Khushal Rao v. State of Bombay
Supreme Court of India · 25 September 1957 · 3 judges · 1958 AIR 22; 1958 SCR 552
The Court held that no absolute rule of law or prudence requires a dying declaration to be corroborated before it can found a conviction, and upheld the appellant's murder conviction and death sentence on three consistent dying declarations.
Facts
The deceased was attacked with swords and spears in a narrow lane in Nagpur, amid enmity between two rival factions, and died the next morning. Within about two and a half hours he made three recorded dying declarations, to the attending doctor, to a Sub-Inspector and to a first class Magistrate, each naming the appellant and a co-accused as his assailants. The trial court convicted both and sentenced the appellant to death. The High Court found the eye-witnesses partisan and unreliable, acquitted the co-accused because of doubt over his identity, but upheld the appellant's conviction, finding corroboration of the dying declarations in his absconding. Relying on Ram Nath Madhoprasad v. State of Madhya Pradesh, it treated corroboration as necessary. It then granted a certificate of fitness under Article 134(1)(c).
Questions before the Court
- Whether a High Court may grant a certificate of fitness under Article 134(1)(c) on a ground that is essentially one of fact.
- Whether a dying declaration must be corroborated by independent evidence before a conviction can be based on it.
- Whether the dying declarations in this case were reliable enough to sustain the conviction.
What the Court held
- Following Haripada Dey v. State of West Bengal, a certificate under Article 134(1)(c) granted on a question essentially of fact does not satisfy that Article. The Court therefore examined the record only to see whether special leave would have been justified.
- The statement in Ram Nath Madhoprasad that it is not safe to convict on an uncorroborated dying declaration was obiter, since in that case the Court found the declaration untrue. There is no absolute rule of law, nor a rule of prudence ripened into one, that a dying declaration must be corroborated.
- A dying declaration is not a weaker kind of evidence. It stands on the same footing as other evidence, judged in the light of surrounding circumstances, and each case depends on its own facts. One recorded by a competent Magistrate in question and answer form, in the maker's words, stands higher than one resting on oral testimony.
- The court must test reliability by close scrutiny: the maker's opportunity for observation, his capacity to remember, consistency, and whether it was made at the earliest opportunity and free of tutoring. Once the court finds it true, no corroboration is needed; corroboration is needed only where the particular declaration suffers from an infirmity.
- The deceased named the appellant consistently, within half an hour of the attack, with no opportunity for tutoring and with light to see his assailants. The declarations were sufficient to sustain the conviction. With no extenuating circumstances, the death sentence was upheld and the appeal dismissed.
Why it matters
The judgment sets out the principles on the evidentiary value of a dying declaration under Section 32(1) of the Evidence Act, agreeing with the Madras Full Bench in In re Guruswami Tevar. It holds that a dying declaration, if found true after close scrutiny, can alone support a conviction, treats contrary observations in Ram Nath Madhoprasad as obiter, and lists the circumstances a court should weigh in testing reliability. It also confirms that Article 134(1)(c) certificates cannot be granted on questions of fact.
In the Court's words
Copied from the official judgment; each passage links to its page.
“But in our opinion, there is no absolute rule of law, or even a rule of prudence which has ripened into a rule of law, that a dying declaration unless corroborated by other independent evidence, is Dot fit to be acted upon, and made the basis of a conviction.”
“(1) that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; (2) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made ; (3) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence;”
“But once the court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the, death and the assailants of the victim, there is no question of further corroboration. If, on the other hand, the court, after examining the dying declaration in all its aspects, and testing its veracity has come to the conclusion that it is not reliable by itself, and that it suffers from an infirmity, then, without corroboration it cannot form the basis of a conviction.”
“Thus, a statement made by a dying person as to the cause of death has been accorded by the Legislature a special sanctity which should, on first principles, be respected unless there are clear circumstances brought out in the evidence to show that the person making the statement was not in expectation of death, not that that circumstance would affect the admissibility of the statement, but only its weight.”
Provisions interpreted
- Section 32(1), Indian Evidence Act, 1872Now: BSA 26 (NCRB correspondence table)
- Article 134(1)(c), Constitution
- Section 302, Indian Penal CodeNow: BNS 103 (NCRB correspondence table)
Case and bench
- Parties
- Kushal Rao v. The State of Bombay
- Case
- Criminal Appeal No. 184 of 1956
- Decided
- 25 September 1957
- Bench
- Bhuvneshwar P. Sinha, P. Govinda Menon, J.L. Kapur
- Opinions
- Unanimous. Judgment of the Court delivered by B.P. Sinha, J.
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