PARBIN ALI AND ANOTHERversusSTATE OF ASSAM

                       [2013] 1 S.C.R. 154

A                  PARBIN ALI AND ANOTHER
                                v.
                       STATE OF ASSAM
               (Criminal Appeal No. 1037 of 2008)

                       JANUARY 07, 2013
B
       [K.S. RADHAKRISHNAN AND DIPAK MISRA, JJ.]

        Penal Code, 1860:

c       s. 302134 - Murder - Oral dying declaration made to
  witnesses naming the accused - Conviction and sentence of
  life imprisonment affirmed by High Court - Held: Conviction
  can be founded solely on the basics of dying declaration if
  the same inspires full confidence - In the instant case, the
0 witnesses have deposed in a categorical manner that the
  deceased was in a fit state of health to speak and make a
  statement and, in fact, he did make a statement as to who
  assaulted him - Nothing has been suggested to these
  witnesses about the condition of the deceased - The doctor,
E who had performed the post mortem, has not been cross-
  examined - Absence of any real discrepancy or material
  contradiction or omission and additionally no'n cross-
  examination of the doctor in this regard makes the dying
  declaration absolutely credible and conviction based thereon
  cannot be faulted - Evidence - Dying Declaration.
F
        FIR:

       Delay in lodging the FIR - Held: In the instant case,
  "ezahar'' had been lodged at the police station prior to
G registration of the FIR - Trial court has analysed this aspect
  in an extremely careful and cautious manner which is found
  to be impeccable.

       The two appellants faced trial for causing the death
  of the husband of PW 2. The prosecution case was that
H                            154
           PARBIN AU v. STATE OF ASSAM                  155

 at 9:00 PM on 17 .01.1994, PW 2, her father (PW 5) and        A
 some other persons saw the deceased lying injured on
 the road side. The injured told the witnesses that he was
 assaulted by the two appellants and one 'A'. The
 witnesses could not arrange any conveyance to carry the
 injured to hospital and he died at 11 :00 PM. PW5 went to     8
 the Police Station and got recorded an "ezahar"·. FIR was
 lodged the following day. 'A' died during the
 investigation. The trial court convicted both the
 appellants and u/s. 302/34 IPC and sentenced them to
 imprisonment for life, and the High Court upheld the          C
 same.

      It was contended for the appellants that the oral
  dying declaration said to have been made by the
  deceased was highly unnatural and did not inspire
  confidence; and that though the Police Station was quite     D
. nearby, there was delay in lodging the FIR. It was,
  therefore, submitted that both the factors cast a doubt on
  the prosecution case.

     Dismissing the appeal, the Court                          E
     HELD: 1.1. The final opinion of PW4, the doctor, who
conducted the post-mortem is that the death was caused
due to shock and haemorrhage as a result of the ante
mortem injuries in the abdomen caused by sharp
weapon and homicidal in nature. The said opinion was           F
not challenged either before the trial Judge or before the
High Court. The said witness has not been at all cross-
examined. Whether a person receiving such injuries
would be in a position to speak or not has not been
'.>rought out in the evidence. [Para 10) [162-A-C]             G

    1.2. The law is well settled that the conviction can be
founded solely on the· basis of dying declaration if the
same inspires full confidence. [Para 12) [162-F]
                                                               H
    156      SUPREME COURT REPORTS             [2013) 1 S.C.R.


A       Khusha/ Rao vs. State of Bombay AIR 1958 SC 22;
    Kusa vs. State of Orissa AIR 1980 SC 559; Meesa/a
    Ramakrishnan vs. State of A. P. (199-j) 4 SCC 182; Ranjit
    Singh v. State of Punjab (2006) 13 SCC 130 - relied on

