Landmark Judgement
Kushal Rao vs. State of Bombay, 1957
Dying Declaration
Supreme Court·25 September 1957
Judgement Details
Court
Supreme Court
Date of Decision
25 September 1957
Judges
Bhuvneshwar P. Sinha ⦁ P. Govinda Menon ⦁ J.L. Kapur
Citation
1958 AIR 22
Acts / Provisions
Section 13(1)(ia), Hindu Marriage Act, 1955
Section 25, Hindu Marriage Act, 1955
Facts of the Case
- This appeal is being made in The Honourable Supreme Court of India against the concurrent judgement of the Nagpur High Court under Article 134(1)(c) of the Constitution. The courts below have given an order to convict the appellant Khushal Rao and sentencing him to death under Section 302 of The Indian Penal Code for murdering Baboolal.
- This case is of the two rival factions in the mill area of Nagpur. The High Court acquitted the appealant and Tukaram who were the leaders of one of the factions. And Ramgopal(PW4) and Tantu(PW5) were said to be the leaders of the other faction. There had been a number of incidents between the two rival factions before this occurrence.
- The prosecution alleged that Khushal was having bad terms with Baboolal who was having friendly terms with the leaders of the opposite faction. Tukaram, Khushal, Sampat and Mahadeo suddenly attacked Baboolal with Swords and Spears and inflicted injuries on the various parts of his body by being enraged by the conduct of Baboolal in associating with the party of the accused. This incident took place at about 9:00 p.m. Then at about 9:25 p.m. Baboolal was taken to the Mayo Hospital by his father and other persons.
- On reaching the Hospital, Dr Kanikdale(PW14) was the attending doctor, who questioned Baboolal about the happening of the incident, on which he made a statement that he had been assaulted by Khushal and Tukaram with swords and spears, which the doctor noted in the bed-head ticket. After that, the doctor informed the Ganeshpeth Police Station by telephone where the information was noted at 9:45 p.m. Inspector A.K.Khan registered and recorded an offence under Section 307 of The Indian Penal Code after receiving this information he immediately went to the Mayo Hospital along with several constables and a head constable.
- He was suspecting that Baboolal might not survive by seeing his critical condition and apprehending that he thought it might take time for the Magistrate to arrive on the spot, to record the Dying Declaration, so he consulted Dr. Ingle about the fit condition of Baboolal so that he can make a statement. Doctor advised him to have the dying declaration recorded by the Magistrate but the Sub Inspector decided that the dying declaration should be recorded by him without any delay. Hence he recorded the statement of Baboolal in answer to the questions put by him at 10:15 p.m.
- Meanwhile, a Magistrate, First Class was called in and he recorded the dying declaration between 11:15 and 11:35 p.m. in the presence of Dr. Ingle who certified the mentally fit condition of Baboolal to make his dying declaration. Baboolal has said to made oral declaration to a number of persons apart from these three successive dying declarations made to responsible public servants. But these oral dying declaration is set aside because High Court has not acted upon such oral declarations.
- Baboolal died in the next morning at about 10 a.m. in the hospital.
Issues
- Whether the accused could be convicted only on the basis of those Dying Declarations or the declarations needed corroboration?
- Whether it is settled law that a Dying Declaration by itself, can, in no circumstances, be the basis of a conviction?
Held
The Supreme Court held:
- That a Dying Declaration cannot form the sole basis of conviction unless it is corroborated, cannot be laid down as an absolute rule of law that. Keeping in view the circumstances in which the Dying Declaration was made, each case must be determined on its own facts.
- A Dying Declaration is a weaker kind of evidence than other pieces of evidence, cannot be laid down as a general proposition.
- That a Dying Declaration must be judged in the light of surrounding circumstances and stand on the same footing as another piece of evidence and with reference to the principles governing weighing of evidence.
- That a Dying Declaration which has been recorded in the words of the maker of the declarant and by a competent Judicial Magistrate in the proper manner in the form of questions and answers as far as practicable, may suffer from all infirmities of human memory and human character.
- The court has to keep in view the circumstances like the opportunity of the Dying man for observation that in order to test the reliability of a Dying Declaration, for example, there was sufficient light if the crime was committed at night, that the statement has been consistent throughout and that the statement had been at the earliest opportunity, and it was not tutored by interested parties.
Analysis
- The Court Concluded in this case this case that set the importance of dying declaration and what is the right process to record it. In this case, if the dying declaration is recorded in question-answer form, if the medical certificate is given by the doctor, if it is recorded by the authorized person, then it is admissible and reliable.
- If there are multiple dying declarations, then court looks into all these points to see which dying declaration holds more evidentiary value.