Sasikumar @ Sasi vs Stateof Kerala on 2 August, 2008

[Cites 30, Cited by 10]

Kerala High Court

Sasikumar @ Sasi vs Stateof Kerala on 2 August, 2008

The appellant was convicted in S.C.No.769 of 2003 on the file of the Additional District and Sessions Judge (Fast Track Court - I), Thiruvananthapuram, for the offence under Section 302 of the Indian Penal Code and he was sentenced to undergo imprisonment for life and to pay a fine of `10,000/- and in default, to undergo simple imprisonment for a period of one year. The appellant challenges the conviction and sentence.

2. Rajani, (the deceased) was the wife of the appellant/ accused. The marriage of the appellant and the deceased took place about twelve years before the incident. Two children were born in that wedlock. The prosecution case is that the accused suspected the fidelity of his wife Rajani and he used to torture her. Crl. A. NO. 2618 OF 2008 B :: 2 ::

On 24.5.2002, during night, the accused manhandled and tortured Rajani. On the next day, at about 1.15 PM, while the deceased was lying down in the house, the accused poured kerosene on her body and set ablaze her. She sustained 95% burn injuries. Rajani was taken to the Medical College Hospital, Thiruvananthapuram by her relatives (PW1, PW3 and PW5). Rajani succumbed to the burn injuries by about 3.15 AM on 26.5.2002. On getting information about the admission of Rajani in the hospital, the Sub Inspector of Police, Vithura (PW14) went to the hospital. PW9, the Assistant Professor, Surgery, who was on duty informed PW14 that the condition of Rajani was serious. PW14 recorded Ext.P1 dying declaration of Rajani at 2.30 AM on 26.5.2002 in the presence of PW9, PW1 (Ratheesh - brother of Rajani) and PW3 (Krishnamma - the maternal aunt of Rajani). On the basis of Ext.P1, PW14 registered Ext.P9 First Information Report against the appellant/ accused under Section 307 of the Indian Penal Code. At about 3.15 AM on 26.5.2002, Rajani died at the hospital.

3. On 27.5.2002, the accused was arrested. He had sustained Crl. A. NO. 2618 OF 2008 B :: 3 ::

burn injury on his right hand. Therefore, he was produced before the Community Health Centre, Vithura and he was treated there.

4. PW15, Circle Inspector of Police, took over the investigation. Ext.P2 inquest report and Ext.P3 scene mahazar were prepared and MO1 to MO7 were seized. He submitted Ext.P13 report to include Section 302 of the Indian Penal Code instead of Section 307 IPC as the offence revealed in the case.

5. On the side of the prosecution, PW1 to PW16 were examined, Exts.P1 to P14 were marked and MO1 to MO7 were identified. On the side of the defence, Exts.D1 to D3 were marked.

6. In Ext.P5 postmortem certificate, the following ante-mortem injuries were noted:

"1. Dermoepidermal burns involving the whole body except hairy region of scalp and soles.

2. Contusion 0.5x0.2x0.1 cm on the inner aspect of right side of lower lip 2.5 cm inner to the right angle of mouth.

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3. Contusion 1x1x0.2 cm on the inner aspect of right side of upper lip 1 cm inner to the right angle of mouth."

In the postmortem certificate, the opinion as to cause of death is shown thus:

"Death was due to dermoepidermal burns involving 95% of body surface."

7. The evidence in the case reveals that around three months before the date of occurrence, the accused and Rajani had shifted to the place in Tholicode Village where PW1 to PW5 are residing. It is also alleged by the prosecution that the accused suspected that the deceased had illicit relationship with one Thambi and that was why the residence was shifted to Tholicode Village. The case put forward by the accused in defence was that Rajani committed suicide by pouring kerosene and by self immolation. The accused and the deceased were residing in a thatched shed with only a single room. Ext.P3 scene mahazar shows that pieces of charred cloth and mat with pieces of flesh were found in the room. A can containing kerosene was also found in the room.

