Supreme Court of India
SITA RAM & ANR.versusTHE STATE OF HIMACHAL PRADESH
- Citation
- 2025 INSC 359
- Decided
- 5 March 2025
- Disposal
- Disposed off
Holding
A dying declaration is admissible under Section 32 of the Evidence Act without the maker’s expectation of death, and the head injury was sufficiently proximate to the asphyxia causing death, so the High Court’s convictions stand, though the sentences are reduced on mitigating factors.
Summary
The case involved a dispute in which the deceased Prem Lal was assaulted by his brother Pyare Singh and two friends, Sita Ram and Onkar, who struck him on the head with a sickle (darat) and beat him. The victim later lodged an FIR himself, was hospitalized, developed gastroenteritis and died nine days later; the post‑mortem recorded asphyxia as the cause of death. The trial court acquitted the accused, but the Himachal Pradesh High Court convicted Sita Ram under Sec 304 IPC and Onkar under Sec 323 and 451 IPC. The appellants challenged the conviction, arguing that the FIR could not be treated as a dying declaration because it was not made under an expectation of death and that the cause of death was unrelated to the injuries. The Supreme Court held that a dying declaration under Sec 32 Evidence Act does not require the maker to anticipate death and that the head injury was sufficiently connected to the asphyxia, thus upholding the High Court’s findings. While confirming the convictions, the Court reduced Sita Ram’s sentence to one year and set Onkar’s sentence to time already served, citing mitigating circumstances.
Issues considered
- Whether the FIR lodged by the deceased can be treated as a dying declaration under Section 32 of the Evidence Act.
- Whether expectation of imminent death is a prerequisite for admissibility of a dying declaration.
- Whether the cause of death (asphyxia) is sufficiently linked to the head injury to constitute culpable homicide under Section 304 IPC.
- Whether the High Court erred in convicting the appellants and the appropriateness of the sentences imposed.
Legislation cited
- Evidence Act, 1872s. 32
- Indian Penal Code, 1860s. 304, s. 323, s. 324, s. 34, s. 451, s. 504, s. 506
Subjects
Culpable homicideHurtAsphyxiaHead injuryAsphyxia due to gastroenteritisBrain swellingDamage to breathing centresImpaired blood flowHypoxiaAnoxiaSkull fractureHypoxic-ischemic brain injuryDying declarationFIRApprehension of death
Judgment
[2025] 4 S.C.R. 204 : 2025 INSC 359
Sita Ram & Anr.
v.
The State of Himachal Pradesh
(Criminal Appeal No. 228 of 2013)
06 March 2025
[J.B. Pardiwala and R. Mahadevan, JJ.]
Issue for Consideration
Matter pertains to the correctness of the order passed by the High
Court holding the appellant no.1 guilty of offence punishable u/s.
304 IPC and appellant no. 2 for offences punishable u/ss. 323
and 451 IPC and sentencing accordingly, setting aside the order
of acquittal by the trial court.
Headnotes†
Penal Code, 1860 – ss.304, 323 and 451 – Culpable
homicide not amounting to murder – Asphyxia due to head
injury – Deceased had a quarrel with his own brother-co-
accused – Co-accused called for his two friends-appellants
and appellant no.1 hit a blow with sickle on the forehead
of the deceased and other two assaulted with fist and kick
blows – Deceased himself went to the police station and
lodged the FIR – Later got himself admitted in the hospital,
when his health deteriorated – Nine days later, he passed
away and as per the post-mortem report, cause of death
was asphyxia – Trial court acquitted all three accused –
However, the High Court, held the appellant no.1 guilty of
offence punishable u/s.304 and appellant no.2 for offences
punishable u/ss.323 and 451 and sentenced accordingly –
Interference with:
Held: No palpable error or perversity in the reasonings assigned
by the High Court while holding both the appellants guilty of
the alleged offence – Cause of death appears to be asphyxia –
Ordinarily, asphyxia is due to strangulation or throttling, however,
such was not the prosecution case – At times, if due to head
injury if sufficient oxygen does not reach the brain that may lead
to asphyxia – Post-mortem report reveals that the deceased while
[2025] 4 S.C.R. 205
Sita Ram & Anr. v. The State of Himachal Pradesh
undergoing treatment of the skull fracture suffered gastroenteritis,
which cut off the supply of oxygen, when the liquid in the stomach
entered his lungs leading to his death by asphyxia – Post-mortem
report simply says that the cause of death was asphyxia, yet in the
medico-legal jurisprudence the cause of death of the deceased
would be the wound in the head leading to a fissured fracture in
the skull which led to asphyxia and ultimately the death of the
deceased by ‘hypoxic brain injury’ – Furthermore, the submission
that although the first information report was lodged by the deceased
himself, yet it could not have been treated as a dying declaration
as the same was not in expectation of death, cannot be accepted –
Interference with the impugned judgment not called for, however,
due to mitigating circumstances the sentence reduced – Sentence
of appellant no.1 reduced from 6 years to 1 year and of appellant
no.2 from 1 year to period already undergone. [Paras 33, 34, 44,
45, 55-60]
Evidence Act, 1872 – s.32 – Dying declaration – Admissibility,
if dependent on apprehension of death:
Held: Law in India does not make the admissibility of a dying
declaration dependent upon the person's having a consciousness
of the approach of death – Even if the person did not apprehend
that he would die, a statement made by him about the
circumstances of his death would be admissible u/s.32 – Once
the dying declaration is held to be believable, the questions that
no oath was administered and that the dying declaration was not
tested by cross-examination cannot arise – It is incorrect to say
that dying declaration cannot be acted upon without corroboration.
