MUNIAPPAN versus STATE OF MADRAS

3 s.c.:R. SUPREME OOURT REPORTS MUNIAPPAN

STA'.l'E OF MADRAS

(J. L. KAPUR and M. HmAYATULLAH, JJ.)

Dying Declaration-Thumb impresBion of dead person-

AdmisBibility.

It was alleged that the appellant had stabbed the deceased E. Soon after was stabbed, he was taken to the Police Station where the Sub-Inspector immediately started recording his statement. After had spoken one complete sentence, he could not speak any further and it was found that he had in fact died. Thereupon the Sub-Inspector took the thumb impression of upon the statement as recorded, which was treated as the dying declaration.

Question was that, when the dying declaration was inter-rupted by death ensuing suddenly, then, whether such decla-ration would be admissible in evidence; and the probative value of such dying declaration, which was described as an iricomplete document.

Held, that the thumb impression taken on the dying declaration after the man was dead, must be ignored. Corro-boration would not always be necessary if the dying decla-ration was complete in its accusation and there is nothing to show that the maker of the statement had anything further to add.

In this case the dying declaration was completed state-ment which was catagoric in character and there was nothing to show that the victim had anything more to say. It there-fore, needed no corroboration and could be relied upon.

Khu.halRao v. State of Bombay, [1958], S.C.R. 552, relied

Cyril Waugh v. The King L1950]. A.C. 203, explained and distinguished.

CRIMINAL APPELLATE JurusDIOTION: Criminal Appeal No. 49 of 1961.

Appeal by special leave from the judgment and order dated August 30, 1960, of the Madra1 High Court in Criminal Appeal No. 468 of 1960 and refer-red Trial No. 38 of 1960.

V. N. Sethi, for the appellant.

R. Ganapathy Iyer and T. M. Sen, for the respon-

dent.

1961 ftl1111iappan Y. Stat1 of Afadraj Hida)oa'ulloh J.

l!l61. September 27. Tho Judgment of the Court was delivered by

HIDAYATULLATT, .T.-This is rm nppeal a~ainst

the judgmPnt of the High Court of Madras, with special leave granted by this Court. The appellant was convicted under s. 302, I.P.C., and sentenced to <loath for the murder of one Elumahii on January 24, I !J61J, at Kanm\nlrnrichi. The facts of the case are simple :

Two days before this occurrence the appellan i Muniappan and Elumalai had quarr<Jl at tea. stall. Though tho quarrel really was between the appelhmt and some others, Elumalni had intervened in that quarrel, and made some remarks about tho appellant, and had ad\•iscd the party opposite to him to make complaint. Two reports of that incid('nt were made, one by tho appellant and tho llther by his rivals. On January 24, l!)(iO, at about 12.30 J'.M., P."W. I :Muthuswami Udayar was having bath when he heard Elumalai calling out t-0 him "Mama''. Muthuswami Cdayar ran to the place from which this cry had come and found Elumalai with several stab wounds on his bodv. ll[uthuswami Cdayar questionecl Elumalai, and the latter told him that it was the appellant llluniappan who had caused injuries to him. illuthuswami gave first aid to Elumalni, and meanwhile Elian alias Kundaswami (P.W.2) and K.R. Perumal (P.W.8) also arrived on the scene. These persons carried Elumalai to the Police Station ousc which was at distance of about 80 yards. Tho Sub-Inspector was seen approaching from the opposite direction and Elumalai was taken to tho verandah of the Police Station House. The Sub-Inspector immediately startecl recording the statement of Elumalai. After Elumnlai had. spoken one complete sentence, he could not speak any further, and though he was given some soda-water to drink, it was found that he could not swallow it and had, in fact, died. The Sub-Inspector thereupon took the thumb-impression of Elumalai upon the statement as recorded, and

3 S.@.R. SUPREME COURT R:E:PORTS

four other witnesses also signed or put their thumb marks on it. Muniappan also reached the Police Station House after few minutes and virtually surrendered himself to the police. One of his clothes, which was stained with blood, was seized and in one of his pockets was found sheath which was also seized as presumably belonging to the knife with which the stab injuries were caused. On statement by Muniappan the Police went to garden and recovered from there knife which later was found to he stained with human blood. Investi-gation disclosed that this knife together with the ~heath was purchased by Muniappan from Ameer Khan (P.\V. 6) on the evening of January 23, 1960.

