PANNEERSELVAM versus STATE OF TAMIL NADU

[2008] 8 S.C.R. 962

PANNEERSELVAM v.

STATE OF TAMIL NADU

(Criminal Appeal No. 1167 of 2006)

MAY 15, 2008

[DR. ARIJIT PASAYAT, P. SATHASIVAM AND DR. MUKUNDAKAM SHARMA, JJ.]

Penal Code, 1860- ss.302 rlw 34, 348, 201and201 rlw ·c [34 ][-][ Death ][-][ Due ][to ][burn injuries ][-][ Conviction ][of ][accused-]Appellants by Trial Court·- Appeal - High Court discarded statements made by the doctors, PWs. 3, 4 and 6, to the effect that the deceased voluntarily told each one of them that he had set himself on fire and upheld conviction of Appellants by [placing reliance on the dying declaration allegedly given ][by ]deceased to the Revenue Divisional Officer (PW14) four days prior to his death - Challenge to - On facts held: High Court misconstrued the dying declaration since the deceased had categorically stated therein that he did not know who set him on fire - It also .erred in discarding the statements made by PWs 3, 4 and 6 - Conclusions were arrived at by the High Court by misreading the evidence - Appellants accordingly acquitted - Code of Criminal Procedure, 1973 - s.374.

Evidence Act, 1872 - s.32 - Dying declaration - Prin-F [ciples governing dying declaration summed up and re-iter-]ated.

According to the prosecution, A1 and A2 alongwith three other accused had poured petrol on the deceased and set him on fire. A1 to A4 were police officials and on the date of the incident were on duty. The Trial Court con-victed all the five accused under s.302 rlw s.34 IPC. A1 and AS were additionally convicted under s.348 IPC. A1 was further convicted under s.201 IPC while AS were fur-ther convicted under 5.201 r/w s.34 IPC. High Court up-H 962

held the conviction of A1 and A5 i.e. Appellants but ac-A quitted the other accused persons. It discarded the .state-ments made by the doctors, PWs. 3, 4 and 6, to the effect that the deceased voluntarily told each one of them that he had set himself on fire and upheld conviction of the Appellants by placing reliance on the dying declaration allegedly given by deceased to the Revenue Divisional Officer (PW14) four days prior to his death.

In support of the present appeals, the Appellants sub-

·mitted that the High Court proceeded on presumptions that because the statements of the deceased to PWs, 3, 4 [c ]and 6 were made in the presence of Constable, there-fore, they were not voluntary; that on the contrary at the time when the statements were made, the relatives of the deceased were present as evident from the evidence of PW1 who took the deceased to the hospital. It was fur-D ther contended that the High Court came to an errone-ous conclusion by misreading dying declaration pur-ported to be made before RDO that it was either A1 or A5 (the appellants) who had poured petrol on the deceased and set him on fire.

·The Respondent-State, on the other hand, submit-

ted that the High Court had rightly relied upon the dying declaration made before the RDO and that the fact that police officials were present when the statements were made by the deceased before the doctors made the posi-tion c'ear that the deceased was not speaking the truth. Allowing the appeals, the Court

HELD: 1.1. This is case where the basis of convic-

tion of the accused is the dying declaration. The situation in which person is on his deathbed, being exceedingly solemn, serene and grave, is the reason in law to accept the veracity of his statement. It is for this reason that the requirements of oath and cross-examination are dis-

pensed with. Besides should the dying declaration be excluded it will result in miscarriage of justice because the victim being generally the only eye-witness in seri-ous crime, the exclusion of the statement would leave the Court without scrap of evidence. [Para 7] [969-B,C,D]

1.2. Though dying declaration is entitled to great

weight, it is worthwhile to note that the accused has no power of cross-examination. Such power is essential for eliciting the truth as an obligation of oath could be. This is tion should be th.e I reason the Court also insists that the dyiog declara-of such 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 result of either tutoring or prompting or product of imagination. The Court must be further satisfied that the deceased was in fit state of mind after 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 rule of prudence. [Para 8] [969-D,E,F,G]