[Paras 50, 52]
Jurisprudence – Medico-legal jurisprudence – Asphyxia and
Hypoxic-Ischemic Brain Injury – Explained. [Paras 34-44]
Case Law Cited
Irfan @ Naka v. State of Uttar Pradesh [2023] 11 SCR 789 :
2023 INSC 758; State of Haryana v. Mange Ram and Others
[2002] Supp. 5 SCR 35 : (2003) 1 SCC 637; Kans Raj v.
State of Punjab and Others [2000] 3 SCR 662 : (2000) 5 SCC
207 – referred to.
206 [2025] 4 S.C.R.
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Books and Periodicals Cited
Schmidt’s Attorneys’ Dictionary of Medicine, Vol. 1, at page
A-313; Braslow, B. M., Stawicki, S. P., & Dickinson, E. T., Male
With Torso Injury, 53(1) Annals of Emergency Medicine, 159–167
(2009); Myriam Lacerte, Angela Hays Shapshak, Fassil B. Mesfin,
“Hypoxic Brain Injury”, National Library of Medicine, January 27,
2023; Zachary Messina; Angela Hays Shapshak; Rebecca Mills.
“Anoxic Encephalopathy”, National Library of Medicine; Di Muzio
B, Mahsoub M, Walizai T, et al. Hypoxic-ischemic encephalopathy
(adults and children). Laura L Dugan and Dennis W Choi. “Hypoxia-
Ischemia and Brain infarction”, National Library of Medicine; M.
Michael Wolfe and George Sachs, Acid Suppression: Optimizing
Therapy for Gastroduodenal Ulcer Healing, Gastroesophageal
Reflux Disease, and Stress-Related Erosive Syndrome, Vol 118(2)
Gastroenterology S9-S31 (2000) – referred to.
List of Acts
Penal Code, 1860; Evidence Act, 1872.
List of Keywords
Culpable homicide; Hurt; Asphyxia; Head injury; Blow with
‘Darat’; Asphyxia due to gastroenteritis; Brain swelling; Damage
to breathing centres; Impaired blood flow; Hypoxia; Anoxia; Skull
fracture; Hypoxic-ischemic brain injury; Dying declaration; FIR;
Apprehension of death.
Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
228 of 2013
From the Judgment and Order dated 13.09.2012 and 17.10.2012
of the High Court of H.P. at Shimla in CRLA No. 415 of 2005
Appearances for Parties
Advs. for the Appellants:
Rajesh Kandari, Abhinav Parihar, Vikrant Singh Bais, Ms. Sangeeta
Kumar, Mrs. Vithika Garg, Ms. Vidushi Garg, Hemant Kumar Tripathi
Advs. for the Respondent:
Karan Kapur, Abhishek Gautam
[2025] 4 S.C.R. 207
Sita Ram & Anr. v. The State of Himachal Pradesh
Judgment / Order of the Supreme Court
Order
1. This appeal arises from the judgment and order passed by the High
Court of Himachal Pradesh dated 13-9-2012 in Criminal Appeal No.
415/2005 by which the Criminal Appeal filed by the State of Himachal
Pradesh came to be allowed thereby setting aside the Judgment
and Order of acquittal passed by the Additional Sessions Judge,
Ghumarwin, District Bilaspur, Himachal Pradesh dated 28-5-2005
in Sessions Trial No.11/7 of 2004/2002.
