Holding

A dying declaration is admissible when the attending doctor certifies the victim's consciousness, and the High Court's order discarding it is unsustainable.

Summary

The husband allegedly poured kerosene on his wife Kamalam, causing severe burns; she was taken to hospital where she gave a dying declaration implicating him. The trial court convicted the husband under Section 302 IPC based on the dying declaration, medical officer's report, and oral testimonies of relatives. The Madras High Court acquitted him, discarding the dying declaration on the ground that the magistrate should have independently verified the victim's fitness to testify and on the basis of an alleged FIR claim that the husband had brought the intimation to police. The Supreme Court held that the magistrate's reliance on the attending doctor's certification of consciousness satisfied the requirement of fitness, and that the High Court erred in discarding the dying declaration and other evidence without reason. Consequently, the Supreme Court set aside the High Court judgment, reinstated the conviction, and ordered the respondent to surrender to custody.

Issues considered

Whether a dying declaration recorded by a magistrate, based on a doctor's certification of the victim's consciousness, is admissible without the magistrate making an independent enquiry.
Whether the High Court was justified in discarding the dying declaration and other witness evidence.
Whether the FIR statement that the husband brought the intimation to police affects the credibility of the dying declaration.
Whether the conviction under Section 302 IPC should stand.

Legislation cited

Code of Criminal Procedure, 1973s. 313
Indian Penal Code, 1860s. 302

Subjects

dying declarationSection 302 IPCmurderadmissibility of evidencemagistrate's satisfactionconvictionappeal

Judgment

[2008] 16 S.C.R. 481

("
,.._--f STATE OF TAMIL NADU A
v.
KARUPPASAMY
· (Crimi_nal Appeal No. 573 of 2002)
NOVEMBER 20, 2008 B
(DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM
lit. + SHARMA, JJ.]

Penal Code, 1860 - s. 302 - Conviction under - Death ·
of wife due to burn injuries - Quarrel between the parties over c
husband's illicit relations - Dying declaration recorded by
Magistrate implicating the husband, having poured kerosene
on her and setting her ablaze - Evidence of related witnesses
as to .declaration by deceased - Conviction by trial court -
However, set aside by High Court - Sustainability of - Held: D
Not sustainable - High Court discarded the dying declaration
recorded by Magistrate as the Magistrate went by the version
f of the doctor and did not independently enquire from the
deceased whether she was in a fit condition to make
statement, which was clearly erroneous - It also discarded the E
evidence of other witnesses as also medical officer without
giving reasons - Finding that accused brought the intimation
from hospital to police station about the incident was contrary
- Thus, order of High Court set aside.
- _.._..., F
According to the prosecution case, husband of K
had illicit relations with P. There were quarrels between
the husband and K-wife. On the fateful day, the husband
poured kerosene on K and set her on fire. K sustained
burn injuries and was taken to the hospital. PW 8-Medical
Officer found extensive burn injuries on the person of K G
and sent intimation to the police as also to the Magistrate.
-+- The Magistrate reached the hospital. PW 8 certified that
K was conscious and oriented to give her statement.
Magistrate recorded her statement. PW 12-constable also
481 H
482 SUPREME COURT REPORTS [2008] 16 S.C.R.

A recorded K's statement. PW-12 then sent intimation
through phone to investigating police station.
Subsequently K died. F!R was registered u/s. 302 IPC. The
doctor conducted the post mortem and opined that the
deceased died due to the burn injuries. Trial court relying
B on the oral evidence ·of PWs 1, 2, 4, 5 and 6-mother,
brothers and other's, as to declaration by deceased about
the cause of her death· implicating the husband and the + •
dying declaration recorded by PW-11-Magistrate,
convicted the husband u/s.302 IPC and awarded life
c imprisonme,~t. However, High Court set aside the
conviction a~ th~ prosecution case was full of suspicious
circumstanclesi dt discarded the dying declaration
J
recorded by PW 11, evidence of PWs. 1, 2, 3, 4, 5,"6 and
8. It noted that the FIR disclosed that the husband
brought the intimation from the hospital to the police.
0
Hence the: present appeal.