1.3. The principles governing dying declaration could be summed up as under: (i)There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration; (ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration; (iii) The Court has to scrutinize the dying declaration carefully and must en-G sure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an oppor-tunity to observe and identify the assailants and was in fit state to make the declaration; (iv) Where the dying dee-laration is suspicious, it should not be acted upon with-H [out corroborative evidence; ][v) ][Where the deceased was ]

PANNEERSELVAM v. STATE OF TAMILNADU

unconscious and could never make any dying declara-A tion, the evidence with regard to it is to be rejected; (vi) dying declaration which suffers from infirmity cannot form the basis of conviction; (vii) Merely because dying dec-laration does contain the details as to the occurrence, it is not to be rejected; (viii) Equally, merely because it is brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth; (ix) Normally the Court in order to satisfy whether the de-ceased was in 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 fit and conscious state to make the dying declaration, the medi-cal opinion cannot prevail; (x) Where the prosecution ver-sion differs from the version as given in the dying decla-ration, the said declaration cannot be acted upon; (xi) 0 Where there is more than one statement in the nature of dying declaration, one first in point of time must be pre-ferred. Of course, if the plurality of dying declarations could be held to be trustworthy and reliable, it has to be accepted. [Para 8] [969-G, 970-A-H, 971-A-E]

1.4. In the present case, the High Court has errone-ously discarded the statements made by PWs. 3, 4 and 6 to the effect that the deceased voluntarily told each one of them that he had set himself on fire. As rightly con-tended by the appellant, even though one police official was present when the statement was made to PWs. 3, 4 and 6, yet large number of relatives of the deceased, more particularly, PW1 who had taken him to the hospital were present also. Additionally, the High Court has miscon-strued the dying declaration. The deceased had categori-G cally stated therein that he did not know who set him on fire. The High Court observed, as if, the deceased had said that either A1 or A5 did so. The conclusions have been arrived at by misreading the evidence. Therefore, the appellant in each case is acquitted of the charges.

[Para 9] [971-F-H, 972-A]

Smt. Paniben v. State of Gujarat AIR (1992) SC 1817; Munnu Raja & Anr. v. The State of Madhya Pradesh (1976) 2 SCR 764; State of Uttar Pradesh v. Ram Sagar Yadav and Ors. AIR (1985) SC 416; Ramavati Devi v. State of Bihar AIR (1983) SC 164; K. Ramachandra Reddy and Anr. v. The Pub-lic Prosecutor AIR (1976) SC 1994; Rasheed Beg v. State of Madhya Pradesh (1974) 4 SCC 264; Kaka Singh v State of MP AIR (1982) SC 1021; Ram Manorath and Ors. v. State of UP (1981) 2 SCC 654; State of Maharashtra v. Krishnamurthi Laxmipati Naidu AIR (1981) SC 617; Surajdeo Oza and Ors. v. State of Bihar AIR (1979) SC 1505; Nanahau Ram and Anr. v. State of Madhya Pradesh AIR (1988) SC 912; State of UP v. Madan Mohan and Ors. AIR (1989) SC 1519 and Mohan/a/ Gangaram Gehani v. State of Maharashtra AIR (1982) SC 839 - relied on.

CRIMINALAPPELLATE JURISDICTION: Crimir;ialAppeal No. 1167 of 2006

From the Judgment arid final Order dated 7.7.2006 of the

High Court of Madras, Bench at Madurai in Crl. Appeal No. 404/ 1997

WITH

Crl. A. No. 1168 of 2006

Nagendra Rai, KV Viswanathan, S. Balaji, P.B. Suresh, Vipin Nair, Vivek Sharma, M/s. Temple law Firm and Dr. Kailash Chand for the Appellant.

R. Shunmugasundaram, V.G. Pragasam, S.J. Aristotle and

Prabu Ramasubramanian for the Respondent.

