2026:MHC:1796Crl.A.(MD) No.698 of 2023

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Reserved On : 27.04.2026

Pronounced On: 01.06.2026

CORAM

THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH

AND

THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN

Crl.A.(MD).No. 698 of 2023

M.Vigneshwaran ... Appellant/ Sole Accused

Vs.

The State rep by its,

The Inspector of Police,

Sivakasi Town Police Station,

Virdhunagar District.

(In Crime No.66 of 2021) ... Respondent/Complainant

PRAYER : Criminal Appeal has been filed under Section 374(2) of the

Criminal Procedure Code, to call for the records in Spl.S.C.No.23 of 2021 on

the file of the Sessions Judge, Special Court for exclusive trial of cases

under POCSO Act, Srivilliputhur and set aside the conviction passed in the

judgment dated 27.03.2023.

For Appellant : Mr. Gopalakrishna Laxmana Raju

Senior Counsel assisted by

Mr.S.G.L.Rishwanta

For Respondent : Mr.A.Thiruvadikumar

Additional Public Prosecutor

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Crl.A.(MD) No.698 of 2023

JUDGMENT

The sole accused appellant in Spl.S.C.No.23 of 2021 on the file of the

Sessions Judge, Special Court for exclusive trial of cases under POCSO Act,

Srivilliputhur, dated 27.03.2023 has filed this appeal, challenging the

conviction and sentence imposed against him on 27.03.2023 wherein, he

was convicted as follows:

Sl.

No

Offences under SectionsPunishment Fine

1363 of IPC Three Years of

Rigorous

Imprisonment

Rs.5,000/-

indefault to

undergo simple

imprisonment of

three months

26 of POCSO Act Rigorous

Imprisonment for the

reminder of natural

life

Rs.5,000/- in

default to undergo

1 years of rigorous

imprisonment

2. The brief facts of the case:

The sole accused in Special Sessions Case No. 23 of 2021, on the file

of the learned Special Judge for Exclusive Trial of Cases under the POCSO

Act, Srivilliputhur, Virudhunagar District, has preferred the present appeal

challenging the conviction and sentence imposed by judgment dated

27.03.2023.

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2.1.The prosecution case, in brief, is that the victim girl, aged about 17

years at the relevant time, developed friendship with the accused through

mobile communication. It is alleged that the accused lured her to a secluded

place and committed penetrative sexual assault. During the occurrence, the

accused clandestinely recorded the act without the knowledge or consent of

the victim and subsequently transmitted the same to her, and also criminally

intimidated her, Unable to bear the alleged acts and threats, the victim girl

attempted self-immolation, sustaining severe burn injuries. Upon admission

in the hospital, intimation was sent both to the jurisdictional police and to

the Judicial Magistrate for recording her statement. At about 3:45 p.m., the

Judicial Magistrate commenced recording the dying declaration of the

victim. Prior thereto, the Sub-Inspector of Police, attached to the

jurisdictional police station, who had received the intimation from the

hospital, recorded her statement. After completion of the Magistrate’s dying

declaration, the Sub-Inspector returned to the police station and registered a

case in Crime No.66 of 2021.

2.2.The investigation was thereafter taken up by the Inspector of

Police, who visited the scene of occurrence, prepared the observation

mahazar and rough sketch, and examined witnesses. At about 7:45 p.m.,

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upon receipt of intimation regarding the death of the victim, the offence was

altered to graver charges. Subsequently, the accused was arrested on

06.02.2021. Pursuant to his voluntary confession, a mobile phone was

recovered, and the place of occurrence was identified in the presence of the

Village Administrative Officer.

2.3.The Investigating Officer completed the investigation by

collecting medical records, forensic reports relating to the mobile devices,

and opinion regarding the potency of the accused, and thereafter filed the

final report before the Special Court.

2.4.The learned trial Court, after complying with the requirement

under Section 207 Cr.P.C., framed charges against the accused. The accused

pleaded not guilty and claimed trial. The prosecution examined PWs 1 to 13,

marked Exhibits P1 to P23, and produced Material Objects 1 to 6. Court

Exhibits C1 and C2 were also marked. The accused was examined under

Section 313 Cr.P.C., wherein he denied the incriminating circumstances. No

evidence was adduced on the defence side.

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2.5.Upon appreciation of the evidence, the trial Court convicted the

accused for offences under Sections 5 and 6 of the Protection of Children

from Sexual Offences Act, 2012, and Section 363 IPC, and sentenced him to

undergo imprisonment for the remainder of his natural life under Section 6

of the POCSO Act, along with other sentences. However, the accused was

acquitted of the charges under Sections 66E and 67B of the Information

Technology Act, 2000.

Aggrieved by the said conviction and sentence, the present appeal has

been filed.

3.Submission of the learned counsel appearing for the appellant:

Learned Senior Counsel appearing for the appellant would submit that the

prosecution case rests substantially on the dying declaration recorded by the

learned Judicial Magistrate. It is contended that the said dying declaration

was recorded when the victim had sustained extensive burn injuries, stated to

be of second-degree severity, and therefore she was not in a fit state of mind

to make a voluntary and reliable statement.

