Supreme Court of India
SUKANTI MOHARANAversusSTATE OF ORISSA
- Citation
- 2009 INSC 972
- Decided
- 29 July 2009
- Disposal
- Dismissed
- Bench
- DALVEER BHANDARI
Holding
The dying declarations, though lacking a formal fitness certificate and signature, were admissible, truthful, and voluntary, and therefore sufficient to sustain the conviction under Section 302 IPC.
Summary
The appellant, Sukanti Moharana, was convicted under Section 302 IPC for allegedly pouring kerosene on her sister-in-law and setting her on fire, resulting in extensive burn injuries and death. The conviction was based primarily on a written dying declaration recorded by a doctor and an oral dying declaration made to the victim's parents, both of which the prosecution argued were truthful and voluntary. The defence challenged the admissibility of these declarations, contending the lack of a doctor's fitness certificate, signature, and thumb impression rendered them unreliable. The Supreme Court examined the statutory framework under Sections 32 of the Evidence Act and relevant case law on dying declarations, concluding that the doctor’s testimony about the victim’s mental state sufficed and that corroboration from oral statements and the FIR reinforced credibility. Consequently, the Court upheld the conviction and life sentence, dismissing the appeal.
Issues considered
- The admissibility of the written and oral dying declarations as evidence under Section 32 of the Evidence Act
- Whether the absence of a doctor's certification of fitness, signature, or thumb impression invalidates the dying declaration
- The necessity of corroboration for a dying declaration to support a conviction under Section 302 IPC
- The propriety of upholding the conviction despite the technical objections raised by the defence
Legislation cited
- Dowry Prohibition Act, 1961s. 4
- Indian Evidence Act, 1872s. 32
- Indian Penal Code, 1860s. 302, s. 304B, s. 34, s. 498A
Subjects
dying declarationsection 302 IPCadmissibilityevidenceIndian Evidence Actcorroborationcriminal lawconvictionlife imprisonment
Judgment
(2009] 11 S.C.R. 996
A SUKANTI MOHARANA
v.
STATE OF ORISSA
(Criminal Appeal No. 1349 of 2009)
JULY 29, 2009
B
[DALVEER BHANDARI AND DR. MUKUNDAKAM
SHARMA, JJ.]
)<
Penal Code, 1860 - s.302 - Death due to extensive bum ..
c injuries - Allegedly caused when appellant poured kerosene
on deceased and set her on fire with a matchstick - Appellant
is wife of deceased's brother-in-law- Two dying declarations,
one made before doctor and the other, an oral dying
declaration made by deceased before her parents -
D Conviction of appellant by Courts below - Justification of -
Held: On facts, justified - Dying declaration recorded by
doctor vividly mentions the manner in which deceased 1'
~
suffered the bum injuries - Description given by deceased
in the dying declaration is clear, unambiguous and
E acceptable - Doctor who recorded the dying declaration
categorically stated that deceased was conscious and in a fit
mental condition to make such a statement - Further
corroboration by oral dying declaration, medical evidence as
also the facts contained in the FIR - Evidence Act, 1872 -
s.32. ...
F ~
PW1's daughter died in hospital due to extensive
burn injuries allegedly caused when appellant poured
kerosene on her and set her on fire with a matchstick.
Appellant is wife of deceased's brother-in-law.
G
Placing reliance upon the two purported dying
declarations made by the deceased, one before the
)..,.
