Saturday, February 2, 2008

Conviction can be based only on victim's dying declaration: SC

New Delhi, Jan 30 (PTI) The Supreme Court has ruled that a person can be convicted on the sole basis of a victim's dying declaration if it is found to be reliable.

"If a dying declaration is found to be reliable then there is no need for corroboration by any witness and conviction can be sustained on its basis alone," a bench of Justices Arijit Pasayat and P Satasivan said while relying on various earlier ruling of the apex court.

The bench dismissed the appeal filed by Bijoy Das challenging the life sentence imposed by a sessions courts in West Bengal for allegedly shooting down his nephew due to previous enmity which was affirmed by the Calcutta High Court.

Bijoy Das in his appeal claimed that the dying declaration was unreliable and no reliance can be placed on the witnesses cited by the prosecution.

Disagreeing with the argument the apex court said it found no reason to doubt the veracity of the dying declaration of the victim which was consistent through out.

"We see no reason why the doctor or the other witnesses should make a false statement about the dying declaration. There is no allegation of enmity between accused and these person," the bench said.

Recalling an earlier observation, the apex court said a dying declaration made by a person on the verge of his death has special sanctity as at that solemn moment, a person most unlikely to make untrue statement.

But at the same time the dying declaration, like any other evidence, has to be tested on the touchstone of credibility to be acceptable. News source

Supreme Court Judgement
Appeal (crl.) 188 of 2008

Bijoy Das

State of West Bengal

DATE OF JUDGMENT: 28/01/2008


JUDGMENT:Click here
(Arising out of SLP (Crl.) No.5632 of 2006)


1. Leave granted.

2. Challenge in this appeal is to the order passed by a
Division Bench of Calcutta High Court, upholding the
conviction and sentence of the appellant who was found guilty
of offence punishable under Sections 302 of the Indian Penal
Code, 1860 (in short IPC) and was sentenced to undergo
imprisonment for life.
3. Prosecution case in a nutshell is as follows:

On 28.9.1993, between 6.45 p.m. and 7.00 p.m. Sisir Kr.
Das @ Ajoy (hereinafter referred to as the deceased) was shot
by the present appellant in front of his house at College Para
and immediately thereafter Ajoy was shifted to hospital where
after ten days he succumbed to his injuries. One Satya Ranjan
Das (PW 1), cousin brother of Ajoy, getting information from
one local boy about the occurrence, came to learn from injured
Ajoy at hospital that he was shot at by his step uncle Bijoy
Das. The appellant immediately thereafter lodged the written
complaint at Raijung P.S.

On the basis of the written complaint of Satya Ranjan
Das which was received by the local P.S. at about 19.50 hours
of 28.9.1993 S.I. S. Pradhan of Raijung P.S. took up the
investigation and in course of investigation, he visited the
place of occurrence, made seizure in respect of a bicycle used
by the victim Ajoy, visited hospital and recorded statement of
Ajoy and other witnesses of the occurrence, collected
declaration given by Ajoy to the attending doctor and S.I.
Pradhan also collected the post mortem report and finally,
submitted charge sheet against the present appellant both
under Section 302 IPC as well as under Section 25/27 of the
Arms Act, 1959 (in short Arms Act). The learned Sessions
Judge after framing charge under Section 302 IPC as well as
under Section 25/27 of the Arms Act explained the same to
the appellant and the appellant pleaded not guilty to both the
charges and claimed for trial.

Prosecution, during trial examined 16 witnesses
including PW.1 the FIR maker, PW.4 wife of the deceased who
was an eyewitness of the occurrence and PW.6, PW.8 and
PW.9. who came to learn from deceased Ajoy that he was shot
at by the appellant. Prosecution also examined PW.14 doctor
Jiban Krishana Bhaduri who conducted operation of Ajoy and
who also recorded a declaration of Ajoy disclosing the name of
the appellant as his assailant, PW.15 Dr. Rash Behari Ghosh,
conducted post-mortem examination and PW.16 was the
investigating officer. Apart from oral evidence, prosecution
also produced before the Trial Court the written complaint of
PW.1, bed head ticket of Ajoy Das consisting declaration of
Ajoy recorded by PW.14, post-mortem report and several
seizure lists.

