Full Judgment Text
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CASE NO.:
Appeal (crl.) 346 of 2008
PETITIONER:
Shaik Nagoor
RESPONDENT:
State of A.P. rep. by its Public Prosecutor, High Court of A.P., Hyderabad
DATE OF JUDGMENT: 20/02/2008
BENCH:
Dr. ARIJIT PASAYAT & P. SATHASIVAM
JUDGMENT:
J U D G M E N T
CRIMINAL APPEAL NO. 346 OF 2008
(Arising out of SLP(Crl.) NO. 3019 of 2007)
Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to the judgment of a
learned Single Judge of the Andhra Pradesh High Court. By
the impugned judgment conviction of the appellant for
offences punishable under Sections 354 and 448 of the
Indian Penal Code, 1860 (in short the ’IPC’) was upheld, but
the conviction for offence punishable under Section 306 IPC
was set aside. However the sentence of three years
imprisonment for offence punishable under Section 354 IPC
which was imposed by the trial court was reduced to two
years. The sentence of six months imprisonment and fine
for offences relatable to Section 448 IPC were maintained by
the High Court.
3. Prosecution version in a nutshell is as follows:
Shaik Khasim Bee (hereinafter referred to as the
’deceased’) is daughter of Shaik Nagoor (PW5) and Shaik
Nazer Bee (PW 1). Accused, Shaik Nagoor was at the
relevant point of time the tenant in their house at
Singhnagar, Vijayawada. Accused as a tenant in a small
hut in the same compound of the house of PW 1. It appears
that accused was soliciting the deceased for sexual
intercourse. On 12.11.1999 around 1.00 pm. PW 1 and the
deceased went for Namaz and thereafter deceased returned
home while PW-1 was coming behind after talking to one
Kursheed begum for some time. When the deceased came
home and went into middle portion of the house, which was
vacant for collecting dried clothes, accused allegedly came
behind, caught hold of her, and when she threatened him
saying that she would complain to her mother about the
acts of the accused, he in turn replied that he himself,
would complain to her mother saying that she herself called
him and thereby, would defame her and her family. Feeling
disturbed and suffering from emotional turmoil, deceased
went into room, poured kerosene and set fire to herself. On
receipt of intimation from the Hospital, police of Nunna
Rural Police Station, Vijayawada City, registered a case
against the accused in Crime No. 258 of 1999 for the
offences punishable under Sections 448, 354 and 306 IPC
and after investigation filed charge sheet and the same was
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taken on file in S.C. No. 181 of 2001. Accused pleaded
innocence and false implication.
4. In order to further its version prosecution examined 12
witnesses and marked several documents. The trial court
placed reliance on the dying declaration (Exh. P4 \026 P9)
recorded by the learned 7th Additional Senior Civil Judge,
City Civil Court, Hyderabad and the Head Constable
respectively on 12.11.1999. The High Court found that
offence under Section 306 IPC as noted above was not made
out. However, concurred with the learned trial judge that
the offences punishable under Sections 354 and 448 IPC
were clearly made out. Accordingly the impugned judgment
was passed.
5. In support of the appeal, learned counsel for the
appellant submitted that the dying declarations should not
have been relied upon by the trial court and the High Court.
It was his case that considering the extent of burns
sustained by the deceased it was impossible on her part to
give any dying declaration.
6. Learned counsel for the respondent on the other hand
supported the impugned judgment of the High Court.
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 judicial officer should make a
false statement about the dying declaration.
8. 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."
9. 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.
494)
"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
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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."
10. 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."
11. 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
552)
(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)
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(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
152)
(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)"
12. So far as the practicability of the deceased giving dying
declaration is concerned it is significant that the learned
Additional Senior Civil Judge who has examined PW 7 and
the constable PW 10 have described in detail as to what the
deceased has stated to each one of them. There was not
even any suggestion to either of the witnesses that the
deceased was not in a fit condition to give any statement as
claimed. That being so, there is no substance in the plea of
learned counsel for the appellant that the deceased was not
in a physical condition to give a statement.
13. The trial Court and the High Court have analysed the
evidence of these witnesses and the statements made in the
dying declaration referred to above to hold the accused
guilty.
14. That being so, no interference is called for. The appeal
fails and is dismissed.