The Judgment of the Court was delivered by

Dr. ARIJIT PASAYAT, J. 1. These two appeals have their matrix in common judgment of Division Bench of the Ma-H dras High Court disposing of three criminal appeals preferred

under Section 374 of the Code of Criminal Procedure, 1973 (in

short 'Cr.PC'}, against the judgment of the Principal Sessions Judge, Thanjavur in Sessions case no.65 of 1994 dated

13.5.1997. Five persons had faced trial for alleged commis-sion of murder of one Arunbharathi @ Jynarab (hereinafter re-ferred to as the 'deceased'). They were convicted for offences punishable under Section 302 read with Section 34 of the In-dian Penal Code, 1860 (in short 'IPC'). So far as 1, A2 and A5 are concerned, each was sentenced to undergo imprisonment for life. 1, A2 and A5 were convicted for offence punishable under Section 348 IPC and sentenced to one year RI each. 1 was charged for commission of offence punishable under Sec-tion 201 IPC and sentenced to undergo one year RI and A2 and A5 were convicted for offence punishable under Section 201 read with Section 34 IPC and each was sentenced to undergo RI for life.

2. 1 was Head Constable, while A2 was Constable A3

was Writer, and A4 was Pere Constable. All of them were attached to Ammapet Police Station, and they were on duty on

14.12.1992 and 15.12.1992. A5 was native of Udaiyur Kovil

3. After the case was committed to the Court of Sessions

charges were framed since the accused persons pleaded in-nocence they were put to trial. In order to substantiate the charges 14 witnesses were examined. On consideration of the material on record the Trial Court recorded the conviction and imposed sentences as aforesaid.

4. Stand of the appellant before the High Court was that

the deceased had put himself on fire and in fact, all the accused persons immediately quenched the fire and had taken him to the Government Primary Health Hospital, Ammapet, where PW3 doctor was available. The deceased made voluntary state-ment to PW3 wherein he categorically stated that he had poured petrol on himself and set himself on fire. Thereafter the deceased with the burn injuries was taken to the Medical College Hospital where also he made .a similar statement to PW4 the doctor.

Subsequently, another doctor PW6 examined him where also he made similar statement. Therefore, it was submitted that the Trial Court was not justified in convicting them relying on the purported dying declaration alleged to have been given by the deceased to the Revenue Divisional Officer (PW14) on 16.12 .1992 i.e. four days prior to his death. The same was noth-ing but tutored one. The High Court held that the so called statements made before the doctors cannot be accepted in view of the dying declaration recorded by PW14 the RDO. The High Court did not attach any importance to the statements purport-C edly given before PWs, 3, 4 and 6 and also relied on the dying declaration purportedly made by the deceased before the PW14. The High Court found that the allegations against A2, ' A3 were not proved beyond reasonable doubt and they were entitled to acquittal. Accordingly, the appeals filed by these accused persons were allowed and those filed by the appel-0 lants in these two appeals were dismissed.

5. In support of the appeal learned counsel for the appel-lants submitted that the High Court proceeded on presumptions that because the statements of the deceased to PWs, 3, 4 and 6 were made in the presence of Constable, therefore, they were not voluntary. On the contrary at the time when the state-ments were made, the relatives of the deceased were present is evident from the evidence of PW1 who took the deceased to the hospital. He had categorically admitted that he was ac-F companied by several persons when the deceased was taken to and was at the hospital. PW1 and others were there with him. PW1 has categorically admitted that this was the situation in the Ammapet hospital and Thanjavur Medical College Hos-pital. He has categorically st~ted that several persons were present at the hospital. It was, therefore, submitted thatthe vol-untary statement made right from the beginning should not have been lightly brushed aside. It is also pointed out that the High Court came to an erroneous conclusion by misreading dying declaration ·purported to be made before RDO that it was ei-ther 1 or A5 (the present appellants) who had poured.petrol . "

and set him on fire.

