Supreme Court of India
KAMALAVVA & ANR.versusSTATE OF KARNATAKA
- Citation
- 2009 INSC 963
- Decided
- 29 July 2009
- Disposal
- Dismissed
- Bench
- DALVEER BHANDARI
Holding
A dying declaration recorded by a competent magistrate, even without a doctor's certificate, is admissible if the magistrate attests to the declarant's fitness, and the explained delay in filing the FIR does not invalidate the conviction.
Summary
The deceased Shoba was burned to death by her mother‑in‑law and sister‑in‑law. A dying declaration was recorded by a Taluka Executive Magistrate on 9 April 1995 in the presence of a doctor, and the formal FIR was lodged on 12 April 1995. The appellants challenged their conviction under Section 302 read with Section 34 of the IPC, arguing that the delay in filing the FIR and the absence of a doctor's certificate for the dying declaration rendered the evidence unreliable. The Supreme Court held that the delay was explained by the immediate recording of the dying declaration and police statement, and that a magistrate’s certification of the declarant’s fitness suffices even without a medical certificate. The Court found the dying declaration reliable and trustworthy, and therefore upheld the conviction and sentence.
Issues considered
- Whether the delay in lodging the formal FIR prejudiced the prosecution's case.
- Whether the dying declaration, recorded without a doctor's certificate, is admissible and reliable.
Legislation cited
- Indian Penal Code, 1860s. 302, s. 34, s. 498A
Subjects
murderdying declarationdelay in FIRSection 302 IPCSection 34 IPCSection 498A IPCevidence admissibilitymagistrate certificationcriminal appeal
Judgment
[2009] 11 S.C.R. 498
A KAMALAWA & ANR.
v.
STATE OF KARNATAKA
(Criminal Appeal No. 1136 of 2002)
JULY 29, 2009
B
[DALVEER BHANDARI AND DR. MUKUNDAKAM
SHARMA, JJ.]
Penal Code, 1860: s.302 r.w. s.34 - Conviction under,
c challenged on the ground of delay in lodging FIR and
absence of certificate of doctor to the effect that deceased was
in fit condition to make the dying declaration - On facts, Held:
Delay in lodging FIR was explained by prosecution - Dying
declaration was recoded by the magistrate in the presence of
D doctor - Magistrate deposed that while making statement,
deceased was conscious and in fit condition to make such a
statement - No reason to interfere with the order of conviction. •
Prosecution case was that the deceased was
tortured by her mother in law and sister in law and was
E
burnt to death. Charges were framed against the accused
under Section 302 r.w. Section 34 and Section 498A IPC.
Trial Court acquitted both the accused. High Court partly
allowed the appeal of State and convicted the accused
under Section 302 r.w. Section 34 IPC. The two accused
F filed present appeal.
The question before this Court was whether there
was delay in lodging the FIR which had adverse effect on
the prosecution case and whether the dying declaration
G relied upon by the High Court was reliable, trustworthy
and could be acted upon.
Dismissing the appeal, the Court
,.
H 498
KAMALAWA & ANR. v. STATE OF KARNATAKA 499
HELD: 1. On 09.04.1995, information was received A
about the incident of burning at the police outpost and
requisition was sent for recording the dying declaration.
Pursuant to this, the dying declaration was recorded on
09.04.1995. On 10.04.1995, a statement was taken from the
deceased by the police officer himself. Consequently, it B
is established that the formal FIR came to be recorded on
12.04.1995 although the incident was reported on
09.04.1995 on the basis of which the police started the
investigation by sending a requisition to the Taluka
Executive Magistrate which was followed up by c
recording of the statement of the deceased by the police.
Delay, therefore, in recording the formal FIR is explained.
[Para 10] [506-F, G]
2.1. There is no requirement of law that the dying
declaration must necessarily contain a certification by the D
doctor that the patient was in a fit state of mind especially
when the dying declaration was recorded by a Magistrate.
It is the testimony of the Magistrate that the declarant was
fit to make statement gains the importance and reliance
can be placed upon declaration even in the absence of E
the doctor's certificate provided the court ultimately holds
the same to be voluntary and truthful. [Para 18] [510-E]
Laxman v. State of Maharashtra (2002) 6 SCC 710,
- relied on. F
2.2. PW-17 (Tahsildar) had stated that he was asked
by the police to record the dying deClaration of the
deceased who was undergoing treatment in the hospital.
