Full Judgment Text
2026:MHC:1796
Crl.A.(MD) No.698 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved On : 27.04.2026
Pronounced On : 01.06.2026
CORAM
THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH
AND
THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN
Crl.A.(MD).No. 698 of 2023
M.Vigneshwaran ... Appellant/ Sole Accused
Vs.
The State rep by its,
The Inspector of Police,
Sivakasi Town Police Station,
Virdhunagar District.
(In Crime No.66 of 2021) ... Respondent/Complainant
PRAYER : Criminal Appeal has been filed under Section 374(2) of the
Criminal Procedure Code, to call for the records in Spl.S.C.No.23 of 2021 on
the file of the Sessions Judge, Special Court for exclusive trial of cases
under POCSO Act, Srivilliputhur and set aside the conviction passed in the
judgment dated 27.03.2023.
For Appellant : Mr. Gopalakrishna Laxmana Raju
Senior Counsel assisted by
Mr.S.G.L.Rishwanta
For Respondent : Mr.A.Thiruvadikumar
Additional Public Prosecutor
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JUDGMENT
The sole accused appellant in Spl.S.C.No.23 of 2021 on the file of the
Sessions Judge, Special Court for exclusive trial of cases under POCSO Act,
Srivilliputhur, dated 27.03.2023 has filed this appeal, challenging the
conviction and sentence imposed against him on 27.03.2023 wherein, he
was convicted as follows:
Sl.
No
Offences under Sections Punishment Fine
1 363 of IPC Three Years of
Rigorous
Imprisonment
Rs.5,000/-
indefault to
undergo simple
imprisonment of
three months
2 6 of POCSO Act Rigorous
Imprisonment for the
reminder of natural
life
Rs.5,000/- in
default to undergo
1 years of rigorous
imprisonment
2. The brief facts of the case:
The sole accused in Special Sessions Case No. 23 of 2021, on the file
of the learned Special Judge for Exclusive Trial of Cases under the POCSO
Act, Srivilliputhur, Virudhunagar District, has preferred the present appeal
challenging the conviction and sentence imposed by judgment dated
27.03.2023.
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2.1.The prosecution case, in brief, is that the victim girl, aged about 17
years at the relevant time, developed friendship with the accused through
mobile communication. It is alleged that the accused lured her to a secluded
place and committed penetrative sexual assault. During the occurrence, the
accused clandestinely recorded the act without the knowledge or consent of
the victim and subsequently transmitted the same to her, and also criminally
intimidated her, Unable to bear the alleged acts and threats, the victim girl
attempted self-immolation, sustaining severe burn injuries. Upon admission
in the hospital, intimation was sent both to the jurisdictional police and to
the Judicial Magistrate for recording her statement. At about 3:45 p.m., the
Judicial Magistrate commenced recording the dying declaration of the
victim. Prior thereto, the Sub-Inspector of Police, attached to the
jurisdictional police station, who had received the intimation from the
hospital, recorded her statement. After completion of the Magistrate’s dying
declaration, the Sub-Inspector returned to the police station and registered a
case in Crime No.66 of 2021.
2.2.The investigation was thereafter taken up by the Inspector of
Police, who visited the scene of occurrence, prepared the observation
mahazar and rough sketch, and examined witnesses. At about 7:45 p.m.,
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upon receipt of intimation regarding the death of the victim, the offence was
altered to graver charges. Subsequently, the accused was arrested on
06.02.2021. Pursuant to his voluntary confession, a mobile phone was
recovered, and the place of occurrence was identified in the presence of the
Village Administrative Officer.
2.3.The Investigating Officer completed the investigation by
collecting medical records, forensic reports relating to the mobile devices,
and opinion regarding the potency of the accused, and thereafter filed the
final report before the Special Court.
2.4.The learned trial Court, after complying with the requirement
under Section 207 Cr.P.C., framed charges against the accused. The accused
pleaded not guilty and claimed trial. The prosecution examined PWs 1 to 13,
marked Exhibits P1 to P23, and produced Material Objects 1 to 6. Court
Exhibits C1 and C2 were also marked. The accused was examined under
Section 313 Cr.P.C., wherein he denied the incriminating circumstances. No
evidence was adduced on the defence side.
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2.5.Upon appreciation of the evidence, the trial Court convicted the
accused for offences under Sections 5 and 6 of the Protection of Children
from Sexual Offences Act, 2012, and Section 363 IPC, and sentenced him to
undergo imprisonment for the remainder of his natural life under Section 6
of the POCSO Act, along with other sentences. However, the accused was
acquitted of the charges under Sections 66E and 67B of the Information
Technology Act, 2000.
Aggrieved by the said conviction and sentence, the present appeal has
been filed.
