and the High Court, relying on a decision of this

Court, sought for corroboration

of such dying declarations in the

fact that the accused person had absconded and

was arrested in

suspicious circumstances, but was in doubt as to the sufficiency

of such evidence of corroboration and granted the certificate of

fitness under Art. 134 (l)(c) :

Held, that the certificate granted by the High Court wa:s

incompetent and as the case disclosed on grounds on which this

Court could possibly grant special leave to appeal under Art.

136

of the Constitution, the appeal must be dismissed.

CRIMINAL -APPELLATE JURISDICTION: Criminal

Appeal No.

184 of 1956.

Appeal from the judgment_ and order dated

October

15, 1956, of the former Nagpur High Court in

Criminal Appeal No.

205 of 1956 and Criminal

Reference No. 15of1956, arising out

of the judgment

and order dated July

10, 1956 of the First Additional

District Judge, Nagpur in Sessions Trial No. 34 of

1956.

M2SC/61-7

1957

Kltruhal Rao

v.

State of Bomba;

1957

Khwhal Rao

v.

State of /Wmbay

Sinha J.

554 SUPREME COURT REPORTS [1958}

J. N. Banerjee and P. C. Agarwala, for the appellant.

Jindra Lal and R. H. Dhebar, for the respondent.

1957. September 25. The following Judgment of the

Court was delivered by

SINHA J.-This appeal on a certificate of fitness

under Art.

134 (l)(c), granted by the High Court at

Nagpur (as it then was), is directed against the con­

current judgment and orders

of the courts below, so

far as the appellant Khushal is concerned, convicting

and sentencing him to death under

s.

302, Indian

Penal Code, for the pre-meditated murder of Baboolal

on the night

of February 12, 1956, in one of the

quarters

of the city of Nagpur.

It appears that there are two rival factions in what

has been called the Mill area in Nagpur. The appellant

and Tukaram who has been acquitted by the

High Court, are the leaders

of one of the factions, and

Ramgopal,

P.W. 4, Inayatullah, P.W.1, and Tantu,

P.W. 5, are said to be the leaders of the opposite

faction. Before the time and date

of the occurrence,

there had been a number

of incidents between the

two rival factions in respect

of some of which lnayat­

ullah and Tantu aforesaid had been prosecuted.

Even on the date

of the occurrence, apart from the

one leading to the murder

of Baboolal, which is the

subject-matter

of the present appeal, Tantu and

Inayatullah had made two separate reports about the

attacks on them by Khushal's party. There was

another report lodged by

Sampat-one of the four

persons placed on trial along with the appellant, for

the murder

of Baboolal. That report was lodged at

Ganeshpeth police station at about 9.

30 p.m. on the

same

date-February 12, 1956-against Inayatullah

alias Kalia and Tantu, that they had attacked the

former with sharp-edged weapons (Ex.

P-26). The

prosecution case

is that the appellant Khushal was on

bad terms with Baboolal who was on very friendly

terms, with the leaders

of the opposite faction

aforesaid. Being infuriated by the conduct

of Baboo­

lal in associating with the enemies

of the party of the

accused,

Sampat, Mahadeo, Khushal and Tukaram

S.C.R. SUPREME COURT REPORTS 555

suddenly attacked Baboolal with swords and spears

and inflicted injuries on different parts

of his body.

The occurrence

took place in a narrow lane of Nagpur

at about 9 p.m. Baboolal was taken by his father and

other persons to the Mayo hospital where he reached 'at

about 9.25 p.m. The doctor in attendance Dr. Kanik­

dale (P.W.14)

at once questioned him about the

incident and Baboolal

is said to have made a state­

ment to the doctor which the latter noted in the bed­

head ticket

(Ex. P-17) that the had been assaulted by

Khushal and Tukaram with swords and spears. After

noting the statement aforesaid,

of Baboolal, the

doctor telephoned to the Ganeshpeth police station

where the information

was noted at 9. 45 p.m.