He proceeded to the hospital and recorded the statement
in the presence of doctor (PW-18). The said statement G
was recorded in the form of questions and answers .
.; From the nature of the answers the deceased gave, it
cannot be said that she did not understand the questions
and did not give proper answers. Therefore, it is not
H
500 SUPREME COURT REPORTS (2009) 11 S.C.R.
A difficult to conclude that the mental capacity of the
deceased was sound and she was capable of giving
answers to the questions put forth by PW-17. The dying
declaration was recorded by PW-17 in the presence of
PW-18 who is a doctor attached to the same hospital. He
B categorically stated in his evidence that the doctor gave
the certificate to the effect that the injured was in a
position to give the declaration. P.W. 18 also signed Ext.
P. 17 (Dying Declaration). The thumb impression of the
deceased was also taken on Ext. P.17. The doctor (PW-
C 18) who was present at the time of recording the dying
declaration also attached a certificate to the effect that the
said dying declaration was recorded in his presence. PW-
17 categorically stated that the deceased while making
the statement was conscious and in a fit mental condition
to make such a statement. PW-17 was a Public Officer.
0
There is no reason to hold that he would falsely implicate
a person. Accordingly, the said dying declaration could
be relied upon as the same was truthfully recorded and
the said statement gave a vivid account of the manner in
which the incident had taken place. The same also
-
E corroborated in all respect with the statement given by··
the deceased to the police on 10.04.1995. The said
statement was also recorded by the police officer of the
rank of ASI and the deceased also put her LTI in it. The
dying declaration was reiiable and trustworthy and gave
F an accurate version of the manner in which the incident
had taken place. [Para 20 and 22] [510-G-H; 511-A-C; 511-
G-H; 512-A]
3. Taking an overall view of all the facts and
G circumstances of the case and also the evidence on
record, there is no ground to interfere with the order of
conviction and sentence recorded by tlw High Court
holding the appellants guilty of the offence under Section
302 read with Section 34 of IPC. The order of conviction
H and sentence recorded against the appellants by the
KAMALAWA & ANR. v. STATE OF KARNATAKA 501
,_
)
High Court is, therefore, upheld. [Para 23) (512-C, DJ A
' Kofi Chunilal Savji v. State of Gujarat (1998) 9 SCC 303;
Vikas and Others v. State of Maharashtra (2008) 2 SCC 516;
Khusha/ Rao v. State of Gujarat AIR 1958 SC 22; Na//apati
Sivaiah v. Sub-Divisional Officer, Guntur, A.P. AIR 2008 SC B
19, relied on.
Case Law Reference:
(2002) 6 sec 110 relied on Paras 12, 18
(1998) 9 sec 303 relied on Para 14 c
(2008) 2 sec 516 relied on Para 15
AIR 1958 SC 22 relied on Para 16
AIR 2008 SC 19 relied on Para 17 D
CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal
No. 1136 of 2002.
From the Judgment & Order dated 30.8.2002 of the High
Court of Karnataka at Bangalore in Criminal Appeal No. 533 E
of 19.98. - .
Kiran Suri and Aparna Bhat for the Appellants.
Sanjay R. Hegde and Rohen Singh for the Respondents.
F
The Judgment of the Court was delivered by
DR. MUKUNDAKAM SHARMA, J. 1. The present appeal
<irises out of the judgment and final order passed by the High
Court of Karnataka at Bangalore whereby and whereunder the G
High Court set aside the judgment and order of acquittal passed
, by the I Addi. Sessions Judge, Belgaum under Section 302
read with Section 34 of the Indian Penal Code, 1860 (in short
'the IPC'). However, the High Court maintained the order of
acquittal passed by the trial court under Section 498-A IPC.
H
502 SUPREME COURT REPORTS [2009) 11 S.C.R.
A 2. In order to appreciate the contentions advanced by the
parties and legal issues involved, it is necessary to state brief
facts of the case : ,,_
Deceased Shoba was the daughter of the sister of
Somappa lrappa Hunji (PW-1 ). As the mother of the deceased
B
Shoba was suffering from typhoid fever after six months of the
birth of Shoba, Shoba was being maintained and looked after
by PW-1. Sheba studied upto VII standard. Subsequently, PW-
1 arranged the marriage of deceased Shoba with one Prakash
(PW-5) as per their customs when she was 18 years old. PW
c - 1 gave certain articles and Rs. 5,000/- at the time of her
marriage. For about 6 months after the marriage both Shoba
and her husband were living happily. Thereafter, Kamalawa (A-
1) who is the mother-in-law of the deceased Shoba and
Siddawwa (A-2) who is the sister-in-law of A-1 started illtreating
D Shoba by asking her to bring more money .as dowry and also
by alleging that Shoba was not attending the household work
etc.