3. Submission of the learned counsel appearing for the appellant:
Learned Senior Counsel appearing for the appellant would submit that the
prosecution case rests substantially on the dying declaration recorded by the
learned Judicial Magistrate. It is contended that the said dying declaration
was recorded when the victim had sustained extensive burn injuries, stated to
be of second-degree severity, and therefore she was not in a fit state of mind
to make a voluntary and reliable statement.
3.1.It is further submitted that, in the absence of cogent evidence
establishing that the victim was in a conscious and fit mental condition at the
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time of recording the dying declaration, the same cannot be relied upon.
According to the learned Senior Counsel, the dying declaration is shrouded
by suspicious circumstances and is liable to be rejected on the ground of
possible tutoring.
3.2.Elaborating further, it is submitted that the occurrence allegedly
took place around 2:00 p.m., and the victim succumbed to injuries at about
6:00 p.m. The dying declaration came to be recorded at about 3:45 p.m. In
the interregnum, prior to the arrival of the Judicial Magistrate, the Sub-
Inspector of Police had already recorded a statement from the victim. This,
according to the learned Senior Counsel, creates a reasonable possibility of
tutoring, thereby rendering both the statement recorded by the police and the
subsequent dying declaration unreliable.
3.3.It is also contended that the medical evidence does not support the
prosecution case, as the doctor, during cross-examination, has stated that a
person with such burn injuries would generally not be in a position to give a
coherent statement. Therefore, the victim cannot be said to have been in a fit
state of mind at the relevant point of time.
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3.4.On the above premises, it is argued that the conviction of the
appellant for grave offences, based solely on the dying declaration, is not
legally sustainable.
3.5.The learned Senior Counsel further submitted that the trial Court,
having acquitted the accused of the charges under Sections 66E and 67B of
the Information Technology Act, cannot, on the same set of evidence, record
conviction under the remaining provisions. It is particularly contended that
the charge relating to abetment of suicide is not made out in the absence of
reliable and admissible evidence.
3.6.It is also argued that reliance on selective portions of the dying
declaration to record conviction is impermissible, especially when the
declaration itself is doubtful and lacks credibility.
4. Submissions of the learned Additional Public Prosecutor:
Per contra, the learned counsel appearing for the State would submit
that there is no legal bar to base a conviction solely on a dying declaration, if
it inspires confidence and is found to be voluntary and truthful. It is
contended that, in the present case, there is no material to show that the
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victim was subjected to tutoring prior to the recording of the dying
declaration.
4.1.According to the learned Additional Public Prosecutor, the
sequence of events clearly establishes that the dying declaration was
recorded in a transparent manner, and therefore there is no reason to
disbelieve the same. It is further submitted that the acquittal of the accused
under certain provisions of the Information Technology Act does not
preclude the Court convicting the accused under other offences, if the
evidence on record so justifies.
4.2.Anent the finding of the trial Court on the inadmissibility of
electronic evidence for want of a certificate under Section 65B of the Indian
Evidence Act, it is submitted that the said finding is erroneous. Placing
reliance on the judgment of the Constitution Bench of the Hon’ble Supreme
Court, it is contended that where the original electronic device itself is seized
and produced, the requirement of a Section 65B certificate may not arise.
However, in the absence of an appeal by the State against acquittal on those
counts, the said finding need not be interfered with, except to the limited
extent of appreciating corroborative circumstances.
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4.3.Finally, the learned Additional Public Prosecutor would submit
that the victim was subjected to penetrative sexual assault, criminal
intimidation, and circulation of objectionable material, which cumulatively
drove her to commit self-immolation. The circumstances disclose grave
cruelty and a direct nexus between the acts of the accused and the death of
the victim. Hence, the learned Additional Public Prosecutor prayed that the
conviction and sentence imposed by the trial Court be confirmed.
5.This Court considered the rival submissions made by the learned
Senior Counsel appearing for the appellant and the learned Additional Public
Prosecutor appearing for the State and perused the materials available on
record and the relevant precedents governing the issues raised in the present
appeal.
6. Points for determination:
(i) whether the prosecution has proved the charges framed against the
accused beyond reasonable doubt?
(ii) whether the sentence of life imprisonment till the natural death
imposed by the trial Court is justified in law?
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7. Principles relating to the dying declaration:
Under Section 32(1) of the Evidence Act, when a statement is made by
a person, as to the cause of death or as to any of the circumstances which
result in his death, in cases in which the cause of that person's death comes
into question, such a statement, oral or in writing, made by the deceased to
the witness is a relevant fact and is admissible in evidence and Section 32(1)
of the Evidence Act is an exception to the general rule contained Section 60
of the Indian Evidence Act that hearsay evidence is inadmissible and
evidence should be direct and is validated through the cross examination.
The Hon'ble Supreme Court in the case of Nallapati Sivaiah vs. SDO
reported in 2007(15) SCC 465 placed reliance on the following portion of
the Woodroffe and Amir Ali, in their Treatise on Evidence Act state :
“when a man is dying, the grave position in which he is
placed is held by law to be a sufficient ground for his veracity
and therefore the tests of oath and cross-examination are
dispensed with”.