2. The two appellants – herein along with a third co-accused namely
Pyare Lal were put to trial in the Court of the Additional Sessions
Judge, Ghumarwin, District Bilaspur, Himachal Pradesh in Sessions
Trial No.11/7 of 2004/2002 for the offences under Sections 451, 324,
504, 506 and 304 read with Section 34 of the Indian Penal Code
(for short, “IPC”).
3. The Sessions trial culminated from the chargesheet filed in connection
with the First Information Report No.205/2000 lodged by the deceased
himself.
4. The First Information Report lodged by the deceased himself reads
as under: -
“FIRST INFORMATION REPORT
(Under Section 154 Cr.P.C.)
1. District Bilaspur; P.S. Ghumarwin; Year 2000; FIR No.
205/2K Dated 17.11.2000
2. Acts: Under Sections 451, 324, 504, 506 & 34 IPC.
3. [a]. Occurrence of offence: Thursday 16.11.2000 from
10.30 p.m. to 11.00 p.m.
[b]. Information received at P.S. 17.11.2000 at 10.15 a.m.
[c]. General diary reference – DD No. 7 time 10.15 a.m.
4. Type of information: Written/Oral.
5. Place of occurrence:
208 [2025] 4 S.C.R.
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[a]. Direction and distance from P.S. – 8 Km. Palthin.
[b]. Address: Palthin, P.S. Ghumarwin, District Bilaspur,
Himachal Pradesh.
[c]. In case, outside the limit of the Police station:
6. Complainant/informant: Shri Prem Lal, S/o Shri Ram
Dittu, Occupation Farmer, R/o Palthin, Tehsil Ghumarwin,
District Bilaspur (Himachal Pradesh).
7. Details of known/suspect/unknown accused with full
particulars (attach separate sheet if necessary):
8. Reason for delay in reporting by the complainant/
informant:
9. Particulars of the properties stolen/involved (attach
separate sheet if necessary).
10. Total value of the property stolen:
11. Inquest Report/UD Case number, if any:
12. FIR Contents (attach separate sheet, if required).
Today on 17.11.2000, Shri Prem Lal, Complainant
mentioned in Col. 6 above came to Police station and
filed his complaint which is lodged as Report no.7 in
DD dated 17.11.2000. Name of the Informant: Prem Lal,
S/o Ram Dittu, Caste Harijan, R/o Village Palthin, P.S.
Ghumarwin, District Bilaspur, aged about 42 years. Report
lodged on 17.11.2000 at 10.15 a.m. Complainant Prem
Lal, S/o Ram Dittu, mentioned in Col.2 came to Police
station and reported that – I am living in Village Palthin;
on 16.11.2000 at around 10.30 p.m., I was sitting in the
angan of my house and was arguing with my brother
Pyare Singh over the issue of pile of cow-dung; during
these arguments, my brother Pyare Singh called Sita Ram
and Onkar and both of them reached there immediately
and after that all three of them started beating me in the
angan of my house; Sita Ram who was holding a darat
in his hands attacked me on my forehead with said darat
and after that all three of them beat me with kicks and
punches; in the meanwhile my wife came and save me from
[2025] 4 S.C.R. 209
Sita Ram & Anr. v. The State of Himachal Pradesh
them; thereafter all of them went away after threatening
to kill me and exhorted today you were lucky – but next
time we will kill you. Sir, I want my medical checkup. I
have come to you for reporting above incident. Please
take suitable action. Sd/- Prem Lal. Police proceedings:
Contents of above report prima facie reveal case of
beating and accordingly report has been registered and
said report has been read over to the complainant who
has admitted the same to be correct and he has put his
signatures in Hindi below his statement. After completing
necessary formalities, complainant has been sent for his
medical check up along with Constable Daulat Ram no.
411. After some time, Constable Daulat Ram came back
to Police station after check up of Complainant Prem Lal,
S/o Ram Dittu by CHC, Ghumarwin and submitted MLC of
the Complainant in which M.O. Sahib has made following
endorsement – ‘Duration of injury weapon used sharp’.
Case no. 205/2K dated 17.11.2000 under Sections 451,
324, 504, 506 and 34 IPC has been registered at Police
Station. Investigation of this case has been marked to
ASI Jamer Singh.
13. Action taken (since the above information reveals
commission of offence(s) under Section as mentioned
at Item no.2 above. Registered the case and took up
investigation. Directed ASI Jamer Singh to take up
investigation. FIR read over to the complainant/informant,
admitted to be correctly recorded and a copy given to the
complainant/ informant, free of cost.