3. On 09.04.1995 at about 6.00 p.m. a person from
E Hannikeri village where Shoba was then residing with her
husband informed PW-1 that Shoba had sustained burn injuries
and was admitted to Civil Hospital at Belgaum. On receipt of
this information, PW-1 along with his wife Tangewwa (PW-2),
his son lshwar (PW-3), and others went to the hospital at about ....
F 10.30 p.m. and found that Shoba had sustained burn injuries •·
and then they came to know from Shoba that A-1 had poured
petrol over her and A-2 had set fire to her as a result of which
she had sustained burn injuries. The neighbours came to the
spot and put off the fire and she was taken to the hospital by
her husband Prakash (PW-5). While admitting her at the
G
hospitai, the Resident Medical Officer sent a requisition to the
outpost of APMC Police Station, Belgaum located at Civil
Hospital, Belgaum on 09.04.1995 at about 4.00 p.m. to the
effect that the Shoba had been admitted to the hospital with
burn injuries and her condition was serious and, therefore, her
H
KAMALAWA & ANR. v. STATE OF KARNATAKA 503
[DR. MUKUNDAKAM SHARMA, J.]
dying declaration should be recorded. On receiving the said A
request PW-15 sent a requistition to the Tehsildar requesting
him for recording the dying declaration of the deceased Sheba.
The said Tehsildar, who is also the Taluk Executive Magistrate,
recorded the dying declaration of the deceased Shoba on
09.04.1995 at the District Hospital, Belgaum. The said Taluk 8
Executive Magistrate was also examined in the trial as PW-17
who has deposed extensively on the recording of the aforesaid
dying declaration. The said dying declaration was in the
question~answer form. The following question was put to the
deceased Shoba as question No. 5 to which the answer was C
given by the deceased in the following manner :
"Question - 5Who is responsible for the assault on you
or for your present condition ?
Answer In the afternoon, my mother-in-law and sister- o
in-law poured Petrol on me and have lit fire."
In response to another question, she had correctly given the
names and addresses of her mother-in-law (A-1) and sister-
in-law of her mother-in-law (A-2) who had poured petrol on her E
and lit the fire. Subsequently, Shoba died on 11.04.1995 at
7.00 p.m. Thereafter, the police converted the case which was
registered against both the Accused Nos. 1 and 2 to a case
for the offences punishable under Section 498-A, 302 read with
·• Section 34 IPC. Thereafter, Piroji Jotiba Ghatagennavar, DSP
(PW-20) took up further investigation and after completing the F
investigation filed a charge sheet against the accused persons.
As the offences alleged against the accused persons were
exclusively triable by the Court of Sessions, the learned
Magistrate committed the case to the Court of Sessions at
Belgaum in S.C. No. 4/96 on the file of the I Addi. Sessions G
Judge, Belgaum.
4. The learned Sessions Judge framed charges against
the accused persons for the offences punishable under Section
498-A, 302 read with Section 34 IPC. The accused persons H
504 SUPREME COURT REPORTS [2009) 11 S.C.R.
..
A denied the allegations made against them and claimed to be
tried. During the trial, the prosecution examined in all 20
witnesses and documents produced were exhibited as Exs. P-
1 to P-24 and M.Os. 1 to 4. The accused persons did not lead
any evidence in their defence. After examining the witnesses
B and hearing rival arguments, the learned Sessions Judge by
his judgment dated 20.02.1998 acquitted both the accused
persons holding that the prosecution had failed to establish the
charges against the accused persons.
5. Aggrieved by the judgment and order of the trial court
c the State of Karnataka preferred the appeal being Criminal
Appeal No. 533 of 1998 in the High Court of Karnataka at
Bangalore. The High Court by its impugned judgment and order
dated 20.08.2002 allowed the appeal and partly set aside the
judgment of the trial court. By the said judgment both the
D accused persons were convicted under Section 302 read with
Section 34 of IPC and sentenced to undergo rigorous
imprisonment for life and also to pay a fine of Rs. 500/- each
in default to undergo rigorous imprisonment for two months.