3.1.It is further submitted that, in the absence of cogent evidence

establishing that the victim was in a conscious and fit mental condition at the

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time of recording the dying declaration, the same cannot be relied upon.

According to the learned Senior Counsel, the dying declaration is shrouded

by suspicious circumstances and is liable to be rejected on the ground of

possible tutoring.

3.2.Elaborating further, it is submitted that the occurrence allegedly

took place around 2:00 p.m., and the victim succumbed to injuries at about

6:00 p.m. The dying declaration came to be recorded at about 3:45 p.m. In

the interregnum, prior to the arrival of the Judicial Magistrate, the Sub-

Inspector of Police had already recorded a statement from the victim. This,

according to the learned Senior Counsel, creates a reasonable possibility of

tutoring, thereby rendering both the statement recorded by the police and the

subsequent dying declaration unreliable.

3.3.It is also contended that the medical evidence does not support the

prosecution case, as the doctor, during cross-examination, has stated that a

person with such burn injuries would generally not be in a position to give a

coherent statement. Therefore, the victim cannot be said to have been in a fit

state of mind at the relevant point of time.

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3.4.On the above premises, it is argued that the conviction of the

appellant for grave offences, based solely on the dying declaration, is not

legally sustainable.

3.5.The learned Senior Counsel further submitted that the trial Court,

having acquitted the accused of the charges under Sections 66E and 67B of

the Information Technology Act, cannot, on the same set of evidence, record

conviction under the remaining provisions. It is particularly contended that

the charge relating to abetment of suicide is not made out in the absence of

reliable and admissible evidence.

3.6.It is also argued that reliance on selective portions of the dying

declaration to record conviction is impermissible, especially when the

declaration itself is doubtful and lacks credibility.

4.Submissions of the learned Additional Public Prosecutor:

Per contra, the learned counsel appearing for the State would submit

that there is no legal bar to base a conviction solely on a dying declaration, if

it inspires confidence and is found to be voluntary and truthful. It is

contended that, in the present case, there is no material to show that the

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victim was subjected to tutoring prior to the recording of the dying

declaration.

4.1.According to the learned Additional Public Prosecutor, the

sequence of events clearly establishes that the dying declaration was

recorded in a transparent manner, and therefore there is no reason to

disbelieve the same. It is further submitted that the acquittal of the accused

under certain provisions of the Information Technology Act does not

preclude the Court convicting the accused under other offences, if the

evidence on record so justifies.

4.2.Anent the finding of the trial Court on the inadmissibility of

electronic evidence for want of a certificate under Section 65B of the Indian

Evidence Act, it is submitted that the said finding is erroneous. Placing

reliance on the judgment of the Constitution Bench of the Hon’ble Supreme

Court, it is contended that where the original electronic device itself is seized

and produced, the requirement of a Section 65B certificate may not arise.

However, in the absence of an appeal by the State against acquittal on those

counts, the said finding need not be interfered with, except to the limited

extent of appreciating corroborative circumstances.

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4.3.Finally, the learned Additional Public Prosecutor would submit

that the victim was subjected to penetrative sexual assault, criminal

intimidation, and circulation of objectionable material, which cumulatively

drove her to commit self-immolation. The circumstances disclose grave

cruelty and a direct nexus between the acts of the accused and the death of

the victim. Hence, the learned Additional Public Prosecutor prayed that the

conviction and sentence imposed by the trial Court be confirmed.

5.This Court considered the rival submissions made by the learned

Senior Counsel appearing for the appellant and the learned Additional Public

Prosecutor appearing for the State and perused the materials available on

record and the relevant precedents governing the issues raised in the present

appeal.

6.Points for determination:

(i) whether the prosecution has proved the charges framed against the

accused beyond reasonable doubt?

(ii) whether the sentence of life imprisonment till the natural death

imposed by the trial Court is justified in law?

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7.Principles relating to the dying declaration:

Under Section 32(1) of the Evidence Act, when a statement is made by

a person, as to the cause of death or as to any of the circumstances which

result in his death, in cases in which the cause of that person's death comes

into question, such a statement, oral or in writing, made by the deceased to

the witness is a relevant fact and is admissible in evidence and Section 32(1)

of the Evidence Act is an exception to the general rule contained Section 60

of the Indian Evidence Act that hearsay evidence is inadmissible and

evidence should be direct and is validated through the cross examination.

The Hon'ble Supreme Court in the case of Nallapati Sivaiah vs. SDO

reported in 2007(15) SCC 465 placed reliance on the following portion of

the Woodroffe and Amir Ali, in their Treatise on Evidence Act state:

“when a man is dying, the grave position in which he is

placed is held by law to be a sufficient ground for his veracity

and therefore the tests of oath and cross-examination are

dispensed with”.