doctor PW10 and the other, an oral dying declaration
made before PWs 1 and 3, the courts below convicted the
H 996
998 SUPREME COURT REPORTS [2009] 11 S.C.R.
A in which the deceased suffered the burn injuries on
pouring kerosene oil on her by the appellant who also
lighted the matc~stick which caused the fire and burnt
the deceased. The appellant not only poured the
kerosene oil on the deceased and lit the fire but also
B closed the door after going out of the said room where
the deceased was left to burn by the fire. The said
description given by the deceased in the· dying
declaration recorded by the doctor is clear, unambiguous
and there is no reason why the said dying declaration
c should not be accepted as correct and true version of the
incident. However, the said dying declaration recorded by
the doctor is also corroborated by the oral dying
declaration made before PW-1 and PW-3 and the said fact
also finds corroboration from the statement of PW-1 and
PW-3 and also from the FIR which were proved through
0
the evidence of PW-1. [Paras 20 and 21] [1008-A-B; 1008-
C-D]
2.2. Also, the dying declaration was recorded by a
doctor who was most disinterested witness. It was also
E categorically stated by the doctor that at the time when
she made her dying declaration, she was in a fit state of
mind. [Para 28] [1011-G]
2.3. Both the courts were totally justified and ·also
F right in relying upon the two dying declarations one
recorded by the doctor (PW-10) and the other i.e. !>ral
dying declaration made to PW-1 and PW-3. The objection
raised regarding the doctor's certification ·and
endorsement as to mental fitness of the deceased, is
only a rule of prudence and not the ultimate test as to
G whether or not the said dying declaration was 'truthfui ~r
voluntary. [Para 31) [1012-F-H; 1012-A] ··
2.4. The doctor who recorded the dying declaration
was examined as a witness and he had in his deposition
H categorically stated that the deceased while making the
SUKANTI MOHARANA v. STATE OF OR.ISSA 999
~
aforesaid statement was conscious and in a fit mental A
condition to make such a statement. It is therefore clear
that the aforesaid 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. [Para 32] (1013-A-C] B
3. The further objection raised regarding, the
.._ admissibility of the recorded dying declaration on the
.,; ground that the signature or the thumb impression. of the
deceased was not taken thereon, also is without any
basis. The deceased had suffered about 90 to 95 per cent
c
burn injuries covering 90 to 95 per cent body sJrtace. The
post mortem report also indicates that there w,as bandage
in her thumb as it was bl,lrnt. In such a situation,· it was
not possible to take her''$ignature or LTI on th~ dying
declaration. There Is ·1i1so no reason why a dying D
. "(
~ declaration which is otherw,ise found to be true, voluntary
and correct should be rejected only because the person
who recorded the dying _declaration did not or could not
take the signature or the Left Thumb lmpressio!"l of the
deceased on the dying declaration. Once it is found that E
'::,
the dying declaration is.,frue and made voluntarily and as
also trustworthy, there is no reason why the same should
not be believed and relied upon. In this case, the said
>- dying declaration is corroborated by the oral dying
-· declaration made by the .
deceased
.. - .
before PW-1
..
and PW-
3 which is also corroborated by the medical evidence and
F
the facts contained in the FIR. [Para 33] (1013-D-G]
4. Taking an ovefaU- view of all. thlil fact~ and
circumstances of the case and the evidence on record,
G
n!J ground is found_to interfere with the order of
.:~ conviction and sentence recorded by the trial court and
confirmed by the High Court holding the appellant guilty
of the offence under Section 302 IPC. [Para 34] (1013-H;
1014-A]
H
1000 SUPREME COURT REPORTS [2009] 11 S.C.R.
y
A Laxman v. State of Maharashtra (2002) 6 SCC 710; Kofi
Chunila/ Savji v. State of Gujarat (1998) 9 SCC 303; Vikas
and Others v. State of Maharashtra (2008) 2 SCC 516;
Paniben v. State of Gujarat (1992) 2 SCC 474; Khushal Rao
v. State of Gujarat AIR 1958 SC 22 and Nallapati Sivaiah v.
B Sub-Divisional Officer, Guntur, A.P. AIR 2008 SC 19,
referred to.
Case Law Reference: )Ii
(2002) 6 sec 110 referred to Para 23 •
c (1998) 9 sec 303 referred to Para 25
(2008) 2 sec 516 referred to Para 26
(1992) 2 sec 474 referred to Para 26
D AIR 1958 SC 22 referred to Para 27
AIR 2008 SC 19 referred to Para 29 )' "'
CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal
No. 1349 of 2009.
E
From the Judgment & Order dated 24.6.2008 of the High
Court of Orissa, Cuttack in Criminal Appeal No. 163 of 2005.
Anand (for Abhijit Sengupta) for the Appellants.
-(
F Janaranjan Das for the Respondents. •·
The Judgment of the Court was delivered by
DR. MUKUNDAKAM SHARMA, J. 1. Leave granted.