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8. PW1 is the brother of the deceased. He is residing very close to the house of the deceased. He heard the cry of Rajani that she was being killed. PW1 rushed to the spot. The accused took a stone in his hand and asked PW1 not to enter into the place. PW1 stated that at that time, PW5 Surendran also came to the place. The deceased was running around the house crying for help. Other persons also came to the scene of occurrence. The accused went inside the house. Somebody provided a cloth for the deceased. A car was brought and she was taken to the hospital. PW1 also stated about Ext.P1 dying declaration given by the deceased.

9. PW2 Rejitha is the sister of the deceased. Her residence is very close to the residence of the deceased. PW2 also stated that the accused prevented others from entering into the compound and later he went inside the house. In cross examination, PW2 stated that instead of rescuing the deceased, the accused was preventing her from escaping.

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10. PW3 Krishnamma, the maternal aunt of the deceased, stated that when she came to the scene of occurrence the deceased were being taken to the hospital. PW3 also joined PW1 and PW5. She stated that the accused did not accompany the deceased to the hospital. She stated that Rajani told her while at the hospital that the accused poured kerosene on her body and set fire. Rajani also disclosed to PW3 about the cruelty meted out to her by the accused on the previous night. PW3 also stated about the deceased having furnished Ext.P1 dying declaration.

11. PW4 Maniyan, a neighbour, stated that when he went near the door of his house, he saw Rajani engulfed in fire and she had no dress on her body.

12. PW5, the son-in-law of PW3 and a neighbour, stated that on hearing the cry of Rajani he went to the place and at that time, the accused was trying to forcibly take Rajani into the house. He also stated that the accused tried to prevent him and PW1 from entering into the compound. PW5 shouted and asked the accused Crl. A. NO. 2618 OF 2008 B :: 7 ::

to leave Rajani and when people assembled there, the accused went inside the house. PW5 stated that on the previous night, there was a quarrel between the accused and Rajani but he did not interfere fearing abuse by the accused. While going to the hospital, Rajani disclosed to PW5 that when she was lying down, the accused poured kerosene and set ablaze her. This part of the evidence of PW5 was not challenged in cross examination.

13. PW14, Sub Inspector of Police, stated that the duty doctor in the Medical College Hospital stated that the condition of Rajani was serious but she could speak. Accordingly, PW14 recorded Ext.P1 dying declaration of Rajani in the presence of the doctor and witnesses. The thumb impression of Rajani was taken in Ext.P1. The doctor is also a witness to Ext.P1. In Ext.P9 FIR, it was recorded that since the presence of the Magistrate could not be procured without delay, the Sub Inspector of Police recorded the dying declaration of Rajani. In Ext.P1 dying declaration, Rajani stated clearly about the incident and the details of the incident. She also stated that the accused suspected that Rajani had illicit Crl. A. NO. 2618 OF 2008 B :: 8 ::

relationship with Thambi, the cousin brother of Rajani, and on account of that suspicion, the accused did the crime. Rajani also stated in Ext.P1 that on the previous night the accused tortured her making allegation about the alleged illicit relationship between Rajani and Thambi. The accused was under the influence of alcohol. Rajani stated in Ext.P1 dying declaration that about six months back, the accused had poured kerosene on her body in an attempt to kill her but she did not inform the police thinking about the future of her children.

14. The court below held that the evidence of PWs.1, 2, 3 and 5 is trustworthy and that they are natural witnesses. Their evidence was relied on by the court below to arrive at the conclusion that the accused set ablaze the deceased after pouring kerosene on her body.

15. The accused raised a contention before the court below that Ext.P1 dying declaration is not admissible in evidence as the Doctor (PW9) had not recorded the state of mind of the declarant. Crl. A. NO. 2618 OF 2008 B :: 9 ::

This contention was accepted by the court below and Ext.P1 was not relied on as a dying declaration. However, the court below relied on the statements made by the victim to PW3 and PW5 as to how she sustained burn injuries, as those declarations were made immediately after the occurrence. The court below treated those declarations as "oral dying declaration or res gestae under Section 6 of the Evidence Act".