7.1.One of the cardinal principle is that a dying declaration, being a
statement as to the cause of death or the circumstances leading thereto, is
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admitted on the settled premise that a person at the brink of death is unlikely
to speak lies and the same was considered by the Hon'ble Supreme Court in
the following cases:
Nallapati Sivaiah v. SDO , (2007) 15 SCC 465 Kamal Khudal v. State of Assam , (2022) 20 SCC
654
There is a historical and a literary basis for
recognition of dying declaration as an exception to
the hearsay rule. Some authorities suggest the rule is
of Shakespearian origin. In The Life and Death of
King John, Shakespeare had made Lord Melun utter
“Have I met hideous death within my view, retaining
but a quantity of life, which bleeds away, … lose the
use of all deceit” and asked, “Why should I then be
false, since it is true that I must die here and live
hence by truth? ” William Shakespeare,The Life and
Death of King John, Act 5, Scene 4, lines 22-29
24. “ Truth sits upon the lips of a dying man.”
— Matthew Arnold
The whole idea of accepting a statement in the name
of dying declaration comes from a maxim “nemo
moriturus praesumitur mentire” which means that a
man will not meet his maker with a lie in his mouth.
It is believed that when a man is at the point of death
and when every expectation of this world is gone, it
hushes away every motive of lie.
7.2.Therefore, A dying declaration, as contemplated under Section
32(1) of the Indian Evidence Act, constitutes a statement made by a person
as to the cause of his death or the circumstances resulting in his death. The
underlying jurisprudential basis rests on the maxim nemo moriturus
praesumitur mentiri—a person on the verge of death is not presumed to lie
and to rely the same, this Court recapitulate the following governing
principles laid down by the Honourable Supreme Court:
(i)In the case of Khushal Rao vs. State of Bombay reported in AIR
1958 SC 22
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(ii)In the case of Gopalsingh vs. State of M.P. , reported in (1972) 3
SCC 268
(iii)In the case of Nallapati Sivaiah vs. SDO reported in 2007 15 SCC
465
(iv)In the case of Panneerselvam vs. State of T.N., reported in 2008
17 SCC 190
(v)In the case of Atbir v Govt (NCT of Delhi) reported in (2010) 9
SCC 1
(vi)In the case of Kamal Khudal vs. State of Assam reported in
(2022) 20 SCC 654
(vii)In the case of Kundula Bala Subrahmanyam vs. State of A.P.,
reported in (1993) 2 SCC 684
(viii)In the case of Jagbir Singh vs. State (NCT of Delhi) reported in
2019 8 SCC 779
(ix)In the case of Uttam vs. State of Maharashtra reported in (2022)
8 SCC 576
(x)In the case of Lakhan vs. State of M.P., reported in (2010) 8 SCC
514
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7.3.To render the conviction on the basis of the dying declaration, t his
court has to consider each case in the circumstances of the case. What value
should be given to a dying declaration is left to court, which on assessment
of the circumstances and the evidence and materials on record, will come to
a conclusion about the truth or otherwise of the version, be it written, oral,
verbal or by sign or by gestures.
(i)The evidentiary value of a dying declaration, whether oral or
written, is to be assessed by the Court in the light of the facts and
circumstances of each case. A truthful and voluntary dying declaration can
form the sole basis for conviction without the necessity of corroboration.
(ii)Where the Court entertains any doubt as to the voluntariness,
truthfulness, or mental fitness of the declarant, or where the declaration
suffers from infirmities, it is prudent to seek corroboration.
(iii)A dying declaration recorded by a Judicial Magistrate stands on a
higher evidentiary footing, owing to the presumption of procedural sanctity
and absence of external influence.
(iv)There is no legal prohibition against a dying declaration being
recorded by a police officer; however, such a declaration requires careful
scrutiny, particularly with respect to the absence of tutoring or prompting,
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and ordinarily necessitates proof of the declarant’s fit state of mind,
preferably through medical certification.
(v)Minor inconsistencies or absence of elaborate details do not render
a dying declaration unreliable, so long as the substratum of the prosecution
case is clearly reflected.
(vi)A brief statement, if it unambiguously attributes the cause of death
to the role played by the accused, is sufficient in law.
(vii)In cases involving multiple dying declarations, the Court must
examine whether they are consistent and trustworthy; even in cases of
variance, the declaration that inspires confidence and appears to be voluntary
and truthful can be relied upon.
7.4.Applying the above settled principles, this Court now proceeds to
examine the evidentiary worth of the dying declarations in the factual matrix
of the present case.
7.5.Applying these settled principles, this Court proceeds to examine
the case on hand.
8.On a careful scrutiny of the prosecution case, it emerges that, about
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fifteen days prior to 05.02.2021, the victim received messages and video
images from the appellant through his mobile phone bearing No.
63694860480, while the victim was using mobile phone No.
