Kushal Rao vs The State Of Bombay

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Criminal Appeal No. 184 of 1956

Decision Date: 25 September 1957

Coram: Bhuvneshwar P. Sinha, P. Govinda Menon, J.L. Kapur

In this matter the petition was filed by Kushal Rao against the State of Bombay, and the judgment was delivered on 25 September 1957 by the Supreme Court of India. The opinion was authored by Justice Bhuvneshwar P. Sinha, with Justices P. Govinda Menon and J. L. Kapur constituting the bench. The case is reported as 1958 AIR 22 and 1958 SCR 552. The issues addressed concerned the appellate jurisdiction of the Supreme Court in criminal matters, the power of a High Court to grant a certificate of fitness under Article 134(1)(c) of the Constitution where the question involved facts, and the evidential value of dying declarations under Section 32(1) of the Indian Evidence Act of 1872.

The headnote conveyed that the Supreme Court does not normally act as a court of criminal appeal, and that a High Court is not competent, under Article 134(1)(c), to issue a certificate of fitness for appeal to the Supreme Court on a ground that is essentially factual. The Court referred to the earlier decision in Haripada Dey v. State of West Bengal (1956) SCR 639, which was followed in this regard. It was observed that there is no absolute rule of law, nor even a precedent that has become a rule, requiring a dying declaration to be corroborated by other independent evidence in order to sustain a conviction. The observations made in Madhoprasad v. State of Madhya Pradesh (AIR 1953 SC 420) were described as obiter dicta and therefore not binding law. The decision in In re Guruswami Tevar (ILR 1940 Mad 158) was approved, and the relevant case-law was reviewed.

The Court explained that Section 32(1) of the Evidence Act treats a statement in a dying declaration regarding the cause of death and the surrounding circumstances as an exception to the general rule excluding hearsay and evidence not subjected to cross-examination. The legislature’s special regard for such declarations must be honored unless it can be shown that the declaration was not made in the expectation of death or is otherwise unreliable; any evidence introduced to challenge the declaration may diminish its value but does not affect its admissibility. Although a dying declaration must be examined closely and tested like any other piece of evidence, once the Court is satisfied of its truth in a particular case, the requirement of corroboration no longer arises. A dying declaration cannot be treated in the same category as the testimony of an accomplice or a confession.

Consequently, the Court noted that in the present case the trial judge, and subsequently the High Court, based their convictions of the accused under Section 302 of the Indian Penal Code principally on three dying declarations made by the victim in rapid succession. The High Court, relying on a decision of this Court, sought further judicial consideration on the matter.

The Court noted that the trial judge and the High Court attempted to corroborate the dying declarations by pointing out that the accused had absconded and was subsequently arrested in circumstances that appeared suspicious, although they expressed doubt as to whether such corroboration was sufficiently proved. The Court then held that the certificate of fitness issued by the Nagpur High Court under Article I34(I)(c) was legally incompetent, and because the material on record disclosed no basis on which the Supreme Court could entertain a petition for special leave to appeal under Article 136 of the Constitution, the appeal was ordered to be dismissed. The judgment was delivered in a criminal appellate jurisdiction concerning Criminal Appeal No. 184 of 1956, which arose from the judgment and order dated 15 October 1956 of the former Nagpur High Court in Criminal Appeal No. 205 of 1956 and Criminal Reference No. 15 of 1956, themselves stemming from the judgment and order dated 10 July 1956 of the First Additional District Judge, Nagpur, in Sessions Trial No. 34 of 1956. Counsel for the appellant and counsel for the respondent were identified in the record, and the date of the decision was recorded as 25 September 1957. Justice Sinha delivered the opinion of the Court. The appeal concerned a certificate of fitness granted under Article 134(1)(c) by the High Court at Nagpur, as it then existed, and challenged the concurrent judgments and orders of the lower courts that had convicted and sentenced the appellant, Khushal Rao, to death under Section 302 of the Indian Penal Code for the pre-meditated murder of Baboolal on the night of 12 February 1956 in a quarter of Nagpur. The Court observed that the Mill area of Nagpur was divided into two rival factions. The appellant and Tukaram, who had been acquitted by the High Court, led one faction, while Ramgopal (identified as PW 4), Inayatullah (PW 1), and Tantu (PW 5) were described as leaders of the opposite faction. Prior to the occurrence, several incidents had taken place between the two groups, and Inayatullah and Tantu had previously been prosecuted for some of those incidents. On the day of the murder, apart from the incident that gave rise to the present appeal, Tantu and Inayatullah filed two separate reports alleging attacks by Khushal’s party. An additional report was lodged by Sampat, one of the four persons tried alongside the appellant for Baboolal’s murder, at Ganeshpeth police station at approximately 9.30 p.m. on 12 February 1956, accusing Inayatullah alias Kalia and Tantu of having attacked him with sharp-edged weapons (Exhibit P-26). The prosecution’s case was that the appellant, Khushal, bore animosity toward Baboolal, who maintained close relations with the leaders of the rival faction, and that Khushal, together with Sampat, Mahadeo and others, acted out of anger at Baboolal’s association with the enemy faction.