16. The court below criticized the casual manner in which PW8 Doctor examined the victim at the Medical College Hospital and issued Ext.P4 wound certificate. In Ext.P4 wound certificate, the history and alleged cause of injury was recorded as "alleged suicidal burning at 1.15 PM on 25.5.2002 at her own house". The word "suicidal" was struck out and it was corrected as homicidal. The correction was initialed by the Doctor. PW8 stated in evidence that the patient was drowsy while she was taken to the hospital and she had sustained 80% burns. He could not say in evidence as to why he used the word "suicidal". At the same time, PW8 stated in clear terms that the correction was made immediately Crl. A. NO. 2618 OF 2008 B :: 10 ::

under his signature. In Ext.P4, the time of examination of the victim was not noted.

17. Sri.C.Rajendran, learned counsel appearing for the appellant, submitted the following: In Ext.P4 wound certificate, the time of examination by the Doctor was not mentioned. The evidence of PW3 would disclose that the Sub Inspector of Police was available in the hospital by about 9 PM, while PW14, the Sub Inspector of Police, stated that he reached at the hospital by about 2.30 AM on 26.5.2002. It is contended that PWs.1, 2, 3 and 5 are inimical towards the accused. Ext.P1 dying declaration was recorded a few minutes before the death of Rajani. It is not proved that she was mentally fit to make such a statement. The dying declaration should have been taken by a Judicial Magistrate. The dying declaration made to the Sub Inspector of Police is not admissible in evidence. Learned counsel submitted that the theory that a person facing death will not tell lie since he would not meet his Maker and face the judgment with a lie in his mouth, will not apply to Hindus as there is no belief among Hindus that after death Crl. A. NO. 2618 OF 2008 B :: 11 ::

he will meet his Maker and he will have to account for his deeds and face the judgment.

18. As stated above and as noticed by the court below, in Ext.P4 wound certificate the time of examination by the doctor is not mentioned by PW8. However, the victim was examined by PW9, Assistant Professor, Surgery, and he was present at the time when the victim made Ext.P1 dying declaration to PW14. The consistent version of the witnesses is that the victim was taken to the hospital immediately after the incident. The accused remained at his house.

He did not even show the courtesy to go to the hospital and to attend to his wife. The evidence of PWs.1, 2, 3 and 5 that the victim was taken to the hospital immediately after the incident was not challenged in cross examination by the accused. Therefore, non- recording of the time of examination of the victim by PW8 does not assume much importance. We concur with the view taken by the court below that PW8 Doctor did not handle the situation with maturity and that he made a casual approach. PW8 did not take care to fill up the columns in the accident-cum-wound certificate. Crl. A. NO. 2618 OF 2008 B :: 12 ::

The importance of the wound certificate in medico-legal cases was emphasized by one of us (KTS(J)) in Raju v. State of Kerala and another (2009 (3) KLT 718) wherein it was held thus:

"8. In medico legal cases, the wound certificates are highly relevant. The wound certificate has to be duly proved in accordance with law. The Courts would rely on the wound certificates for the purpose of disposal of the cases. To comprehend the nature and magnitude of the offence, it is necessary to understand the nature of the injuries sustained by the victims. If the wound certificates are illegible and if they do not contain the relevant details, the Courts would not be in a position to properly appreciate the evidence and effectively dispose of the cases. Even in the matter of considering regular bail applications and applications for anticipatory bail, reliance is often placed on the accident register-cum-wound certificate. It is noticed that in many of the cases which came up for consideration during the last two months, the wound certificates were incomplete, illegible and were not properly prepared. In many of the certificates, abbreviations, marks and signs were seen used, which are normally known only to medical practitioners. The Medical Officers and the persons who are responsible for issuing the wound certificates do not seem to take proper care to fill up all the relevant columns and to incorporate all the relevant details therein. This would cause great difficulty for the Crl. A. NO. 2618 OF 2008 B :: 13 ::

Courts while considering and disposing of the matters pending before them. The accused persons are entitled to get a copy of the accident register-cum-wound certificate along with the copy of the papers to be given to them. They also must be in a position to understand the contents of the wound certificates. Otherwise, it could be contended that there was no proper communication of the contents of the wound certificates."