Allowing the appeal, the Court

. HELD: 1.1. The conclusions of the High Court that
E PW 11 ~Magistrate should not- have gone by what the
doctor said and should have made independent
enquiries is an absurd conclusion. It is not understood
as to what the High Court meant by observing that PW
11 should have found out from the deceased as to
F whether she was conscious, oriented and was in a fit
condition to give the statement. The High Court was of
the view th~t the ,evidence of PW 11 shows that her
satisfaction was a subjective satisfaction solely on the
basis of the opinion of the Doctor. There _is nothing wrong
G in such a satisfaction being arrived at because the doctor
is an appropriate person to certify on that aspect. (Paras
5, 6 and -7] (488-8-D-E-G]
1.2. High Court recorded the finding that the FIR
disclosed that the accused brought the intimation from
H
STATE OF TAMIL NADU v. KARUPPASAMY 483

• I'--; the hospital to the police station. The factual position is A
clearly to the contrary. The accused did not take the
intimation because PW 12 who was working as Grade I
constable at the out post police station attached to the
medical college hospital received intimation from the
hospital. According to PW 12, after receiving the B
intimation he went to the hospital, examined the deceased 1

\ -.+ who was undergoing treatment for burn injuries. The
deceased gave the statement regarding the occurrence
which was recorded and he sent the intimation through,
the phone to the police regarding the substance of the c
statement. The High Court also did not assign any reason !

as to why the declaration made before PWs 1, 2, 4, 5 and
6 was unreliable. It discarded the evidence of PW 8-,
doctor without even indicating reason for doing so. The
trial court had analysed their evidence and come to the ·
D
conclusion that the deceased made statement before
them as to the cause of death clearly implicating the
·~
accused. The High Court's judgment is clearly ,
unsustainable and is set aside. [Paras 8, 9 and 10] [488-
H; 489-A-D]
E
'- CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 573 of 2002.
From the Judgment and final Order dated 27.3.2001 of the
High Court of Judicature at Madras in Crl. Appeal No. 734 of
1992. F
·. ,. -..;
S. Thananjayan for the Appellant.

The Judgment of the Court was delivered by

DR. ARIJIT PASAYAT, J. 1. Challenge in this appeal is G
to the judgment of the Division Bench of the Madras High Court
4 directing acquittal of the respondent (hereinafter referred to as
the 'accused'). Learned Sessions Judge Tirunelveli, had found
the accused guilty of offence punishable under Section 302 of
the Indian Penal Code, 1860 (in short the 'IPC') and sentenced H
·-
1·
),.
\

484 SUPREME COURT REPORTS [2008] 16 S.C.R. '
>
·,--
I
'-
him to imprisonment for life. t-
A >r-,
2 .. Prosecution version as unfolded during trial is as
~

follows:. '.
'.
. ,;
'
Kamalam is th.e de~~~sed in this cas~. She is the d~ughter
B of P.W.2. P.Ws 1, 5 and 6 are the sons of P.W.2 and incid~ntc:1lly,
th.ey are the brothers of Kamalam. The accused is the husband
of Kamalam. Even prior to their marriage, on account of their + )_ l
acquaintance, Kamalam conceived. Thereafter, their marriage t
took place. The family of the accused wanted a sum of .
c Rs.4,000/- to be given at the time of their marriage, which was
accordingly provided by P .W.1. Six months after their marriage,
Kamalam gave birth to a child. The accused had developed
an illicit intimacy with a lady called Parvathi. Since Kamalam
objected to it, there were quarrels between the accused and
r >
D Kamalam often. Around 10.00 a.m. on 12.9.1990, P.W.2 was t
t
in her house. She came to. know that her daughter was in
flames. Immediately, P.W.2 went to the house of Kamalam. At , ..

that time, P..W.2 found some burn injuries above the hip of her ~· ).-

daughter. Kamalam was made to rest on the pial of her house. ••
I

PWs.1 and 5 are masons by profession. On that day, they were
E
working in the house of the brother in law of the accused. P.W.2 .
,,.
sent word to them about the incident. Immediately, P.Ws 1, 5, ·
6 and another person went to the house of Kamalam, where
they found Kamalam lying on the pial with burn injuries. The
accused was also by her side at that time. When Kamalam was
t-
F ....
asked as to how she came to sustain the burn injuries, she ~-- J
replied that, "She objected to her husband's relationship with \

Parvathi; the accused asserted that he would continue to have l
such relationship. Whenever she objected to her husband's
')
relationship with Parvathi, the accused used to threaten her
G ~
stating that, he would pour kerosene and 'set fire to her; she '
told her husband that she is prepared even to die for the sake .r-
. ~
of her husband severing his relationship wHh Parvathi;
immediately the accused picked up a kerosene tin; poured · \.--
kerosene on her head and set fire to her". P.W. 3 & 4 did not
H

'·
I
STATE OF TAMIL NADU v. KARUPPASAMY 485
l
' [DR ARIJIT PASAYAT, J.]