6383272905.The appellant thereafter developed acquaintance with the
victim, made promises to her, and persuaded her to meet him.
9.On several occasions, the appellant engaged the victim in
conversation at secluded places. Ultimately, he is said to have taken the
victim to a lonely place situated on the southern side of Garuman Temple
near Sindusaapram, in the vicinity of Sivakasi. At the said place, despite
resistance from the victim girl, the appellant removed her clothes and, under
the pretext of marrying her, committed penetrative sexual assault upon the
victim and, thereafter, without her knowledge or consent, recorded the
incident. The said material was subsequently transmitted through social
media and also sent to the victim. The appellant thereafter refused to marry
the victim and subjected her to criminal intimidation, threatening to further
circulate the said material. He is also instigated the victim to end her life.
10.On account of such continuous harassment, humiliation,
intimidation and instigation to end her life, the victim, in a state of extreme
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distress, committed self-immolation in her house during the absence of her
parents. The incident was noticed by the neighbours, and she was
immediately admitted to the hospital.
11.Upon her admission at about 2:30 p.m., the attending doctor
intimated both the jurisdictional police and the learned Judicial Magistrate.
The Sub-Inspector of Police (P.W.12) reached the hospital and commenced
recording the statement of the victim at about 3:15 p.m. In the meantime, the
learned Judicial Magistrate arrived to record the dying declaration.
Consequently, the police officer discontinued the recording. After the
learned Judicial Magistrate started the recording at 03.40 pm., and
completed recording the dying declaration at 4:05 p.m., the Sub-Inspector
resumed the recording and completed the recording of the victim’s statement
at about 4:15 p.m., and thereafter registered a case in Crime No. 66 of 2021.
Subsequently, the Inspector of Police (P.W.13) took up the investigation and,
upon receipt of death intimation at about 7:40 p.m., altered the sections of
law under Ex.P24.
12.In the present case, the prosecution primarily rests upon the dying
declaration recorded by the learned Judicial Magistrate, marked as Ex.P19.
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The learned Judicial Magistrate was examined as P.W.11, who has clearly
deposed regarding the manner in which the dying declaration was recorded
and has specifically stated that the victim was conscious, oriented, and in a
fit state of mind at the time of making the statement.
13.This Court has perused the dying declaration Ex.P.19 and the same
contained the following:
Certificate of
Certificate of the Judicial Magistrate
the Doctor
I certify that the
patient
Karpagavalli is
conscious and
in a fit state of
mind to give
dying
declaration.
I have asked the patient, Karpagavalli,
D/o.Balasubramanian, the above questions and recorded
the answers as above, the duty medical officer,
Tr.Tirumurugananth, is present with me. I am fully
satisfy with the answer of the patient and satisfed that
the patient is in a fit state of mind and conscious to give
dying declaration on the basis of mu own statement and
as certified by doctors. I have asked the staff and
attenders of the patient to get out from the born ward
It is evident therefrom that the learned Judicial Magistrate had recorded his
satisfaction regarding the mental fitness of the victim prior to recording the
statement. Apart from this, the Magistrate had also obtained a medical
opinion from the attending doctor certifying that the victim was in a fit
condition to give the statement, and the same is reflected in the dying
declaration itself.
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14.From the sequence of events, it is clear that:
(i) the learned Judicial Magistrate first ascertained the fitness of the
victim;
(ii) the dying declaration was recorded in the presence of the doctor;
and
(iii) the statement of the victim is coherent, consistent, and natural.
15.This Court for better appreciation, extracts the contents of the
dying declaration marked under Ex.P19:
xU ehs; vd; thl;];mg;y Hi vd;W nkNr[; te;Jr;R.
ahUD Nfl;Nld;. nrhy;yy. nfhQ;r Neuk; fopr;R nkNr[;
te;Jr;R. ehd; tpf;fpD nrhd;dhd;. vd;Ndhl Nghl;Nlht
Ng];Gf;> ,d;];lhfpuhk;> bf;lhf;y Nghl;LWNtd;D
nrhd;dhd;. vd;ida ghf;fDk;D nrhd;dhd;. ehd;
Ntz;lhk;D nrhd;Ndd;. vJf;F vd;ida ghf;fDk;D
nrhy;YwD Nfl;Nld;. vd;ida ghf;f;Dk;D kl;Lk;jhd;
nrhd;dhd;. nfhQ;r ehSf;F Kd;dhb tPbNah fhy; gz;z
nrhd;dhd;. tPbNah fhy;y jg;G gz;z nrhd;dhd;. mj
nuf;fhh;L gz;zpl;lhd;. mJf;fg;Gwk; vd;ida gpshf;nkapy;
gd;Ddhd;. 2 thuj;jpw;F Kd;dh;b rpj;Juh[Guk; Nghw
topapy vd;d nfLj;Jl;lhd;. jg;G gz;zpdhd;. mth;
nuf;fhh;L gz;Zdij F&g;y Nghl;Ll;lhd;. vd;ida Nghd;
Nghl;L kpul;Lwhd;. nlypl; gz;z nrhd;Ndd;.