19. We are of the view that the statement of PW3 Krishnamma that the police came to the hospital by 9 PM need not be a ground to disbelieve Ext.P1 dying declaration which was recorded at 2.30 AM on the next day. PW3 is aged 56 and she is a coolie. The evidence of PW3 when read as a whole would clearly indicate that at the time of recording Ext.P1, the Police Officer, the Doctor (PW9), PW1 and PW3 were present and they put their signature in Ext.P1. There is also no case for the accused that the thump impression in Ext.P1 is not that of the victim or that it was taken after the death of the victim.

20. The contention that PWs.1, 2, 3 and 5 were inimical Crl. A. NO. 2618 OF 2008 B :: 14 ::

towards the accused and that was why they deposed against the accused cannot be accepted at all since no suggestion was made to any of those witnesses that such an enmity existed at any point of time.

21. The contention put forward by the learned counsel for the appellant that Rajani (the victim) was not able to speak at 2.30 AM and that she had no mental state of mind to make such a statement is devoid of merit. PW9 stated in evidence in clear terms thus:

"Throughout I was listening the dying declaration supplied by the victim. The victim affixed thumb impression in my presence. The victim was conscious and oriented."

In cross examination, PW9 stated that ordinarily matters relating to the fitness of the victim would be stated in the case sheets. He reiterated that the statement given by the victim was a voluntary one. There is no reason to disbelieve the evidence given by PW9. Crl. A. NO. 2618 OF 2008 B :: 15 ::

22. Now we shall deal with the contention raised by the learned counsel for the appellant that Ext.P1 dying declaration is not admissible in evidence as it was not recorded in the presence of or by a Judicial Magistrate. In Vikas and others v. State of Maharashtra ((2008) 2 SCC 516 : AIR 2008 SC (Supp) 1356), the Supreme Court held, relying on the decision in Khushal Rao v. State of Bombay (AIR 1958 SC 22 : 1958 SCR 552), that where a dying declaration is recorded by a competent Magistrate, it would stand on a "much higher footing". A competent Magistrate has no axe to grind against the person named at the dying declaration of the victim and in the absence of circumstances showing anything to the contrary, he should not be disbelieved by the Court. In Ravi Chander and others v. State of Punjab ((1998) 9 SCC 303), the dying declaration recorded by an Executive Magistrate, which was sent to the investigating officer after a fortnight was accepted on the ground that in the absence of any circumstance or material on record to suspect that the Executive Magistrate had any animus against the person or in any way interested in fabricating the dying declaration, it ought to be accepted. In Koli Chunilal Savji and another v. State Crl. A. NO. 2618 OF 2008 B :: 16 ::

of Gujarat ((1999) 9 SCC 562), the Supreme Court held that the requirement of the Doctor's endorsement as to the mental fitness of the deceased in the dying declaration was only a rule of prudence and the ultimate test was whether the dying declaration was truthful and voluntary. The decision in Koli Chunilal Savji and another v. State of Gujarat ((1999) 9 SCC 562) was quoted with approval in Vikas and others v. State of Maharashtra ((2008) 2 SCC 516).

23. In Kanaksingh Raisingh Rav v. State of Gujarat (JT 2002 (9) SC 629), the wife of the accused stated in her dying declaration that her husband poured kerosene and set fire on her. The dying declaration was made to the doctor and the doctor recorded the same at the request of the police. No thumb impression or signature of the deceased was taken since the same could not be done because of the excessive burns on her body. The contention put forward on behalf of the accused that the dying declaration recorded by the doctor cannot be relied on, was negatived by the Supreme Court.

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24. Bapu v. State of Maharashtra (2007 CRI.L.J.310) was a case of bride burning. Dying declarations were made before the Executive Magistrate, before the police and to the relatives. The victim had sustained 88% burns. The doctor stated that the victim was speaking in an audible voice and she was in a position to speak. After referring to the various decisions of the Supreme Court including the decision in Paniben v. State of Gujarat ((1992) 2 SCC

474), the Supreme Court held that there was no reason to doubt the veracity of the dying declaration especially since there was consistency between all of them.