According to the evidence, Tukaram suddenly assaulted Baboolal using swords and spears, inflicting injuries on several parts of Baboolal’s body. The attack occurred in a narrow lane in Nagpur at approximately nine o’clock in the evening. Following the assault, Baboolal’s father together with other individuals promptly conveyed him to the Mayo Hospital, where Baboolal arrived at about nine twenty-five in the night. The doctor who was on duty, Dr. Kanikdale, immediately questioned Baboolal about the circumstances of the attack. Baboolal gave a statement to the doctor, which Dr. Kanikdale recorded in the bed-head ticket, indicating that the assault had been carried out by Khushal and Tukaram with swords and spears. After making this note, the doctor telephoned the Ganeshpeth police station to convey the information; the telephone call was logged at nine forty-five p.m. Upon receiving the information, Sub-Inspector A. K. Khan entered the details in the register (Exhibit P-1) and registered an offence under section 307 of the Indian Penal Code. He then proceeded immediately to the Mayo Hospital accompanied by a head-constable and several constables. At the hospital the Sub-Inspector found Baboolal in a serious condition and, fearing that the victim might not survive long enough for the magistrate to be informed and to reach the scene, he consulted the attending physician, Dr. Ingle, as to whether Baboolal was capable of giving a statement. Dr. Ingle advised that a dying declaration should be recorded by a magistrate. The Sub-Inspector, however, decided that it would be advisable to record the declaration without further delay. Consequently, he recorded Baboolal’s statement in response to his own questions (Exhibit P-2) at ten fifteen p.m. Shortly thereafter, the first-class magistrate, Shri M. S. Khetkar, arrived at the hospital and, in the presence of Dr. Ingle, recorded a formal dying declaration (Exhibit P-16) between eleven fifteen and eleven thirty-five p.m. Dr. Ingle certified that he had examined Baboolal and found him mentally fit to make the declaration. In addition to these three recorded dying declarations made in quick succession by public officials, Baboolal is said to have made oral statements to several persons; however, the High Court did not consider those oral statements. The trial courts later based their convictions primarily on the recorded dying declarations. Baboolal subsequently died the next morning at approximately ten a.m. after being taken to the hospital. After learning from the recorded declarations the names of two alleged assailants, the police attempted to apprehend them but were unable to locate them at their homes. Four days after the incident, the appellant was arrested in an out-building that was locked from the outside, situated in a bungalow on Seminary Hill in Nagpur. The other named assailant, Tukaram, was arrested at a later date.

