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Reportabl e

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL  APPEAL NO. 1037 OF 2008

Parbin Ali and Another ...  Appellants

Versus

State of Assam         ...Respondent  

J U D G M E N T

Dipak Misra, J.

The  present  appeal  by  special  leave  is  directed  

against the judgment of conviction and order of sentence  

passed by the Gauhati High Court in Criminal Appeal Nos.  

52(J)  of  1999  and  53(J)  of  1999  whereby  the  Division  

Bench of the High Court gave the stamp of approval to the  

conviction  recorded  by  the  learned  Additional  Sessions  

Judge, Silchar in Sessions Case No. 28/96 under Section

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302/34 of the Indian Penal Code (for short “the IPC”) and  

order  of  sentence sentencing  the  accused-appellants  to  

imprisonment  for  life  and  to  pay  a  fine  of  Rs.500/-,  in  

default,  to  suffer  further  rigorous  imprisonment  for  one  

month.   It  may  be  mentioned  here  that  the  accused-

appellants (hereinafter referred to as “the accused”) had  

preferred  two  separate  appeals  against  the  common  

judgment but a joint appeal has been preferred from jail.

2. The  facts  giving  rise  to  this  appeal  are  that  on  

17.7.1994,  about  9.00  p.m.,  deceased,  Sakat  Ali,  was  

found lying  injured  on  the  road side.   Coming to  know  

about the same, a large number of persons including the  

father-in-law of the deceased, his wife and others came to  

the spot and at that juncture, the injured Sakat Ali  told  

them that he was assaulted by the accused persons along  

with one Asiquddin.  He remained lying on the road side as  

neither  the  relatives  nor  his  wife  could  arrange  any  

conveyance  for  carrying  him  to  the  hospital  and,  

eventually,  he  succumbed  to  the  injuries  around  11.00  

p.m.  While he was on the road, his father-in-law went to  

the  police  station  wherein  an  “ezahar”  was  recorded.  

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After the injured died, an FIR was lodged on 18.7.1994.  

After the criminal law was set in motion, the accused were  

arrested, the dead body of the deceased was sent for post  

mortem,  statements  of  nine  witnesses  were  recorded  

under Section 161 of the Code of Criminal Procedure and,  

eventually, after completing the investigation, the charge-

sheet  was  placed  before  the  competent  Court  under  

Section 302/34 of  the IPC against  the accused persons.  

The  learned  magistrate  dropped  the  case  against  

Asiquddin as he had died by that time and committed the  

matter to the Court of Session and ultimately the case was  

tried by the learned Additional Sessions Judge, Cachar at  

Silchar.

3. The accused abjured their guilt and desired to face  

the  trial.   During  the  trial,  the  prosecution,  in  order  to  

establish its case, examined nine witnesses and brought  

on exhibit number of documents.  After completion of the  

prosecution  evidence,  the  accused  persons  were  

examined under Section 313 CrPC.  They had not put forth  

any substantial plea except a bald denial and chose not to  

adduce any evidence.

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4. The  learned  trial  judge,  considering  the  entire  

evidence, placing reliance on the oral dying declaration of  

the deceased and taking note of the weapon used and the  

nature  of  the  injury  caused,  came  to  hold  that  the  

prosecution  had  been  able  to  substantiate  the  charge  

beyond  reasonable  doubt  and,  accordingly,  convicted  

them and imposed the sentence.

5. In appeal, the High Court took note of the fact that  

there was no direct evidence to implicate the accused and  

the minor omissions or contradictions and discrepancies  

which had been highlighted by the defence did not create  

any kind of dent in the prosecution version; that ample  

explanation had been offered by the prosecution for not  

getting the dying declaration recorded as  the deceased  

was lying on the road side and could not be taken to a  

hospital; and that there was no reason to disbelieve the  

oral  dying  declaration,  and  the  same  being  absolutely  

credible,  the  judgment  and  conviction  rendered  by  the  

learned trial Judge did not warrant any interference.

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6. We have heard Mr.  Mithlesh Kumar  Singh,  learned  

counsel  for  the  accused-appellants,  and  Mr.  Avijit  Roy,  

learned counsel appearing for the respondent-State.