RO & AC.”
5. Thus, it appears that on 16-11-2000 at around 10.30 pm, the deceased
had a quarrel with his own brother Pyare Lal (co-accused) in respect
of setting a heap of cow dung on fire. Pyare Lal getting annoyed
called for his two friends i.e. the appellants before us. All the three
accused are alleged to have laid an assault on the deceased.
6. It is the case of the prosecution that the Appellant No.1 – herein
(Sita Ram) had in his hand a weapon called `Darat’. He is alleged
to have hit a blow with `Darat’ on the forehead of the deceased.
Darat is in the form of a sickle and is used as an agricultural tool.
210 [2025] 4 S.C.R.
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7. The other two co-accused are alleged to have assaulted the deceased
with fist and kick blows.
8. The wife of the deceased (Roshani Devi) (PW-3) came to the rescue
of the deceased.
9. It appears that after taking preliminary medical treatment, the
deceased himself went to the Police Station and lodged the First
Information Report.
10. Later in point of time, as his health deteriorated, he got himself
admitted in the Civil Hospital.
11. After about 9 days from the date of the incident i.e. on 25-11-2000,
he passed away.
12. The original FIR lodged by the deceased was for the offences
punishable under Sections 451, 324, 504, 506 read with 34 of IPC.
As the deceased passed away, the police added Section 304 IPC.
13. The post-mortem report reveals that there was a fissured fracture in
the skull of the deceased. While undergoing treatment, he suffered
gastroenteritis and that further deteriorated his health. Ultimately,
as per the opinion of the medical expert, he died due to asphyxia.
14. The trial court framed charge against the accused persons vide
order dated 20-4-2004
15. Charge in respect of Sita Ram & Pyare Lal respectively reads thus:
“That on 16.11.2000, at about 10.30 P.M. at Village Palthi
you and the co-accused in furtherance of common intention
of all committed house trespass by entering into the house
of Prem Lal used as a human dwelling in order to attack said
Prem Lal and also to criminally intimidate him and thereby
committed an offence punishable u/S. 451 I.P.C. read with
section 34 I.P.C. and within the cognizance of this court.
Secondly, on the aforesaid date, time and place you and
the co-accused in furtherance of common intention of all
voluntarily caused hurt to said complainant Prem Lal by
giving blows with a ‘Darat’ an instrument meant for cutting
and that you thereby committed an offence punishable
u/S.324 I.P.C. read with section 34 I.P.C. and within the
cognizance of this court.
[2025] 4 S.C.R. 211
Sita Ram & Anr. v. The State of Himachal Pradesh
Thirdly, on the aforesaid date, time and place you and
the co-accused in furtherance of common intention of all
intentionally insulted Prem Lal by abusing him and thereby
gave provocation to said Prem Lal intending or knowing
it to be likely that such provocation will cause said Prem
Lal to break public peace and that you thereby committed
an offence punishable u/S. 504 I.P.C. read with section 34
I.P.C. and within the cognizance of this court.
Fourthly, on the aforesaid date, time and place you and
the co-accused in furtherance of common intention of all
criminally intimidated said Prem Lal to do away with his life
and you thereby committed an offence punishable under
Section 505 IPC read with Section 34 IPC and within the
cognizance of this Court.
Lastly, on the aforesaid date, time and place you and
the co-accused in furtherance of common intention of all
committed culpable homicide of Prem Lal not amounting
to murder and thereby committed an offence punishable
u/s. 304 I.P.C. read with Section 34 I.P.C. and within the
cognizance of this court.
I hereby direct that you be tried on the aforesaid charge
by this court.”
certified that the contents of the aforesaid charge have
been read over and explained to accused in vernacular.
Statement of accused Sita Ram S/o Sh. Panju, Distt. /
Dittu R/o village Palthi, Police Station Ghumarwin, Distt.
Bilaspur, H.P. aged 42 years.”
Charge in respect of Onkar:-
“That on 16.11.2000, at about 10.30 P.M. at Village Palthi
you and the co-accused in furtherance of common intention
of all committed house trespass by entering into the house
of Prem Lal used as a human dwelling in order to attack
said Prem Lal and also to criminally intimidate him and
thereby committed an offence punishable u/S. 451 I.P.C.
read with section 34 I.P.C. and within the cognizance of
this court.
212 [2025] 4 S.C.R.
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Secondly, on the aforesaid date, time and place you and
the co-accused in furtherance of common intention of all
voluntarily caused hurt to said complainant Prem Lal by
giving blows with a ‘Darat’ an instrument meant for cutting
and that you thereby committed an offence punishable
u/S.324 I.P.C. read with section 34 I.P.C. and within the
cognizance of this court.