However, the High Court maintained the order of acquittal under
E Section 498-A of IPC.
6. The learned counsel appearing for the appellants
forcefully submitted that the High Court committed an error of
fact and also of law in convicting the appellants for offence
punishable under Section 302 read with Section 34 of IPC. It •
-
F
was submitted that there was inordinate delay in lodging the
FIR and there is no proper explanation for the same. The LTI
of the deceased was also not attested and the person
recording the same did not come forward to give evidence. It
was further submitted that as the upper limb of the deceased
G was.burnt, the possibility of her putting LTI was hjghly
improbable.
7. It was contended that the dying declaration although was
a recorded dying declaration but it suffers from many infirmities
H and therefore the same should not have been acted upon and
KAMALAWA & ANR. v. STATE OF KARNATAKA 505
[DR. MUKUNDAKAM SHARMA, J.]
should have been rejected as not reliable by the courts below. A
It was submitted that the dying declaration was not properly
recorded as the PW-17 who recorded the dying declaration was
not the regular Taluka Executive Magistrate of Be!gaum, and
he was only in-charge and that the signature of the deceased
was also not attested. It was further contended that as the said B
dying declaration did not have any certificate of the doctor
attached to it certifying that the deceased was in a fit condition
to make a statement, the aforesaid dying declaration should
have been discarded. It was also submitted that there was a
long delay in recording the FIR by the police having jurisdiction c
to record sucll_statement and to investigate.
8. On the other hand, learned counsel appeari;1g for the
State refuted the above submissions and supported the
judgment of the High Court.
D
9. In the light of the aforesaid submissions of the counsel
appearing for the parties, the main issues that arise for our
consideration are twofold; (i) Delay, if any in lodging the FIR
and its effect on the prosecution case and (ii) Whether the dying
declaration referred to and relied upon by the High Court is E
reliable, trustworthy and could be acted upon ?
~
10. So far as the first issue with regard to the delay in filing
the FIR is concerned, true and correct position that emerges
on a careful reading of the entire evidence on record before
F
the Court is that immediately after admission of the patient (the
deceased) into the hospital, the Resident Medical Officer of the
Civil Hospital, Belgaum sent a requisition to the police outpost
located at the hospital itself requesting for getting the dying
declaration of the patient recorded as her condition was
serious. The police in the outpost in terms of the said request G
sent a requisition to the Taluka Executive Magistrate who in
~
terms of the request got the dying declaration recorded on
09.04.1995 itself at the District Hospital, Belgaum. On
10.04.1995, the statement of the patient (the deceased) was
recorded at the District Hospital, Belgaum by the police wherein H
506 SUPREME COURT REPORTS [2009] 11 S.C.R.
A she specifically stated that her mother-in-law took the petrol that
had been kept in the house for the purpose of putting to the
engine used for sprinkling medicine and also lit the fire on her.
She also stated that the sister-in-law of the mother-in-law
instigated her to kill her i.e. the deceased Shoba. The patient
B died on 11.04.1995. PW-13 who was initially the investigating
officer being the SHO at Nesargi Police Station was examined
in this connection, who stated that on 12.04.1995 he received
a Crime bearing No. 31 of 1995 from APMC Police Station
which was registered as an offence punishable under Section
c 498-A, 109 read with Section 34 IPC. He also stated that since
the said patient namely, the deceased Shoba later on died he
registered the same on 12.04.1995 in Crime No. 33 of 1995
for offence under Section 498-A, 302, 109 and 34 IPC. He was
also cross-examined and he stated that as per the FIR of APMC
the said case was registered on 10.04.1995 at 1.00 p.m. He
0
also stated that all the papers were handed over on 12.04.1995.
In view of the aforesaid evidence, a submission was made that
there was a delay in filing the FIR in as much as although the
alleged incident of burning had taken place on 09.04.1995 the
E same came to be recorded in the form of a formal FIR only on
12 .04.1995. On going through the records and its proper
examination we are unable to accept the said contention for
the simple reason that information was received about the
incident of burning at the police outpost of APMC Police Station
located in the hospital itself on 09.04.1995 when requisition was
F sent for recording the dying declaration pursuant to which the
dying declaration was recorded on 09.04.1995. On 10.04.1995,
a statement was taken from the deceased by the police officer
himself. Consequently, it is established that the formal FIR came
to be recorded on 12.04.1995 although the incident was
G reported on 09.04.1995 on the basis of which the police started
the investigation by sending a requisition l'o the Taluka
Executive Magistrate which was followed up by recording of the
statement of the deceased by the police. Delay, therefore, in
recording the formal FIR stands explained.