In this case the second accused, Tukaram, was apprehended only after a considerable delay. The prosecution asserted that both Tukaram and the other alleged assailant were deliberately avoiding the police and had gone into hiding. Following a thorough investigation and the requisite inquiry, the authorities instituted trial proceedings against four individuals, the appellant being one of those accused. The Additional Sessions Judge, after hearing the evidence, discharged two of the accused and pronounced conviction on the remaining two, namely the appellant and Tukaram, under section 302 of the Indian Penal Code, or alternatively under section 302 read in conjunction with section 34 of the same Code. The judge imposed capital punishment on the appellant, reasoning that the appellant had intentionally caused the death of Baboolal and that no mitigating circumstances were present. By contrast, the judge sentenced Tukaram to life imprisonment, holding that Tukaram had acted under the appellant’s direction. Consequently, the Additional Sessions Judge referred the matter to the High Court for confirmation of the death sentence. That reference was heard together with the appellant’s own appeal against the death sentence. In addition, the High Court considered the appeal filed by the convicted persons, the appeal by the Government of Madhya Pradesh challenging the acquittal of the two persons who had been discharged by the trial judge, and a revision application filed by the State Government seeking an enhancement of Tukaram’s sentence. All of these matters were heard simultaneously and were disposed of by a single judgment delivered by a bench comprising Chief Justice Hidayatullah and Justice Mangalmurti. To gain a better understanding of the evidence presented by the parties, the High Court conducted a local inspection on 17 September 1956 and recorded its observations in a note that forms part of the court record. After a detailed and carefully reasoned analysis, the High Court, by its orders dated 13 October 1956, acquitted Tukaram, granting him the benefit of doubt principally because the dying declaration (Exhibit P-16) recorded by the magistrate described the accused as a “Teli,” whereas the charge-sheet identified Tukaram as a “Kolhi.” This doubt was reinforced by the existence of three or four individuals named Tukaram residing in the neighbourhood, some of whom belonged to the Teli community. The High Court meticulously examined the testimony of the eye-witnesses, Inayatullah (PW-1) and Sadashiv (PW-3), and concurred with the trial judge’s assessment that these witnesses were partisan and that their evidence could not be relied upon to sustain a conviction. Moreover, the court concluded that the suspect nature of their evidence rendered it unusable even as corroboration for the three dying declarations made by Baboolal. Nonetheless, the High Court upheld the conviction and death sentence of the appellant on the basis that the dying declarations were corroborated by the fact that the appellant had been absconding and evading the police.

The High Court observed that the circumstances surrounding the arrest of the accused were not sufficiently suspicious to constitute reliable corroboration against Tukaram, and that the alleged absconding did not reach the level of suspicion required for such corroboration. In view of this assessment, the High Court, albeit with evident reluctance, accorded the benefit of the doubt to Tukaram and allowed his appeal. The Court also concurred with the trial judge in acquitting the remaining two accused, Sampat and Mahadeob, on the basis that neither of them had been specifically named in the dying declarations and that the oral testimony presented was not of a nature that could justify a conviction. Consequently, the Government’s appeal and the application for revision were dismissed. Regarding the appellant, the reference made by the trial judge was upheld and his appeal was rejected, leaving only the appellant convicted of murder and sentenced to death under the orders of the High Court.

Subsequently, the appellant sought a certificate of fitness under article 134(1)(c) of the Constitution, and the High Court granted such a certificate. At the outset of the present appeal, it is necessary to reiterate the observations made by this Court in numerous earlier decisions concerning certificates of fitness issued by High Courts, particularly where the primary issue involves questions of fact. The High Court itself articulated the main ground for granting the certificate as follows: the evidence against the accused was insufficient and there had been an error in the trial judgment insofar as it held that there was no evidence linking Khushal’s alleged absconding to the dying declaration, nor that he was involved in a liquor case. During the arguments before this Court, neither party drew attention to the documentary material that formed part of the record, nor was any point made regarding why the absconding should not have been considered. It later emerged that defence exhibits indicated that Khushal was not present in his residence when he was sought in connection with a liquor case following a search conducted on 5 February 1956. In view of this error and the newly disclosed evidence, the sufficiency of the evidence warrants reconsideration, rendering the case suitable for a special certificate under article 134(1)(c) of the Constitution.