G 2. The present appeal is filed against the judgment and
order dated 24.06.2008 passed by the Orissa High Court at
Cuttack whereby and whereunder the High Court partly allowed ~~
the appeal filed by the appellant herein and set aside the
conviction of the appellant under Sections 3048, 498A of the
H
SUKANTI MOHARANA v. STATE OF ORISSA 1001
[DR. MUKUNDAKAM SHARMA, J.]
~ Indian Penal Code (for short 'the IPC') and Section 4 of the A
Dowry Prohibition Act, 1961 (for short 'the D.P. Act') but
convicted her under Section 302 of the IPC and sentenced her·
to undergo rigorous imprisonment for life.
3. In order to appreciate the rival contentions advanced by B
the parties and issues involved, it is necessary to set out brief
facts of the case which gave rise to the present criminal appeal:
... Marriage was solemnized between the deceased Anjali
" and Benudhar on 15.07.1999. Deceased Anjali died in the
hospital on 14.02.2000 while under treatment for burn injuries c
which she had sustained on 08.02.2000. Sukanti. Moharana, the
appellant herein is the wife of the brother of :Benudhar, the
husband of the deceased. Informant Kabindra Ojha (PW-1) and
Bharati (PW-3). are the parents of the deceased, Nakafoldi
Ojha (PW-4) is the elder brother of PW-1 whereas PW-2 is the D
•if wife of PW-4. One Laxmidhar Ojha (PW-5) who was also
A-
examined as a witness is acquainted to brother of PW-1.
4. The Prosecution case is that at the time of Nirbandha
of Benudhar and deceased Anjali, the appellant and Benudhar E
demanded dowry, a television, cash amounting to Rs. 8,000/-
and gold ring etc. In response to the aforesaid demand made,
PW•1 gave dowry of cash amounting to Rs. 8,000/-, a portable
black and white T.V. and some gold ornaments at the time of
-- .~ marriage.
5. It is alleged that Benudhar and appellant demanded a
F
bigger T.V. and subjected the deceased Anjali to torture in that
connection after the marriage. It is also alleged by the
prosecution that there was illicit relationship between the
appellant and Benudhar. "J:he deceased used to complain G
regarding torture and cruelty meted out towards her by both
~~ Benudhar and appellant as well as their illicit relationship before
her parents and other relatives.
6. The deceased Anjali had also written a letter to PW-2
H
1002 SUPREME COURT REPORTS [2009] 11 S.C.R.
A which was exhibited as Ext.2. disclosing her ordeal in the
matrimonial home. On 08.02.2000, the parents of the
deceased were informed that the deceased with burn injuries
was admitted to Head Quarters Hospital, Dhenkanal. On receipt
of the aforesaid information, the parents alongwith the brother
B of the deceased went there and found that the deceased had
sustained extensive burn injuries. Deceased was thereafter
shifted to S.C.B. Meqical College and Hospital on the same
day for treatment. On 09.02.2000, it is alleged that the
)04
deceased regained her senses and disclosed before PW-1 ..
c and other relatives that the appellant has poured kerosene on
her and set her on fire with a matchstick upon which the
informant (PW-1) lodged a first information report (for short 'the
FIR) (Ext. 1) before the 0.1.C., Sadar Police Statioh, Dhenkanal,
who registered the case for commission of offences under
Sections498A/307/34 of the IPC and Section 4 of the D.P. Act
D
against the appellant and Benudhar.
,,..
-4.
7. On receipt of the aforesaid FIR, the case was regi$tered.
The investigation of the case was entrusted to the Sub-Inspector
of Police (PW-12). PW-12 sent a message to Mangalabag
E Police Station, Cuttack for recording the dying declaration of
the deceased whereupon a Lecturer in the Surgery Department
of S.C.B. Medical College and Hospital, Cuttack (PW-10)
recorded the dying declaration of the deceased on 10.02.2000
in presence of other doctors. The said dying declaration was .