Nff;fkhl;NlDl;lhd;. vdf;F Nghd; Nghl;L vq;f mg;ght
nrUg;ghy mbg;Ngd;D nrhd;dhd;. mtDf;F tPbNah fhy;
gz;zDk;> vd;Ndhl tPl;y Gy;yh fhl;lDk;. mj mtd;
nuf;fhL gz;zDk;> mjhd; mtd; Mir. mJf;F jhd;
kpul;Ldhd;. ehd; gaj;Jy ,g;gb ghj;&k;y tr;R
kz;nzz;nza Cj;jpf;fpl;Nld;. vd; Nghd;y mtd; Ngu V
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Nghl;L nghk;k glk; Nghl;L Nrt gz;zpUf;Nfd;. ,dpAk;
vd;d khjphp elf;ff;$lhJ. nghpatPl;L igad;D
nrhd;dq;f. nfhQ;rk; jhd; nuf;fhh;L ,Uf;F. tPl;Ly
ghj;JUthq;fd;D ,d;idf;F nlypl; gz;zpl;Nld;.
15.1.It is clear from the above contents of the dying declaration,
victim not only narrates the incident cogently but also reflects her mental
state arising out of the acts of the appellant. The statement appears to be
voluntary and free from any embellishment or artificial implication. She
cogently narrated about the penetrative sexual assault, publication of
offending material into social media, intimidation to end her life and finally
she committed suicide by self immolation. She not only gave dying
declaration to the learned Judicial Magistrate and, sub Inspector of Police
also recorded the statement of the victim under Ex.P1, which is also cogent
and trustworthy.
16.The learned Senior Counsel for the appellant contended that neither
the learned Judicial Magistrate nor P.W.12, the Sub-Inspector of Police, had
recorded their satisfaction regarding the fitness of the victim to make a
statement, particularly in light of the alleged 100% burn injuries sustained by
her. It is therefore argued that the dying declaration is unreliable and
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inadmissible.
17.The Hon'ble Supreme Court reiterated the principle in the
following cases that a dying declaration recorded by a competent Magistrate
would stand on a higher footing than the declaration recorded by the officer
of the lower rank:
Lakhan v. State of M.P. , (2010) 8 SCC 514 A dying declaration recorded by a competent
Magistrate would stand on a much higher footing
than the declaration recorded by officer of lower
rank, for the reason that the competent Magistrate
has no axe to grind against the person named in
the dying declaration of the victim,
however, circumstances showing anything to the
contrary should not be there in the facts of the
case .
The credibility of a dying declaration
recorded by the Magistrate has also come up for
consideration in several cases and it has been
held that a Magistrate being an uninterested
witness and a respected officer and there being
no circumstances or material to suspect that he
would have any animus against the accused or
would in any way be interested for fabricating a
dying declaration, such a declaration recorded by
the Magistrate, ought not be doubted.
Uttam v. State of Maharashtra , (2022) 8 SCC
576
18.The Hon'ble Supreme Court long back in the year 1988 in the case
of Nanhau Ram v. State of M.P., 1988 Supp SCC 152 has held that when
the witness who recorded has said that the deceased was in fit state of mind
and conscious to make dying declaration, the medical opinion will not
prevail and the relevant portion of the judgment is as follows:
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“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 has said that the
deceased was in a fit and conscious state to make this dying
declaration, the medical opinion cannot prevail.”
19.The said view was also reiterated by the Hon'ble Supreme Court in
the latest decision in the case of Dharmendra Kumar v. State of M.P.,
(2024) 8 SCC 60 :
66.As regards the assessment of mental fitness of the
person making a dying declaration, it is indubitably the
responsibility of the court to ensure that the declarant was in a
sound state of mind. This is because there are no rigid
procedures mandated for recording a dying declaration. If an
eyewitness asserts that the deceased was conscious and capable
of making the declaration, the medical opinion cannot override
such affirmation, nor can the dying declaration be disregarded
solely for want of a doctor's fitness certification. The
requirement for a dying declaration to be recorded in the
presence of a doctor, following certification of the declarant's
mental fitness, is merely a matter of prudence.
20.Further the issue relating to the requirement of medical certification
that injured was in a fit state of mind at the time of making dying declaration
by the learned Judicial Magistrate is settled by the Hon'ble Constitution
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Bench of Supreme Court negatively in the case of Laxman v. State of
Maharashtra reported in (2002) 6 SCC 710 and the Hon'ble Constitution
Bench held that there is no requirement of law that there should be always a
medical certification that the injured was in a fit state of mind at the time of
making a declaration and such certification by the doctor is essentially a rule
of caution and even in the absence of such a certification the voluntary and
truthful nature of the declaration can be established otherwise and the
relevant paragraph of the judgment is as follows:
“ 3. … 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 promoting 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
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positive and definite. In most cases, however, such statements
are made orally before death ensues and is reduced to
writing by someone like a Magistrate or a doctor or a police
officer. When it is recorded, no oath is necessary nor is the
presence of a Magistrate absolutely necessary, although to
assure authenticity it is usual to call a Magistrate, if
available for recording the statement of a man about to die.