It is evident that the High Court’s certificate of fitness was granted on a factual issue—specifically, whether the evidence against the accused was adequate—not on a difficult question of law or procedure that would ordinarily require the intervention of this Court. The most recent reported decision addressing this aspect is Haripada Dey v. State of West Bengal, which holds that a High Court exceeds its authority if the certificate it issues is predicated principally on a question of fact, thereby rendering such a case unsuitable for further consideration by this Court, which ordinarily does not act as a criminal appellate body except in matters arising under article 134(1)(a) or (b) concerning factual disputes.

The Court stated that a High Court may issue a certificate of fitness under Article 134(1)(c) only when the certificate is founded on a question of law or procedure. The Court held that if the principal ground of the certificate relates to a factual issue, the High Court is not justified in referring the matter to the Supreme Court. The Supreme Court ordinarily does not decide pure questions of fact, except when a certificate has been issued under clauses (a) or (b) of Article 134(1). Consequently, the Supreme Court does not function as a regular criminal appellate tribunal. Under the Constitution, the Supreme Court possesses both the power and the duty to hear appeals as a regular appellate court when a certificate under Article 134(1)(a) or (b) raises factual matters. The Court referred to earlier decisions that endorse this view, specifically Narsingh v. State of Uttar Pradesh, Baladin v. State of Uttar Pradesh, and Sunder Singh v. State of Uttar Pradesh. The Court therefore emphasized that High Courts must exercise vigilance when entertaining applications for a certificate of fitness under Article 134(1)(c). After reviewing the present case, the Court concluded that the certificate issued by the High Court failed to satisfy the requirements of Article 134(1)(c) because it was based on a factual determination. Accordingly, the appeal filed on that certificate was dismissed at the threshold. Nevertheless, the Court examined whether any exceptional circumstances might justify granting special leave to appeal, had the appellant sought such relief.

The Court therefore inspected the complete record of the prosecution as it had been presented in the lower courts. The prosecution’s case, according to the judgments below, depended principally on three dying declarations made by Baboolal, who died shortly after identifying his assailants. These declarations were recorded within approximately two and a half hours of the incident, the first one being taken by a doctor within half an hour. In addition, the prosecution relied on the oral testimony of two eyewitnesses, identified as Inayatullah (PW-1) and Sadashiv (PW-3). The prosecution also presented statements from Trimbak (PW-2) and Ramgopal (PW-4), who claimed to have arrived at the scene just in time to observe the final stages of the occurrence. The trial Judge did not reject the oral evidence of these witnesses, but he insisted that corroboration was necessary for a conviction. By contrast, the High Court expressed a stronger view that the testimony of the four eyewitnesses could not be trusted. The High Court examined their evidence in great detail and declined to accept any portion of their testimony on the ground that they. The Court observed that the High Court's judgment reflected a determination that the oral evidence did not meet the standard required for conviction.

In the Court’s analysis, the trial judge had described certain witnesses as strongly partisan and doubted that they would have intervened to rescue the victim of the murderous assault if they had truly been present in the neighbourhood of the occurrence, as they claimed. The Court acknowledged that a different assessment of that body of oral evidence might have led to a different conclusion, but it elected to proceed on the assumption that the High Court’s evaluation of the oral testimony presented by the prosecution was correct. After reviewing all of that evidence, the High Court concluded that it could not rely on the oral statements allegedly made by the deceased Baboolal to witnesses numbered 2 and 19, in which those witnesses said that Baboolal had identified two of his assailants as the appellant and Tukaram. Instead, the High Court placed its reliance on the three dying declarations recorded at the hospital: the first by the attending doctor, the second by the Sub-Inspector of Police, and the third by a first-class magistrate, all taken between 9:25 p.m. and 11:35 p.m. Regarding the authenticity of the records of those three statements, the High Court expressed no doubt, and no doubt was raised by counsel for the appellant concerning their genuineness.

