Holding

A dying declaration that is trustworthy, voluntary and made in a fit state of mind may be the sole basis of conviction without corroboration.

Summary

The deceased was stabbed to death during a land dispute and, before dying, gave a statement identifying the accused. The trial court acquitted the accused, but the Karnataka High Court convicted him under Section 304 Part II of the IPC, relying on the dying declaration and the recovery of the weapon. The accused appealed to the Supreme Court, challenging the conviction on grounds that the dying declaration should have been recorded by a magistrate, required corroboration, and that notice of the appeal was not served. The Supreme Court held that a dying declaration, if found trustworthy, voluntary and made in a fit mental state, can form the sole basis of conviction without corroboration, and that the High Court had correctly evaluated the evidence. Consequently, the appeal was dismissed and the conviction upheld.

Issues considered

The admissibility and evidentiary weight of a dying declaration under Section 32 of the Evidence Act
Whether a dying declaration requires corroboration to support a conviction under Section 304 Part II IPC
Whether the trial court erred in discarding the weapon‑recovery evidence and the dying declaration
Whether proper notice of the appeal was served

Legislation cited

Indian Evidence Act, 1872s. 32
Indian Penal Code, 1860s. 304(Part II)

Subjects

dying declarationadmissibilitycorroborationSection 304 IPCmurderland disputeevidencecriminal appealSupreme Court

Judgment

[2009] 2 S. C.R. 308

A S.P. DEVARAJU ~ ....
v.
STATE OF KARNATAKA
Criminal Appeal No.180 of 2002
FEBRUARY 12, 2009
B
[DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM
SHARMA1 JJ.]
Penal Code, 1860 : Jo,

s.304, Part JI - Death caused due to assault by knife -
c High Court set aside acquittal of accused-appellant as
recorded by trial court and convicted him under s. 304, Part-II
- Conviction on basis of dying declaration - Justification of -
Held: Justified- The dying declaration was trustworthy, credible
and referred to a part of the incident as described by PW1 -
D Even otherwise it clearly implicated the appellant - There was
no discussion by trial court to discard the dying declaration -
)"
..
Trial court a/so did not discuss evidence relating to recovery
of the weapon of assault - Conviction maintained.
po-
Evidence Act, 1872 - s.32 - Dying declaration -
E Admissibility and appreciation of - Principles governing dying
declaration summed up and re-iterated.
According to the prosecution, the deceased was
stabbed to death on account of a land dispute. The k ,..,_
deceased had knife injuries on his person. The trial court
F acquitted the.. accused, but on appeal, the High Court
convicted the accused-appellant under s.304 Part II, IPC
on the basis of dying declaration. Hence the present
appeal.
Dismissing the appeal, the Court
G
HELD:1.1.The situation in which a person is on the
~ ·"
deathbed is so solem'n and serene when he is dying that
the grave position in which he is placed, is the reason in
law to accept the veracity of his statement. It is for this
H 308
S.P. DEVARAJU V STATE OF KARNATAKA 309

,..._ ~·
reason that the requirements of oath and cross- A
examination are dispensed with. Besides, should the
dying declaration be excluded it will result in miscarriage
of justice because the victim being generally the only
eyewitness in a serious crime, the exclusion of the
statement would leave the court without a scrap of B
evidence. [Para 6] [ 316-B, C]
1.2. Though a dying declaration is entitled to great
...,
i ;
weight, it is worthwhile to note that the accused has no
power of cross-examinatton. Such a power is essential
for eliciting the truth as an obligation of oath could be. c
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
D
"( 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 on the
-,' same without any further corroboration. It cannot be laid E
down as an absolute rule of law that the dying declaration
cannot form the sole basis of conviction unless it is
f
... ; corroborated. The rule requiring corroboration is merely
a rule of prudence. [Para 7] [ 318-E, F, G]
-of 1.3. The principles governing dying declaration can F
~
--.,{
be summed up as under. (i) There is neither rule of law
I
nor of prudence that dying declaration cannot be acted
upon without corroboration. (ii) If the court is satisfied that
the dying declaration is true and voluntary it can base
conviction on it, without corroboration. (iii) The court has G
~1 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. (iv) Where a dying
H
310 SUPREME COURT REPORTS [2009] 2 S.C.R.

