Penal Code, 1860: s.302 – Unnatural death by burn injuries – Prosecution case was that the appellant-accused poured kerosene on the victim-deceased and burnt her alive – Trial court convicted appellant under s.302 on the basis of dying declarations of the victim – High Court upheld the conviction – On appeal, held: Courts below arrived at concurrent findings after thoroughly assessing the circumstances and facts – The dying declaration of the deceased was recorded by the Special Executive Magistrate after obtaining the fitness condition of the victim by the duty Medical Officer who issued the fitness certificate after examining the patient – There is no suspicion over the genuineness of the dying declaration as the deceased described the incident and declared the name of the accused to be the culprit in clear and categorical terms – In that view of the matter, the dying declaration of the deceased can form the sole basis for conviction of the accused-appellant – Court below took the plausible view that the guilt of the accused was proved beyond reasonable doubt as the dying declarations did not suffer from any infirmity and inspired confidence – Thus, case for interference with the order of conviction not made out – Evidence Act, 1872 – s.32.
Dying declaration: Considerations that make dying declaration dangerous kind of evidence – Discussed – Cautious approach of Court to rely on dying declaration – Dying declaration cannot form the sole basis for conviction unless it is corroborated – The courts must be cautious and must rely on the same only if it inspires confidence in the mind of the Court – If the dying declaration creates any suspicion in the mind of Court as to its correctness and genuineness, it should not be acted upon without corroborative evidence.
Appeal: Special leave petition – Reopening of concurrent finding of fact, when permissible – Discussed. Dismissing the appeal, the Court
HELD: 1. The Courts below came to the concurrent conclusion only after meticulous consideration of the two dying declarations of the deceased which were recorded by the Special Executive Magistrate and PW12-Head Constable respectively which were duly certified by the Doctor. The dying declaration was to the effect that the deceased on the previous night i.e. on the date of incident, had a quarrel with the accused over cooking of meals and the annoyed appellant poured kerosene and set her on fire with matchstick. Both the dying declarations were consistent and in clear terms pointed at the guilt of the accusedappellant that he had set the lady on fire resulting in her death. The contention that the dying declarations were not voluntarily made, cannot be given weightage for the reason that the Special Executive Magistrate had recorded the dying declaration in accordance with law after obtaining due permission from the Doctor. [Para 8] [1008-B-D]
2. The physical or mental weakness consequent upon the approach of death, a desire of self-vindication, or a disposition to impute the responsibility for a wrong to another, as well as the fact that the declarations are made in the absence of the accused, and often in response to leading questions and direct suggestions, and with no opportunity for cross-examination: all these considerations conspire to render such declarations a dangerous kind of evidence. In order to ameliorate such concerns, a cautious approach has to be adopted when considering a conviction solely based on dying declaration. Although there is no absolute rule of law that the dying declaration cannot form the sole basis for conviction unless it is corroborated, the courts must be cautious and must rely on the same if it inspires confidence in the mind of the Court. Even though some of the prosecution witnesses turned hostile and minor discrepancies in the prosecution case, they did not have any bearing on the result of the present case for the simple reason that the Courts below thoroughly assessed each circumstance and after careful examination of the facts only recorded their concurrent findings. As observed by this Court in Bharwada Bhoginbhai Hirjibhai, a concurrent finding of fact cannot be reopened in an appeal by special leave unless it is established:
(1) that the finding is based on no evidence or (2) that the finding is perverse, it being such as no reasonable person could have arrived at even if the evidence was taken at its face value or (3) the finding is based and built on inadmissible evidence, which evidence, if excluded from vision, would negate the prosecution case or substantially discredit or impair it or (4) some vital piece of evidence which would tilt the balance in favour of the convict has been overlooked, disregarded, or wrongly discarded. Whereas the case on hand did not fall under any of these categories, particularly, when the evidences of PWs 1 and 12 gets corroborated with the evidence of PW 8 (who confirmed his endorsement on the dying declaration which formed basis for the conviction of the accused. In such circumstances, the conclusion arrived at by the trial Court as well as the High Court cannot be treated as perverse. [Paras 11, 14, 15] [1009-C-E; 1010-C-F]
Ram Bihari Yadav v. State of Bihar & Ors. (1998) 4 SCC 517 : [1998] 2 SCR 1097; Suresh Chandra Jana & Ors. v. State of West Bengal & Ors. 2017 (8) SCALE 697; Atbir v. Government of NCT of Delhi (2010) 9 SCC
1 : [2010] 9 SCR 993; Paniben v. State of Gujarat (1992) 2 SCC 474 : [1992] 2 SCR 197; Panneerselvam v. State of Tamilnadu (2008) 17 SCC 190 : [2008] 8 SCR 962; Bharwada Bhoginbhai Hirjibhai v. State of Gujarat (1983) 3 SCC 217 : [1983] 3 SCR 280 – relied on.
King v. Woodcock (1789) 168 ER 352 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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