The High Court then examined whether a conviction could be sustained solely on the basis of those dying declarations. It observed that in that High Court as well as in other High Courts, convictions have been upheld on dying declarations alone when the court is satisfied that the declaration is true and therefore actionable. However, the Court noted that the decision in Ram Nath Madhoprasad v. State of Madhya Pradesh (1) was brought to its attention, and in view of that decision the High Court sought corroboration for the dying declarations. It found corroboration in the subsequent conduct of the appellant: as testified by prosecution witness 31, the Sub-Inspector in charge of Ganeshpetli Police Station, the appellant could not be traced until 16 February 1956, when police received information that he was hiding in the premises of Ganesh Dhobi at Hazari Pahar. Police went to the location, discovered the appellant seated in a room that had been locked from the front, and arrested him. The High Court rejected the defence’s suggestion that the appellant was hiding out of fear of police in connection with an excise case in which he was suspected. The records relating to that excise case were placed before the Court, and after examining them, the Court found no satisfactory reason to differ from the High Court’s appreciation of the circumstances surrounding the appellant’s absconding. Consequently, the High Court held that the appellant’s conduct of concealing himself and evading police for several days was consistent with the prosecution’s case that he was concerned with the crime charged against him.

In this case, the High Court concluded that it had obtained corroboration which, according to the earlier ruling of this Court, was required to support a conviction based on the dying declarations of Baboolal. The Court then examined whether the appellant’s alleged concealment from the police for several days after the incident could be treated as such corroboration. It recognised that this issue was not free from doubt or difficulty. The appellant had argued that he had kept away from the police because he was suspected in a separate excise case. The Court noted that this argument was not wholly without merit, but observed that the appellant had not left the city of Nagpur or escaped the jurisdiction of the local police. On that basis, the Court stated that it could not affirm that the appellant’s supposed absconding constituted sufficient corroboration when confirmation of the dying declarations was required. The Court further recorded that considerable argument had been addressed to it, contending that a prior decision of this Court set out a sound legal principle which the High Court ought to have applied, and that the appellant’s alleged flight and avoidance of police could not be used as corroboration of the dying declaration. The Court then referred to the decision in Ram Nath Madhoprasad v. State of Madhya Pradesh (1), specifically the passage at page 423, which had been heavily relied upon by the appellant. That passage stated: “It is settled law that it is not safe to convict an accused person merely on the evidence furnished by a dying declaration without further corroboration because such a statement is not made on oath and is not subject to cross-examination and because the maker of it might be mentally and physically in a state of confusion and might well be drawing upon his imagination while he was making the declaration.” The Court emphasised that, in this light, each dying declaration presented in the case must be carefully considered. Consequently, the Court explained that it had to examine whether settled law indeed prohibited a conviction on the basis of a dying declaration alone. The first step, according to the Court, was to review the earlier decision from the perspective of its reasoning. That earlier decision had involved a detailed scrutiny of the evidence to determine whether the dying declarations on which it relied were truthful. Besides the dying declarations, the earlier case also contained testimony from an approver. The Court had found that the approver’s evidence and other oral testimony had been rightly rejected by the High Court. Even in that earlier case, the Court’s principal reliance had been on the dying declarations, subject to the requirement of corroboration.

In the case that involved using dying declarations to support a conviction under section 302, the Court also considered the decision reported in A.I.R. 1953 S.C. 420 read with section 34 of the Indian Penal Code. The Court carefully examined the dying declarations themselves together with all other evidence relevant to the truth and reliability of those statements. After an extensive discussion of this material, the Court concluded that the dying declarations failed to provide a truthful account of the events that had occurred. The Court’s examination included a detailed review of the circumstances surrounding the recording of the dying declaration, the other evidence presented, and the fact that the incident took place on a dark night with no lighting at the location. On that basis, the Court determined unequivocally that the dying declaration was not truthful and could not, by itself, support the conviction of the appellants. The Court noted that the observations previously quoted were statements of obiter dicta; however, because those observations were asserted to be binding on Indian courts, the Court stated that they must be considered with the appropriate degree of care and caution. The Legislature, exercising its wisdom, enacted section 32(1) of the Evidence Act, which provides that when a statement is made by a person concerning the cause of his death or the circumstances of the transaction that caused his death, such a statement—whether written or verbal—is a relevant fact in cases where the cause of death is in dispute. This provision represents an intentional exception to the general rule that hearsay evidence is inadmissible and that evidence not subjected to cross-examination cannot be admitted. The purpose of cross-examination is to test the veracity of a witness’s statements; the Legislature explained that this test is inherently satisfied at the moment a dying person makes the statement, because the person is then in imminent danger of death and is not expected to fabricate falsehoods, and because cross-examination is unavailable. Accordingly, the requirement of an oath is also dispensed with in such circumstances. Consequently, a dying declaration concerning the cause of death is accorded a special sanctity by the Legislature and should, as a matter of principle, be respected unless the evidence clearly shows circumstances indicating that the declarant did not anticipate death. Such circumstances do not affect the admissibility of the statement but only its evidential weight, and they may be demonstrated by further evidence.