On

receiving the information, Sub-Inspector A. K. Khan

recorded (Ex.

P-1) and registered an offence under

s. 307, Indian Penal Code, and immediately went to the

Mayo hospital along with a head-constable and several

constables. He found Baboolal in a serious condition and suspecting that he might not survive and appre­

hending that it might take time for the magistrate

to

be informed and to be at the spot, to record the

dying declaration, he consulted Dr. Ingle, the attend­

ing doctor, whether Baboolal

was in a fit condition

to make a statement. The doctor advised him to

have the dying declaration recorded

by a magistrate.

The Sub-Inspector decided that it would

be more

advisable for him to record the dying declaration

without any delay. Hence, he actually recorded

Baboolal's statement in answer to the questions put

by him (Ex.

P-2) at

10.15 p.m. In the meantime,

Shri M. S. Khetkar, a magistrate, first class, was called

in, and he recorded the dying declaration

(Ex. P-16)

between 11.15 and 11. 35 p.m. in the presence of

Dr. Ingle who certified that he had examined Baboolal

and had found him mentally in a.

fit condition to

make

his dying declaration. Besides these three dying

declarations recorded in quick succession,

as

aforesaid,

by responsible public servants, Baboolal is said to have

made oral statements to a number

of persons, which

it

is not necessary to set out because the

High Court

h.as not acted upon those oral dying declarations. We

1957

Khuahal Rao

v.

State of Bombay

Sinha J.

1951

Kluultal Rao

v.

State of Bombay

SinM J.

556 SUPREME COURT REPORTS [1958]

shall have to advert, later, to the recorded dying

declarations in some detail, in the course

of this

judgment. Jt

is enough to say at this stage that the

courts below have founded their orders

of conviction

of the appellant mainly on those dying declarations.

Baboolal died the next morning at about

10 a.m. in

hospital.

Having come to know the names

of two of

the

alleged assailants of Baboolal from his recorded

dying declarations, the police became busy·apprehend­

ing those persons. They could not be found at their

respective houses. The appellant

was arrested four

days later in an out-house locked from outside,

of a

bungalow on Seminary Hill in Nagpur. The other

person named

as one of the assailants, Tukaram, was

arrested much later. The prosecution case

is that

these persons

were absconding and keeping out of the

way

of the police.

After investigation and the necessary inquiry, four

persons were placed on trial and the appellant was

one

of them. The Additional

Sessions Judge aquitted

two

of them and convicted the remaining

two­

the appellant and Tukar/clm-under s. 302, Indian

Penal Code, or in the alternative, under s. 302, read

with

s. 34, Indian

Penal Code. He sentenced the

appellant to death because in his opinion, he had

caused Baboolal's death intentionally, and there were

no extenuating circumstances. He sentenced Tuka­

ram to imprisonment for life, because in the learned

Judge's

view of the case, Tukaram had acted under

the instigation

of the appellant. Accordingly, the

learned Additional Sessions Judge made a reference

to the High Court for confirmation

of the sentence of

death. That reference was heard along with the

appeal

filed by the condemned prisoner. The reference,

the appeal by the convicted accused persons,

as also

the appeal

by the Government of Madhya fradesh,

against the two accused persons who had been

acquit­

ted 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,

S.C;R. SUPREME COURT REPORTS 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

inspee­

tion on September 17, 1956, and recorded their impres­

si.ons in a note which forms part of the record of the

High Court. In a

very well-considered judgment,

the High Court, by its judgment and orders dated

October

13, 1956, acquitted Tukaram, giving him the

benefit

of the doubt caused chiefly by the fact that

in the dying

declaration (Ex. P-16) recorded by the

magistrate _as aforesaid, he has been described as a

Teli, whereas Tukaram before the Court is a Kolhi, as

stated in the charge-sheet. The doubt was further

accentuated

by the fact that there were three or four

persons of the name

of Tukaram, residing in the neigh­

bourhood and some

of

I.hem are Te/is. The High

Court examined, in meticulous details, the evidence

of

the eye-witnesses Inayatullah, P.W. 1, and Sadashiv, P.W. 3, and agreed wjth the trial Judge in his estimate