The learned Trial Court, on perusal of prosecution
evidence both oral and documentary and after considering
submissions of both the sides, found the present appellant
guilty of the offence under Section 302 IPC and he was
convicted accordingly. However, the Trial Court did not find
any material to hold the appellant guilty for the offence under
Section 25/27 of the Arms Act.

4. The Trial Court placed reliance on the evidence of PW4
the wife of the victim and also relied on the evidence of PWs 6,
8 and 9 along with PW1. It is to be noted that the deceased
during his treatment in the hospital had categorically stated
that the appellant has assaulted him. The Trial Court did not
find any substance in the plea that at the behest of PW1 the
false case has been foisted.
5. In appeal the High Court, as noted above, dismissed the

6. In support of the appeal learned counsel for the appellant
submitted that the evidence of PW4 clearly lacks credence.
The alleged statement before PWs 6, 8, 9 and 14 cannot be
treated as a dying declaration. Learned counsel of the
respondent-State on the other hand supported the judgment

7. We see no reason to doubt the veracity of the dying
declarations especially since there is consistency between
them. We see no reason why the doctor or the other witnesses
should make a false statement about the dying declaration.
There is no allegation of enmity between the accused and
these persons.

As observed by this Court in Narain Singh v. State of
Haryana AIR vide para 7: (SCC p. 267, para 7)

A dying declaration made by a person on the
verge of his death has a special sanctity as at
that solemn moment a person is most unlikely
to make any untrue statement. The shadow of
impending death is by itself guarantee of the
truth of the statement of the deceased
regarding the circumstances leading to his
death. But at the same time the dying
declaration like any other evidence has to be
tested on the touchstone of credibility to be
acceptable. It is more so, as the accused does
not get an opportunity of questioning veracity
of the statement by cross-examination. The
dying declaration if found reliable can form the
base of conviction.

8. In Babulal v. State of M.P. (2003 (12) SCC 490) this Court
observed vide in para 7 of the said decision as under: (SCC p.
A person who is facing imminent death, with
even a shadow of continuing in this world
practically non-existent, every motive of
falsehood is obliterated. The mind gets altered
by most powerful ethical reasons to speak only
the truth. Great solemnity and sanctity is
attached to the words of a dying person
because a person on the verge of death is not
likely to tell lies or to concoct a case so as to
implicate an innocent person. The maxim is a
man will not meet his Maker with a lie in his
mouth (nemo moriturus praesumitur mentiri).
Mathew Arnold said, truth sits on the lips of a
dying man. The general principle on which the
species of evidence is admitted is that they are
declarations 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 mind induced by
the most powerful consideration to speak the
truth; situation so solemn that law considers
the same as creating an obligation equal to
that which is imposed by a positive oath
administered in a court of justice.

9. In Ravi v. State of T.N. ((2004 (10) SCC 776) this Court
observed that: (SCC p. 777, para 3)
If the truthfulness of the dying declaration
cannot be doubted, the same alone can form
the basis of conviction of an accused and the
same does not require any corroboration,
whatsoever, in law.