The Court observed that a dying declaration may be regarded as unreliable when it was not made at the earliest possible moment, creating a reasonable suspicion that the declaration could have been influenced as the declarant’s ability to resist falsehood waned. Unreliability may also arise when the statement was not properly recorded, for example, if it was obtained through prompting by interested parties, if it was elicited by leading questions from the officer taking the statement, or if the person presenting the statement altered its content. These situations constitute circumstances that can diminish the evidentiary value of a dying declaration. Nevertheless, the Court emphasized that there is no absolute rule of law, nor any established rule of prudence that has evolved into a rule of law, mandating that a dying declaration must be corroborated by independent evidence before it can be acted upon or form the basis of a conviction. The Court noted that, apart from a previously cited decision, no other authority has been identified that imposes such a requirement. The Court further pointed out that various High Courts in India, as well as the High Court of Burma, have expressed divergent opinions regarding the weight to be given to a dying declaration, whether in part or in whole, when independent corroboration is lacking. For instance, a Division Bench of the Bombay High Court, headed by Sir John Beaumont C.J., held in Emperor v. Akbarali Karimbhai (I) that a statement falling under section 32(1) of the Evidence Act is admissible evidence and must be evaluated by the same principles applied to other evidence, while acknowledging that because the declaration is made without oath and without the benefit of cross-examination, it is a weaker form of evidence than testimony given under oath. Consequently, the Bombay Bench ruled that if any portion of a dying declaration is deliberately false, it would be unsafe to rely on the remaining portions unless there is very definite corroboration. At the same time, the Bench cautioned against the assumption that a false portion automatically invalidates the entire declaration. In reaching this conclusion, the Bombay High Court rejected the view expressed by the Calcutta High Court in Emperor v. Premananda Dutt (1), which had suggested that a dying declaration could not be partially accepted while rejecting other parts, and that a dying declaration occupied a distinctly different position from ordinary witness testimony. The Court also referred to the decision of the Rangoon High Court in the case of King v. Maung Po Thi (2), noting that the judgment in that case illustrated a contrasting approach.

The Court observed that the prosecution’s case had been tampered with and was therefore unreliable. Consequently, the order of acquittal that had been passed by the trial judge was set aside and a conviction for murder was recorded, relying almost entirely on the dying declaration of the victim. The Court rejected the trial judge’s reliance on a rule of prudence that had been cited in support of the accused, namely the proposition that an accusation made by a dying person could not, without corroboration from an independent source, serve as the sole basis for a conviction. The learned judges of the High Court further held that, when a judgment of conviction is to be founded solely upon a dying declaration, the Court must be fully satisfied that the declaration bears the imprint of truth. To reach that satisfaction, the Court must examine all the circumstances surrounding the making of the statement, including the fact that it was made ex-parte, that the dying person was not placed under cross-examination, and that the accused had no opportunity to challenge the statement. If, after such an exhaustive examination, the Court is convinced that the dying declaration represents the true version of the events, then conviction can be based solely upon that declaration.