25. In Paniben v. State of Gujarat ((1992) 2 SCC 474), the Supreme Court summed up the various principles. It was held that there is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. If the Court is satisfied that the dying declaration is true and voluntary, it can base conviction on it without corroboration. Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. Merely Crl. A. NO. 2618 OF 2008 B :: 18 ::

because a dying declaration does not contain the details as to the occurrence or it is a brief statement, it should not be rejected.

26. In State of Karnataka v. Shariff (AIR 2003 SC 1074), the victim made a dying declaration that her husband poured kerosene on her and set her on fire. The statement was made to the doctor and to the Sub Inspectors of Police. The Supreme Court held that the three dying declarations were wholly trustworthy. The High Court had rejected the dying declarations on the ground that the dying declarations were not recorded by a Magistrate. In that context, the Supreme Court held thus:

"21. It is true that PW 11 and PW 14 were Police personnel and a Magistrate could have been called to the hospital to record the dying declaration of Muneera Begum, however, there is no requirement of law that a dying declaration must necessarily be made to a Magistrate. In Bhagirath v. State of Haryana, AIR 1997 SC 234 on receiving message from the hospital that a person with gun shot injuries had been admitted a head constable rushed to the place after making entry in the police register and after obtaining certificate from the Crl. A. NO. 2618 OF 2008 B :: 19 ::

doctor about the condition of the injured took his statement for the purposes of registering the case. It was held that the statement recorded by the head constable was admissible as dying declaration. Similar view was taken in Munnu Raja and Anr. v. State of Madhaya Pradesh, 1976 (2) SCR 764, wherein the statement made by the deceased to the investigating officer at the police station by way of First Information Report, which was recorded in writing, was held to be admissible in evidence."

27. In Charipalli Shankararao v. Public Prosecutor, High Court of Andhra Pradesh,Hyderabad (AIR 1995 SC 777), the victim had sustained 90% burn injuries. The doctor sent intimation to the local Judicial Magistrate to record the dying declaration of the victim, but the Magistrate was not available. A Police Head Constable recorded the dying declaration. Rejecting the contention that the dying declaration cannot be relied on, the Supreme Court held thus:

"8. ..... It may usefully be pointed out here that in the case of Ramawati Devi v. State of Bihar, AIR 1983 Crl. A. NO. 2618 OF 2008 B :: 20 ::

SC 164, it was observed by this Court that there is no requirement of law that a dying declaration must necessarily be made to a Magistrate. What evidentiary value or weight has to be attached to such statement must necessarily depend on the facts and circumstances of each particular case. As discussed by us above, in the present case an attempt was made to procure the services of a Magistrate for recording the dying declaration but the Magistrate was not available and the dying declaration Ext. P5 had to be recorded by the Head Constable which fact finds support from several witnesses including independent witnesses. We have, therefore, no hesitation in accepting the same. The High Court was, fully justified in accepting the said dying declaration."

28. In Ramawati Devi v. State of Bihar (AIR 1983 SC 164), the Supreme Court held that dying declaration made to and recorded by a police officer can be acted upon. It was held thus:

"7. .... A statement, written or oral, made by a person who is dead as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that Crl. A. NO. 2618 OF 2008 B :: 21 ::

person's death comes into question, becomes admissible under section 32 of the Evidence Act. Such statement made by the deceased is commonly termed as dying declaration. There is no requirement of law that such a statement must necessarily be made to a Magistrate. What evidentiary value or weight has to be attached to such statement, must necessarily depend on the facts and circumstances of each particular case. In a proper case, it may be permissible to convict a person only on the basis of a dying declaration in the light of the facts and circumstances of the case. In the instant case, the dying declaration has been properly proved. It is significant to note that in the course of cross- examination of the witness proving the dying declaration, no questions were put as to the state of health of the deceased and no suggestion was made that the deceased was not in a fit state of health to make any such statement. The doctor's evidence also clearly indicates that it was possible for the deceased to make the statement attributed to her in the dying declaration in which her thumb impression had also been affixed. ...."