of their testimony that those witnesses being partisan,

their evidence could not

be relied upon to base a con­

viction. The High Court went further and came to

the conclusion that their evidence being suspect, could

not be used even

as corroboration, if corroboration was

needed of the three dying declarations made by

Baboolal,

as aforesaid. They upheld the conviction

and sentence

of the appellant on the ground that the

dying declarations

were corroborated by the fact that

the appellant had been absconding and keeping out

of

the way of the police, and had been arrested under

very suspicious circumstances. These circumstances

and the alleged absconding

by Tukaram were not so

suspicious

as to afford corroboration against him. In

that

view, the High Court

"very reluctantly" gave

the benefit

of the doubt to Tukaram and allowed his

appeal. The High Court also agreed with the trial

Judge in acquitting the other

two accused persons-.

Sampat and Mahadeo-because these two persons had

not been named in the dying declarations, and the oral

testimony was not

of such a character as to justify

conviction. Accordingly, the Government appeal and

1957

i:Au11io11Wo

v.

State of /Joml>ay

S/Ma I.

558 SUPREME COURT REPORTS (1958]

1951 application in revision were dismissed. As against

Khus/uJI Rao the appellant, the reference made by the learned trial

s v.Bo Judge was accepted and his appeal dismissed. Thus,

tate

01

mbay under the orders of the High Court, only the appellant

Sinha J. stood convicted on the charge of murder with a

sentence

of death against him. He moved the High

Court for a certificate under art. 134(l)(c)

of the

Constitution, and the High Court granted a

"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 certificates

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 judgement 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 sufficiency

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

art.

134 (1) (c) of the

Constitution."

It is clear that the High Court granted the certificate

of fitness under Art. 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, nemely,

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

S.C.R. SUPREME COURT REPORTS 559

Dey. v. The State of West Benga/(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 considera­

tion by this Court which does not, ordinarily, concern

itself with deciding mere questions

of fact unless such

questions arise on a certificate granted under

els. (a)

or (b) of Art. 134(1) of the Constitution. In other

words, this Court does not function, ordinarily, as a

Court

of Criminal Appeal. Under the Constitution,

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 Art.

134(1)(a) or

(b). To the same effect are the other

decisions

of this Court, referred to in the reported

decision aforesaid, for example,

Narsing v. The State of Uttar

Pradesh(2)

Baladin v. The State of Uttar Pradesh (3)

Sunder Singh v. The 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

application for a certificate

of fitness under Art. 134(1)

(c) of the Constitutiob.

In

view

~f these considerations, it h.as got to be held

that the certificate

of fitness granted by the High Court

does not satisfy the requirements

of Art. 134(1)(c) of

the Constitution. 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

th~

(1) [1956] S.C.R. 639. ·

(2) [1955] 1 s.c.R. 23!J.

(3) A.I.R. 1956 S.C. 181.

(4) A.I.R. 1956 S.C. 411•

19'7

Khwlial Rao

v.

State of Bombay

SlnhaJ.

1951

KlwsluJ/ Rao

v.

State of Bombay

Sinha J.

560 SUPREME COURT REPORTS [1958}

occurrence-indeed, the first one to the doctor, was

made within half an hour; as also upon the evidence

of two persons Inayatullah,

P.W. 1 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 testi­

mony on the ground that they

were strongly partisan

witnesses and that they did not come to the rescue of

the victim

of the murderous assault 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 assumption

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

pl(\ce 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 relied 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 con­

viction 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, convictions 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 o

S.C.R. SUPREME COURT REPORTS '561

this Court in

Ram Nath Madhoprasad v. State of

Madhya

Pradesh(1) was brought to their notice, and in

view of that decision, the High Court looked for corro­

boration 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 Ganeshpeth 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 had been

concealing himself for fear of the police

in connection

with an

excise case in which he had

been. suspected.