7.1.One of the cardinal principle is that a dying declaration, being a

statement as to the cause of death or the circumstances leading thereto, is

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admitted on the settled premise that a person at the brink of death is unlikely

to speak lies and the same was considered by the Hon'ble Supreme Court in

the following cases:

Nallapati Sivaiah v. SDO, (2007) 15 SCC 465Kamal Khudal v. State of Assam, (2022) 20 SCC

654

There is a historical and a literary basis for

recognition of dying declaration as an exception to

the hearsay rule. Some authorities suggest the rule is

of Shakespearian origin. In The Life and Death of

King John, Shakespeare had made Lord Melun utter

“Have I met hideous death within my view, retaining

but a quantity of life, which bleeds away, … lose the

use of all deceit” and asked, “Why should I then be

false, since it is true that I must die here and live

hence by truth?” William Shakespeare,The Life and

Death of King John, Act 5, Scene 4, lines 22-29

24.“Truth sits upon the lips of a dying man.”

— Matthew Arnold

The whole idea of accepting a statement in the name

of dying declaration comes from a maxim “nemo

moriturus praesumitur mentire” which means that a

man will not meet his maker with a lie in his mouth.

It is believed that when a man is at the point of death

and when every expectation of this world is gone, it

hushes away every motive of lie.

7.2.Therefore, A dying declaration, as contemplated under Section

32(1) of the Indian Evidence Act, constitutes a statement made by a person

as to the cause of his death or the circumstances resulting in his death. The

underlying jurisprudential basis rests on the maxim nemo moriturus

praesumitur mentiri—a person on the verge of death is not presumed to lie

and to rely the same, this Court recapitulate the following governing

principles laid down by the Honourable Supreme Court:

(i)In the case of Khushal Rao vs. State of Bombay reported in AIR

1958 SC 22

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(ii)In the case of Gopalsingh vs. State of M.P., reported in (1972) 3

SCC 268

(iii)In the case of Nallapati Sivaiah vs. SDO reported in 2007 15 SCC

465

(iv)In the case of Panneerselvam vs. State of T.N., reported in 2008

17 SCC 190

(v)In the case of Atbir v Govt (NCT of Delhi) reported in (2010) 9

SCC 1

(vi)In the case of Kamal Khudal vs. State of Assam reported in

(2022) 20 SCC 654

(vii)In the case of Kundula Bala Subrahmanyam vs. State of A.P.,

reported in (1993) 2 SCC 684

(viii)In the case of Jagbir Singh vs. State (NCT of Delhi) reported in

2019 8 SCC 779

(ix)In the case of Uttam vs. State of Maharashtra reported in (2022)

8 SCC 576

(x)In the case of Lakhan vs. State of M.P., reported in (2010) 8 SCC

514

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7.3.To render the conviction on the basis of the dying declaration, this

court has to consider each case in the circumstances of the case. What value

should be given to a dying declaration is left to court, which on assessment

of the circumstances and the evidence and materials on record, will come to

a conclusion about the truth or otherwise of the version, be it written, oral,

verbal or by sign or by gestures.

(i)The evidentiary value of a dying declaration, whether oral or

written, is to be assessed by the Court in the light of the facts and

circumstances of each case. A truthful and voluntary dying declaration can

form the sole basis for conviction without the necessity of corroboration.

(ii)Where the Court entertains any doubt as to the voluntariness,

truthfulness, or mental fitness of the declarant, or where the declaration

suffers from infirmities, it is prudent to seek corroboration.

(iii)A dying declaration recorded by a Judicial Magistrate stands on a

higher evidentiary footing, owing to the presumption of procedural sanctity

and absence of external influence.

(iv)There is no legal prohibition against a dying declaration being

recorded by a police officer; however, such a declaration requires careful

scrutiny, particularly with respect to the absence of tutoring or prompting,

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and ordinarily necessitates proof of the declarant’s fit state of mind,

preferably through medical certification.

(v)Minor inconsistencies or absence of elaborate details do not render

a dying declaration unreliable, so long as the substratum of the prosecution

case is clearly reflected.

(vi)A brief statement, if it unambiguously attributes the cause of death

to the role played by the accused, is sufficient in law.

(vii)In cases involving multiple dying declarations, the Court must

examine whether they are consistent and trustworthy; even in cases of

variance, the declaration that inspires confidence and appears to be voluntary

and truthful can be relied upon.

7.4.Applying the above settled principles, this Court now proceeds to

examine the evidentiary worth of the dying declarations in the factual matrix

of the present case.

7.5.Applying these settled principles, this Court proceeds to examine

the case on hand.

8.On a careful scrutiny of the prosecution case, it emerges that, about

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fifteen days prior to 05.02.2021, the victim received messages and video

images from the appellant through his mobile phone bearing No.

63694860480, while the victim was using mobile phone No.

6383272905.The appellant thereafter developed acquaintance with the

victim, made promises to her, and persuaded her to meet him.