F proved and exhibited as Ext. 8 in the trial. Thereafter, the
deceased while under treatment died on 14.02.2000 in the
hospital. After her death an inquest was conducted by PW-12
--
and post mortem examination was done by PW-9. Subsequent
to that, PW-13 took charge of the investigation. PW-13
G completed the investigation and thereafter submitted the
chargesheet against the appellant and Benudhar for
commission of offences under Sections 498A/304B and 302
'F ..
read with Section 34 of IPC and Section 4 of the D. P. Act.
8. Both the accused namely the present appellant and
H
SUKANTI MOHARANA v. STATE OF ORISSA 1003
[DR. MUKUNDAKAM SHARMA, J.]
8enudhar denied the charges and claimed to be tried. During A
the course of the trial number of witnesses were examined and
on completion of the same and after hearing the parties the trial
court passed its judgrl1ent and ofder on 15.02.2005 whereby
it convict~d the present appellant under Sections 302, 3048
and 498Aof IPC and under.Section 4 of the D. P. Act whereas 8
8enudhar was convicfed and sentenced under Sections 3048
and 498A'IPC:as welf as under Section 4 of the D. P. Act The
present'appellant Sukanti was sentenced by the trial court to
undergo rigorous imprisonment for life and to pay a fine of Rs.
5,000/-: and in- default to undergo rigorous imprisonment for a c
period bf one years .for the offence under Section 302 IPC.
Further, she was sentenced to undergo rigorous imprisonment
for a 'period of 10 years under Section 3048 IPC and also to
undergo ·rigorous· imprisonment for a period of one year and
to pay a.fine ·bf Rs.-.1,000/- each in default to undergo rigorous D
imprisonment for a further period of three months for the offence
un'der Section 498A IPC and also to undergo rigorous
imprisonment for a period of three months and to pay a fine of
Rs. 500/- each, in default to undergo rigorous imf'risonment for
a period of one month for the offence under Section 4 of the
D. P. ·Act. ··· ·. ,. E
\9: F~eling aggrieved, the present appellant as als~·
8enudhar filed an appeal in the High Court of Orissa at Cuttack
which was partly allowed by the High Court. The High Court
while allowing the said appeal in part, set aside the conviction P
and sentence of the appellant under Section 304-8 and Section
498A _of IPC as well as under Section 4 of the D. P. Act, but,
conviction and sentence under Section 302 of IPC was
' maintained.
G
10. So far as 8enudhar is concerned his conviction and
_.-.. sentence under Section 3048 and 498A of IPC as well as
Section 4.of the:,Q ..P. Act was set aside and he wa$ acquitted.
Consequently, the.present appeal was filed by·the presept
appellant on which initially a notice was issued. i · : ·
1004 SUPREME COURT REPORTS [2009] 11 S.C.R.
A 11. The matter was thereafter ordered to be listed for
hearing upon which we heard the learned counsel appearing
for the respective parties.
.,
12. The learned counsel appearing for the appellant
submitted that both the courts below committed an error of fact
B
and also of law in convicting the appellant. It was submitted that
there is no eye witness to the occurrence and the entire case
rests only on the circumstantial evidence and that also on the ,...
alleged dying declaration stated to have been made by the ~
deceased. It was submitted that one dying declaration was
c allegedly an oral dying declaration which was not recorded in
writting whereas the second dying declaration although
recorded but the same suffers from many infirmities and
therefore, the same should not have been relied upon and
should have been rejected as not reliable. He very strenuously
D urged that the said 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 and also the signature and
the thumb impression of the deceased was not there in the said
dying declaration.
E
13. The learned counsel for the State on the other hand
supported the order of conviction and sentence. He submitted
that both the courts were correct and justified in relying upon
the aforesaid dying declaration which were recorded by the . ...
F doctor (PW-10) and also on the oral dying declaration.
14. Having heard the learned counsel appearing for the
parties, we now proceed to analyse.. the entire evidence on
record so as to ascertain whether or not the conviction and
sentence passed against the appellant would and could be
G upheld.