The records in connection with that case have been

placed before

us, and, after

examip.ing those

records,

we do not find any good reasons for differing

from the High Court in its appreciation of the circum­

stances 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 difficulty. 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 jurisdiction

of the local police. In those circumstances

we are not

(1) A.I.R.

1953 S.C. 420.

1951

Klualuzl Rao

v.

State of Bombay

Sinha J.

19'7 ..._

Khusha/ RAo

v.

State of Bombay

Sinha J.

562 SUPREME COURT REPORTS [1958)

prepared to say that the alleged absconding of the

accused could afford sufficient corroboraton,

if

corroboration of the dying declarations was needed.

In this Court, a good deal of argument was

address­

ed 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

corrobo­

ration of the dying declaration. The decision of this

Court in

Ram Nath Madhoprasad v.

State of Madhya

Pradesh('),

contains the following obervations, 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

decla­

rations:

"It is settled law that it is not safe to convict an

accused person merely on the evidence furnished by a

dying declaration 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

imagi­

nation 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

con­

viction. 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

evidence

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

s.

302,

(1) A.I.R. 1953 S.C. 420.

S.C.R. SUP.REME COURT REPORTS 563

read with s. 34, Indian Penal Code. This Court

examined for itself, the dying declarations and the

other evidence bearing upon· the truth and reliability

of the dying declarations, and after an elaborate dis­

cussion

of all that evidence, came to the conclusion

that the dying declarations did not contain

"a truthful

version

of

what actually happened". 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 dis­

tinctly came to the conclusion that the dying decla­

ration 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

quote~ . above,

of this Court, are in the nature of obiter dicta. But as

it was insisted that those observatio~s 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 ins. 32(1)

of the Evidence Act that "When the statement is

made by a person as to the ca,,use 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 state­

ment 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-examination, 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

pcca­

sion 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

1957

Kltu.rhal Rao

v.

State of Bombay

Sinha I.

Klrtulial Rao

v.

State of Bombay

SlnhaJ.

564 SUPREME COURT REPORTS (1958)

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 circumstances brought out in the evid­

ence 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 had been

record­

ed as a result of prompting by some interested parties

or

was

~n answer to leading questions put by the

recording

officer, or, by the person purporting to

reproduce that statement. These may

be some of the

circumstances 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 corroborated by other

in­

dependent evidence, is not 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 con­

flicting

views as to the value of a dying declaration in

part or in its entirety, without any independent cor­

roboration. 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 v. Akbara/i Karimbhai('), that a statement which is

covered by s. 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

(1) I.L.R.

(193•) 58 Bom. 31 .

. ,

S.C.R. SUPREME COURT REPORTS 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 deli­

berately false, it will not

be safe to act upon the other

part

of the declaration without very definite corrobora­

tion. That Bench

also ruled that it is not correct

to postulate that because some part

of the dying

-declaration

is

false, the whole declaration must neces­

sarily be disregarded. The Bombay High Court,

thus, did not agree with the observations

of the Calcutta

High Court in the case

of Emperor v. 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 v. Maung Po Thif). In that case, the positive

evidence led on behalf

of the prosecution 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 has observed

that an accusation

by a dying man, without corrobora­

tion 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 a

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-examin­

ing him.

If, on such an examination, the Court was

satisfied that the dying declaration was the true

version

of the occurrence, conviction could be based

solely upon it.

(1) (1925) I.L.R. 52

Cal. 987. (2) A·I·R· r938Rang. 282.

1957

KhushalRao

v.

State of Bomba_,·

Sinha I.

1957

Kliu<ha I Rao ·

v.

State of Bombay

SinhaJ.

566 SUPREME COURT REPORTS [1958)

Jn the High Court of Madras, there was a difference

of judicial opinion, as expressed in certain un-reported

cases, which resulted in a reference to a Full Bench.