r ...,( support the prosecution. A taxi was arranged for and in that taxi, A
-"I
Kamalam was transported to the Government Hospital at
Palayamkottai. P.Ws 1, 2 and others accompanied Kamalam
to the hospital. P.W.8 is the Medical Officer in the Government
Hospital at Tirunelveli. At 12.50 p.m. on 12.9.1990, Kamalam
was brought before him and he was informed that she had B
come to sustain the burn injuries at the hands of her husband,
.:, --+ by his pouring kerosene and setting fire to her. Kamalam was
admitted as an inpatient in the hospital. PW 8 found extensive
burn injuries on the person of Kamalam. He sent Ex.P4 to the
police. Ex.PS is the intimation sent by him to the Magistrate to c
record the dying declaration of Kamalam. P.W.11 is the Trainee
Magistrate, who reached the said hospital at 2.00 p.m. on that
day. Doctor Kanchana was by the side of Kama lam at that time.
She certified that Kamalam was conscious and oriented to give
a statement. He examined Kamalam and recorded her D
#
statement. Ex.P11 is the dying declaration of Kamalam. In
Ex.P.11, Kamalam had put her left thumb impression. P.W.12,
+- on receipt of Ex.P.4/intimation, went to the hospital, examined
Kamalam and recorded a statement from her. The statement
so re~orded from Kamalam was read over to her and after she
E
affirmed the same, her left thumb impression was obtained on
-,'
it. Ex.P .1 is that complaint. P.W.12, over telephone, sent an
intimation regarding the crime to the Investigating Police
Station. Accordingly, a Head Constable from the Investigating
Police Station came to the police out-post; collected Exs. P.1
and P.4 and handed over the same to P.W.13. P.W.15 is the F
' "'i
Sub-Inspector of Police. He collected Exs.P.1 and P.4 from
P.W.13 and registered it in Crime No.400/90 for the offence
punishable under Section 307 l.P.C. He sent the material
records to the Court as well as to the higher officials. Ex.P.12
is the F.l.R. He handed over the material records to the G
Inspector of Police personally. Despite treatment given to
-+
j

Kamalam, she died at about 7.50 p.m. on 15.9.1990. P.W.9 is
the Medical Officer, who sent Ex.P.6 to the police outpost at
Tirunelveli. Ex.P7 is the case sheet. On receipt of Ex.P .6, the
H
486 SUPREME COURT REPORTS . [2008) 16 S. C.R. ,_
A police out-post at Tirunelveli, passed on that message to the ).;.-~
·..--
Investigating Police Station over telephone. Ex. P.13 is the death
intimation, which was handed-over at the-Investigating Police
Station. ·At 9.00 p.m. on 12.9:1990, after receiving a copy of
Ex.P.12,:P.W.17 wenMo the scene; at 10.00p.m: on·that day,
B in the· prese·nce· of P.W:7 and· another, he prepared Ex.P .2/
observation rrl'ahazar and Ex.P.17(plan. At 10.30 p.m. on that
day, from the scene df occurrence, P.W.17 recovered a plastic -t- ...
can contai~ing kerosene; a match box and a partly burnt turkey
towel (M.Os 1 to 3), under Ex.P.3 attested by witnesses. P.W.17
.c examined P.Ws. 1, 2 and 7 and recorded their statements .
Further witnesses Were examined by him on 13.9, 1990 and
their statements. were recorded. ·On receipt of the death
intimation at 7.50 p.m. on 15.9.1990 from P.W.15, P.W.17
altered the section of offence into one under Section 302 LP.C.
and prepared the altered printed F. I. R. Ex. P~'18 is the altered .,
D
F.1.R. It was sent to the 1C0Lirt as well as to the higher officials.
As death had taken place within 1-1 /2 ·years after the marriage
of the· accused with the·deceased/Kamalam,·a copy of the F.l.R_. ~
was sent to the Revenue Divisional Officer, having jurisdiction.
P.W.16 is the Revenue Divisional Officer, who on receipt of the ·
E copy of.the F.l.R. went to the 'hospital :and conducted inquest ~

\

over the dead'body of the deceased between t1 :oo a'. m. and
1.00 p·. m. on 16.9.1990: Ex~P.14 is the inquest report. During
inquest, P~W.16 examined P.Ws. 1, ·s, 6 and another and·
recorded their statements. P.W.17, arrested. the· accused on
F 17.9:1990: ' ..
~
r-~
' .. ,_