15. The marriage between the deceased Anjali and 'f ~
Benudhar was solemnized on 15.07.1999 and Anjali received
the burn injuries on 08.02.2000. Parents of the deceased were
H informed of the incident on the same day i.e. 08.02.2000
SUKANTI MOHARANA v. STATE OF ORISSA 1005
[DR. MUKUNDAKAM SHARMA, J.]
whereupon they immediately went to the hospital and found that A
the deceased was admitted to Head Quarters Hospital,
Dhenkanal with extensive bum injuries. As the injuries were very
extensive and grievous in nature therefore she was shifted to
S.C.B. Medical College and Hospital on the same day for
treatment. PW-1, the informant and father of the deceased and B
PW-3, the mother of the deceased stated that on 09.02.2000
the deceased regained her senses and then made a statement
JO,
before PW-1 and others that appellant Sukanti poured
fl kerosene on her and set her on fire with a matchstick. The
Investigation Officer (PW-12) also sent a message to c
Mangalabag Police Station, Cuttack for recording dying
declaration of the deceased whereupon her dying declaration
was recorded by a Lecturer of the Surgery Department of the
S.C.B. Medical College and Hospital, Cuttack on 10.02.2000
in presence of other doctors.
D
.... 16. While under treatment in the same hospital, the
deceased died on 14.02.2000 and her post-mortem
examination was carried out by the doctor namely PW-9. A
perusal of the record would also indicate that the conviction of
the appellant Sukanti for commission of the offence under E
Section 302 IPC was ordered on the basis of the dying
declarations more particularly relying on the written dying
declaration (Ext. 8). The doctor who recorded her dying
)- declaration was examined in the trial as PW-10. He had stated
.... in his deposition that he was attached to S.C.B. Medical F
College and Hospital, Cuttack as a Lecturer in Surgery and that
the deceased was admitted to Surgical Ward (Female) on
08.02.2000 on having suffered 90 per cent burn injuries. He
also stated that he was associated with the treatment of the
deceased till 14.02.2000 and that on 10.02.2000 at 11.20 a.m., G
he recorded the dying declaration of the deceased in presence
of Professor Amulya Das and two Post Graduate students. He
-~
had also stated clearly in his evidence that the deceased was
mentally clear and was able to make proper statement while
making the dying declaration (Ext. 8) which has been proved H
1006 SUPREME COURT REPORTS [2009] 11 S.C.R.
A in the trial. The PW-10 also identified the signatures of
P~ofessor Amulya Das as well as Dr. R.N. Mahapatra in whose
presence the dying .declaration
.. (Ext. 8) was recorded.
17. The High Court while upholding the conviction and
sentence of the appellant under Section 302 of the Indian Penal
B
Code also held that the dying declaration (Ext. 8) gets
independent corroboration from the oral dying declaration
ma,de by the deceased before her parents i.e. PW-1 and PW-.
3 as well as PW-4, PW-5 and PW-6. The said witnesses have )I
~
testified in their evidence that on 09.02.2000 at 9 a.rn., the
c deceased got her sense and at about 2 p.m., she was able to
talk properly. It was stated that on being asked as to how she
sustained burn injuries, the deceased informed PW-1 and PW-
3 that the appellant Sukanti gave her rice to eat and while she
was eating, appellant Sukanti poured kerosene oil on her back
D side and thereafter lighted her with a matchstick and when she
was engulfed by fire, appellant Sukanti closed the door from ...
outside. Both PW-1 and PW-3 were subjected to extensive
cross-examination but the aforesaid part of the evidence
pertaining to the oral dying declaration made by the deceased
E could not be dislodged in any manner in the course of cross-
examination. The FIR (Ext. 1) which was lodged on 09.02.2000,
by PW-1 itself also materially corroborates the aforesaid facts
contained in the dying declarations and the evidence of the
informant in the court with regard to the dying declaration made
F by the deceased implicating app~llant Sukanti in causing burn
.. ....
injuries to her.
18. Counsel appearing for the appellant Sukanti
strenuously urged before us that both the oral dying declaration
allegedly made before PW-1 and PW-3 and recorded dying
G
declaration allegedly made before doctor are not reliable and
could not be accepted. In support of the said submission, it was
submitted that the dying declaration recorded by the doctor did ,. ~
not contain any certificate given by the doctor that she was in
a stable and fit mental and physical condition to make such a
H
1008 SUPREME COURT REPORTS [2009] 11 S.C.R.
A The appellant not only poured the kerosene oil on the deceased
and lit the fire but also closed the door after going out of the
said room where the deceased was left to burn by the fire. The
said description given by the deceased in the dying declaration
recorded by the doctor is clear, unambiguous and there is no
B reason why we should not accept the said dying declaration as
correct and true version of the incident.