Sir Lionel Leach C. J. presiding over the Full Bench

(In re Guruswami Tevar(') ), 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, not­

withstanding that there

is no corroboration in the true

sense. The Court must,

of course, be fully convinced

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 Arifv.

Emperor('), and

of the Nagpur High Court in Golabrao Krishnqjee

Maratha

v. King Emperor(').

The Judicial Committee of the

Privy Council had to

consider, in the cas~ of Chandrasekera alias Alisandiri

v. The King(

4

), the question whether me.re 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 s. 32

of the Ceylon Evidence Ordinance, which was analo­

gous to

s. 32(1) of the Indian Evidence Act. The

Privy

Council affirmed the decision of the Supreme Court of

Ceylon, and made the following observations 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.

[1940] Mad. 158, 170.

(2) A.I.R. 1941 Patna 409.

(3) I.L.R. [1945] Nag. 613; A.I.R. 1945 Nag. 153.

(4) [1937] A.C. 220, 229.

S.C.R. SUPREME COURT REPORTS 561

19S7

KJ,us/ial Rao

v.

" .... 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 a case in which, if the deceas­

ed's statement

was received, and was believed, as it

evidently

was by

the jury, to be clear and unmistak­

able in its effect, then a conviction was abundantly

justified and, indeed, inevitable."

Statt of Bombay

In 'Phipson on Evidence', 9th ed., p. 335, the

author has discussed the question whether a dying

dec1aration 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 impli­

cating 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 in­

admissible :-H~ld (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 declaration

was sufficient, without other evidence, for conviction

·

(R. v. Fitzpatrick (1910) 46 Ir. L.T.R. 173, C.C.R)."

Sometimes, attempts have been made to equate a

dying declaration 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 s.133 of

the Evidence Act, it is not illegal to convict a person

on the uncorroborated testimony

of an accomplice,

illustration (b) to

s. 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

corroborated in material particulars and this has now

been accepted as a rule

of law. The same cannot be

said

of a dying declaration because a dying declara­

tion may not, unlike a confession, or the testimony

of

an approver, come from a tainted source. If a dying

SinhaJ.

1957

Khushal Rao

v;

State of Bombay

SinhaJ.

568 SUPREME COURT REPORTS H958]

declaration has been made by a person whose ante­

cedents 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 tbe

maker

of a corifession 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,

(l) 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 tbe circumstances in which the dying declara­

tion 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 principles governing the weigh­

ing

of evidence; (5) that a dying declaration which

has been recorded by a competent magistrate in the

proper manner that is to say, in the form

of ques­

tions 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 statement, by circumstances beyond his control; that

the statement has been consistent throughout

if he had

several opportunities

of making a dying declaration

apart from the official record of it; and that the

S.C.R. SUPREME COURT REPORTS 569

statement had been made at the 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 corroboration arises not from

any inherent weakness

of a dying declaration as a

piece

of evidence, as held in some of the reported cases,

but from the fact that the court, in a given case, has

come to the conclusion that that particular dying

dec­

laration 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 declaration 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 punc­

tured wounds and the incised wounds on different

parts

of his body, are entirely consistent 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

M2SCP. IV/61-8

1957

Khushal Rao

v.

State of Bombay

SinhaJ.

1957

KJ,,,shal Rao

v.

Staie of .Bombay

SinhaJ.

570 SUPREME COURT REPORTS [1958]

convicted by the learned trial judge, but acquitted

by the High Court which very reluctantly gave him

the benefit

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

tliat 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 decla­

rations. The courts below also agreed

in holding that

Baboolal

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 throughout 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 remember 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 con­

viction for murder. The only other question that

remains to be considered

is whether there are any

extenuating circumstances in favour

of the accused

justifying 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 judg­

ment and order

of the High Court convicting the

appellant

of murder and sentencing him to

d<>ath.

The appeal is, accordingly, dismissed.

Appeal dismissed