7. Questioning  the  correctness  of  the  conviction,  it  is  

urged by Mr.  Singh,  learned counsel  for  the appellants,  

that the learned trial Judge as well as the High Court has  

gravely  erred  in  placing  reliance  on  the  oral  dying  

declaration  as  it  does  not  inspire  confidence,  for  it  is  

highly unnatural that the wife and the father-in-law of the  

deceased coming to the spot could not take the injured to  

any nearby hospital for treatment though he lived for few  

hours after the assault.  That apart, submitted Mr. Singh,  

though the police station is quite nearby, yet there was  

delay in lodging the FIR which casts a doubt in the case of  

the prosecution and, eventually, creates a concavity in the  

testimonies  of  PWs-1,  2,  3,  5  and 6 who have testified  

about the oral dying declaration.

8. Mr.  Avijit  Roy,  learned  counsel  appearing  for  the  

State,  on  the  contrary,  contended  that  the  material  on  

record do clearly show that the father-in-law had rushed to  

the  police  station  and  lodged  the  “ezahar”  which  was  

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registered  and  after  the  death,  an  FIR  was  registered  

under  Section  302/34  of  I.P.C.  and,  hence,  the  plea  of  

delay in lodging the FIR has no legs to stand upon.  It is  

urged by him that by the time the witnesses arrived on  

the scene, he was conscious but despite the best efforts,  

the relatives could not arrange a conveyance to remove  

the deceased to a hospital for treatment and there is no  

justification to discard the said version in the absence of  

any kind of contradiction or discrepancy in their evidence.  

The learned counsel for the State would emphatically put  

forth that the present case is one where the courts below  

have  justifiably  given  credence  to  the  oral  dying  

declaration  as  it  inspires  unimpeachable  and  

unreproachable confidence.

9. Before  we  proceed  to  dwell  upon  the  issue  of  

acceptability of oral dying declaration in the case at hand,  

it is apposite to refer to the post mortem report which has  

been  proven  by  PW-4,  Dr.  K.K.  Chakraborty,  who  has  

stated the injuries on the body of the deceased that has  

caused the death.  They are as follows: -

“Injuries:

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(1) Bandage of right elbow joint remove  and found a cut injury on right elbow  medialy  and  along  with  crease  of  elbow measuring 4 c.m. x 2 c.m. x 1  c.m. with cut in muscles, margins of  the wound regular.

(2) Cut  injury  along  the  11th Thorax  vertebrae  on  left  side  1  c.m.  away  from the mid line measuring 3 c.m. x  1 c.m. x 1 c.m. margins of the wound  regular.

(3) Cut injury on back side 5 c.m. above  the iliac creast and 6 c.m. lateral to  the  3rd lumber  vertebrae  with  prolapse  of  intestine  through  the  wound measuring 6 c.m. x 2 c.m. x  abdominal  cavity  deep.   Margins  of  the wounds are regular and inverted.

(4) Cut  injury  in  front  of  the  abdominal  wall ½ c.m. below the neivous 1 c.m.  away from the mid line to right side  through  which  intestine  prolapsed.  Measuring  3  c.m.  x  2  c.m.  x  abdominal cavity deep.  Margins are  inverted and regular.

All  the  injuries  are  fresh  and  antemortem caused by sharp pointed  weapon.

THORAX - All healthy.

ABDOMEN – Peritoneal cavity contain  about 2 ½ litrs. of liquid and clotted  blood.  Stomach  congested.   Mouth,  pharynx,  ocsophagus  healthy.   Cut  injury  in  the  small  intestine  n  the  three parts are present.  Liver, splin,  kidneys are all healthy.  Scalp, skull,  vertebrae  membrane,  brain  –  all  healthy.

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MUSCLES, BONES & JOINTS :

Muscles  injury  as  described.  Fracture  –  not  found.   Fresh  no  abnormality found.”

10.  The final opinion of the doctor is that the death was  

caused due to shock and haemorrhage as a result of the  

ante  mortem injuries  in  the  abdomen  caused  by  sharp  

weapon and homicidal in nature.  The said opinion was not  

challenged either before the trial Judge or before the High  

Court.  We may fruitfully note here that the said witness  

has  not  been  at  all  cross-examined.   Whether  such  a  

person receiving certain injuries would be in a position to  

speak or not has not been brought out any where in the  

evidence.   In  this  backdrop,  the  testimonies  of  the  

witnesses who have deposed in respect of the oral dying  

declaration are to be scrutinized.

11. PW-1, Mooti Mia, a relative, PW-2, Sarifun Meesa, wife  

of the deceased, PW-3, Mohd. Abdul Wajid Ali, and PW-5,  

Aftaruddin,  the  father-in-law  of  the  deceased,  have  

deposed  that  the  deceased  had  named  three  accused  

persons as assailants.  PW-6, Arafan Ali, who came later to  

the place of occurrence, had found that the deceased was  

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not  in  a  position  to  speak.   PW-8,  Faizuluddin,  did  not  

support the prosecution case in entirety.  Thus, the real  

witnesses to the oral dying declaration are PWs-1, 2, 3 and  

5 and hence, the veracity of their version is required to be  

scrutinised.   