       1.3. The witnesses who have deposed in respect of
8 the oral dying declaration are PW-2 and 5, the wife and
  father-in-law, respectively, of the deceased, PW-1, a
  relative and PW-3. These witnesses have clearly stated
  that the deceased had informed them about the names
  of the assailants. Nothing worth has been elicited in the
C cross-examination. They have deposed in a categorical
  manner that by the time they arrived at the place of
  occurrence, the deceased was in a fit state of health to
  speak and make a statement and, in fact, he did make a
  statement as to who assaulted him. Nothing has been
D suggested to these witnesses about the condition of the
  deceased. PW-4, the doctor, who had performed the post
  mortem, has not been cross-examined. In this backdrop,
  it can safely be concluded that the deceased was in a
  conscious state and in a position to speak. Thus, it is
E difficult to accept that the wife, the father-in-law and other
  close relatives would implicate the accused-appellants by
  attributing the oral dying declaration to the deceased.
  That apart, the absence of any real discrepancy or
  material contradiction or omission and additionally non
F cross-examination of the doctor in this regard, makes the
  dying declaration absolutely credible and the conviction
  based on the same really cannot be faulted. [Para 10, 11
  and 20] [162-C-D; 166-G-H; 167-A-C]

       Nanhau Ram v. State of M.P. 1988 Supp SCC 152;
G Laxman v. State of Maharashtra (2002) 6 SCC 71 O; and
  Pothakamuri Srinivasu/u alias Mooga Subbaiah v. State of
  A.P. (2002) 6 sec 399 - relied on

          Puran Chand v. State of Haryana (2010) 6 SCC 566;
H
          PARBIN ALI v. STATE OF ASSAM                 157'


Prakash and another v. State of Madhya Pradesh (1992) 4       A
SCC 225; and Darshana Devi v. State of Punjab 1995 Supp
(4) sec 126 - referred to.
    2. As regards the delay in lodging of the F.l.R, it is
perceptible from the evidence that the father-in-law of the   B
deceased had gone to the police station and lodged the
ezahar and, thereafter, an FIR was lodged. The trial court
has analysed the said aspect in an extremely careful and
cautious manner and on a closer scrutiny, the analysis
made by it is found to be impeccable. [Para 21] [167-D]
                                                              c
                    Case Law Reference:
  AIR 1958 SC 22               relied on         para 12
  AIR 1980 SC 559              relied on         para 12
                                                              D
  (1994) 4 sec 182             relied on         para 12
  (2006) 13 sec 130            relied on         para 13
  1988 Supp sec 152            relied on         para 13
  c2002) 6 sec 11 o            relied on         para 14      E

  (201 O) 6 sec 566            referred to       para 15
  (1992) 4 sec 225             referred to       para 16
  1995 Supp (4) sec 126        referred to       para 18      F
  c2002) 6 sec 399             relied on         para 19

    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1037 of 2008.
                                                              G
    From the Judgment & Order dated 19.1.2006 of the High
Court of Gauhati at Assam in Criminal Appeal Nos. 52 and 53
of 1999.

    Mithlesh Kumar Singh (AC), Tarun Verma for the
Appellants.                                                   H
    158       SUPREME COURT REPORTS                 [2013] 1 S.C.R.


A         Avijit Roy (For Corporate Law Group) for the Respondent.

          The Judgment of the Court was delivered by

         DIPAK MISRA, J. 1. The present appeal by special leave
   is directed against the judgment of conviction and order of
B sentence passed by the Gauhati High Court in Criminal Appeal
   Nos. 52(J) of 1999 and 53(J) of 1999 whereby the Division
  Bench of the High Court gave the stamp of approval to the
  conviction recorded by the learned Additional Sessions Judge,
  Silchar in Sessions Case No. 28/96 under Section 302/34 of
C the Indian Penal Code (for short "the IPC") and order of
  sentence sentencing the accused-appellants to imprisonment
  for life and to pay a fine of Rs.500/-, in default, to suffer further
  rigorous imprisonment for one month. It may be mentioned here
  that the accused-appellants (hereinafter referred to as "the
D accused") had preferred two separate appeals against the
  common judgment but a joint appeal has been preferred from
  jail.