The police therefore charged Muniappan with an offence under s. 302 I.P.C. The evidence led against him consisted of the testimony of Ameer Khan (P.W. 6) about the purchase of the knife c0mplete with sheath for Rs. 6/-; the testimony of witnesses about the incident which took place two days before the murder; the dying declaration made to Muthuswami (P.W. 1 ); the dying declaration recorded by the Sub-Inspector in the presence of witnesses; an alleged statement made by the accused to the doctor when he was e:x:amined for an injury on his thumb and the evidence of the alleged eye witness Elian alias Kundaswami (P.W. 2). The two courts below convicted the appellant of the offence of murder and sentenced him to death.

In this appeal it is contended that the evidence of the eye witness (P.W. 2) and the statement of the appellant made to the Doctor, who e:x:amined him, having been excluded, there was not sufficient evidence in the case if the dying declaration record-ed by the Sub-Inspector is e:x:clnded. The main argument in this case is, therefore, about the admissibility and the probative value of the dying declaration which is described as an incomplete document completed dishonestly by getting the thqmb imprPssion of Elumq,lai when he w~s dea,d,

1961 Muniappan v. State of fl.I adras Hidayalu/{ah J.

Ufl Moni•/JJl<n V, St.it of MairaJ Hidoy•t•llch ].

SUPREME COmtT REPORTS [1962)

No doubt, the thumb impression of Elumo.lai '"" to.ken on the dying declaration after he was dead and to tha.t extent the thumb impression must bo ignored. We do not agree with the learned counsel for tho appellant that this was <lone from an improper or di.~honost motive t-0 givo colour of completion to an incomplete document. Tho re.uson for that ie not far to seek. Th<' Suh-Inspector after recording what Elumalai had to say noted that "soon after Elumalai had said those words his speeeh stopped. His life was gone.'' The thumb impression followed this endorsement. It appears to us that tho Sub-Inspector who was nonplussed by the su'.lden collapse of Elumalai, did not know what to do and he thought that it was proper to take the thumb impression on the statement as it had been made. The Sub-Insp!lctor should have left tho d~cnment as it was, withonl taking the thumb mark of the dead man, but wo do not feel compelled to hold that he did so out of any impro-per motive, inasmuch as he had noted that tho man was dead before the thumb impression was taken. That also was his testimony in court, and that of tho attesting witnesses. Tho fact, howev<'r, remains that tho dying declaration was interrupted b~ death ensuing Stlddenly. The question is whether thi~ rlying <lecl11ration is admissible in evidence.

The loamed counsel for the appellant han

rcli<'d on case of tho Privy Council from Jamaica reported in Cyril II' augh v. The King( [1]). In that case, one Phillip Newby was shot and ho made clying declaration which was taken down but which ..... wa.8 not complcto because Newby suddenly foll into coma from which ho never recovered. The Privy Council rulod out that dying declaration on the ground that being incomplete it conld not be taken into acconnt after ignoring ths Jost aentonce which 'vas incomplete because in tho middle of it Newby foll into coma and diad. That dying declaration, if oxamineci clearly 1how1 that Newby had not

(I) [1950] A.C. 203.

3 S.C.R. SUPREME COURT REPORTS 873

-~ charged any person by name but had described his

:issailant as "a man''. In the sentence which was incomplete in his statement Newby had begun to say "The man had an old grudge for me simply because,.!' It is quite clear that if that sentence had been completed, clue would have been furnished as to the identity of the assailant by the facts about the old grudge which Newby wanted to disclose. The dying declaration, therefore, was an incomplete statement and in so far as it went, had no value unless it was completed by some other evidence which of coursA would not have been part of Newby's statement. The reason for exclud-ing that dying declaration was, therefore, quite clear, and if the present dying declaration can be said to be of similar character, then the argument of the counsel for the appellant must prevail.

