Page 1 Reportabl

e

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1037 OF 2008

Parbin Ali and Another ...

Appellants

Versus

State of Assam

...Respondent

J U D G M E N T

Dipak Misra, J.

The present appeal by special leave is directed

against the judgment of conviction and order of sentence

passed by the Gauhati High Court in Criminal Appeal Nos.

52(J) of 1999 and 53(J) of 1999 whereby the Division

Bench of the High Court gave the stamp of approval to the

conviction recorded by the learned Additional Sessions

Judge, Silchar in Sessions Case No. 28/96 under Section

Page 2 302/34 of the Indian Penal Code (for short “the IPC”) and

order of sentence sentencing the accused-appellants to

imprisonment for life and to pay a fine of Rs.500/-, in

default, to suffer further rigorous imprisonment for one

month. It may be mentioned here that the accused-

appellants (hereinafter referred to as “the accused”) had

preferred two separate appeals against the common

judgment but a joint appeal has been preferred from jail.

2.The facts giving rise to this appeal are that on

17.7.1994, about 9.00 p.m., deceased, Sakat Ali, was

found lying injured on the road side. Coming to know

about the same, a large number of persons including the

father-in-law of the deceased, his wife and others came to

the spot and at that juncture, the injured Sakat Ali told

them that he was assaulted by the accused persons along

with one Asiquddin. He remained lying on the road side as

neither the relatives nor his wife could arrange any

conveyance for carrying him to the hospital and,

eventually, he succumbed to the injuries around 11.00

p.m. While he was on the road, his father-in-law went to

the police station wherein an “ezahar” was recorded.

2

Page 3 After the injured died, an FIR was lodged on 18.7.1994.

After the criminal law was set in motion, the accused were

arrested, the dead body of the deceased was sent for post

mortem, statements of nine witnesses were recorded

under Section 161 of the Code of Criminal Procedure and,

eventually, after completing the investigation, the charge-

sheet was placed before the competent Court under

Section 302/34 of the IPC against the accused persons.

The learned magistrate dropped the case against

Asiquddin as he had died by that time and committed the

matter to the Court of Session and ultimately the case was

tried by the learned Additional Sessions Judge, Cachar at

Silchar.

3.The accused abjured their guilt and desired to face

the trial. During the trial, the prosecution, in order to

establish its case, examined nine witnesses and brought

on exhibit number of documents. After completion of the

prosecution evidence, the accused persons were

examined under Section 313 CrPC. They had not put forth

any substantial plea except a bald denial and chose not to

adduce any evidence.

3

Page 4 4.The learned trial judge, considering the entire

evidence, placing reliance on the oral dying declaration of

the deceased and taking note of the weapon used and the

nature of the injury caused, came to hold that the

prosecution had been able to substantiate the charge

beyond reasonable doubt and, accordingly, convicted

them and imposed the sentence.

5.In appeal, the High Court took note of the fact that

there was no direct evidence to implicate the accused and

the minor omissions or contradictions and discrepancies

which had been highlighted by the defence did not create

any kind of dent in the prosecution version; that ample

explanation had been offered by the prosecution for not

getting the dying declaration recorded as the deceased

was lying on the road side and could not be taken to a

hospital; and that there was no reason to disbelieve the

oral dying declaration, and the same being absolutely

credible, the judgment and conviction rendered by the

learned trial Judge did not warrant any interference.

4

Page 5 6.We have heard Mr. Mithlesh Kumar Singh, learned

counsel for the accused-appellants, and Mr. Avijit Roy,

learned counsel appearing for the respondent-State.

7.Questioning the correctness of the conviction, it is

urged by Mr. Singh, learned counsel for the appellants,

that the learned trial Judge as well as the High Court has

gravely erred in placing reliance on the oral dying

declaration as it does not inspire confidence, for it is

highly unnatural that the wife and the father-in-law of the

deceased coming to the spot could not take the injured to

any nearby hospital for treatment though he lived for few

hours after the assault. That apart, submitted Mr. Singh,

though the police station is quite nearby, yet there was

delay in lodging the FIR which casts a doubt in the case of

the prosecution and, eventually, creates a concavity in the

testimonies of PWs-1, 2, 3, 5 and 6 who have testified

about the oral dying declaration.