In the High Court of Madras there had arisen a difference of judicial opinion in certain unreported cases, which led to a reference before a Full Bench. Sir Lionel Leach, Chief Justice, presided over that Full Bench in the matter reported as In re, Guruswami Tevar, and delivered the unanimous opinion of the Court after a careful review of the decisions of that High Court as well as of other High Courts in India. He articulated that no rigid and inflexible rule could be laid down regarding the circumstances in which a dying declaration should be accepted. He emphasized that each case must be decided in the light of the other facts and the surrounding circumstances. Nevertheless, he stated that if, after considering all the relevant material, the Court is convinced that the statement is true, it has a duty to convict even though there is no corroboration in the strict sense. The Court must, however, be fully convinced of the truth of the statement, and such conviction could not be sustained if any other evidence or any aspect of the surrounding circumstances raised a suspicion as to the credibility of the declaration.

The Court noted that similar conclusions had been reached by the Patna High Court in Mohamad Arif v. Emperor and by the Nagpur High Court in Gulabrao Krishnajee Maratha v. King Emperor. The Judicial Committee of the Privy Council was also called upon to consider, in the case of Chandrasekera alias Alisandiri v. The King, whether the mere signs made by a victim of a murderous attack that had resulted in a throat-cutting and rendered her unable to speak could be brought within the meaning of section 32 of the Ceylon Evidence Ordinance, which is analogous to section 32(1) of the Indian Evidence Act.

The Judicial Committee of the Privy Council affirmed the decision of the Supreme Court of Ceylon and, in the course of its judgment, made observations indicating that a dying declaration, when found reliable by a jury, may by itself sustain a conviction. The Committee referred to several authorities, namely I.L.R. [1940] Mad. 158,170; A.I.R. 1941 Patna 409; I.L.R. [1945] Nag. 613 and A.I.R. 1945 Nag. 153; and the case reported at [1937] A.C. 220, 229. It was noted that, apart from the evidence proceeding from the deceased woman, the remaining evidence was not sufficient to justify a conviction. Nevertheless, that other evidence was not merely consistent with the deceased’s statement but pointed in the same direction. The Committee explained that this was a case in which, if the deceased’s statement was received and believed, as the jury evidently did, to be clear and unmistakable in its effect, then a conviction was abundantly justified and, indeed, inevitable. In the ninth edition of “Phipson on Evidence”, page 335, the author discussed whether a dying declaration without corroborating evidence could be sufficient for a conviction and observed that the deceased had signed a statement implicating the prisoner, which was not elicited by question and answer, and died on March 20. The statement was objected to on the ground that, being begun in that form, it was inadmissible; the author held that (1) the questions and answers regarding the deceased’s state of mind were not part of the dying declaration; (2) even if they were, they affected only the weight, not the admissibility, of the declaration; and (3) the declaration was sufficient, without other evidence, for conviction, citing R. v. Fitzpatrick (1910) 46 Ir. L.T.R. 173, C.C.R. The judgment also observed that attempts have sometimes been made to equate a dying declaration with the evidence of an accomplice or with a confession that may be retracted, but it is not correct in principle to treat them alike. Although section 133 of the Evidence Act does not prohibit conviction on uncorroborated accomplice testimony, illustration (b) to section 114 of the Act, based on experience, establishes a rule of prudence that an accomplice’s evidence is unworthy of credit unless corroborated in material particulars, a rule now accepted as law. The same cannot be said of a dying declaration because, unlike a confession or approver’s testimony, it does not arise from a tainted source. While a dying declaration made by a person of doubtful antecedents may invite suspicion, generally the maker of a dying declaration cannot be discredited in the same manner as the maker of a confession or approver. The Court reviewed the relevant provisions of the Evidence Act in this context.