A declaration is suspicious, it should not be acted upon
without corroborative evidence. (v) Where the deceased
was unconscious and could never make any dying )
declaration the evidence with regard to it is to be rejected.
(vi) Adying declaration which suffers from infirmity cannot t
B form the basis of conviction; (vii) Merely because a dying
declaration does not 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 the statement itself
C guarantees truth. (ix) Normally, the court in order to satisfy
whether the deceased was ii'( a fit mental condition to ~
I

make the dying declaration looks 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. (x) Where
D the prosecution version differs from the version as given )'<' t=
in the dying declaration, the said declaration cannot be
acted upon. (xi) Where there are more than one
"' jJI
statements in the nature of dying declaration, the one first F
in point of time must be preferred. Of course, if the plurality
E of the dying declaration could be held to be trustworthy t-
1
and reliable, it has to be accepted. [Para 7] [ 316-G, H; 317-
A, 8, C, D, E, F, G, H; 318-A] [
.....
1.4. The dying declaration is only a piece of untested
evidence and must, like any other evidence, satisfy the
"' r-
F court that what is stated therein is the unalloyed truth and
that it is absolutely safe to act upon it.. If after careful ~
scrutiny, the court is satisfied that it is true and free from t=
any effort to induce the deceased to make a false statement '
and if it is coherent and consistent, there shall be no legal
G impediment to make it the basis of conviction, even if there .
is no corroboration. [Para 8] [ 318-E]
Paniben v. State of Gujarat (1992) 2 SCC 474; Munnu
Raja v. State of M.P(1976) (3) SCC 104; State of UP v. Ram
Sagar Yadav (1985) 1 SCC 552; Ramawati Devi v. State of
H Bihar (1983) 1 SCC 211, K. Ramachandra Reddy v. Public
S.P. DEVARAJU V. STATE OF KARNATAKA 311

~ . Prosecutor(1976) 3 SCC 618; Rasheed Beg v. State of MP A
(1974) 4 SCC 264; Kake Singh v. State of M.P(1981) Supp.
SCC 25; Mohan/al Gangaram Ram Manorath v. State of UP
(1981) 2 SCC 654; State of Maharashtra v. Krishnamurti
Laxmipati Naidu (1980) Supp. SCC 455; Surajdeo Ojha v.
State of Bihar (1980) Supp.sec 769; Nanhau Ram v. State of B
M.P(1988) Supp. SCC 152; State of UP v. Madan Mohan
(1989) 3 SCC 390; Mohan/al G.a,ngaram Gehani v. State of
... . Maharashtra (1982) 1 SCC 700 and Gangotri Singh v. State
of UP (1993) Supp 1 SCC 327 - relied on.
2. In the present case, there is no material to show c
that the dying declaration was the result or product of
imagination, tutoring or prompting. On the contrary, the
same appears to have been made by the deceased
voluntarily. It is trustworthy and has credibility. It is not
., "'I correct as contended by the appellant that the evidence D
of PW 1 is at variance with the dying declaration. As a
matter of fact, the dying declaration refers to one of the
parts of the incident as described by PW1. Even otherwise
the dying declaration clearly implicates the accused
appellant. To add to that is t~e recovery of the weapon of E
assault. The trial court did not discuss the evidence
relating to recovery and discarded the same without
_,. indicating any reason. There was no discussion by the
"
trial court to discard the dying declaration. [Paras 9, 1O]
[318-F, G, H; 319-A, B] F
Case Law Reference
(1992) 2 sec 474 relied on Para 7
(1976) (3) sec 104 relied on Para 7
G
._ -~ (1985) 1 sec 552 relied on Para 7
(1983) 1 sec 211 relied on Para 7
(1976) 3 sec 618 relied on Para 7
(1974) 4 sec 264 relied on Para 7
H
,,
312 SUPREME COURT REPORTS [2009] 2 S.C.R. ·'

~ __,_,._
A (1981) Supp. sec 25 relied on Para 7
,.,.
(1981 > 2 sec 654 relied on Para 7 •,

(1980) Supp. sec 455 relied on Para 7 I
r-
(1980) .Supp. sec 769 relied on Para 7
B
(1988) Supp. SCC 152 relied .on Para 7 )-
(1989) 3 sec 390 relied on Para 7 ;. .......
:
(1982) 1 sec 100 relied on Para 7
c (1993) Supp 1 sec 327 relied on Para 8
CRIMINALAPPELLATE JURISDICTION : Criminal Appeal
No. 1so·ot 2002

, From the final Judgerr:ient and Order dated 12.06.2001 of
0
the High. Court of Karnataka at Bangalore in Criminal Appeal
of
. No. 16.9 1996
·NOB Raju (for Guntur Prabhakar}, for the Appellant.
1.
E · . Anil Kr. Mishra, Amit Kr. Chawla and A .. Rohan Singh (for
San jay R. Hegde}, for the Respondent.