          2. The facts giving rise to this appeal are that on
E    17.7.1994, about 9.00 p.m., deceased, Sakat Ali, was found
    lying injured on the road side. Coming to know about the same,
    a large number of persons including the father-in-law of the
    deceased, his wife and others came to the spot and at that
    juncture, the injured Sakat Ali told them that he was assaulted
    by the accused persons along with one Asiquddin. He
F   remained lying on the road side as neither the relatives nor his
    wife could arrange any conveyance for carrying him to the
    hospital and, eventually, he succumbed to the injuries around
     11.00 p.m. While he was on the road, his father-in-law went to
    the police station wherein an "ezahar" was recorded. After the
G   injured died, an FIR was lodged on 18.7.1994. Afterthe criminal
    law was set in motion, the accused were arrested, the dead
    body of the deceased was sent for post mortem, statements
    of nine witnesses were recorded under Section 161 of the
    Code of Criminal Procedure and, eventually, after completing
H   the investigation, the charge-sheet was placed before the
PARBIN ALI v. STATE OF ASSAM [DIPAK MISRA, J.]. 159


competent Court under Section 302/34 of the IPC against the           A
accused persons. The learned magistrate dropped the case
against Asiquddin as he had died by that time and committed
the matter to the Court of Session and ultimately the case was
tried by the learned Additional Sessions Judge, Cachar at
Silchar.                                                              s
       3. The accused abjured their guilt and desired to face the
trial. During the trial, the prosecution, in order to establish its
case, examined nine witnesses and brought on exhibit number
of documents. After completion of the prosecution evidence, the
accused persons were examined under Section 313 CrPC.                 C
They had not put forth any substantial plea except a bald denial
and chose not to adduce any evidence.

     4. The learned trial judge, considering the entire evidence,
placing reliance on the oral dying declaration of the deceased        o
and taking note of the weapon used and the nature of the injury
caused, came to hold that the prosecution had been able to
substantiate the charge beyond reasonable doubt and,
accordingly, convicted them and im~osed the sentence.

     5. In appeal, the High Court took note of the fact that there    E
was n0 direct evidence to implicate the accused and the minor
omissions or contradictions and discrepancies which had been
highlighted by the defence did not create any kind of dent in
the prosecution version; that ample explanation had been
offered by the prosecution for not getting the dying declaration      F
recorded as the deceased was lying on the road side and could
not be taken to a hospital; and that there was no reason to
disbelieve the oral dying declaration, and the same being
absolutely credible, the judgment and conviction rendered by
the learned trial Judge did not warrant any interference.             G

    6. We have heard Mr. Mithlesh Kumar Singh, learned
counsel for the accused-appellants, and Mr. Avijit Roy, learned
counsel appearing for the respondent-State.
                                                                      H
    160      SUPREME COURT REPORTS                 [2013] 1 S.C.R.

A       7. Questioning the correctness of the conviction, it is urged
  by Mr. Singh, learned counsel for the appellants, that the learned
  trial Judge as well as the High Court has gravely erred in
  placing reliance on the oral dying declaration as it does not
  inspire confidence, for it is highly unnatural that the wife and the
8 father-in-law of the deceased coming to the spot could not take
  the injured to any nearby hospital for treatment though he lived
  for few hours after the assault. That apart, submitted Mr. Singh,
  though the police station is quite nearby, yet there was delay
  in lodging the FIR which casts a doubt in the case of the
  prosecution and, eventually, creates a concavity in the
C testimonies of PWs-1, 2, 3, 5 and 6 who have testified about
  the oral dying declaration.
       8. Mr. Avijit Roy, learned counsel appearing for the State,
  on the contrary, contended that the material on record do clearly
D show that the father-in-law had rushed to the police station and
  lodged the "ezahar" which was registered and after the death,
  an FIR was registered under Section 302/34 of l.P.C. and,
  hence, the plea of delay in lodging the FIR has no legs to stand
  upon. It is urged by him that by the time the witnesses arrived
E on the scene, he was conscious but despite the best efforts,
  the relatives could not arrange a conveyance to remove the
  deceased to a hospital for treatment and there is no justification
  to discard the said version in the absence of any kind of
  contradiction or discrepancy in their evidence. The learned
F counsel for the State would emphatically put forth that the
  present case is one where the courts below have justifiably
  given credence to the oral dying declaration as it inspires
  unimpeachable and unreproachable confidence.
        9. Before we proceed to dwell upon the issue of
G acceptability of oral dying declaration in the case at hand, it is
  apposite to refer to the post mortem report which has been
  proven by PW-4, Dr. K.K. Chakraborty, who has stated the
  injuries on the body of the deceased that has caused the death.
  They are as follows: -
H
PARBIN ALI v. STATE OF ASSAM [DIPAK MISRA, J.] 161