H
KAMALAWA & ANR. v. STATE OF KARNATAKA 507
[DR. MUKUNDAKAM SHARMA, J.]
11. The next and the most vital issue which was raised is A
regarding the admissibility of the dying declaration stated to
have been made by the deceased before her death. Before
dealing with the factual aspect of the dying declaration, it would
be necessary to know the exact legal position which has been
laid down and reiterated by this Court time and again. B
12. The question as to admissibility of a dying declaration
came up before this Court in several cases. In Laxman v. State
of Maharashtra (2002) 6 SCC 710, wherein also a question
regarding the admissibility of the dying declaration was raised.
The Constitution Bench held that the Court must decide that)he
c
declarant was in a fit state of mind to make the declaration, but
where the eye witnesses' evidence including the evidence of
a Magistrate who had recorded the dying declaration to that
effect was available, mere absence of doctor's certification as
0 ~
to the fitness of the declarant's state of mind, would not ipso
facto render the dying declaration unacceptable. It was further
held that the evidentiary value of such dying declaration would
depend upon the facts and circumstances of the each particular
case.
E
13. In paragraph 3 of the said judgment, this Court
discussed the juristic theory regarding acceptability of a dying
declaration in the following manner:-
"3. The juristic theory regarding acceptability of a dying
F
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 G
- 'i
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 deathed
is so solemn and serene, is the reason in law to accept
the veracity of his statement. .... " H
508 SUPREME COURT REPORTS [2009] 11 S.C.R.
A 14. The Constitution Bench in that case also referred to
an earlier decision of this Court in Kofi Chunilal Savji v . State
of Gujarat (1998) 9 SCC 303, wherein it was held that the
ultimate test with regard to the admissibility of a dying
declaration is whether the dying declaration can be held to be
B a truthful one and voluntarily given. In the said decision it was
also held that before recording the declaration, the officer
concerned must find that the declarant was in a fit condition to
make the statement. The aforesaid ratio of the said decision
was affirmed by the Constitution Bench in Laxman case
c (supra).
15. In Vikas and Others v. State of Maharashtra reported
in (2008) 2 SCC 516 wherein this Court elaborately discussed
the previous relevant decision governing the legality of dying
declaration and observed in para 45 as follows :
D
"45. The Court, referring to earlier case law,
summed up principles governing dying declaration as
under: (Paniben case4 , sec pp. 480-81, para 18)
"18. (i) There is neither rule of law nor of prudence
E
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
F corroboration.
(iii) This 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 opportunity to observe and identify the assailants and
G
was in a fit state to make the declaration.
(iv) Where dying declaration is suspicious it should
..
not be acted upon without corroborative evidence.
H (v) Where the deceased was unconscious and could
KAMALAWA & ANR. v. STATE OF KARNATAKA 509
[DR. MUKUNDAKAM SHARMA, J.]
never make any dying declaration the evidence with regard A
to it is to be rejected.
(vi) A dying declaration which suffers from infirmity
cannot form the basis of conviction.
(vii) Merely because a dying declaration does not B
contain the details as to the occurrence, it is not to be
rejected.
(viii) Equally, merely because it is a brief statement,
it is not to be discarded. On the contrary, the shortness of c
the statement itself guarantees truth.
(ix) 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
D
eyewitness has said that the deceased was in a fit and
conscious state to make this dying declaration, the medical
opinion cannot prevail.
(x) Where the prosecution version differs from the
version as given in the dying declaration, the said .· E
declaration cannot be acted upon."
16. After referring to the decision of this Court in Khusha/
Rao v. State of Gujarat reported in Al R 1958 SC 22, this Court
• in Vikas & Ors. (supra) reiterated the legal position that where
F
a dying declaration is recorded by a competent Magistrate, it
would stand on a much higher footing inasmuch as a competent
Magistrate has no axe to grind against the person named in
the dying declaration of the victim and in absence of
circumstances showing anything to the contrary, he should not
G
be disbelieved by the court.