9.On several occasions, the appellant engaged the victim in

conversation at secluded places. Ultimately, he is said to have taken the

victim to a lonely place situated on the southern side of Garuman Temple

near Sindusaapram, in the vicinity of Sivakasi. At the said place, despite

resistance from the victim girl, the appellant removed her clothes and, under

the pretext of marrying her, committed penetrative sexual assault upon the

victim and, thereafter, without her knowledge or consent, recorded the

incident. The said material was subsequently transmitted through social

media and also sent to the victim. The appellant thereafter refused to marry

the victim and subjected her to criminal intimidation, threatening to further

circulate the said material. He is also instigated the victim to end her life.

10.On account of such continuous harassment, humiliation,

intimidation and instigation to end her life, the victim, in a state of extreme

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distress, committed self-immolation in her house during the absence of her

parents. The incident was noticed by the neighbours, and she was

immediately admitted to the hospital.

11.Upon her admission at about 2:30 p.m., the attending doctor

intimated both the jurisdictional police and the learned Judicial Magistrate.

The Sub-Inspector of Police (P.W.12) reached the hospital and commenced

recording the statement of the victim at about 3:15 p.m. In the meantime, the

learned Judicial Magistrate arrived to record the dying declaration.

Consequently, the police officer discontinued the recording. After the

learned Judicial Magistrate started the recording at 03.40 pm., and

completed recording the dying declaration at 4:05 p.m., the Sub-Inspector

resumed the recording and completed the recording of the victim’s statement

at about 4:15 p.m., and thereafter registered a case in Crime No. 66 of 2021.

Subsequently, the Inspector of Police (P.W.13) took up the investigation and,

upon receipt of death intimation at about 7:40 p.m., altered the sections of

law under Ex.P24.

12.In the present case, the prosecution primarily rests upon the dying

declaration recorded by the learned Judicial Magistrate, marked as Ex.P19.

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The learned Judicial Magistrate was examined as P.W.11, who has clearly

deposed regarding the manner in which the dying declaration was recorded

and has specifically stated that the victim was conscious, oriented, and in a

fit state of mind at the time of making the statement.

13.This Court has perused the dying declaration Ex.P.19 and the same

contained the following:

Certificate of

the Doctor

Certificate of the Judicial Magistrate

I certify that the

patient

Karpagavalli is

conscious and

in a fit state of

mind to give

dying

declaration.

I have asked the patient, Karpagavalli,

D/o.Balasubramanian, the above questions and recorded

the answers as above, the duty medical officer,

Tr.Tirumurugananth, is present with me. I am fully

satisfy with the answer of the patient and satisfed that

the patient is in a fit state of mind and conscious to give

dying declaration on the basis of mu own statement and

as certified by doctors. I have asked the staff and

attenders of the patient to get out from the born ward

It is evident therefrom that the learned Judicial Magistrate had recorded his

satisfaction regarding the mental fitness of the victim prior to recording the

statement. Apart from this, the Magistrate had also obtained a medical

opinion from the attending doctor certifying that the victim was in a fit

condition to give the statement, and the same is reflected in the dying

declaration itself.

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14.From the sequence of events, it is clear that:

(i) the learned Judicial Magistrate first ascertained the fitness of the

victim;

(ii) the dying declaration was recorded in the presence of the doctor;

and

(iii) the statement of the victim is coherent, consistent, and natural.

15.This Court for better appreciation, extracts the contents of the

dying declaration marked under Ex.P19:

xU ehs; vd; thl;];mg;y Hi vd;W nkNr[; te;Jr;R.

ahUD Nfl;Nld;. nrhy;yy. nfhQ;r Neuk; fopr;R nkNr[;

te;Jr;R. ehd; tpf;fpD nrhd;dhd;. vd;Ndhl Nghl;Nlht

Ng];Gf;> ,d;];lhfpuhk;> bf;lhf;y Nghl;LWNtd;D

nrhd;dhd;. vd;ida ghf;fDk;D nrhd;dhd;. ehd;

Ntz;lhk;D nrhd;Ndd;. vJf;F vd;ida ghf;fDk;D

nrhy;YwD Nfl;Nld;. vd;ida ghf;f;Dk;D kl;Lk;jhd;

nrhd;dhd;. nfhQ;r ehSf;F Kd;dhb tPbNah fhy; gz;z

nrhd;dhd;. tPbNah fhy;y jg;G gz;z nrhd;dhd;. mj

nuf;fhh;L gz;zpl;lhd;. mJf;fg;Gwk; vd;ida gpshf;nkapy;

gd;Ddhd;. 2 thuj;jpw;F Kd;dh;b rpj;Juh[Guk; Nghw

topapy vd;d nfLj;Jl;lhd;. jg;G gz;zpdhd;. mth;

nuf;fhh;L gz;Zdij F&g;y Nghl;Ll;lhd;. vd;ida Nghd;

Nghl;L kpul;Lwhd;. nlypl; gz;z nrhd;Ndd;.