29. In Smt.Laxmi v. Om Prakash and others (AIR 2001 SC 2383), the Supreme Court held:

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"29. A dying declaration made to a police officer is admissible in evidence, however, the practice of dying declaration being recorded by Investigating Officer has been discouraged and this Court has urged the Investigating Officer availing the services of Magistrate for recording dying declaration if it was possible to do so and the only exception is when the deceased was in such a precarious condition that there was no other alternative left except the statement being recorded by the Investigating Officer or the police officer lateron relied on as dying declaration. ...... "

30. In the present case, the dying declaration was recorded at 2.30 AM on 26.5.2002. The victim died at 3.15 AM on the same day. The dying declaration was recorded by the Sub Inspector of Police (PW14) in the presence of Dr.Reghukumar (PW9), who was the Assistant Professor of Surgery, Medical College Hospital, Thiruvananthapuram. PW1 and PW3 also put their signature as witnesses in the statement given by the victim. When PW9 was cross examined, there was no suggestion that he was not present or that he did not put his signature. PW9 stated in clear terms that he "was listening the dying declaration supplied by the victim" and the Crl. A. NO. 2618 OF 2008 B :: 23 ::

victim affixed her thumb impression in his presence. PW9 also stated that the victim was conscious and oriented. There was no suggestion in cross examination that the victim was not conscious or that she was not oriented and she was not capable of giving a voluntary statement. PW5 stated in evidence that while taking the victim to the hospital, the victim narrated the incident to him. There was no cross examination of PW5 on that point. The presence of PW9, PW1 and PW3 at the time of recording the dying declaration was not challenged by the accused in cross examination. We are of the view that the court below was not right in not relying on the dying declaration made by the victim. It is true that even without relying on Ext.P1 dying declaration, the court below came to the conclusion that the evidence of the other witnesses can be relied on to find the accused guilty. However, we are of the view that Ext.P1 dying declaration can very well be accepted as a true and voluntary statement made by the victim. The evidence of PWs.1 to 5 is reliable and convincing. There is no reason to doubt the truthfulness of the evidence tendered by them. We concur with the view taken by the court below that the evidence of these witnesses can be relied Crl. A. NO. 2618 OF 2008 B :: 24 ::

on to arrive at the conclusion that the accused committed the offence.

31. The doctrine of dying declaration is indicated in legal maxim "nemo moriturus praesumitur mentire" (a man will not meet his Maker with a lie in his mouth). The contention of the learned counsel for the appellant is that this doctrine as such will not apply to Hindus as there is no belief that a Hindu will meet after death his Maker. The learned counsel drew the distinction between the English law and the Indian law on the point. In Kishan Lal v. State of Rajasthan (AIR 1999 SC 3062), the Supreme Court discussed the distinction between evaluation of dying declaration under the English law and under the Indian law and held thus:

"18. Now we proceed to examine the principle of evaluation of any dying declaration. There is distinction between the evaluation of dying declaration under the English law and that under the Indian law. Under the English law, credence and the relevancy of a dying declaration is only when person making such statement is in hopeless condition and expecting an imminent Crl. A. NO. 2618 OF 2008 B :: 25 ::

death. So under the English law for its admissibility, the declarant should have been in actual danger of death at the time when they are made, and that he should have had a full apprehension of his danger and the death should have ensued. Under the Indian law the dying declaration is relevant whether the person who makes it was or was not under expectation of death at the time of declaration. Dying declaration is admissible not only in the case of homicide but also in civil suits. Under the English law, the admissibility rests on the principle that a sense of impending death produces in a man's mind the same feeling as that of a conscientious and virtuous man under oath. The general principle on which this species of evidence are admitted is that they are declarations 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 silenced, and the mind is induced by the most powerful considerations to speak only the truth. If evidence in a case reveals that declarant has reached this state while making declaration then within the sphere of the Indian law, while testing the credibility of such dying declaration weightage can be given. Of course depending on other relevant facts and circumstances of case." Crl. A. NO. 2618 OF 2008 B :: 26 ::

32. A dying declaration made by a person on the verge of his death has a special sanctity as at that solemn moment a person is most unlikely to make any untrue statement. The shadow of impending death is by itself guarantee of the truth of the statement of the deceased regarding circumstances leading to his death. (See Narain Singh v. State of Haryana (AIR 2004 SC 1616 = JT 2004(2) SC 327) and Babu Lal v. State of M.P.((2003) 12 SCC 490).