The dying declaration in tJie present case was as follows:

''Sir,

This day 24th January, 1960, in the noon at l~.30 Muniappan, son of Kola Goundan of Kannankurichi stabbed me in my body with knife.

Soon after he said these words, his speech stopped. His life was gone.

(Left thumb impression of) Elumalai.

witnesseR:

I. (Signed in Tamil) Muthuswami Udayar.

2. (Signed) K. R. Perumal.

3. (Signed in Tamil) C. Kannan.

4. (Left thumb impression of) Kundaswami

24th January, 1960.

(Signed) S. A. Amir Sub-Inspector.

Here, the accusation against the appellant was com· plete, and there is nothing to show that Elumalai wished to say anything more or that he had any-thing more to add. In so far as the dying declara-tion, goes, it is complete statement, and makes

1961 Mun.iappan v. State of Madras Jlida;'ratultah J.

1961 Momia;pan v. Stott of Afadrol HiO.Y"t•/lah ].

very clear accusation against the appellant. If this ·" dying declaration is takon into account, then it hardly needs corroboration in view of the decision of this Court in Khu,~hal Rao v. State of Rom.bay('). The Privy Council case, therefore, is clearly distinguish-ablo on facts and does not apply to the dying decla-ration with which we have to doal. The Privy Coun-cil caso was considered by this Court in Abdul Sattar .,; v. Jfysore State ('), whero also the dying declara-tion was incomplete but was quite categoric in charactor and definitely indicated that it was the accused in that case who had shot the deceased. The dying declaration was, therefore, acted upon. The learned counsel for the appellant att-Ompted to distinguish Abdul Sat tar's case(') on the ground that , in that ca.so thero was corroboration of the dying <leclamtion and contended that an inrompletc dying declaration, if categoric in character, may be actt-d upon if corroborated but not if not ~o corroborated. In our opinion, corroboration would not always be ncc'Jssary if the dying declaration is completo in its accusation and there is nothing to show that tho makor of the statement had anything further to , add. That i8 the case here. In thi1 case, howo,·er, • there is some other evidence to incriminate tho accu-8(,-d. The injuries were eauscd with knife and knife was founcl at some distance from the scene of occurrence on information furniHbed to tho police by the accused. 'fhat knifo was found to be stained with human blood and the accused had in his posse-ssion sheath which wall identified as belonging to .._ the knife by the shopkeeper who had tho day pre-vious sold the knife and the sheath to tho appellant llfonia.ppan. There is also tho conduct of the appell-ant in surrendering himself to tho police at 12.40 P.M. that is to say, within ten minut~s of the occur-rence. The appollant had an injury on his thumb which be apparently got in attempting to stab Eiumala.i. Tho injury was situated on the thumb of .... his left hand on the lateral side and must have been -

(ll[l958JS.C.R: 552. (1) A. 1. II.. (19'6) s. c. 168;

~ [3 ][s~C;R, ][SUl?RlilME ][COURT ][REPORTS ]

caused when he struck Elumalai repeatedly holding him with his left hand and wielding the weapon with his right hand. There is also evidence of motive in the shape of quarrel which had taken place only two days previously and in respect of which the rival parties had made their respective reports "' to the police. There was also corroboration in the shape of dying declaration made by Elumalai to the first prosecution witness Muthuswami when he reached the spot after Elumalai had raised cry for help.

In view of all these circumstances we are satisfied that the evidence in this case is sufficient -t to warrant the conviction of the appellant on charge of murder. The dying declaration i~, in our opinion, categoric in character and unmistakably accuses the appellant of the crime and we have no hesitation in accepting it.

In the result, the appeal fails and is dismissed.

Appeal dismissed.

1961 Muniappa·n v. State of M4dras Hida_yatul/ah J.