"' 17. In the case of Na/lapati Sivaiah v. Sub-Divisional
Officer, Guntur, A.P. reported in AIR 2008 SC 19, in paragraph
18 it was stated thus;
H
510 SUPREME COURT REPORTS (2009] 11 S.C.R.
A "18. It is equally well settled and needs no restatement at
our hands that dying declaration can form the sole basis
for conviction. But at the same time due care and caution
must be exercised in considering weight to be given to
dying declaration in as much as there could be any number
B of circumstances which may affect the truth. This Court in
more than one decision cautioned that the courts have
always to be on guard to see that the dying declaration was
not the result of either tutoring or prompting or a product
of imagination. It is the duty of the courts to find that the
c deceased was in a fit state of mind to make the dying
declaration. In order to satisfy itself that the deceased was
in a fit mental condition to make the dying declaration, the
courts have to look for the medical opinion."
18. In the aforesaid decision this Court while referring to
D the decision of the Constitution Bench in Laxman case
reiterated that there is no requirement of law that the dying
declaration must necessarily contain a certification by the doctor
that the patient was in a fit state of mind specially when the dying
declaration was recorded by a Magistrate. It was also held in
E the said decision that it is the testimony of the Magistrate that
the declarant was fit to make statement gains the importance
and reliance can be placed upon declaration even in the
absence of the doctor's certificate provided the court ultimately
holds the same to be voluntary and truthful.
F
19. In the backdrop of the aforesaid legal principles laid
down by this Court, we will now examine the admissibility of
the dying declaration in the case in hand.
20. PW-17 (Tahsildar) has stated that he was asked by the
G police to record the dying declaration of the deceased Shoba
who was undergoing treatment in the hospital. He proceeded
to the hospital and recorded the statement in the presence of
Dr. M.S. Sangolli (PW-18) which was marked as Ext. P.17.
The aforesaid statement was recorded in the form of questions
H and answers. From the nature of the answers the deceased
KAMALAWA & ANR. v. STATE OF KARNATAKA 511
[DR. MUKUNDAKAM SHARMA, J.]
has given, it cannot be said that she has not understood the A
questions and has not given proper answers. Therefore, it is
not difficult to conclude that the mental capacity of the deceased
was sound and she was capable of giving answers to the
questions put forth by PW-17. The aforesaid dying declaration
was recorded by PW-17 in the presence of PW-18 who is a B
doctor attached to the same hospital. He has categorically
stated in his evidence that the doctor had given the certificate
to the effect that the injured was in a position to give the
declaration. P.W. 18 also signed Ext. P. 17 (Dying
Declaration). The thumb impression of the deceased Shoba c
was also taken on Ext. P.17. The doctor (PW-18) who was
present at the time of recording the dying declaration has also
attached a certificate to the effect that the said dying declaration
was recorded in his presence.
21. In view of the aforesaid clear and unambiguous factual D
position we are of the considered opinion that the High Court
was totally justified in relying upon the dying declaration
recorded by the Taluka Executive Magistrate (PW-17) The
techni<>al objection raised by the counsel for the appellant
regarding the unavailability of doctor's certification and E
endorsement as to mental fitness of the deceased, is liable to
be rejected in as much as the same has been held by this Court
in numerous decisions as a mere rule of prudence and not the
ultimate test as to whether or not the said dying declaration was
truthful or voluntary. F·
22. PW-17, who recorded the dying declaration had in his
deposition categorically stated that the deceased while making
the aforesaid statement was conscious and in a fit mental
condition to make such a statement. PW-17 being a Public G
Offi.cer, we find no reason as to why he will implicate a person
falsely. Accordingly, the aforesaid dying declaration could be
relied upon as the same was truthfully recorded and the said
statement gave a vivid account of t:1e manner in which the
incident had taken place. The same also corroborates in all
H
512 SUPREME COURT REPORTS [2009] 11 S.C.R.
A respect with the statement given by the deceased to the police
on 10.04.1995. The said statement was also recorded by the
police officer of the rank of ASI and the deceased also put her
LTI in it. In our considered opinion, the dying declaration is
reliable and trustworthy and gives an accurate version of the
B manner in which the incident had taken place.
23. In view of the aforesaid discussion and taking an overall
view of all the facts and .circumstances of the case and also
the evidence on record, we find no ground to interfere with the
order of conviction and sentence recorded by the High Court
C holding the appellants guilty of the offence under Section 302
read with Section 34 of IPC. The present appeal therefore
deserves to be dismissed which we hereby do. The order of
conviction and sentence recorded again~t the appellants by the
High Court is, therefore, upheld.
D
D.G. Appeal dismissed.
•
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