21. The objections raised by the counsel appearing for the
appellant which are of technical nature with regard to recording •
and admissibility of the aforesaid dying declaration. We are
c however, of the considered opinion that the said dying
-
decla;ation recorded by the doctor is also corroborated by the
oral dying declaration made before PW-1 and PW-3 and the
said fact also finds corroboration from the statement of PW-1
and PW-3 and also from the FIR which were proved through \
D the evidence of PW-1.
22. Section 32 of the Indian Evidence Act, 1872 deals with * ~
the statement of persons who cannot be called as witnesses
as because they are dead or they cannot be found or they have
E become incapable of giving evidence or their evidence cannot
be procured without an amount of delay or expense. Such
statements themselves are relevant facts in certain cases. The
aforesaid Section 32 was enacted as an exception to the
general rule as reflected in Section 60 of the said Act which
F mandates that oral evidence in all cases must be direct i.e. if
it refers to a fact which could be seen, it should be the evidence
of a witness who says he saw it, whereas if it refers to a fact
• ...
which could be heard, it must be the evidence of a witness who
says he heard it or if it refers to a fact which could be perceived
by any other sense or in any other manner, it must be the
G
evidence of a witness who says he perceived it by that sense
br in that manner.
23. The question as to admissibility of such a dying
Y--.. -
declaration came up for consideration before this Court in
H several cases. We have considered the Constitution Bench
•'-
SUKANTI MOHARANA v. STATE OF ORI SSA 1009
[DR. MUKUNDAKAM SHARMA, J.]
>-- decision of this Court in Laxman v. State of Maharashtra A
1
reported in (2002) 6 sec 710. In the said case also there was
a dying declaration and a question regarding the admissibility
of the said dying declaration was raised. In that connection this
Court held that the Court must decide that the declarant was in
a fit state of mind to make the declaration, but where the eye · B
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 to the fitness of the
A. declarant's state of mind, held, would not ipso facto render the
• dying declaration unacceptable. It was also held that the c
evidentiary value of such a declaration would depend upon the
facts and circumstances of the particular•case.
24. In paragraph 3 of the said judgment, this Court
discussed the juristic theory recording acceptability of a dying
declaration in the following manner:- D
-... ·~·
"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 E
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
;
0 of the existence of many circumstances which may affect F
-:-
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 9f his statement.. ... "
25. The Constitution Bench in that case also referred to
an earlier decision of this Court in Kofi Chuni/a/ Savji v. State G
of Gujarat (1998) 9 SCC 303, wherein it was held that the
~-.ultimate test is whether the dying declaration can be held to be
a truthful one and voluntarily given and 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 H
~
1010 SUPREME COURT REPORTS [2009] 11 S.C.R.
A make the statement in question. The aforesaid ratio of the said Ac
decision was affirmed in the Laxman case(supra).
26. There is another very recent decision of this Court in
Vikas and Others v. State of Maharashtra reported in (2008)
2 sec 516 wherein all the earlier relevant decisions on the
B
point have been indexed and referred to and relied upon. The
said decision specifically reiterates the principle governing the
dying declaration which was stated in the case of Paniben v.
State of Gujarat reported in (1992) 2 SCC 474. In paragraph "•
45 of the said judgment, it was stated thus:-
c
"45. The Court, referring to earlier case law,
summed up principles governing dying declaration as
under: (Paniben case4, sec pp. 480-81, para 18)
D "18. (i) There is neither rule of law 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
E 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
F had opportunity to observe and identify the assailants and *
was in a fit state to make the declaration.
(iv) Where dying declaration is suspicious it should
not be acted upon without corroborative evidence.
G (v) Where the deceased was unconscious and could
never make any dying declaration the evidence with regard
to it is to be reje~ted. .. - '
(vi) A dying declaration which suffers from infirmity
H cannot form the basis of conviction.