Thirdly, on the aforesaid date, time and place you and
the co-accused in furtherance of common intention of all
intentionally insulted Prem Lal by abusing him and thereby
gave provocation to said Prem Lal intending or knowing
it to be likely that such provocation will cause said Prem
Lal to break public peace and that you thereby committed
an offence punishable u/S. 504 I.P.C. read with section 34
I.P.C. and within the cognizance of this court.
Fourthly, on the aforesaid date, time and place you and
the co-accused in furtherance of common intention of all
criminally intimidated said Prem Lal to do away with his life
and you thereby committed an offence punishable under
Section 506 IPC read with Section 34 IPC and within the
cognizance of this Court.
Lastly, on the aforesaid date, time and place you and
the co-accused in furtherance of common intention of all
committed culpable homicide of Prem Lal not amounting
to murder and thereby committed an offence punishable
u/s. 304 I.P.C. read with Section 34 I.P.C. and within the
cognizance of this court.
I hereby direct that you be tried on the aforesaid charge
by this court.”
certified that the contents of the aforesaid charge have
been read over and explained to accused in vernacular
statement of accused Onkar S/o Sh. Panju Ram R/o Village
Palthi, Police Station Ghumarwin, Distt. Bilaspur, H.P.”
16. The accused persons denied the charge and claimed to be tried.
17. In the course of the trial, the prosecution examined as many as 11
witnesses. The prosecution also relied on few pieces of documentary
evidence.
[2025] 4 S.C.R. 213
Sita Ram & Anr. v. The State of Himachal Pradesh
18. The trial court upon appreciation of the oral as well as documentary
evidence on record acquitted all the three accused of the charges,
referred to above.
19. The State, being dissatisfied with the Judgment and order of acquittal
passed by the trial court, challenged the same before the High Court
by way of Criminal Appeal No.415/2005.
20. The High Court upon re-appreciation and re-evaluation of the entire
evidence on record reached the conclusion that the trial court
committed an error in acquitting the accused persons.
21. The High Court ultimately held the appellant No.1 – herein Sita Ram
guilty of the offence of culpable homicide not amounting to murder
punishable under Section 304 IPC and sentenced him to undergo
6 years of rigorous imprisonment with fine of Rs.5000/-.
22. So far as the appellant No.2 – Onkar Singh is concerned, the High
Court held him guilty of the offence punishable under Section 323
and 451 IPC respectively and sentenced him to undergo one year
of rigorous imprisonment with fine.
23. The third accused does not seem to have preferred any appeal.
24. In such circumstances, referred to above, the appellants are here
before this Court with the present appeal.
25. Mr. Vikrant Singh, the learned counsel appearing for the appellant
No.1 vehemently submitted that the High Court committed an error
in disturbing a very well-reasoned judgment of acquittal passed by
the trial court. He submitted that the trial court looked into the entire
evidence threadbare and rightly held that the prosecution had failed
to establish its case beyond reasonable doubt.
26. He would submit that even if a second view was possible on the
same set of evidence, the High Court in an acquittal appeal should
not have disturbed the findings recorded by the trial court so easily
unless found to be perverse.
27. He would submit that the incident had occurred sometime in 2000.
Almost 25 years have elapsed. His client is a rustic villager and is
about 63 years of age as on date.
28. Ms. Sangeeta Kumar, the learned counsel appearing for the appellant
No.2 adopted the submissions canvassed by the learned counsel
214 [2025] 4 S.C.R.
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appearing for the appellant No.1. However, she put forward two more
submissions, which we must look into and deal with.
29. Her first submission is that the deceased died of asphyxia and that
too after a period of nine days from the date of the incident. According
to her, the First Information Report lodged by the deceased could
not have been treated as a dying declaration under Section 32 of
the Evidence Act, as the same does not relate to the cause of death
of the deceased. In other words, the submission is that the cause
of death being asphyxia, the same had no nexus with the injury
suffered by the deceased on his head.
30. Her second submission is that when the FIR was lodged by the
deceased at the Police Station, there was no expectancy of death.
In other words, whatever the deceased stated in his FIR was not
said in expectancy of death and therefore, would not be admissible
under Section 32 of the Evidence Act.
31. On the other hand, Mr. Abhishek Gautam, the learned counsel
appearing for the State of Himachal Pradesh submitted that no
error not to speak of any error of law could be said to have been
committed by the High Court in holding the appellants guilty of the
offence charged with.