33. Section 32 of the Indian Evidence Act embodies the principles of dying declaration. The relevant part of Section 32 reads as follows:

"32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant.-- Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:--

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(1) When it relates to cause of death.-- When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question.

Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.

...... ........"

34. In Sharad Birdhichand Sarda v. State of Maharashtra (AIR 1984 SC 1622), a three Judge Bench of the Supreme Court considered the distinction between English law and Indian law with particular reference to Section 32 of the Indian Evidence Act and held thus:

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"18. Before closing this chapter we might state that the Indian law on the question of the nature and scope of dying declaration has made a distinct departure from the English law where only the statements which directly relate to the cause of death are admissible. The second part of Cl. (1) of S. 32, viz., "the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question" is not to be found in the English Law. This distinction has been clearly pointed out in the case of Rajindra Kumar v. The State, AIR 1960 Punjab 310, where the following observations were made: "Clause (1) of Sec. 32 of the Indian Evidence Act provides that statements, written or verbal, of relevant facts made by a person who is dead, ......... are themselves relevant facts when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in case, in which the cause of that person's death comes into question ............It is well settled by now that there is difference between the Indian Rule and the English Rule with regard to the necessity of the declaration having been made under expectation of death.

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In the English Law the declaration should have been made under the sense of impending death whereas under the Indian Law it is not necessary for the admissibility of a dying declaration that the deceased at the time of making it should have been under the expectation of death."

35. The Indian Evidence Act, 1872 is an Act to consolidate, define and amend the Law of Evidence. The Indian Evidence Act extends to whole of India except the State of Jammu and Kashmir and applies to all judicial proceedings in or before any Court except the judicial proceedings excepted in Section 1. Section 2 of the Indian Evidence Act was repealed by the Repealing Act 1938 (1 of 1938). Section 2 of the Indian Evidence Act before its repeal provided for repeal of all rules of evidence not contained in any Statute, Act or Regulation in force in any part of British India. The repeal of Section 2 of the Indian Evidence Act under a subsequent Amending and Repealing Act makes no difference because its repeal does not have the effect of re-enacting the rules which it repealed. Before passing of the Indian Evidence Act, the rules of Crl. A. NO. 2618 OF 2008 B :: 30 ::

evidence were governed by the Rules of English Common Law, of the Hindu and Mohammedan Laws, and the rules of justice, equity and good conscience. The Indian Evidence Act does not contain the whole law of evidence. The law of evidence contained in other statutes making specific provisions would also apply in cases where such statutes are applicable. So long as no other statute which provides for a separate rule of evidence in the case of Hindus is brought to our notice, it has to be held that the rules of evidence as provided in the Indian Evidence Act would apply to all citizens of India in the territories to which it apply, irrespective of the religion of the party or parties concerned. Section 32 of the Indian Evidence Act in particular would apply to all the citizens irrespective of their religion, caste and creed. If it were to be held that Section 32 and the principles of dying declaration would not apply to Hindus, we are afraid it would offend Article 14 and 15 of the Constitution of India besides being contrary to the spirit of Article 44 of the Constitution of India.

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36. Now we shall deal with the contention that there is no concept for Hindus that they would meet their Maker after their death. In Garuda Purana, under the heading "gdID5 ", the 'Yamamarga' is depicted. It would be profitable to extract a few verses, to meet the contention put forward by the counsel. Chapter I verse 26:

"gY 7xaA, %UX^H5^\fJ NxC^XK8GJ_W %U ffFU_5N^O FcWm?_OaI^5aKa.e%gD Da?VKm %O^Z g\^5Ixg\^5Bf{ U`f_Aa5Oa" :5_DH^O_ O^fD^Ka"

IyO^X &d7Y_A^J H_\O_\^5a5Oa" f:OnaKa."