    "Injuries:                                                      A
    (1)    Bandage of right elbow joint remove and found a
           cut injury on right elbow medialy and along with
           crease of elbow measuring 4 c.m. x 2 c.m. x 1 c.m.
           with cut in muscles, margins of the wound regular.       B

    (2)    Cut injury along the 11th Thorax vertebrae on left
           side 1 c.m. away from the mid line measuring 3
           c.m. x 1 c.m. x 1 c.m. margins of the wound regular.

    (3) -. Cut injury on back side 5 c.m. above the iliac creast    C
            and 6 c.m. lateral to the 3rd lumber vertebrae with
            prolapse of intestine through the wound measuring
          · 6 c.m. x 2 c.m. x abdominal cavity deep. Margins
            of the wounds are regular and inverted.
                               :-.;;~·   '

    (4)    Cut injury in front of the ~bdominal wall % c.m. below   D
           the neivous 1 c.m. away from the mid line to right
           side through which intestine prolapsed. Measuring
           3 c.m. x 2 c.m. x abdominal cavity deep. Margins
           are inverted and regular.
                                                                    E
           All the injuries are fresh and antemortem caused by
           sharp pointed weapon.

           THORAX                            All healthy.

           ABDOMEN - Peritoneal cavity contain about 2 % F
           litrs. of liquid and clotted blood. Stomach
           congested. Mouth, pharynx, oesophagus healthy.
           Cut injury in the small intestine n the three parts are
           present. Liver, splin, kidneys are all healthy. Scalp,
           skull, vertebrae membrane, brain - all healthy.         G

           MUSCLES. BONES & JOINTS:

           Muscles injury as described. Fracture - not found.
           Fresh no abnormality found."
                                                                    H
    162         SUPREME COURT REPORTS             [2013] 1 S.C.R.


A      10. The final qpinion of the doctor is that the death was
  caused due to shock and haemorrhage as a result of the ante
  mortem injuries in the abdomen caused by sharp weapon and
  homicidal in nature. The said opinion was not challenged either
  before the trial Judge or before the High Court. We may fruitfully
B note here that the said witness has not been at all cross-
  examined. Whether such a person receiving certain injuries
  would be in a position to speak or not has not been brought
  out any where in the evidence. In this backdrop, the testimonies
  of the witnesses who have deposed in respect of the oral dying
c declaration are to be scrutinized.
       11. PW-1, Mooti Mia, a relative, PW-2, Sarifun Meesa, wife
  of the deceased, PW-3, Mohd. Abdul Wajid Ali, and PW-5,
  Aftaruddin, the father-in-law of the deceased, have deposed
  that the deceased had named three accused persons as
D assailants. PW-6, Arafan Ali, who came later to the place of
  occurrence, had found that the deceased was not in a position
  to speak. PW-8, Faizuluddin, did not support the prosecution
  case in entirety. Thus, the real witnesses to the oral dying
  declaration are PWs-1, 2, 3 and 5 and hence, the veracity of
E their version is required to be scrutinised.