12. Before  we  proceed  to  scrutinize  the  legal  

acceptability  of  the  oral  dying  declaration,  we  think  it  

seemly  to  refer  to  certain  decisions  in  regard  to  the  

admissibility and evidentiary value of a dying declaration.  

In Khushal Rao v. State of Bombay1, Kusa v. State of  

Orissa2 and in Meesala Ramakrishan v. State of A.P.3,  

it  has  been  held  that  the  law  is  well  settled  that  the  

conviction can  be founded solely  on  the  basis  of  dying  

declaration if the same inspires full confidence.

13. In  Ranjit Singh  v.  State of Punjab4,  it  has been  

held that the conviction can be recorded on the basis of  

dying declaration alone, if the same is wholly reliable, but  

in  the  event  there  exists  any  suspicion  as  regards  the  

correctness or otherwise of the said dying declaration, the  

1 AIR 1958 SC 22 2 AIR 1980 SC 559 3 (1994) 4 SCC 182 4 (2006) 13 SCC 130

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courts, in arriving at the judgment of conviction, shall look  

for some corroborating evidence.  In this context, we may  

also notice the judgment in  Nanhau Ram  v.  State of  

M.P.5 wherein it has been stated that normally, 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 eye witness said  

that the deceased was in a fit and conscious state to make  

the dying declaration, the medical opinion cannot prevail.

14. While  dealing  with  the  evidence of  the  declarant’s  

mind,  the  Constitution  Bench,  in  Laxman  v.  State  of  

Maharashtra6, has laid down thus: -

“3. The  juristic  theory  regarding  acceptability of a dying declaration is that  such  declaration  is  made  in  extremity,  when the party is at the point of death and  when  every  hope  of  this  world  is  gone,  when  every  motive  to  falsehood  is  silenced,  and the man is  induced by the  most powerful consideration to speak only  the truth. Notwithstanding the same, great  caution must be exercised in  considering  the weight to be given to this species of  evidence  on  account  of  the  existence  of  many  circumstances  which  may  affect  their truth. The situation in which a man is  on the deathbed is so solemn and serene,  

5 1988 Supp SCC 152 6 (2002) 6 SCC 710

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is the reason in law to accept the veracity  of his statement.  It  is for this reason the  requirements  of  oath  and  cross- examination are dispensed with. Since the  accused  has  no  power  of  cross- examination,  the  courts  insist  that  the  dying  declaration  should  be  of  such  a  nature as to inspire full confidence of the  court  in  its  truthfulness  and  correctness.  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  prompting  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  positive and definite.”

15. In  this  context,  it  will  be  useful  to  refer  to  the  

decision in Puran Chand v. State of Haryana7 wherein  

it has been stated that a  mechanical approach in relying  

7 (2010) 6 SCC 566

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upon  a  dying  declaration  just  because  it  is  there  is  

extremely  dangerous and it  is  the duty of  the court  to  

examine  a  dying  declaration  scrupulously  with  a  

microscopic eye to find out whether the dying declaration  

is voluntary, truthful, made in a conscious state of mind  

and without being influenced by the relatives present or  

by the investigating agency who may be interested in the  

success of investigation or which may be negligent while  

recording the dying declaration.  The Court further opined  

that the law is now well settled that a dying declaration  

which has been found to be voluntary and truthful  and  

which is free from any doubts can be the sole basis for  

convicting the accused.

16. Regard  being  had  to  the  aforesaid  principles,  we  

shall presently advert how to weigh the veracity of an oral  

dying  declaration.   As  has  been  laid  down  in  Laxman  

(supra) by the Constitution Bench, a dying declaration can  

be oral.   The said  principle  has  been reiterated  by  the  

Constitution Bench.   Here we may refer  to  a two-Judge  

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Bench  decision  in  Prakash  and another  v.  State  of  

Madhya Pradesh8 wherein it has been held as follows: -

“In  the  ordinary  course,  the  members  of  the  family  including  the  father  were  expected to ask the victim the names of  the assailants at the first opportunity and if  the  victim  was  in  a  position  to  communicate,  it  is  reasonably  expected  that  he  would  give  the  names  of  the  assailants  if  he  had  recognised  the  assailants. In the instance case there is no  occasion to hold that the deceased was not  in  a  position  to  identify  the  assailants  because  it  is  nobody's  case  that  the  deceased  did  not  know  the  accused  persons. It is therefore quite likely that on  being asked the deceased would name the  assailants. In the facts and circumstances  of  the case the High Court has accepted  the dying declaration and we do not think  that  such  a  finding  is  perverse  and  requires to be interfered with.”