ANALYSIS
32. Having heard the learned counsel appearing for the parties and
having gone through the materials on record, we are of the view
that we should not undertake any further exercise of re-appreciating
the evidence as the same has been looked into by the High Court
thoroughly.
33. We do not find any palpable error or perversity in the reasonings
assigned by the High Court while holding both the appellants guilty
of the alleged offence.
34. As noted aforesaid, the cause of death appears to be asphyxia.
Ordinarily, asphyxia is due to strangulation or throttling. However,
such is not the case of prosecution. One would wonder if a person
has sustained or suffered injuries on his head, how could he die of
asphyxia. However, the medical science says that at times due to
head injury if sufficient oxygen does not reach the brain that may
lead to asphyxia. Lack of adequate supply of oxygen to brain may
[2025] 4 S.C.R. 215
Sita Ram & Anr. v. The State of Himachal Pradesh
lead to various complications such as brain swelling, damage to
breathing centers, or impaired blood flow to the brain. The head
injury can cause the brain to swell, increasing pressure within the
skull. This pressure can compress vital brain areas, including those
responsible for breathing, leading to difficulty breathing or even
complete cessation of breathing.
Damage to Breathing Centers:
35. The brainstem, located at the base of the brain, contains the centers
that control breathing, heart rate, and other vital functions. A head
injury can cause damage to these areas, disrupting their ability to
regulate breathing, leading to asphyxia.
Impaired Blood Flow
36. Head injuries can damage blood vessels in the brain, leading to
reduced blow flow and oxygen delivery to brain tissue. This can lead
to a condition called hypoxia, or a lack of oxygen, which can cause
brain damage and even death.
Other Complications:
37. In some cases, head injuries may also lead to other complications
that can cause asphyxia, such as seizures, vomiting, or aspiration
(inhaling foreign materials).
Hypoxic-Ischemic Brain Injury:
38. This type of brain injury occurs when the brain doesn’t receive
enough oxygen and blood, leading to damage and potentially long-
term disabilities.
39. Ms. Sangeeta Kumar vehemently submitted that the deceased died of
asphyxia and that too after a period of nine days. She would submit
that since the cause of death has no proximate connection with the
actus reus of the accused, the statement of the deceased in the form
of an FIR cannot be considered to be a dying declaration in terms
of Section 32 of the Evidence Act. In other words, the crux of her
submission is that the FIR cannot be treated as a dying declaration
because the statement of the deceased therein imputing the actus
reus on the part of the accused neither reveals the actual cause
of his death as per the post-mortem report, nor does the death of
216 [2025] 4 S.C.R.
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the deceased itself bear any proximate relation with the actus reus.
To put it simply, since the statement of the deceased in the FIR
alleged only infliction of head wounds by the accused whereas the
post-mortem report suggested the cause of death to be asphyxia,
it could be said that there is nothing in his statement which reveals
his actual cause of death i.e., asphyxia, and hence the same cannot
be considered to be a dying declaration.
40. In this regard, we may refer to and rely upon the definition of Asphyxia
in Schmidt’s Attorneys’ Dictionary of Medicine, Vol. 1, at page A-313,
which states as:
“Asphyxia: The state of suffocation, marked by a
deficiency in oxygen and an oversupply or excess of
carbon dioxide in the blood and the tissues. If unrelieved,
the condition proceeds from a sense of suffocation to
coma, and finally to death. Asphyxia may be brought
about in many ways, by blocking the entrance of air to
the lungs, by inhaling carbon monoxide which devitalizes
the oxygen-carrying capacity of the blood, by electric
shock, by drowning, etc. Local asphyxia involves a region
or part of the body, as the fingers. It is caused by an
inadequate blood supply.”
41. A paper titled Male With Torso Injury purports that “it is not unusual
for patients with traumatic asphyxia to have associated significant
head (67%), thoracic (58% to 79%), or abdominal (50%) injuries”.
Asphyxia in such patients is often found to stem from bodily injuries
sustained at an earlier occasion. [See: Braslow, B. M., Stawicki,
S. P., & Dickinson, E. T., Male With Torso Injury, 53(1) Annals of
Emergency Medicine, 159–167 (2009).]