Nff;fkhl;NlDl;lhd;. vdf;F Nghd; Nghl;L vq;f mg;ght

nrUg;ghy mbg;Ngd;D nrhd;dhd;. mtDf;F tPbNah fhy;

gz;zDk;> vd;Ndhl tPl;y Gy;yh fhl;lDk;. mj mtd;

nuf;fhL gz;zDk;> mjhd; mtd; Mir. mJf;F jhd;

kpul;Ldhd;. ehd; gaj;Jy ,g;gb ghj;&k;y tr;R

kz;nzz;nza Cj;jpf;fpl;Nld;. vd; Nghd;y mtd; Ngu V

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Nghl;L nghk;k glk; Nghl;L Nrt gz;zpUf;Nfd;. ,dpAk;

vd;d khjphp elf;ff;$lhJ. nghpatPl;L igad;D

nrhd;dq;f. nfhQ;rk; jhd; nuf;fhh;L ,Uf;F. tPl;Ly

ghj;JUthq;fd;D ,d;idf;F nlypl; gz;zpl;Nld;.

15.1.It is clear from the above contents of the dying declaration,

victim not only narrates the incident cogently but also reflects her mental

state arising out of the acts of the appellant. The statement appears to be

voluntary and free from any embellishment or artificial implication. She

cogently narrated about the penetrative sexual assault, publication of

offending material into social media, intimidation to end her life and finally

she committed suicide by self immolation. She not only gave dying

declaration to the learned Judicial Magistrate and, sub Inspector of Police

also recorded the statement of the victim under Ex.P1, which is also cogent

and trustworthy.

16.The learned Senior Counsel for the appellant contended that neither

the learned Judicial Magistrate nor P.W.12, the Sub-Inspector of Police, had

recorded their satisfaction regarding the fitness of the victim to make a

statement, particularly in light of the alleged 100% burn injuries sustained by

her. It is therefore argued that the dying declaration is unreliable and

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inadmissible.

17.The Hon'ble Supreme Court reiterated the principle in the

following cases that a dying declaration recorded by a competent Magistrate

would stand on a higher footing than the declaration recorded by the officer

of the lower rank:

Lakhan v. State of M.P., (2010) 8 SCC 514 A dying declaration recorded by a competent

Magistrate would stand on a much higher footing

than the declaration recorded by officer of lower

rank, for the reason that the competent Magistrate

has no axe to grind against the person named in

the dying declaration of the victim,

however, circumstances showing anything to the

contrary should not be there in the facts of the

case.

Uttam v. State of Maharashtra, (2022) 8 SCC

576

The credibility of a dying declaration

recorded by the Magistrate has also come up for

consideration in several cases and it has been

held that a Magistrate being an uninterested

witness and a respected officer and there being

no circumstances or material to suspect that he

would have any animus against the accused or

would in any way be interested for fabricating a

dying declaration, such a declaration recorded by

the Magistrate, ought not be doubted.

18.The Hon'ble Supreme Court long back in the year 1988 in the case

of Nanhau Ram v. State of M.P., 1988 Supp SCC 152 has held that when

the witness who recorded has said that the deceased was in fit state of mind

and conscious to make dying declaration, the medical opinion will not

prevail and the relevant portion of the judgment is as follows:

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“Normally the court in order to satisfy whether deceased was in a

fit mental condition to make the dying declaration look up to the

medical opinion. But where the eyewitness has said that the

deceased was in a fit and conscious state to make this dying

declaration, the medical opinion cannot prevail.”

19.The said view was also reiterated by the Hon'ble Supreme Court in

the latest decision in the case of Dharmendra Kumar v. State of M.P.,

(2024) 8 SCC 60 :

66.As regards the assessment of mental fitness of the

person making a dying declaration, it is indubitably the

responsibility of the court to ensure that the declarant was in a

sound state of mind. This is because there are no rigid

procedures mandated for recording a dying declaration. If an

eyewitness asserts that the deceased was conscious and capable

of making the declaration, the medical opinion cannot override

such affirmation, nor can the dying declaration be disregarded

solely for want of a doctor's fitness certification. The

requirement for a dying declaration to be recorded in the

presence of a doctor, following certification of the declarant's

mental fitness, is merely a matter of prudence.

20.Further the issue relating to the requirement of medical certification

that injured was in a fit state of mind at the time of making dying declaration

by the learned Judicial Magistrate is settled by the Hon'ble Constitution

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Bench of Supreme Court negatively in the case of Laxman v. State of

Maharashtra reported in (2002) 6 SCC 710 and the Hon'ble Constitution

Bench held that there is no requirement of law that there should be always a

medical certification that the injured was in a fit state of mind at the time of

making a declaration and such certification by the doctor is essentially a rule

of caution and even in the absence of such a certification the voluntary and

truthful nature of the declaration can be established otherwise and the

relevant paragraph of the judgment is as follows:

“3. … The court, however, has always to be on guard

to see that the statement of the deceased was not as a result

of either tutoring or promoting or a product of imagination.