After reviewing the relevant provisions of the Evidence Act and the rulings of various High Courts, including the Full Bench of the Madras High Court, the Court reached several conclusions concerning the evidentiary value of dying declarations. First, the Court held that it could not be declared as an absolute rule of law that a dying declaration must always be supported by additional evidence in order to sustain a conviction; the possibility of a conviction based solely on such a declaration remained open. Second, the Court emphasized that each matter had to be assessed on its own factual matrix, taking into account the specific circumstances under which the dying declaration was given. Third, the Court rejected the notion that a dying declaration was categorically a weaker form of evidence compared with other types of proof. Fourth, the Court maintained that a dying declaration occupied the same evidentiary tier as any other piece of evidence and, therefore, had to be evaluated in light of the surrounding facts and according to the general principles governing the weighing of evidence. Fifth, the Court observed that a dying declaration that had been formally recorded by a competent magistrate, using a proper question-and-answer format and, as far as possible, the exact words of the declarant, possessed a substantially higher evidentiary stature than a declaration that relied merely on oral testimony susceptible to the usual frailties of human memory and character. Sixth, the Court set out a series of factors that must be examined to determine the reliability of a dying declaration. These factors included the declarant’s opportunity to observe the incident, such as whether adequate lighting was present if the alleged offence occurred at night; whether the declarant’s mental capacity to recall facts had been compromised by any external circumstances; the consistency of the statement when the declarant had multiple chances to recount the events; the promptness with which the declaration was made, ensuring that it was not the product of coaching or influence by interested parties; and the overall coherence of the account. Because a dying declaration is made in the absence of the accused, the accused cannot subject the statement to cross-examination, which mandates that the court subject the declaration to meticulous scrutiny. Consequently, the Court concluded that if, after such thorough examination, the declaration could be regarded as a truthful account of the death and the identity of the assailants, no further corroboration was required. Conversely, if the Court, after testing the veracity of the declaration, found it to be unreliable or suffering from any infirmity, then the declaration alone could not constitute the basis for a conviction. Accordingly, the need for corroboration arose not from any inherent weakness of a dying declaration as a category of evidence, but from the particular court’s assessment that the declaration in a given case was not free from the infirmities identified above.

In this case the Court first observed that a dying declaration is not excluded merely because some reported decisions treat it as unreliable; rather, it is excluded only when the trial court has concluded that the particular declaration is affected by the infirmities described earlier or by other infirmities disclosed by the evidence in that case. After making those general observations concerning the propriety of basing a conviction solely on a dying declaration and recalling the reliability tests set out above, the Court turned to the specific declarations before it. The Court noted that the deceased made three successive dying declarations within a period of about two hours, and that in each of those statements the deceased consistently identified the appellant and a person named Tukaram as the individuals who had assaulted him with a sword and a spear. The physical injuries recorded on the body, namely punctured wounds and incised wounds on various parts, were entirely consistent with the deceased’s description of being attacked by several persons wielding cutting and piercing weapons, and no part of any of the three declarations had been shown to be false. Regarding the two persons named, the trial judge had convicted Tukaram, but the High Court later acquitted him, invoking a doubt created by the similarity of names in the locality; the Court emphasized that no comparable confusion existed in relation to the appellant’s identity. The deceased also mentioned two additional participants in the assault but could not name them; those two accused had been acquitted by the lower courts, yet they had not been identified in the dying declarations, and therefore their acquittal did not undermine the truth of the statements. The lower courts had further held that the deceased, Baboolal, was in a position to see his attackers and to identify them because an electric lamp illuminated the scene, and they found no evidence of any coaching. The Court affirmed that Baboolal remained consistent in naming the appellant as one of his assailants, having done so within half an hour of the occurrence and shortly after reaching Mayo Hospital, so that there was no opportunity for anyone to tutor him to give a false account. Despite the multiple injuries, the Court found that Baboolal was of sound mind at the material times to recall the names of his assailants. Consequently, the Court found no reason to doubt the truth or reliability of the dying declarations, and concluded that, both legally and practically, the declarations of Baboolal were sufficient to sustain the appellant’s conviction for murder. The only remaining question was whether any other issue required consideration.

In determining whether any mitigating circumstance existed that might justify the imposition of the lower of the two sentences authorized by statute, the Court examined the record and found no such circumstance in the accused’s favour. The Court concluded that none of the factors that could lessen the severity of the punishment were present. It observed that the killing had been carried out with deliberate intent and without any provocation, describing the act as a cold-blooded murder. Accordingly, relying on the reasons previously set out in the judgment, the Court affirmed the decision of the High Court that convicted the appellant of murder and sentenced him to death. Having found no basis to alter that judgment, the Court dismissed the appeal. The appeal was therefore rejected and the death sentence remained in force.