10. In Muthu Kutty v. State (2005 (9) SCC 113) vide para 15
this Court observed as under: (SCC pp. 120-21)
15. Though a dying declaration is entitled to
great weight, it is worthwhile to note that the
accused has no power of cross-examination.
Such a power is essential for eliciting the truth
as an obligation of oath could be. This is the
reason the court also insists that the dying
declaration should be of such a nature as to
inspire full confidence of the court in its
correctness. The court has to be on guard that
the statement of the deceased was not as a
result of either tutoring, or prompting or a
product of imagination. The court must be
further satisfied that the deceased was in a fit
state of mind after a clear opportunity to
observe and identify the assailant. Once the
court is satisfied that the declaration was true
and voluntary, undoubtedly, it can base its
conviction without any further corroboration. It
cannot be laid down as an absolute rule of law
that the dying declaration cannot form the sole
basis of conviction unless it is corroborated. The
rule requiring corroboration is merely a rule of
prudence. This Court has laid down in several
judgments the principles governing dying
declaration, which could be summed up as
under as indicated in Paniben v. State of
Gujarat (1992 (2) SCC 474) : (SCC pp. 480-81,
paras 18-19) (emphasis supplied)
(i ) There is neither rule of law nor of prudence
that dying declaration cannot be acted upon
without corroboration. (See Munnu Raja v.
State of M.P. (1976 (3) SCC 104)

(ii) If the Court is satisfied that the dying
declaration is true and voluntary it can base
conviction on it, without corroboration. (See
State of U.P. v. Ram Sagar Yadav and
Ramawati Devi v. State of Bihar (1985 (1) SCC
(iii) The court has to scrutinise the dying
declaration carefully and must ensure that the
declaration is not the result of tutoring,
prompting or imagination. The deceased had
an opportunity to observe and identify the
assailants and was in a fit state to make the
declaration. (See K. Ramachandra Reddy v.
Public Prosecutor (1976 (3) SCC 618)

(iv) Where dying declaration is suspicious, it
should not be acted upon without
corroborative evidence. (See Rasheed Beg v.
State of M.P. (1974 (4) SCC 264)
(v) Where the deceased was unconscious and
could never make any dying declaration the
evidence with regard to it is to be rejected. (See
Kake Singh v. State of M.P.(1981Supp. SCC 25)

(vi) A dying declaration which suffers from
infirmity cannot form the basis of conviction.
(See Ram Manorath v. State of U.P.(1981 (2)
SCC 654)

(vii) Merely because a dying declaration does
not contain the details as to the occurrence, it
is not to be rejected. (See State of Maharashtra
v. Krishnamurti Laxmipati Naidu (1980 Supp.
SCC 455)

(viii) Equally, merely because it is a brief
statement, it is not to be discarded. On the
contrary, the shortness of the statement itself
guarantees truth. (See Surajdeo Ojha v. State
of Bihar (1980 Supp. SCC 769))
(ix) 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
said that the deceased was in a fit and
conscious state to make the dying declaration,
the medical opinion cannot prevail. (See
Nanhau Ram v. State of M.P. (1988 Supp. SCC

(x) Where the prosecution version differs from
the version as given in the dying declaration,
the said declaration cannot be acted upon.
(See State of U.P. v. Madan Mohan (1989 (3)
SCC 390 )

(xi) Where there are more than one statement
in the nature of dying declaration, one first in
point of time must be preferred. Of course, if
the plurality of dying declaration could be held
to be trustworthy and reliable, it has to be
accepted. (See Mohanlal Gangaram Gehani v.
State of Maharashtra (1982 (1) SCC 700)

11. A perusal of the various decisions of this Court, some of
which have been referred to above, shows that if a dying
declaration is found to be reliable then there is no need for
corroboration by any witness, and conviction can be sustained
on its basis alone.
12. The evidence of PWs. 6, 8 and 9 clearly shows that the
deceased immediately prior to his death had disclosed to PWs.
6, 8 and 9 that he had suffered injuries at the hands of the
appellant. Additionally, in the bed-head ticket which was
exhibited, PW-14 categorically noted the statement of the
deceased that he had been assaulted by the accused. The
evidence of PW4 was to the effect that she was waiting for her
husband standing in front of their house. She stated that the
deceased was coming by a bicycle. She also could note that
the appellant as following the deceased and fired shot at the
deceased. When the evidence of PWs 4, 6, 8, and 9 is
analyzed, the inevitable conclusion, as was rightly observed by
the Trial Court and the High Court, is that the appellant had
fired the shot which resulted in the death of the deceased.

13. That being so, there is no merit in this appeal and the
same is dismissed.

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