42. Another study, Hypoxic Brain Injury, published in the National Library
of Medicine of the United States of America, describes ‘anoxia’ as
a complete lack of oxygen delivery to an organ whereas, ‘hypoxia’
refers to a condition wherein an organ experiences insufficient oxygen
delivery to meet the tissue’s metabolic needs. The two terms are used
interchangeably. The study reveals that anoxic and hypoxic brain
injury is a phenomenon that can occur whenever oxygen delivery to
the brain is compromised. It can result from interruption of blood flow
to the brain, on account of cardiac arrest, strangulation, or systemic
derangements that affect the oxygen content of the blood. It further
[2025] 4 S.C.R. 217
Sita Ram & Anr. v. The State of Himachal Pradesh
reports anoxic brain injury can result in prolonged coma to death.
Their trials disclose that 27% of patients with post-hypoxic coma
regained consciousness within a few days, 9% remained in coma
or in vegetative state, and 64% died. [See: Myriam Lacerte, Angela
Hays Shapshak, Fassil B. Mesfin, “Hypoxic Brain Injury”, National
Library of Medicine, January 27, 2023.]
43. Hypoxic brain injury (also known as hypoxic-ischemic encephalopathy)
is often caused by vascular injury or insult (internal bodily trauma
injury) [See: Zachary Messina; Angela Hays Shapshak; Rebecca
Mills. “Anoxic Encephalopathy”, National Library of Medicine].
Vascular injury can come in three forms: blunt, penetrating, or
combination. Typically, patients who die of hypoxic brain injury or
hypoxic-ischemic encephalopathy often show asphyxia as one of the
primary symptoms. [See: Di Muzio B, Mahsoub M, Walizai T, et al.
Hypoxic-ischemic encephalopathy (adults and children)]. Further, in
the United States, hypoxic-ischemic brain injury has been reported
to be the third leading cause of death, affecting over half a million
new victims of crime each year. [See: Laura L Dugan and Dennis
W Choi. “Hypoxia-Ischemia and Brain infarction”, National Library
of Medicine]
44. Head injuries can possibly lead to formation of ulcers in the stomach
known as ‘cushings ulcers’ because of irritation or impairment of
a nerve embedded in the brain known as ‘Vagus Nerve’ which is
directly connected to the stomach and its functioning. When a wound
is inflicted such as to irritate or impair the functioning of this nerve,
the same leads to gastroenteritis which causes formation of liquid
in the stomach known as ‘chyme’ that has the possibility of entering
the lungs if the victim happens to be in a near comatose state, as
often happens in head injuries, and this eventually leads to the
brain being deprived of oxygen, leading to asphyxia. In the present
case also, the post-mortem report reveals that the deceased while
undergoing treatment of the skull fracture suffered gastroenteritis,
which cut off the supply of oxygen, when the liquid in the stomach
entered his lungs leading to his death by asphyxia. [See; M. Michael
Wolfe and George Sachs, Acid Suppression: Optimizing Therapy for
Gastroduodenal Ulcer Healing, Gastroesophageal Reflux Disease,
and Stress-Related Erosive Syndrome, Vol 118(2) Gastroenterology
S9-S31 (2000)]
218 [2025] 4 S.C.R.
Supreme Court Reports
45. Although the post-mortem report simply says that the cause of death
was asphyxia, yet in the medico-legal jurisprudence the cause of
death of the deceased would be the wound in the head leading to
a fissured fracture in the skull which led to asphyxia and ultimately
the death of the deceased by this phenomenon; ‘hypoxic brain
injury’. In light of the above exposition, we do not find any force in
the submission canvassed on behalf of the appellants.
Whether Section 32 of the Evidence Act requires an Expectation
of Death?
46. Today, we have before us the First Information Report lodged by
the deceased himself. The question is whether we should treat it as
a dying declaration under Section 32 of the Evidence Act or not?
47. Ms. Sangeeta Kumar, the learned counsel appearing for the Appellant
No.2 would submit that although the first information report was
lodged by the deceased himself, yet it could not have been treated
as a dying declaration as the same was not in expectation of death.
48. Section 32(1) of the Evidence Act reads as under:
“Section 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:
(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 persons
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.”
[2025] 4 S.C.R. 219
Sita Ram & Anr. v. The State of Himachal Pradesh
49. Whether a dying declaration should be believed or not would
depend upon the circumstances of the case. It is essentially a
question of fact to be determined by the Court on the basis of the
circumstances of each case. As far as the credibility is concerned,
it is just like the evidence given by a witness. It is for the Court to
decide whether to believe it or not and no rule can be laid down
either that it should be believed or that it should not be believed.