The Judgement of the Court was delivered by

DR. ARIJIT PASAYAT; J.

F 1. Challenge in this appeal is to the judgment of a Division
Bench of the Karnataka High.Court allowing the State's appeal
and setting aside the judgn:ient of acquittal passed by learned
Additional Sessions Judge, Hassan, in ASE No. 54 of 1988. '
The High .Cburt held the appellant guilty and convicted him for
G offence puQishable under Section 304 part II of the Ind fan Penal
code, 1860 (for short IPC.

2. Two persons faced trial in the aforesaid sessions case;
one of them Dasegowda A2 died during the pendency of the ,,,'
trial.
H
S.P. DEVARAJU V STATE OF KARNATAKA 313
[DR. ARIJIT PASAYAT J.]

_,,.~ .. 3. Prosecution version in a nutshell is as follows: A
A-1 and A-2 were close friends. A-2 and one
Channegowda (PW5) of A. Guduganahally had land disputes.
A2 belongs to Dasarakoppalu, Hassan taluk and A-1 is from
Salagame, Hassan Taluk. Panchayat was held in the house of
M.Raju (CW-17) S/o M.L. Annappa, a cloth merchant, New line B
road, Hassan, in respect of the said land dispute. But there was
still ill-will between them in spite of the settlement in the
,. panchayat. C.B. Nagendra (PW1) who was a member of the
mandal panchayat and residing at Hassan is a friend of A-1 as
well as deceased Puttaraju. On 1.2.1988 the deceased c
Puttaraju went to the house of PW1 at about 7 p.m. He asked
PW1 to accompany him to Bazar, Hassan. Both of them went
towards Hassan bus stand. A1 was present there. A1 told to
PW1 that persons belonging to Sachin Liquor shop had made
a mistake and asked them to accompany them. PW1, A-1 and D
.. ,.;
the deceased went to Sachin Liquor shop and there they were
told that A-1 demanded free liquor and had created nuisance.
Then PW1 scolded A-1 himself and then all of them were
returning from the said shop. Then they came near 'Shobha
Liquors'. A-1 told PW1 and deceased that he would give a party E
to them. They went to 'Shobha Liquors'. PW-2 was a vendor in
Shobha Liquors. PW3 Puttaraju was working as cashier. Then
_..;.
-f
A-1 ordered for one bottle of rum. 180 ML of rum was supplied
and all the three consumed it. Further, A 1 ordered for 90 ML of
Rum and again for 60 ML of rum and he consumed it. The F
deceased Puttaraju who belonged to A. Guduganahalli said that
he had to go to the village as it was late. A-1 told him that he
would take him to his village even at 1 a.m. and not to worry.
Then the deceased Puttaraju said that he had a room at Hassan
and they could go there. A-1 paid the bill of Rs.39.75 and they
G
went to that room in the Housing Board colony. The other portion
·"' -1
of the building was let out to a tenant. After reaching the room at
about 10 pm. A-1 removed his shoes and he invited the
deceased to come along with him as he wanted to ease himself.
PW-1 remained in that room and A-1 and the deceased went
H
314 SUPREME COURT REPORTS [2009] 2 S.C.R.