There is no requirement of law that a dying declaration must
necessarily be made to a Magistrate and when such
statement is recorded by a Magistrate there is no specified
statutory form for such recording. Consequently, what
evidential value or weight has to be attached to such
statement necessarily depends on the facts and circumstances
of each particular case. What is essentially required is that
the person who records a dying declaration must be satisfied
that the deceased was in a fit state of mind. Where it is
proved by the testimony of the Magistrate that the declarant
was fit to make the statement even without examination by
the doctor the declaration can be acted upon provided the
court ultimately holds the same to be voluntary and truthful.
A certification by the doctor is essentially a rule of caution
and therefore the voluntary and truthful nature of the
declaration can be established otherwise.”
21.On facts, the evidence of the learned Judicial Magistrate (P.W.11)
clearly establishes that, before commencing the recording of the dying
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declaration, he satisfied himself that the victim was conscious, oriented, and
in a fit state of mind to give the statement. The said satisfaction is also
recorded in the dying declaration itself. Further, after completion of the
recording also the learned Judicial Magistrate has certified that the victim
remained conscious and oriented throughout the process.
22. There is no bar to record the dying declaration by the police
officers and there is no legal impediment to place reliance on the same to
convict the accused without any corroborative material and the said principle
was reiterated by the Hon'ble Supreme Court in various judgements
including in the case of Dharmendra Kumar v. State of M.P. , reported in
(2024) 8 SCC 60 and the relevant paragraph reads as follows:
“ 65. Section 161CrPC empowers the police to
examine orally any person who is acquainted with the facts
and circumstances of the case under investigation. The
police may reduce such statement into writing also. Section
162(1)CrPC, nonetheless, mandates that no statement made
by any person to a police officer, if reduced to writing, be
signed by the person making it, nor shall such statement be
used in evidence except to contradict a witness in the
manner provided by Section 145 of the Evidence Act.
However, sub-section (2) of Section 162CrPC carves out an
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exception to sub-section (1) as it explicitly provides that
nothing in Section 162 shall be deemed to apply to any
statement falling within the ambit of clause (1) of Section 32
of the Evidence Act. In other words, a statement made by a
person who is dead, as to the cause of his death or to the
circumstances of the transaction which resulted in his death,
to a police officer and which has been recorded under
Section 161CrPC, shall be relevant and admissible,
notwithstanding the express bar against use of such
statement in evidence contained therein. In such eventuality,
the statement recorded under Section 161CrPC assumes the
character of a dying declaration. Since extraordinary
credence has been given to such dying declaration, the court
ought to be extremely careful and cautious in placing
reliance thereupon. There are a catena of decisions of this
Court which lend support to the interplay between the
provisions of CrPC and the Evidence Act, as explained
above [ See : (i) Mukeshbhai Gopalbhai Barot v. State of
Gujarat, (2010) 12 SCC 224 : (2011) 1 SCC (Cri) 318;
(ii) Sri Bhagwan v. State of U.P., (2013) 12 SCC 137 : (2012)
4 SCC (Cri) 197; (iii) Pradeep Bisoi v. State of Odisha,
(2019) 11 SCC 500 : (2019) 4 SCC (Cri) 249]”
23.P.W.12, the Sub-Inspector of Police, has categorically deposed that
the victim was conscious and capable of giving a statement at the time when
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he initially commenced recording her statement and the statement, namely,
complaint was marked as Ex.P1. The medical evidence also lends support to
this position. P.W.6, the doctor who attended on the victim, has clearly
deposed that the victim was conscious and in a fit condition at the time of
giving her statement as well as the dying declaration.
24.Significantly, no contra evidence has been adduced by the defence
to establish that the victim was not in a position to make a statement. In the
absence of any such material, this Court finds no reason to accept the
contention of the learned Senior Counsel. On the legal aspect, the issue is no
longer res integra. The Constitution Bench of the Hon’ble Supreme Court in
the case of Laxman v. State of Maharashtra reported in [(2002) 6 SCC
710] has categorically held that a dying declaration recorded by a Judicial
Magistrate, upon being satisfied about the mental fitness of the declarant,
does not become invalid merely because a separate medical certificate was
not obtained. What is essential is that the person recording the declaration
must be satisfied about the fitness of the declarant.
25.Therefore, contention that neither the learned Judicial Magistrate
nor P.W.12, the Sub-Inspector of Police, had recorded their satisfaction
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regarding the fitness of the victim to make a statement, particularly in light
of the alleged 100% burn injuries sustained by her is unreliable and
inadmissible, in the considered view of this Court, is liable to be rejected on
both factual and legal grounds and this Court holds that the dying
declaration in the present case cannot be discarded merely on the ground
urged by the appellant. Accordingly, the said contention is rejected.