8.Mr. Avijit Roy, learned counsel appearing for the

State, on the contrary, contended that the material on

record do clearly show that the father-in-law had rushed to

the police station and lodged the “ezahar” which was

5

Page 6 registered and after the death, an FIR was registered

under Section 302/34 of I.P.C. and, hence, the plea of

delay in lodging the FIR has no legs to stand upon. It is

urged by him that by the time the witnesses arrived on

the scene, he was conscious but despite the best efforts,

the relatives could not arrange a conveyance to remove

the deceased to a hospital for treatment and there is no

justification to discard the said version in the absence of

any kind of contradiction or discrepancy in their evidence.

The learned counsel for the State would emphatically put

forth that the present case is one where the courts below

have justifiably given credence to the oral dying

declaration as it inspires unimpeachable and

unreproachable confidence.

9.Before we proceed to dwell upon the issue of

acceptability of oral dying declaration in the case at hand,

it is apposite to refer to the post mortem report which has

been proven by PW-4, Dr. K.K. Chakraborty, who has

stated the injuries on the body of the deceased that has

caused the death. They are as follows: -

“Injuries:

6

Page 7 (1)Bandage of right elbow joint remove

and found a cut injury on right elbow

medialy and along with crease of

elbow measuring 4 c.m. x 2 c.m. x 1

c.m. with cut in muscles, margins of

the wound regular.

(2)Cut injury along the 11

th

Thorax

vertebrae on left side 1 c.m. away

from the mid line measuring 3 c.m. x

1 c.m. x 1 c.m. margins of the wound

regular.

(3)Cut injury on back side 5 c.m. above

the iliac creast and 6 c.m. lateral to

the 3

rd

lumber vertebrae with

prolapse of intestine through the

wound measuring 6 c.m. x 2 c.m. x

abdominal cavity deep. Margins of

the wounds are regular and inverted.

(4)Cut injury in front of the abdominal

wall ½ c.m. below the neivous 1 c.m.

away from the mid line to right side

through which intestine prolapsed.

Measuring 3 c.m. x 2 c.m. x

abdominal cavity deep. Margins are

inverted and regular.

All the injuries are fresh and

antemortem caused by sharp pointed

weapon.

THORAX - All healthy.

ABDOMEN – Peritoneal cavity contain

about 2 ½ litrs. of liquid and clotted

blood. Stomach congested. Mouth,

pharynx, ocsophagus healthy. Cut

injury in the small intestine n the

three parts are present. Liver, splin,

kidneys are all healthy. Scalp, skull,

vertebrae membrane, brain – all

healthy.

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Page 8 MUSCLES, BONES & JOINTS :

Muscles injury as described.

Fracture – not found. Fresh no

abnormality found.”

10. The final opinion of the doctor is that the death was

caused due to shock and haemorrhage as a result of the

ante mortem injuries in the abdomen caused by sharp

weapon and homicidal in nature. The said opinion was not

challenged either before the trial Judge or before the High

Court. We may fruitfully note here that the said witness

has not been at all cross-examined. Whether such a

person receiving certain injuries would be in a position to

speak or not has not been brought out any where in the

evidence. In this backdrop, the testimonies of the

witnesses who have deposed in respect of the oral dying

declaration are to be scrutinized.

11.PW-1, Mooti Mia, a relative, PW-2, Sarifun Meesa, wife

of the deceased, PW-3, Mohd. Abdul Wajid Ali, and PW-5,

Aftaruddin, the father-in-law of the deceased, have

deposed that the deceased had named three accused

persons as assailants. PW-6, Arafan Ali, who came later to

the place of occurrence, had found that the deceased was

8

Page 9 not in a position to speak. PW-8, Faizuluddin, did not

support the prosecution case in entirety. Thus, the real

witnesses to the oral dying declaration are PWs-1, 2, 3 and

5 and hence, the veracity of their version is required to be

scrutinised.