17. It is worthy to note that in the aforesaid case this  

Court had laid down that when it is not borne out from the  

evidence of the doctor that the injuries were so grave and  

the  condition  of  the  patient  was  so  critical  that  it  was  

unlikely that he could make any dying declaration, there  

was no justification or warrant to discard the credibility of  

such a dying declaration.

8 (1992) 4 SCC 225

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18. In Darshana Devi v. State of Punjab9, this Court  

referred to the evidence of the doctor who had stated that  

the  deceased  was  semi-conscious,  his  pulse  was  not  

palpable and his blood pressure was not recordable and  

had certified that he was not in a fit condition to make a  

statement after the police had arrived at the hospital and  

expressed  the  view  that  the  deceased  could  not  have  

made an oral  statement that he had been burnt by his  

wife.  Thus, emphasis was laid on the physical and mental  

condition  of  the  deceased  and  the  veracity  of  the  

testimony of the witnesses who depose as regards the oral  

dying declaration.

19. In  Pothakamuri  Srinivasulu  alias  Mooga  

Subbaiah  v.  State of A.P.10,  this  Court,  while dealing  

with the issue whether reliance on the dying declaration  

made by the deceased to PWs-1, 2 and 3 therein could be  

believed, observed thus: -

“7. We find  no  reason  to  disbelieve  the  dying declaration made by the deceased to  the witnesses PWs 1, 2 and 3. They are all  residents  of  the  same  village  and  are  natural witnesses to the dying declaration  

9 1995 Supp (4) SCC 126 10 (2002) 6 SCC 399

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made  by  the  deceased.  No  reason  is  assigned, nor even suggested to any of the  three witnesses,  as  to  why at  all  any  of  them would tell a lie and attribute falsely a  dying  declaration  to  the  deceased  implicating the accused-appellant. Though  each  of  the  three  witnesses  has  been  cross-examined  but  there  is  nothing  brought out  in  their  statements to  shake  their veracity.”

We may also note with profit that the Court did not  

accept that the injured could not have been in a conscious  

state on the ground that  no such suggestion had been  

made to any of the witnesses including the doctor who  

conducted the post mortem examination of the deceased.

20. Coming to the case at hand, the wife, the father-in-

law and the two other relatives have clearly stated that  

the deceased had informed them about the names of the  

assailants.  Nothing worth has been elicited in the cross-

examination.  They have deposed in a categorical manner  

that by the time they arrived at the place of occurrence,  

the deceased was in  a fit  state of  health to  speak and  

make a statement and, in fact, he did make a statement  

as to who assaulted him.  Nothing has been suggested to  

these witnesses about the condition of the deceased.  As  

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has been mentioned earlier,  PW-4,  the doctor,  who had  

performed  the  post  mortem,  has  not  been  cross-

examined.  In this backdrop, it  can safely be concluded  

that  the  deceased  was  in  a  conscious  state  and  in  a  

position to speak.  Thus, it is difficult to accept that the  

wife,  the  father-in-law  and  other  close  relatives  would  

implicate  the  accused-appellants  by  attributing  the  oral  

dying  declaration  to  the  deceased.   That  apart,  in  the  

absence of any real discrepancy or material contradiction  

or omission and additionally non cross-examination of the  

doctor  in  this  regard  makes  the  dying  declaration  

absolutely credible and the conviction based on the same  

really cannot be faulted.

21. Having said that the discrepancies which have been  

brought out are not material, we may address to the issue  

of delay in lodging of the F.I.R.  It is perceptible from the  

evidence that the father-in-law of the deceased had gone  

to  the  police  station  and  lodged  the  ezahar  and,  

thereafter, an FIR was lodged.  The learned trial Judge has  

analysed  the  said  aspect  in  an  extremely  careful  and  

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cautious manner and on a closer scrutiny, we find that the  

analysis made by him is impeccable.

22. In view of our aforesaid analysis, we conclude and  

hold that the appeal is sans substratum and, accordingly,  

the  same has  to  pave  the  path  of  dismissal  which  we  

direct.

……………………………….J. [K. S. Radhakrishnan]

……………………………….J.                                            [Dipak Misra]

New Delhi; January 07, 2013

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