       12. Before we proceed to scrutinize the legal acceptability
  of the oral dying declaration, we think it seemly to refer to
  certain decisions in regard to the admissibility and evidentiary
F value of a dying declaration. In Khushal Rao v. State of
  Bombay1, Kusa v. State of Orissa 2 and in Meesa/a
  Ramakrishan v. State of A.P., 3 it has been held that the law is
  well settled that the conviction can be founded solely on the
  basis of dying declaration if the same inspires full confidence.
G         13. In Ranjit Singh v. State of Punjab4, it has been held
    1.   AIR 1958 SC 22.
    2.   AIR 1980 SC 559.
    3.   (1994) 4 sec 182.
H 4.     (2ooa) 13 sec 130.
PARBIN ALI v. STATE OF ASSAM [DIPAK MISRA, J.] 163

that the conviction can be recorded on the basis of dying             A
declaration alone, if the same is wholly reliable, but in the event
there exists any suspicion as regards the correctness or
otherwise of the said dying declaration, the courts, in arriving
at the judgment of conviction, shall look for some corroborating
evidence. In this context, we may also notice the judgment in         B
Nanhau Ram v. State of M.P. 5 wherein it has been stated that
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 eye witness said that
the deceased was in a fit and conscious state to make the dying       c
declaration, the medical opinion cannot prevail.

   14. While dealing with the evidence of the declarant's
mind, the Constitution Bench, in Laxman v. State of
Maharashtra, 6 has laid down thus: -
                                                                   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
      silenced, and the r:nan is induced by the most powerful E
      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
      of the existence of many circumstances which may affect
      their truth. The situation in which a man is on the deathbed F
      is so solemn and serene, is the reason in law to accept
      the veracity of his statement. It is. for this reason the
      requirements of oath and cross-examination are
      dispensed with. Since the accused has no power of cross-
      examination, the courts insist that the dying declaration G
      should be of such a nature as to inspire full confidence of
      the court in its truthfulness and correctness. The court,·
      however, has always to be on guard to see that the
5.   1988 Supp sec 152.
s.   c2002i s sec 110.                                                H
    164       SUPREME COURT REPORTS                  [2013] 1 S.C.R.

A         statement of the deceased was not as a result of either
          tutoring or prompting or a product of imagination. The court
          also must further decide that the deceased was in a fit
          state of mind and had the opportunity to observe and
          identify the assailant. Normally, therefore, the court in order
B         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 eyewitnesses state that the
          deceased was in a fit and conscious state to make the
          declaration, the medical opinion will not prevail, nor can it
c         be said that since there is no certification of the doctor as
          to the fitness of the mind of the declarant, the dying
          declaration is not acceptable. A dying declaration can be
          oral or in writing and any adequate method of
          communication whether by words or by signs or otherwise
D         will suffice provided the indication is positive and definite."

        15. In this context, it will be useful to refer to the decision
  in Puran Chand v. State of Haryana 7 wherein it has been
  stated that a mechanical approach in relying upon a dying
  declaration just because it is there is extremely dangerous and
E it is the duty of the court to examine a dying declaration
  scrupulously with a microscopic eye to find out whether the
  dying declaration is voluntary, truthful, made in a conscious
  state of mind and without being influenced by the relatives
  present or by the investigating agency who may be interested
F in the success of investigation or which may be negligent while
  recording the dying declaration. The Court further opined that
  the law is now well settled that a dying declaration which has
  been found to be voluntary and truthful and which is free from
  any doubts can be the sole basis for convicting the accused.
G
         16. Regard being had to the aforesaid principles, we shall
    presently advert how to weigh the veracity of an oral dying
    declaration. As has been laid down in Laxman (supra) by the
    Constitution Bench, a dying declaration can be oral. The said
H 7. (2010) 6 sec 566.
 PARBIN ALI v. STATE OF ASSAM [DIPAK MISRA, J.] 165

principle has been reiterated by the Constitution Bench. Here         A
we may refer to a two-Judge Bench decision in Prakash and
another v. State of Madhya Pradesh 8 wherein it has been held
as follows: -

      "In the ordinary course, the members of the family including    B
      the father were expected to ask the victim the names of
      the assailants at the first opportunity and if the victim was
      in a position to communicate, it is reasonably expected
      that he would give the names of the assailants if he had
      recognised the assailants. In the instance case there is no     C
      occasion to hold that the deceased was not in a position
      to identify the assailants because it is nobody's case that
      the deceased did not know the accused persons. It is
      therefore quite likely that on being asked the deceased
      would name the assailants. In the facts and circumstances
      of the case the High Court has accepted the dying               D
      declaration and we do not think that such a finding is
      perverse and requires to be interfered with."