12.Before we proceed to scrutinize the legal

acceptability of the oral dying declaration, we think it

seemly to refer to certain decisions in regard to the

admissibility and evidentiary value of a dying declaration.

In Khushal Rao v. State of Bombay

1

, Kusa v. State of

Orissa

2

and in Meesala Ramakrishan v. State of A.P.

3

,

it has been held that the law is well settled that the

conviction can be founded solely on the basis of dying

declaration if the same inspires full confidence.

13.In Ranjit Singh v. State of Punjab

4

, it has been

held that the conviction can be recorded on the basis of

dying declaration alone, if the same is wholly reliable, but

in the event there exists any suspicion as regards the

correctness or otherwise of the said dying declaration, the

1

AIR 1958 SC 22

2

AIR 1980 SC 559

3

(1994) 4 SCC 182

4

(2006) 13 SCC 130

9

Page 10 courts, in arriving at the judgment of conviction, shall look

for some corroborating evidence. In this context, we may

also notice the judgment in Nanhau Ram v. State of

M.P.

5

wherein it has been stated that normally, the court,

in order to satisfy whether the deceased was in a fit

mental condition to make the dying declaration, looks up

to the medical opinion. But where the eye witness said

that the deceased was in a fit and conscious state to make

the dying declaration, the medical opinion cannot prevail.

14.While dealing with the evidence of the declarant’s

mind, the Constitution Bench, in Laxman v. State of

Maharashtra

6

, has laid down thus: -

“3. The juristic theory regarding

acceptability of a dying declaration is that

such declaration is made in extremity,

when the party is at the point of death and

when every hope of this world is gone,

when every motive to falsehood is

silenced, and the man is induced by the

most powerful consideration to speak only

the truth. Notwithstanding the same, great

caution must be exercised in considering

the weight to be given to this species of

evidence on account of the existence of

many circumstances which may affect

their truth. The situation in which a man is

on the deathbed is so solemn and serene,

5

1988 Supp SCC 152

6

(2002) 6 SCC 710

10

Page 11 is the reason in law to accept the veracity

of his statement. It is for this reason the

requirements of oath and cross-

examination are dispensed with. Since the

accused has no power of cross-

examination, the courts insist that the

dying declaration should be of such a

nature as to inspire full confidence of the

court in its truthfulness and correctness.

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 prompting 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

positive and definite.”

15.In this context, it will be useful to refer to the

decision in Puran Chand v. State of Haryana

7

wherein

it has been stated that a mechanical approach in relying

7

(2010) 6 SCC 566

11

Page 12 upon a dying declaration just because it is there is

extremely dangerous and it is the duty of the court to

examine a dying declaration scrupulously with a

microscopic eye to find out whether the dying declaration

is voluntary, truthful, made in a conscious state of mind

and without being influenced by the relatives present or

by the investigating agency who may be interested in the

success of investigation or which may be negligent while

recording the dying declaration. The Court further opined

that the law is now well settled that a dying declaration

which has been found to be voluntary and truthful and

which is free from any doubts can be the sole basis for

convicting the accused.

16.Regard being had to the aforesaid principles, we

shall presently advert how to weigh the veracity of an oral

dying declaration. As has been laid down in Laxman

(supra) by the Constitution Bench, a dying declaration can

be oral. The said principle has been reiterated by the

Constitution Bench. Here we may refer to a two-Judge

12

Page 13 Bench decision in Prakash and another v. State of

Madhya Pradesh

8

wherein it has been held as follows: -

“In the ordinary course, the members of

the family including the father were

expected to ask the victim the names of

the assailants at the first opportunity and if

the victim was in a position to

communicate, it is reasonably expected

that he would give the names of the

assailants if he had recognised the

assailants. In the instance case there is no

occasion to hold that the deceased was not

in a position to identify the assailants

because it is nobody's case that the

deceased did not know the accused

persons. It is therefore quite likely that on

being asked the deceased would name the

assailants. In the facts and circumstances

of the case the High Court has accepted

the dying declaration and we do not think

that such a finding is perverse and

requires to be interfered with.”