6. In response, learned counsel for the respondent-State submitted that the High Court had rightly relied upon the dying declaration made before the RDO. According to him the fact that police officials were present when the statements were made by the deceased before the doctors made the position clear that the deceased was not speaking the truth.

7. This is case where the basis of conviction of the ac-cused is the dying declaration. The situation in which person is on his deathbed, being exceedingly solemn, serene and grave, is the reason in law to accept the veracity of his state-ment. It is for this reason that the requirements of oath and cross-examination are dispensed with. Besides should the dying dee-laration be excluded it will result in miscarriage of justice be-cause the victim being generally the only eye-witness in seri-D ous crime, the exclusion of the statement would leave the Court without scrap of evidence.

8. Though dying declaration is entitled to great weight, it

is worthwhile to note that the accused has no power of cross-examination. Such 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 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 result of either tutoring or prompting or product of imagi-nation. The Court must be further satisfied that the deceased was in fit state of mind after 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 can-not form the sole basis of conviction unless it is corroboraterf. The rule requiring corroboration is merely 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 Smt. Paniben v. State of Gujarat (AIR 1992 SC 1817):

(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. [See Munnu Raja & Anr. v. The State of Madhya Pradesh (1976) 2 SCR 764)]

(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 Uttar Pradesh v. Ram Sagar Yadav and Ors. (AIR 1985 SC 416) and Ramavati Devi v. State of Bihar (AIR 1983 SC 164)]

(iii) The Court has to scrutinize 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· !it state to make the declaration. [See K. Ramachandra Reddy and Anr. v. The Public Prosecutor (AIR 1976 SC 1994)]

(iv) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence. [See Rasheed Beg v. State of Madhya Pradesh (1974 (4) sec 264)1

(v) Where the deceased was unconscious and could never make any dying declaration, the evidence with regard to it is to be rejected. [See Kaka Singh v State of M.P (AIR 1982 SC 1021)]

(vi) dying declaration which suffers from infirmity cannot form the basis of conviction. [See Ram Manorath and Ors. v. State of UP (1981 (2) sec 654)

(vii) Merely because dying declaration does contain the details as to the occurrence, it is not to be rejected. [See State of Maharashtra v. Krishnamurthi Laxmipati Naidu (AIR 1981 SC 617)]

(viii) Equally, merely because it is brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. [See Surajdeo Oza and Ors. v. State of Bihar (AIR 1979 SC 1505).

(ix) Normally the Court in order to satisfy whether the [8 ]deceased was in 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 fit and conscious state to make the dying declaration, the medical opinion cannot prevail. (See Nanahau Ram and Anr. v. State of Madhya Pradesh (AIR 1988 SC 912)].

(x) Where the prosecution version differs from the version as given in the dying declaration, the said 0 declaration cannot be acted upon. [See State of UP v. Madan Mohan and Ors. (AIR 1989 SC 1519)].

(xi) Where there is 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 declarations could be held to be trustworthy and reliable, it has to be accepted. [See Mohan/al Gangaram Gehani v. State of Maharashtra (AIR 1982 SC 839)]

9. We find that the High Court has erroneously discarded the statements made by PWs. 3, 4 and 6 to the effect that the deceased voluntarily told each one of them that he had set him-self on fire. As rightly contended by learned counsel for the ap-pellant, even though one police official was present when the statement was made to PWs. 3, 4 and 6, yet large number of relatives of the deceased, more particularly, PW1 who had taken him to the hospital were present also. Additionally, the High Court has misconstrued the dying declaration.The deceased had cat-egorically stated therein that he did not know who set him on fire. The High Court observed, as if, the deceased had said

that either 1 or AS did so. The conclusions have been arrived at by misreading the evidence. Therefore, the impugned judg-ment of the High Court cannot be maintained and is set aside. The appellant in each case is acquitted of the charges. The appellants be released from custody forthwith unless required in any other case. The appeals are allowed.

Appeals allowed.