     17. It is worthy to note that in the aforesaid case this Court
had laid down that when it is not borne out from the evidence         E
of the doctor that the injuries were so grave and the condition
of the patient was so critical that it was unlikely that he could
make any dying declaration, there was no justification or
warrant to discard the credibility of such a dying declaration.

     18. In Darshana Devi v. State of Punjab, 9 this Court
                                                                      F
referred to the evidence of the doctor who had stated that the
deceased was semi-conscious, his pulse was not palpable and
his blood pressure was not recordable and had certified that
he was not in a fit condition to make a statement after the police
had arrived at the hospital and expressed the view that the           G
deceased could not have made an oral statement that he had
been burnt by his wife. Thus, emphasis was laid on the physical

a.   (1992) 4 sec 225.
9.   1995 Supp (4) sec 12a.                                           H
    166        SUPREME COURT REPORTS                [2013] 1 S.C.R.

A   and mental condition of the deceased and the veracity of the
    testimony of the witnesses who depose as regards the oral
    dying declaration.

         19. In Pothakamuri Srinivasu/u alias Mooga Subbaiah v.
    State of A.P., 10 this Court, while dealing with the issue whether
8
    reliance on the dying declaration made by the deceased to
    PWs-1, 2 and 3 therein could be believed, observed thus: -

          "7. We find no reason to disbelieve the dying declaration
          made by the deceased to the witnesses PWs 1 , 2 and 3.
C         They are all residents of the same village and are natural
          witnesses to the dying declaration made by the deceased.
          No reason is assigned, nor even suggested to any of the
          three witnesses, as to why at all any of them would tell a
          lie and attribute falsely a dying declaration to the deceased
D         implicating the accused-appellant. Though each of the
          three witnesses has been cross-examined but there is
          nothing brought out in their statements to shake their
          veracity."

E         We may also note with profit that the Court did not accept
    that the injured could not have been in a conscious state on the
    ground that no such suggestion had been made to any of the
    witnesses including the doctor who conducted the post mortem
    examination of the deceased.

F       20. Coming to the case at hand, the wife, the father-in-law
  and the two other relatives have clearly stated that the
  deceased had informed them about the names of the
  assailants. Nothing worth has been elicited in the cross-
  examination. They have deposed in a categorical manner that
G by the time they arrived at the place of occurrence, the
  deceased was in a fit state of health to speak and make a
  statement and, in fact, he did make a statement as to who
  assaulted him. Nothing has been suggested to these witnesses
  about the condition of the deceased. As has been mentioned
H 10. (2002) 6 sec 399.
 PARBIN ALI v. STATE OF ASSAM [DIPAK MISRA, J.] 167


earlier, PW-4, the doctor, who had performed the post mortem,            A   .
has not been cross-examined. In this backdrop, it can safely
be concluded that. the deceased was in a conscious state and
in a position to speak. Thus, it is difficult to accept that the wife,
the father-in-law and other close relatives would implicate the
accused-appellants by attributing the oral dying declaration to          B
the deceased. That apart, in the absence of any real
discrepancy or material contradiction or omission and
additionally non cross-examination of the doctor in this regard
makes the dying declaration absolutely credible and the
conviction based on the same really cannot be faulted.                   c
     21. Having said that the discrepancies which have been
brought out are not material, we may address to the issue of
delay in lodging of the F.l.R. It is perceptible from the evidence
that the father-in-law of the deceased had gone to the police
station and lodged the ezahar and, thereafter, an FIR was                D
lodged. The learned trial Judge has analysed the said aspect
in an extremely careful and cautious manner and on a closer
scrutiny, we find that the analysis made by him is impeccable.

       22. In view of our aforesaid analysis, we conclude and hold       E
·that the appeal is sans substratum and, accordingly, the same
 has to pave the path of dismissal which we direct.

R.P.                                            Appeal dismissed.