A out and within 5 minutes, the deceased Puttaraju came to the .. . -
'
~
\
room holding his stomach and he had two knife injuries one on
the right side of the stomach and the other on the right nipple.
Then the deceased said that A 1 told him Dasegowda (A2) had
serit him to finish him. The deceased was immediately taken in-
B a rickshaw by PW-1 to S.C. Hospital, Hassan. While he was
bringing him in the auto, the deceased pointed out a drainage
situated near the house of one Advocate stating, that, that was
the place of occurrence. At the S.C. Hospital, Dr.N.L. Viswanatha
(PW11) who was working as, medical officer at Hassan,
c examined and treated the deceased and he found two injuries.
He ·issued the wound certificate as per Ex.P-8. He gave
intimation to the Extension Police Station about the injured as
per intimation Slip Ex.P-9. He also referred the patient to the
surgeon. Dr. Puttaraju (PW-18) also examined the injured. S.B.
Abdul Rawoof (PW-15) Head Constable 58 who was working
0
at Extension Police Station and who was in charge of the police
station at that time, immediately rushed to the hospital on getting
intimation and in the presence of PW11, he recorded the
statement of the injured. He returned to the police station and
registered a case in Cr. No.16/88 for the offence under Section
E 307 IPC. He has produced the bloodstained cloth of the injured
before the PSI R. Puttaswamaiah (PW17). PW17 took up further
investigation and he seized the bloodstained shirt M0-4 as per
th'e panchanama Ex.P-16. Shivanna (PW-16) is a witness to
this panchanama which is drawn on 2.2.1988 from 7.15 a.m. to
F 7.45 a.m. in the police station. The case sheet regarding the
injured is as per Ex.P-18. PW1 after admitting the injured to the
hospital went to the village of the deceased Le., A Guduganahalli
/I
which is at a distance of 29 KMs. from Hassan and he reached
the village at about 12 d' clock in the midnight. He informed the
G parents and brother of the deceased about the incident. PW1
and 5, father of the deceased came to Hassan and on the
doctor's advice they shifted the injured in a car to Bangalore
and admitted him in Victoria hospital at about 6 a.m. PW5 told
PW1 that he would bring his daughter and son-in-law who were
H at Bangalore. Jayamma(PW4)is a daughter of PW5 and sister
S.P. DEVARAJU V STATE OF KARNATAKA 315
[DR. ARIJIT PASAYAT J.]

of the deceased. She resides at Bangalore with her husband. A
PW5 went and informed her about the incident. PW4 also came
to the hospital. The deceased after regaining consciousness,
----\I
told PVV4 and PW5 that A-1 told him that because of the land
dispute between PW5 and A-2 he had come to finish him. The
deceased succumbed to the injures on 5.2.88 at about 2 a.m. B
Dr.S.B. Patil (PW13) who was working as Lecturer in the
Department of Forensic Medicines in BMC College attached
to Victoria Hospital received the dead body along with requisition
from the Victoria hospital police through Nagaiah (PW 9) who
was police constable 7623, to conduct post mortem. He c
conducted post mortem from 11.15 am to 1.15 pm. He has
issued his report as per Ex.P-11. Ex.P-12 is the requisition along
with particulars as per Ex.P.13. Subsequently inquest
proceeding was conducted. PW 14 is one of the witnesses to
the inquest panchanama Ex.P-14. o
•
After completion of investigation charge sheet was filed.
As the accused persons pleaded innocence trial was held. As
noted above, A2 died during trial. The trial court found the
evidence to be inadequate and therefore directed acquittal.
E
In appeal, the High Court found that the analysis done by
the trial court was erroneous and the conclusions were based
on presumptions and surmises. Accordingly, the present
appellant was convicted for offence punishable under Section
304 Part ll lPC and was sentenced to undergo five years F
imprisonment.
4. In support of the appeal learned counsel for the appellant
submitted that the appeal was disposed of without service of
notice on the appellant. The evidence of PW 1 is at variance
.. with the dying declaration (Exh. P. 10). The magistrate should G
1 have recorded the dying declaration. The head constable (PW
15) should not have recorded the dying declaration.

5. Learned counsel for the respondent-State, on the other
hand, supported the judgment. So far as the dying declaration
H
316 SUPREME COURT REPORTS [2009] 2 S.C.R.

A is concerned there is no requirement that it should be recorded
only by a magistrate. This position has been reiterated by this
Court in several cases. [See: Ramawati Devi v. State of Bihar
(AIR 1983 SC 164)].
6. This is a case where the basis of conviction of the
B accused is the dying declaration. The situation in which a person
is on the deathbed is so solemn and serene when he is dying
that the grave position in which he is placed, is the reason in ....
L
'i
law to accept the veracity of his statement. It is for this reason
that the requirements of oath. and cross-examination are ,/

c dispensed with. Besides, should the dying declaration be
excluded it will result in m.iscarriage of justice because the victim
being generally the only eyewitness in a serious crime, the
exclusion of the statement would leave the court without a scrap
of evidence.
D
7. Though a dying_ declaration is entitled to great weight, it
"' .... t.-
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
E insists thatthe 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
F deceased was in a fit state of mind after a clear opportunity to
observe and identify the assailant. Once the court is satisfied f-
that the declaration was true and voluntary, undoubtedly, it can
base its conviction on ·the same without any further corroboration.
It cannot be laid down as an absolute rule of law that the dying ,1