Once it is believed, it is irrelevant and illogical to consider that it
is not made on oath and that the maker has not been subjected to
cross-examination. The oath, is administered simply with the object
of making the witness speak the truth so that what he deposes
may be believed. The object of cross-examination is to test the
veracity of the witness. [See; Irfan @ Naka v. State of Uttar Pradesh
reported in 2023 INSC 758]
50. But once the dying declaration is held to be believable, the questions
that no oath was administered and that the dying declaration was
not tested by cross-examination cannot arise. The questions would
have to be considered before holding the dying declaration to be
believable. When the law has made it a “relevant fact” notwithstanding
the absence of oath and cross-examination, it means that it will not
be held to be unbelievable merely on account of the absence of these
matters. If it is held to be unbelievable, it must be done on the basis
of other circumstances. Therefore, it would be incorrect to say that
a dying declaration cannot be acted upon without corroboration; if
it is believed, it requires no corroboration.
51. English law admits as dying declarations only such statements of
material facts concerning the cause and circumstances of homicide,
as are made by the victim under the fixed and solemn belief that his
death is inevitable and near at hand. The solemnity of the occasion
on which the statements are made is deemed to supply the sanction
of oath. The approach of death is deemed to produce a state of mind
in which the statements of the dying person are to be taken as free
from all ordinary motives to misstate.
52. The law in India does not make the admissibility of a dying declaration
dependent upon the person’s having a consciousness of the approach
of death. Even if the person did not apprehend that he would die, a
statement made by him about the circumstances of his death would
be admissible under Section 32 of the Evidence Act.
220 [2025] 4 S.C.R.
Supreme Court Reports
53. In the aforesaid context, we may refer to the decision of this court
in the case of State of Haryana v. Mange Ram and Others reported
in (2003) 1 SCC 637 wherein this Court observed as under: -
“11. … The basic infirmity committed by the High
Court is in assuming that for a dying declaration to be
admissible in evidence, it is necessary that the maker
of the statement, at the time of making the statement,
should be under the shadow of death. That is not what
Section 32 of the Indian Evidence Act says. That is not the
law in India. Under the Indian law, for dying declaration
to be admissible in evidence, it is not necessary that
the maker of the statement at the time of making the
statement should be under the shadow of death and
should entertain the belief that his death was imminent.
The expectation of imminent death is not the requirement
of law. ….”
(Emphasis Supplied)
54. In Kans Raj v. State of Punjab and Others reported in (2000) 5 SCC
207, this Court observed as under: -
“Section 32 does not require that the statement sought
to be admitted in evidence should have been made in
imminent expectation of death. The words “as to any of
the circumstances of the transaction which resulted in his
death” appearing in Section 32 must have some proximate
relations to the actual occurrence. In other words the
statement of the deceased relating to the cause of death
or the circumstances of the transaction which resulted
in his death must be sufficiently or closely connected
with the actual transaction. To make such statement as
substantive evidence, the person or the agency relying
upon it is under a legal obligation to prove the making of
such statement as a fact.”
(Emphasis supplied)
55. Thus, we find no merit in both the submissions of Ms. Sangita Kumar.
[2025] 4 S.C.R. 221
Sita Ram & Anr. v. The State of Himachal Pradesh
CONCLUSION
56. In the overall view of the matter, we have reached the conclusion
that we should not interfere with the impugned Judgment and order
of the High Court. However, there are few mitigating circumstances
on the basis of which we are persuaded to reduce the sentence
imposed by the High Court.
57. So far as the appellant No.1 is concerned i.e. Sita Ram, he has been
sentenced to undergo 6 years of RI with fine of Rs.5000/-. It appears
that as an under-trial prisoner, he was in jail for about 3 months.
58. We reduce the sentence from 6 years RI to 1 year RI while maintaining
the amount of fine of Rs.5000/-. In the event if the fine of Rs.5000/-
is not deposited, he shall further undergo 6 months of RI.
59. So far as the appellant No.2 – Onkar Singh is concerned, he has
been sentenced to undergo 1 Yr of RI with fine.
60. In the case of Onkar Singh, we reduce the sentence to the period
already undergone. However, he shall pay the fine of Rs.10000/- if
not yet paid. In the event if the fine of Rs.10000/- is not deposited,
then he shall undergo 6 months of RI as imposed by the High Court.
61. The appellant Sita Ram was ordered to be enlarged on bail by this
Court pending the present appeal. He shall now surrender before
the Trial Court to undergo the remaining part of the sentence within
a period of 8-weeks from today.
62. The appeal stands disposed of in the aforesaid terms.
Result of the case: Appeal disposed of.
†
Headnotes prepared by: Nidhi Jain
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