26. The submission of the learned Senior Counsel that, owing to 100%
burn injuries, the deceased could not have made a dying declaration without
tutoring or without full consciousness is liable to be rejected at the outset.
The Honourable Supreme Court has consistently held that the percentage of
burn injuries is not determinative of the admissibility or reliability of a dying
declaration. Even in cases of extensive, including 100%, burns, a declaration
may be accepted if it is established that the declarant was in a conscious and
fit state of mind at the time of making the statement. The decisive test is not
the extent of the injuries, but whether there is reliable evidence to show that
the deceased was mentally fit and capable of making the declaration. Only
where there is evidence that the declarant was unconscious or otherwise
incapable of making a statement, the dying declaration is liable for rejection.
It is further reiterated that, where the record discloses that the declaration
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was made in a fit state of mind and is free from infirmities, the mere fact of
severe burn injuries does not, by itself, justify its exclusion and the similar
submission has been declined by the Hon'ble Supreme Court in the
following cases:
Mafabhai Nagarbhai Raval v. State of Gujarat
(1992) 4 SCC 69
wherein it has been held that a person
suffering 99% burn injuries could be deemed
capable enough for the purpose of making a
dying declaration. The Court in the said case
opined that unless there existed some inherent
and apparent defect, the trial court should not
have substituted its opinion for that of the doctor.
In the light of the facts of the case, the dying
declaration was found to be worthy of reliance.
State of M.P. v. Dal Singh (2013) 14 SCC 159 Apex court placed reliance on the dying
declaration of the deceased who had suffered
100% burn injuries on the ground that the dying
declaration was found to be credible.
Vijay Pal v. State (Govt. of NCT of Delhi) , (2015)
4 SCC 749
It is worthy to note that there cannot be an
absolute rule that a person who has suffered 80%
burn injuries cannot give a dying declaration
Mafabhai Nagarbhai Raval v. State of Gujarat ,
(1992) 4 SCC 69
wherein it has been held that a person
suffering 99% burn injuries could be deemed
capable enough for the purpose of making a
dying declaration. The Court in the said case
opined that unless there existed some inherent
and apparent defect, the trial court should not
have substituted its opinion for that of the doctor.
In the light of the facts of the case, the dying
declaration was found to be worthy of reliance.”
27.This Court, therefore, finds that the dying declaration inspires
confidence. There are no circumstances brought on record by the defence to
indicate that the same was the result of tutoring or external influence. On the
contrary, the defence has failed to establish any material infirmity or
improbability in the said declaration. Further, the evidence of P.W.12, the
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Sub-Inspector of Police, establishes that he initially commenced recording
the statement of the victim and, upon arrival of the learned Judicial
Magistrate, discontinued the same, and resumed it only after completion of
the dying declaration. The statement recorded by P.W.12 also qualifies as a
dying declaration in law and substantially corroborates the statement
recorded by the learned Judicial Magistrate. There are no material
contradictions between the two statements. In both statements, the victim has
consistently spoken about the acts of exploitation, intimidation, and
harassment at the hands of the appellant. The officers who recorded the
statements have no motive to falsely implicate the accused.
28.In such circumstances, this Court finds no reason to disbelieve the
dying declarations. The same clearly establish the offences for which the
appellant has been convicted. Accordingly, the learned trial Judge was
justified in placing reliance on the dying declarations, and this Court finds
no reason to interfere with the said finding.
29.The learned Senior Counsel further contended that the registration
of the FIR is shrouded in suspicion, inasmuch as P.W.12, who commenced
recording the statement of the victim, had discontinued the same upon the
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arrival of the learned Judicial Magistrate and thereafter resumed the
recording after completion of the dying declaration by the learned
Magistrate.
30.This contention also does not merit acceptance. The sequence of
events, as borne out by the record, is clear and cogent. The victim was
admitted to the hospital on 05.02.2021 at about 2:30 p.m., and intimation
was given both to the police and the learned Judicial Magistrate. P.W.12
reached the hospital at about 3:15 p.m. and commenced recording the
statement. At about 3:30 p.m., the learned Judicial Magistrate arrived to
record the dying declaration. In deference to the Magistrate’s authority, P.W.
12 discontinued the recording and stepped aside.
31.The learned Judicial Magistrate completed the recording of the
dying declaration at about 4:05 p.m. Thereafter, P.W.12 resumed the
recording of the statement and completed it, which formed the basis for
registration of the complaint (Ex.P1). Throughout this period, the victim
was, as per the consistent evidence of P.W.6 (doctor), conscious and in a fit
state of mind.
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32.The explanation offered by P.W.12 for the discontinuation and
resumption of recording is natural, reasonable, and in accordance with
established procedure. Such conduct, far from suspicion, lends assurance to
the fairness of the process.