G declaration cannot form the sole basis of conviction unless it is
corroborated. The rule requiring corroboration is merely a rule ,. .. ~ I

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)
H
S.P. DEVARAJU V STATE OF KARNATAKA 317
[DR. ARIJIT PASAYAT J.]
('

'» J:
(1) There is neither rule of law nor of prudence that dying A
declaration cannot be acted upon without corroboration. [See:
(

~ Munnu Raja v. State of M.P(1976 (3) SCC 104)]
(i1) If the court is satisfied that the dying declaration is true
and voluntary it can base conviction on it, without corroboration.
(See: State of UP v. Ram Sagar Yadav (1985(1) SCC 552) B
and Ramawati Devi v. State of Bihar 1983(1) SCC 211))

(iii) The court has to scrutinise the dying declaration
M
carefully and must ensure that the declaration is not the result of
tutoring, prompting or imagination. The deceased had an c
op.portunity 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)])

(iv) Where a dying declaration is suspicious, it should not
_....._ ..., be acted upon without corroborative evidence. [See: Rasheed D
or' 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(1981 Supp. SCC
25)) E

(v1) A dying declaration which suffers from il'lffrmity cannot
-' •f 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 F
the details as to the occurrence, it is not to be rejected. (See
State of Maharashtra v. Krishnamurti Laxmipati Naidu [1980
Supp. sec 455)]
(viii) Equally, merely because it is a brief statement, it is G
_, not to be discarded. On the contrary, the shortness of the
statement itself guarantees truth. [See: Surajdeo Ojha v. State
of Bihar (1980 Supp.sec 769)]

(ix) Normally, the court in order to satisfy whether the deceased
was in a fit mental condition to make the dying declaration looks H
318 SUPREME COURT REPORTS [2009] 2 S.C.R.

'J
A up to the medical opinion. But where the eyewitness said that ~ .. I

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
B as given in the dying declaration, the said declaration cannot
be acted upon. [See: State of UP v. Madan Mohan (1989 (3)
sec 390JJ
~
(xt) Where there are more than one statements in the
c nature of dying declaration, the one first in point of time must be '(
»
preferred. Of course, if the plurality of the dying declaration could
be held to be trustworthy and reliable, it has to be accepted. •
[See: Mohan/al Gangaram Gehani v. State of Maharashtra
(1982 (1) sec 100)]_ '
D 8. In the light of the above principles, the acceptability of ,.;.,
the alleged dying declaration in the instant case has to be '? r

considered. The dying declaration is only a piece of untested
evidence and must, like any other evidence, satisfy the court
that what is stated therein is the unalloyed truth and that it is
E absolutely safe to act upon it. If after careful scrutiny, the court is
satisfied that it is true and free from any effort to induce the
deceased to make a false statement and if it is coherent and
consistent, there shall be no legal impediment to make it the _,. ._
basis of conviction, even if there is no corroboration. (See
F Gangotri Singh v. State of U.P(1993 Supp(1)SCC 327).
9. There is no material to show that the dying declaration
was the result or product of imagination, tutoring or prompting.
On the contrary, the same appears to have been made by the
deceased voluntarily. It is trustworthy and has credibility.
G
10. It is not correct as contended by learned counsel for
the appellant that evidence of PW 1 is.at variance with the dying
.-
declaration. As a matter of fact, the dying declaration refers to
one of the parts of the incident as descrihed by PW1. Even
otherwise the dying declaration clearly implicates the accused
H
S.P. DEVARAJU V. STATE OF KARNATAKA 319
[DR. ARIJIT PASAYAT J.)

appellant. To add to that is the recovery of the weapon of assault. A

- Unfortunately, the trial court did not discuss the evidence relating
to recovery and discarded the same without indicating any
reason. There was no discussion by the trial court to discard
the dying declaration.
11. The plea that there was no service of notice is clearly 8
without substance. Records clearly show that notice was duly
served.

12. Above being the position, we find no merit in the appeal
which is accordingly dismissed. c

- B.B.B. Appeal dismissed.

.
'