Chapter 3 verse 71:

"NHaWcg\^5J_fa D^f] /gDfD\o^" Hx5NagI^, %UO_W /gDfD\o^" O^DHOagI^, %fD^fA %HaMU_:nD_HagVW" I^I_ VaiH^O_ U`Ia" MbN_O_W NHaWcH^O_ I_yAaKa."

Chapter 4 verse 3:

"GVNx^<fa IaxJ_W 5_]Am, I?_E^ , U?Am, NbKm F_A_\aU U^D_\_\bf? G^VN_5z^V gI^5aKa.eI^I_5Z fDfAU^D_\_\bf?Oa"."

Crl. A. NO. 2618 OF 2008 B :: 32 ::

Chapter 4 verse 60:

"I^I_5Z Hx5J_W DB{af? I^IB{af? %fOK\"

%HaMU_:nm U`Ia" <H_AaKa.eONfa &<m>O^W dI_U_W .J_ I^I_ Ux^F_ gO^H_5f{ dI^I_AaKa."

Chapter 5 verse 57:

     "NHaWc       D^X  f:Oq     VaM^VaM5VNB{af?   K\"

     D`V:nO^Oa"        %HaMU_AC".e5VNK\NHaMU_A^fD

     g5^?_ACA_         5axBZ     5]_E^\a"   2]_EaN^y^X

     X^icN\o."

Chapter 14 verse 3:

     "dV`M7U^X      IyEa:_      gY     7xaA,   g5ZAb,

     H^xF^F_NaH_5ZAagI^\a"    %dI^IcN^O     GVNx^<fa

     H7xJ_W %gB %xfJ IaCc" f5^gI f:fKJ^X
     X^G_Aa5OaUb."

Chapter 14 verse 10:

     "& MUHJ_W D`VJ XMO_W Dfa IxN %WMaDN^O

I`@J_W :_dD7aIqX NHaWcxaf? &OaTm Vx_O^O gD^D_W 7C_AaKa."

Chapter 14 verse 11:

"%ggY" NHaWcfa IaCcI^IBZ H_VHO_AaKD_W O^fD^xa fDxa" UxaJa5O_\o.e 3gx^ Uc5q_Aa" %UHUX Crl. A. NO. 2618 OF 2008 B :: 33 ::

f:Oq 5VNNHaXx_:nm :_dD7aIqH_VggVdI5^x" %D_fa K\"

%HaMU_gAI_UxaKa."

Chapter 14 verse 48:

       "gY    7xaA,     NY^v^       GVNx^<fa      &   XM    (

       U_GJ_\aUD^ .eFf_C                Fb^xJ_\bf?   ONIaxJ_W
       dIgUV_AaK I^I_5ZAm & XM 5^C^X X^GcN\o."



(The above     excerpts are from         RIax^CdDO"Q       D Nb\Ua"

7FcIx_M^WOa" - by D.Sreeman Namboodiri)

37. We are of the view that the contention put forward by the learned counsel for the appellant that (a) Hindus have no faith that they would, after their death, meet the Maker and (b) that they have no faith that they are accountable for their deeds to the Maker, is unsustainable.

38. For the aforesaid reasons, we reject the contention raised by the learned counsel for the appellant that the doctrine of "nemo moriturus praesumitur mentire" (a man will not meet his Maker with a lie in his mouth) will not apply to Hindus. Crl. A. NO. 2618 OF 2008 B :: 34 ::

39. The Court below rightly held that the prosecution proved that the accused committed the offence alleged against him under Section 302 of the Indian Penal Code and imposed a sentence of imprisonment for life and to pay a fine of `10,000/- and in default of payment of fine, to undergo simple imprisonment for one year. We concur with the findings and conclusions arrived at by the court below except in the matter of acceptability of dying declaration as mentioned above.

Accordingly, the Criminal Appeal is dismissed.

(K.T.SANKARAN) Judge (M.L.JOSEPH FRANCIS) Judge ahz/ Crl. A. NO. 2618 OF 2008 B :: 35 ::

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