33.Therefore, this Court holds that the manner in which the statement
was recorded and the FIR was registered does not in any way affect the
credibility of the prosecution case. The contention of the learned Senior
Counsel is accordingly rejected.
34.In view of the above circumstances, this Court is satisfied that the
prosecution has proved the case beyond reasonable doubt. Consequently, the
statutory presumption under the relevant provisions of the Protection of
Children from Sexual Offences Act comes into operation. Once such
presumption arises, the burden shifts to the accused to rebut the same.
35.In the present case, the accused has not adduced any evidence,
either with regard to the recovery of the mobile phone or explained the
incriminating circumstances put to him under Section 313 Cr.P.C. No
material has been placed to rebut the statutory presumption under the
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POCSO Act. Accordingly, this Court finds no reason to interfere with the
findings of the learned trial Judge holding the appellant guilty.
36.Insofar as the acquittal of the accused under Sections 66E and 67B
of the Information Technology Act on the ground of non-production of a
certificate under Section 65B of the Indian Evidence Act is concerned, this
Court is of the view that the said finding is not legally sustainable. The
learned trial Judge, having referred to the judgment of the Hon’ble Supreme
Court, failed to properly appreciate the legal position.
37.In the present case, the accused's mobile phone/M.O.6 was
recovered on the basis of his disclosure statement under Section 27 of the
Indian Evidence Act, in the presence of the Village Administrative Officer
(P.W.6), and the said recovered original mobile phone was sent for forensic
examination and the officer conducted the test by downloading the contends
and sent the report and the same was marked as Ex.P34. P.W.6 clearly
deposed about the recovery and his evidence is cogent and trustworthy. The
accused has not offered any explanation with regard to the recovery of
mobile phone and the offending materials in the recovered mobile phone. He
does not deny the possession of the said cell phone with the offending
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materials. But, the learned trial Judge discarded the electronic evidence for
want of a certificate under Section 65B(4) of the Indian Evidence Act,
without properly appreciating the legal principle laid down in the case of
Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal reported in
2020 (5) CTC 200 , wherein, the Hon’ble Supreme Court has clarified that
where the original electronic device itself is produced and forms the primary
evidence, the requirement of a certificate under Section 65B(4) may not
arise. In such circumstances, the requirement of a certificate under Section
65B may not arise. Therefore, the trial Court erred in discarding the
electronic evidence.
38.In the present case, as discussed above, the original mobile phone
of the accused was recovered and sent for forensic examination. It is not a
case where secondary electronic evidence alone was relied upon. Therefore,
this Court places reliance on the forensic report marked as Ex.B34, which
establishes that the accused had recorded the act of penetrative sexual
assault, transmitted the same to many persons, sent it to the victim, and
criminally intimidated her upon her refusal to marry him. For the limited
purpose of corroborating the dying declaration, this Court considered the
admissibility and reliability of the electronic evidence and finds the dying
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declaration has been accepted as proved independently as well as with the
supporting corroborating evidence.
39.Insofar as the sentence is concerned, the learned trial Judge has
imposed the maximum punishment of imprisonment for the remainder of the
natural life of the accused, as contemplated under the amended provisions of
the Act. This Court, upon an overall consideration of the facts and
circumstances, is of the view that the case is indeed grave in nature.
However, in the absence of any appeal by the State or the victim seeking
enhancement of sentence, this Court refrains from considering the question
of imposition of a higher punishment. The aggravating circumstances are
manifest. The accused not only committed penetrative sexual assault upon a
minor but also recorded the act, disseminated the material, subjected the
victim to sustained intimidation, and ultimately drove her to commit self-
immolation. The victim unable to bear the physical and mental agony, ended
her life.
40.In such circumstances, this Court finds no mitigating factor
warranting interference with the sentence imposed by the trial Court. The
punishment awarded is proportionate to the gravity of the offence.
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41.In the result, the Criminal Appeal is dismissed on the following
terms:
(i)The conviction and sentence imposed by the learned trial Judge in
Spl.S.C.No.23 of 2021 on the file of the Sessions Judge, Special Court for
Exclusive Trial of Cases under POCSO Act, Srivilliputhur, dated 27.03.2023
is hereby confirmed.
[N.A.V.J.,] & [K.K.R.K.J.,]
01.06.2026
NCC :Yes/No
Index :Yes/No
Internet :Yes/No
sbn
To
1. Sessions Judge,
Special Court for exclusive trial of cases under POCSO Act,
Srivilliputhur, Virdhunagar District.
2.The Inspector of Police,
Sivakasi Town Police Station,
Virdhunagar District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court, Madurai.
4.The Section Officer,
Criminal Section(Records),
Madurai Bench of Madras High Court, Madurai.
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K.K.RAMAKRISHNAN, J.
sbn
Pre-delivery judgment made in
Crl.A.(MD).No.698 of 2023
01.06.2026
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