The court also must further decide that the deceased was in a

fit state of mind and had the opportunity to observe and

identify the assailant. Normally, therefore, 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 eyewitnesses state that the deceased

was in a fit and conscious state to make the declaration, the

medical opinion will not prevail, nor can it be said that since

there is no certification of the doctor as to the fitness of the

mind of the declarant, the dying declaration is not

acceptable. A dying declaration can be oral or in writing and

any adequate method of communication whether by words or

by signs or otherwise will suffice provided the indication is

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positive and definite. In most cases, however, such statements

are made orally before death ensues and is reduced to

writing by someone like a Magistrate or a doctor or a police

officer. When it is recorded, no oath is necessary nor is the

presence of a Magistrate absolutely necessary, although to

assure authenticity it is usual to call a Magistrate, if

available for recording the statement of a man about to die.

There is no requirement of law that a dying declaration must

necessarily be made to a Magistrate and when such

statement is recorded by a Magistrate there is no specified

statutory form for such recording. Consequently, what

evidential value or weight has to be attached to such

statement necessarily depends on the facts and circumstances

of each particular case. What is essentially required is that

the person who records a dying declaration must be satisfied

that the deceased was in a fit state of mind. Where it is

proved by the testimony of the Magistrate that the declarant

was fit to make the statement even without examination by

the doctor the declaration can be acted upon provided the

court ultimately holds the same to be voluntary and truthful.

A certification by the doctor is essentially a rule of caution

and therefore the voluntary and truthful nature of the

declaration can be established otherwise.”

21.On facts, the evidence of the learned Judicial Magistrate (P.W.11)

clearly establishes that, before commencing the recording of the dying

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declaration, he satisfied himself that the victim was conscious, oriented, and

in a fit state of mind to give the statement. The said satisfaction is also

recorded in the dying declaration itself. Further, after completion of the

recording also the learned Judicial Magistrate has certified that the victim

remained conscious and oriented throughout the process.

22.There is no bar to record the dying declaration by the police

officers and there is no legal impediment to place reliance on the same to

convict the accused without any corroborative material and the said principle

was reiterated by the Hon'ble Supreme Court in various judgements

including in the case of Dharmendra Kumar v. State of M.P., reported in

(2024) 8 SCC 60 and the relevant paragraph reads as follows:

“65. Section 161CrPC empowers the police to

examine orally any person who is acquainted with the facts

and circumstances of the case under investigation. The

police may reduce such statement into writing also. Section

162(1)CrPC, nonetheless, mandates that no statement made

by any person to a police officer, if reduced to writing, be

signed by the person making it, nor shall such statement be

used in evidence except to contradict a witness in the

manner provided by Section 145 of the Evidence Act.

However, sub-section (2) of Section 162CrPC carves out an

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exception to sub-section (1) as it explicitly provides that

nothing in Section 162 shall be deemed to apply to any

statement falling within the ambit of clause (1) of Section 32

of the Evidence Act. In other words, a statement made by a

person who is dead, as to the cause of his death or to the

circumstances of the transaction which resulted in his death,

to a police officer and which has been recorded under

Section 161CrPC, shall be relevant and admissible,

notwithstanding the express bar against use of such

statement in evidence contained therein. In such eventuality,

the statement recorded under Section 161CrPC assumes the

character of a dying declaration. Since extraordinary

credence has been given to such dying declaration, the court

ought to be extremely careful and cautious in placing

reliance thereupon. There are a catena of decisions of this

Court which lend support to the interplay between the

provisions of CrPC and the Evidence Act, as explained

above [ See : (i) Mukeshbhai Gopalbhai Barot v. State of

Gujarat, (2010) 12 SCC 224 : (2011) 1 SCC (Cri) 318;

(ii) Sri Bhagwan v. State of U.P., (2013) 12 SCC 137 : (2012)

4 SCC (Cri) 197; (iii) Pradeep Bisoi v. State of Odisha,

(2019) 11 SCC 500 : (2019) 4 SCC (Cri) 249]”

23.P.W.12, the Sub-Inspector of Police, has categorically deposed that

the victim was conscious and capable of giving a statement at the time when

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he initially commenced recording her statement and the statement, namely,

complaint was marked as Ex.P1. The medical evidence also lends support to

this position. P.W.6, the doctor who attended on the victim, has clearly

deposed that the victim was conscious and in a fit condition at the time of

giving her statement as well as the dying declaration.

24.Significantly, no contra evidence has been adduced by the defence

to establish that the victim was not in a position to make a statement. In the

absence of any such material, this Court finds no reason to accept the

contention of the learned Senior Counsel. On the legal aspect, the issue is no

longer res integra. The Constitution Bench of the Hon’ble Supreme Court in

the case of Laxman v. State of Maharashtra reported in [(2002) 6 SCC

710] has categorically held that a dying declaration recorded by a Judicial

Magistrate, upon being satisfied about the mental fitness of the declarant,

does not become invalid merely because a separate medical certificate was

not obtained. What is essential is that the person recording the declaration

must be satisfied about the fitness of the declarant.