...
SUKANTI MOHARANA v. STATE OF ORISSA 1011
[DR. MUKUNDAKAM SHARMA, J.]
-,..l
(vii) Merely because a dying declaration does not A
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
B
the statement itself guarantees truth.
.i (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
eyewitness has said that the deceased was in a fit and c
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 D
/>· declaration cannot be acted upon."
27. After referring to the decision of this Court in Khusha/
Rao v. State of Gujarat reported in AIR 1958 SC 22, the
principle formulated earlier was reiterated that where a.dying
declaration is recorded by a competent Magistrate, it would E
" 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
be disbelieved by the court. F
28. The aforesaid principles which are laid down are fully
applicable to the facts of the present case as in this case the
dying declaration was recorded by a doctor who was. most
disinterested witness. It was also categorically stated by the G
doctor that at the time when she made her dying declaration,
,,. ~-" she was in a fit state of mind.
29. In the case of Nallapati Sivaiah v. Sub-Divisional
Officer, Guntur, A.P. reported in AIR 2008 SC 19, in paragraph
18 it was stated thus; H
1012 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."
30. In the said decision this Court also referred to a
D decision of the aforesaid Constitution Bench and 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 especially when the dying declaration
was recorded by a Magistrate. It was also held in the said
E decision that it is the testimony of the Magistrate that the
declarant was fit to make statement gains importance and that
reliance can be placed upon such a declaration even in the
absence of the doctor provided the court ultimately holds the
same to be voluntary and truthful.
F
31. When we apply the aforesaid principles to the facts of
the present case we are of the considered opinion that both
the courts were totally justified and also right in relying upon the
two dying declarations one recorded by the doctor (PW-10) and
G the other i.e. oral dying declaration made to PW-1 and PW-3.
The two technical objections which were raised by the counsel
for the appellant, one regarding the doctor's certification and •
endorsement as to mental fitness of the deceased, the same
was held by this Court to be a rule of prudence and not the
ultimate test as to whether or not the said dying declaration was
H
SUKANTI MOHARANA v. STATE OF ORISSA 1013
[DR. MUKUNDAKAM SHARMA, J.]
truthful or voluntary. A
32. The doctor who recorded the dying declaration was
examined as a witness and he had in his deposition
categorically stated that the deceased while making the
aforesaid statement was conscious and in a fit mental condition B
to make such a statement. The aforesaid position makes it
therefore clear that the aforesaid 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.
c
33. There was another objection raised by the\ counsel
appearing for the appellant regarding the admissibility of the
aforesaid recorded dying declaration contending inter alia that
the signature or the thumb impression of the deceased was not
taken on the said dying declaration. The said objection D
~ according to us also is without any basis. The deceased had
suffered about 90 to 95 per cent burn injuries covering 90 to
95 per cent body surface. The post mortem report also
indicates that there was bandage in her thumb as it was burn!.
In such a situation, it was not possible to take her signature or E
LT! on the dying declaration. There is also no reason why a dying
declaration which is otherwise found to be true, voluntary ·and
correct should be rejected only because the person who
>: recorded the dying declaration did not or could not take the
signature or the Left Thumb Impression of the deceased on the F
dying declaration. Once it is found that the dying declaration is
true and made voluntarily and as also trustworthy, there is no
reason why the same should not be believed and relied upon.
In this case, the said dying declaration is corroborated by the
oral dying declaration made by the deceased before PW-1 and G
PW-3 which is also corroborated by the medical evidence and
the facts contained in the FIR.
...--'°'
34. Therefore, taking an overall view of all the facts and
circumstances of the case and the evidence on record, we find
H
1014 SUPREME COURT REPORTS [2009] 11 S.C.R.
A no ground to interfere with the order of conviction and sentence
recorded by the trial court and confirmed by the High Court
holding the appellant guilty of the offence under Section 302
IPO. The present appeal therefore deserves to be dismissed
which we hereby do. The order of conviction and sentence
B recorded against the appellant is therefore upheld.
B.B.B. Appeal dismissed.
•
'
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