17.It is worthy to note that in the aforesaid case this

Court had laid down that when it is not borne out from the

evidence of the doctor that the injuries were so grave and

the condition of the patient was so critical that it was

unlikely that he could make any dying declaration, there

was no justification or warrant to discard the credibility of

such a dying declaration.

8

(1992) 4 SCC 225

13

Page 14 18.In Darshana Devi v. State of Punjab

9

, this Court

referred to the evidence of the doctor who had stated that

the deceased was semi-conscious, his pulse was not

palpable and his blood pressure was not recordable and

had certified that he was not in a fit condition to make a

statement after the police had arrived at the hospital and

expressed the view that the deceased could not have

made an oral statement that he had been burnt by his

wife. Thus, emphasis was laid on the physical and mental

condition of the deceased and the veracity of the

testimony of the witnesses who depose as regards the oral

dying declaration.

19.In Pothakamuri Srinivasulu alias Mooga

Subbaiah v. State of A.P.

10

, this Court, while dealing

with the issue whether reliance on the dying declaration

made by the deceased to PWs-1, 2 and 3 therein could be

believed, observed thus: -

“7. We find no reason to disbelieve the

dying declaration made by the deceased to

the witnesses PWs 1, 2 and 3. They are all

residents of the same village and are

natural witnesses to the dying declaration

9

1995 Supp (4) SCC 126

10

(2002) 6 SCC 399

14

Page 15 made by the deceased. No reason is

assigned, nor even suggested to any of the

three witnesses, as to why at all any of

them would tell a lie and attribute falsely a

dying declaration to the deceased

implicating the accused-appellant. Though

each of the three witnesses has been

cross-examined but there is nothing

brought out in their statements to shake

their veracity.”

We may also note with profit that the Court did not

accept that the injured could not have been in a conscious

state on the ground that no such suggestion had been

made to any of the witnesses including the doctor who

conducted the post mortem examination of the deceased.

20.Coming to the case at hand, the wife, the father-in-

law and the two other relatives have clearly stated that

the deceased had informed them about the names of the

assailants. Nothing worth has been elicited in the cross-

examination. They have deposed in a categorical manner

that by the time they arrived at the place of occurrence,

the deceased was in a fit state of health to speak and

make a statement and, in fact, he did make a statement

as to who assaulted him. Nothing has been suggested to

these witnesses about the condition of the deceased. As

15

Page 16 has been mentioned earlier, PW-4, the doctor, who had

performed the post mortem, has not been cross-

examined. In this backdrop, it can safely be concluded

that the deceased was in a conscious state and in a

position to speak. Thus, it is difficult to accept that the

wife, the father-in-law and other close relatives would

implicate the accused-appellants by attributing the oral

dying declaration to the deceased. That apart, in the

absence of any real discrepancy or material contradiction

or omission and additionally non cross-examination of the

doctor in this regard makes the dying declaration

absolutely credible and the conviction based on the same

really cannot be faulted.

21.Having said that the discrepancies which have been

brought out are not material, we may address to the issue

of delay in lodging of the F.I.R. It is perceptible from the

evidence that the father-in-law of the deceased had gone

to the police station and lodged the ezahar and,

thereafter, an FIR was lodged. The learned trial Judge has

analysed the said aspect in an extremely careful and

16

Page 17 cautious manner and on a closer scrutiny, we find that the

analysis made by him is impeccable.

22.In view of our aforesaid analysis, we conclude and

hold that the appeal is sans substratum and, accordingly,

the same has to pave the path of dismissal which we

direct.

……………………………… .J.

[K. S. Radhakrishnan]

……………………………… .J.

[Dipak Misra]

New Delhi;

January 07, 2013

17