25.Therefore, contention that neither the learned Judicial Magistrate

nor P.W.12, the Sub-Inspector of Police, had recorded their satisfaction

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regarding the fitness of the victim to make a statement, particularly in light

of the alleged 100% burn injuries sustained by her is unreliable and

inadmissible, in the considered view of this Court, is liable to be rejected on

both factual and legal grounds and this Court holds that the dying

declaration in the present case cannot be discarded merely on the ground

urged by the appellant. Accordingly, the said contention is rejected.

26.The submission of the learned Senior Counsel that, owing to 100%

burn injuries, the deceased could not have made a dying declaration without

tutoring or without full consciousness is liable to be rejected at the outset.

The Honourable Supreme Court has consistently held that the percentage of

burn injuries is not determinative of the admissibility or reliability of a dying

declaration. Even in cases of extensive, including 100%, burns, a declaration

may be accepted if it is established that the declarant was in a conscious and

fit state of mind at the time of making the statement. The decisive test is not

the extent of the injuries, but whether there is reliable evidence to show that

the deceased was mentally fit and capable of making the declaration. Only

where there is evidence that the declarant was unconscious or otherwise

incapable of making a statement, the dying declaration is liable for rejection.

It is further reiterated that, where the record discloses that the declaration

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was made in a fit state of mind and is free from infirmities, the mere fact of

severe burn injuries does not, by itself, justify its exclusion and the similar

submission has been declined by the Hon'ble Supreme Court in the

following cases:

Mafabhai Nagarbhai Raval v.State of Gujarat

(1992) 4 SCC 69

wherein it has been held that a person

suffering 99% burn injuries could be deemed

capable enough for the purpose of making a

dying declaration. The Court in the said case

opined that unless there existed some inherent

and apparent defect, the trial court should not

have substituted its opinion for that of the doctor.

In the light of the facts of the case, the dying

declaration was found to be worthy of reliance.

State of M.P. v. Dal Singh (2013) 14 SCC 159 Apex court placed reliance on the dying

declaration of the deceased who had suffered

100% burn injuries on the ground that the dying

declaration was found to be credible.

Vijay Pal v. State (Govt. of NCT of Delhi), (2015)

4 SCC 749

It is worthy to note that there cannot be an

absolute rule that a person who has suffered 80%

burn injuries cannot give a dying declaration

Mafabhai Nagarbhai Raval v. State of Gujarat,

(1992) 4 SCC 69

wherein it has been held that a person

suffering 99% burn injuries could be deemed

capable enough for the purpose of making a

dying declaration. The Court in the said case

opined that unless there existed some inherent

and apparent defect, the trial court should not

have substituted its opinion for that of the doctor.

In the light of the facts of the case, the dying

declaration was found to be worthy of reliance.”

27.This Court, therefore, finds that the dying declaration inspires

confidence. There are no circumstances brought on record by the defence to

indicate that the same was the result of tutoring or external influence. On the

contrary, the defence has failed to establish any material infirmity or

improbability in the said declaration. Further, the evidence of P.W.12, the

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Sub-Inspector of Police, establishes that he initially commenced recording

the statement of the victim and, upon arrival of the learned Judicial

Magistrate, discontinued the same, and resumed it only after completion of

the dying declaration. The statement recorded by P.W.12 also qualifies as a

dying declaration in law and substantially corroborates the statement

recorded by the learned Judicial Magistrate. There are no material

contradictions between the two statements. In both statements, the victim has

consistently spoken about the acts of exploitation, intimidation, and

harassment at the hands of the appellant. The officers who recorded the

statements have no motive to falsely implicate the accused.

28.In such circumstances, this Court finds no reason to disbelieve the

dying declarations. The same clearly establish the offences for which the

appellant has been convicted. Accordingly, the learned trial Judge was

justified in placing reliance on the dying declarations, and this Court finds

no reason to interfere with the said finding.

29.The learned Senior Counsel further contended that the registration

of the FIR is shrouded in suspicion, inasmuch as P.W.12, who commenced

recording the statement of the victim, had discontinued the same upon the

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arrival of the learned Judicial Magistrate and thereafter resumed the

recording after completion of the dying declaration by the learned

Magistrate.

30.This contention also does not merit acceptance. The sequence of

events, as borne out by the record, is clear and cogent. The victim was

admitted to the hospital on 05.02.2021 at about 2:30 p.m., and intimation

was given both to the police and the learned Judicial Magistrate. P.W.12

reached the hospital at about 3:15 p.m. and commenced recording the

statement. At about 3:30 p.m., the learned Judicial Magistrate arrived to

record the dying declaration. In deference to the Magistrate’s authority, P.W.

12 discontinued the recording and stepped aside.

31.The learned Judicial Magistrate completed the recording of the

dying declaration at about 4:05 p.m. Thereafter, P.W.12 resumed the

recording of the statement and completed it, which formed the basis for

registration of the complaint (Ex.P1). Throughout this period, the victim

was, as per the consistent evidence of P.W.6 (doctor), conscious and in a fit

state of mind.

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32.The explanation offered by P.W.12 for the discontinuation and

resumption of recording is natural, reasonable, and in accordance with

established procedure. Such conduct, far from suspicion, lends assurance to

the fairness of the process.

33.Therefore, this Court holds that the manner in which the statement

was recorded and the FIR was registered does not in any way affect the

credibility of the prosecution case. The contention of the learned Senior

Counsel is accordingly rejected.

34.In view of the above circumstances, this Court is satisfied that the

prosecution has proved the case beyond reasonable doubt. Consequently, the

statutory presumption under the relevant provisions of the Protection of

Children from Sexual Offences Act comes into operation. Once such

presumption arises, the burden shifts to the accused to rebut the same.

35.In the present case, the accused has not adduced any evidence,

either with regard to the recovery of the mobile phone or explained the

incriminating circumstances put to him under Section 313 Cr.P.C. No

material has been placed to rebut the statutory presumption under the

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POCSO Act. Accordingly, this Court finds no reason to interfere with the

findings of the learned trial Judge holding the appellant guilty.

36.Insofar as the acquittal of the accused under Sections 66E and 67B

of the Information Technology Act on the ground of non-production of a

certificate under Section 65B of the Indian Evidence Act is concerned, this

Court is of the view that the said finding is not legally sustainable. The

learned trial Judge, having referred to the judgment of the Hon’ble Supreme

Court, failed to properly appreciate the legal position.

37.In the present case, the accused's mobile phone/M.O.6 was

recovered on the basis of his disclosure statement under Section 27 of the

Indian Evidence Act, in the presence of the Village Administrative Officer

(P.W.6), and the said recovered original mobile phone was sent for forensic

examination and the officer conducted the test by downloading the contends

and sent the report and the same was marked as Ex.P34. P.W.6 clearly

deposed about the recovery and his evidence is cogent and trustworthy. The

accused has not offered any explanation with regard to the recovery of

mobile phone and the offending materials in the recovered mobile phone. He

does not deny the possession of the said cell phone with the offending

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materials. But, the learned trial Judge discarded the electronic evidence for

want of a certificate under Section 65B(4) of the Indian Evidence Act,

without properly appreciating the legal principle laid down in the case of

Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal reported in

2020 (5) CTC 200, wherein, the Hon’ble Supreme Court has clarified that

where the original electronic device itself is produced and forms the primary

evidence, the requirement of a certificate under Section 65B(4) may not

arise. In such circumstances, the requirement of a certificate under Section

65B may not arise. Therefore, the trial Court erred in discarding the

electronic evidence.

38.In the present case, as discussed above, the original mobile phone

of the accused was recovered and sent for forensic examination. It is not a

case where secondary electronic evidence alone was relied upon. Therefore,

this Court places reliance on the forensic report marked as Ex.B34, which

establishes that the accused had recorded the act of penetrative sexual

assault, transmitted the same to many persons, sent it to the victim, and

criminally intimidated her upon her refusal to marry him. For the limited

purpose of corroborating the dying declaration, this Court considered the

admissibility and reliability of the electronic evidence and finds the dying

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declaration has been accepted as proved independently as well as with the

supporting corroborating evidence.

39.Insofar as the sentence is concerned, the learned trial Judge has

imposed the maximum punishment of imprisonment for the remainder of the

natural life of the accused, as contemplated under the amended provisions of

the Act. This Court, upon an overall consideration of the facts and

circumstances, is of the view that the case is indeed grave in nature.

However, in the absence of any appeal by the State or the victim seeking

enhancement of sentence, this Court refrains from considering the question

of imposition of a higher punishment. The aggravating circumstances are

manifest. The accused not only committed penetrative sexual assault upon a

minor but also recorded the act, disseminated the material, subjected the

victim to sustained intimidation, and ultimately drove her to commit self-

immolation. The victim unable to bear the physical and mental agony, ended

her life.

40.In such circumstances, this Court finds no mitigating factor

warranting interference with the sentence imposed by the trial Court. The

punishment awarded is proportionate to the gravity of the offence.

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41.In the result, the Criminal Appeal is dismissed on the following

terms:

(i)The conviction and sentence imposed by the learned trial Judge in

Spl.S.C.No.23 of 2021 on the file of the Sessions Judge, Special Court for

Exclusive Trial of Cases under POCSO Act, Srivilliputhur, dated 27.03.2023

is hereby confirmed.

[N.A.V.J.,] & [K.K.R.K.J.,]

01.06.2026

NCC :Yes/No

Index :Yes/No

Internet:Yes/No

sbn

To

1. Sessions Judge,

Special Court for exclusive trial of cases under POCSO Act,

Srivilliputhur, Virdhunagar District.

2.The Inspector of Police,

Sivakasi Town Police Station,

Virdhunagar District.

3.The Additional Public Prosecutor,

Madurai Bench of Madras High Court, Madurai.

4.The Section Officer,

Criminal Section(Records),

Madurai Bench of Madras High Court, Madurai.

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Crl.A.(MD) No.698 of 2023

K.K.RAMAKRISHNAN, J.

sbn

Pre-delivery judgment made in

Crl.A.(MD).No.698 of 2023

01.06.2026

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