.,. . The Doctor who cQnducted post mortem report was of.the
opinion tha~ the d~ceased died du~ to burn .injuries. After
completion oHnvestigation charge sheet was. filed. The
. G accused pleaded innocence and, therefore, the trial was held .
In his examinati~n under. Section 313 of the Code of Criminal
Pr~cedure; 1973 (in short the 'Code') the. accused took the ~
stand that
' '
he. was
. .. not
'
in the house when the .occurrence took
' . ,, .

place; When he.returned frorp. work place he found· his wife with
H burn injuries and immediately he rushed her to the hospital. The
STATE OF TAMIL NADU v. KARUPPASAMY 487
[DR. ARIJIT PASAYAT, J.]
,.,--~
prosecution relied on two sets of evidence; one related to the A
oral evidence of PWs 1, 2, 4, 5 & 6. Admittedly they were not
eye wit_nesses. They have been examined to prove what the
deceased declared when she was alive and was fighting for a
life,·about the cause of her death. The next set of evidence is
primarily the dying declaration Ex.P.11 recorded by (PW 11), B
__._ the Magistrate. The Doctor who was attending the decease~
as an indoor patient was by the_ side of the patient all through.
PW 11 's evidence indicated that she was conscious, oriented
and was in a fit condition to give the statement. Relying on the
aforesaid evidence the Trial Court found the accused guilty. c
-- In appeal the High Court was of the view that PW 11 should,
have inquired from the deceased as to whether she was in a
fit condition to make the statement. The doctor has not been
examined but at the foot of the dying declaration her opinion
was recorded. High Court found that the evidence of PWs. 2, D
3, 4, 5 & 6 about the dying declaration was not believable. It
._ also discarded evidence of PW 1 on the ground that he was
one of the brothers of the deceased. The Doctor, PW8 had
recorded that the deceased's condition was dexterous and the
level of consciousness would depend upon several factors. E
Reference was made to the evidence of PW 9 to conclude that
the evidence of PW 8 was not free from doubt. The High Court
noted that, the FIR (Exh.P12) disclosed that the husband
brought the intimation fiOm the hospital to the police. Because
,,._ 'i of the aforesaid factors, the High Court considered the F
prosecution version to be full of suspicious circumstances and,
as noted above!__t_h~- acquittal was directed.

3. In supp.o_rfcif--the appeal, learned counsel for the
appellant submitted that the analysis made by the High Court
G
is clearly erroneous. No reason has been assigned to discard
~ the dying declaration. The criticism of the High Court that PW
11 entirely went by the version of the Doctor, should not have
been treated as a factor to discard the' testimony of PW 11.
There are certain other factual erroneous conclusions,also.
H
488 SUPR.EME COURT REPORTS [2008] 16 S.C.R.

A 4, The respondent has. not appeared in spite of service of )<;---... ,
notice.··

; . 5. The·cQf)cl.usions ofthe High.<;;ourt that PWt1 ~houk;t'
not-have gone by.. v;vhat the doc.tor i.e. Dr:. Kancha·na said .. and
sho'uld have made.1.ndependent.enquiries.' is to say the.least
8
an absurd conc.lusion. The High Court has recorded as f<?llows:
.. --
,_ _ _"His.evidence show~ that Doctor Kanchana;certineq~
that Kamalam was· constious oriented and was in a fit
condifion to give· the statement. Doctor Kanchana was
C present by the side of PW 11 throughout. h appears from
the evidence of PW 11 that he was totally carried away by
.the opini()n qf doctor Kanchana. His ev.idence in chief does
not show that he enquired Kama lam to_ find .out as to
whether she was conscious oriented and wa_s in a fit
D ·condition to give the statement.".~ .

6: It is.not'understood as to what the High Court meant by.
observing. thaf PVV f1
stiould. hav.e found out from the ~-
deceased as to whether she· was ·conscious,· oriented and was
.a:
in fit ccmdition to give th£/st~tement The doctor who was
E attending. to the deceased has clearly. c~rtified that she was in
a.fit. condition
' .
fo. make .the
\. . '
statement-The
'
Doctor has made
the following observation: ·

- · . -"Certified that the patient Smt. Kamalam was
F conscious at the tim~ of taking the dyirig declaration and
taken in my presence.''

7. The High Court was of the view that the evidence of PW
11 · sh'c:)ws 'that; her satisfaction was a subjective satisfaction
G solely On ttie basis of the opinion of the'. Doctor. There is nothing_
wrong in such' asatisfaction being arrived at becausethe_doctor
is. an appropriate person to 7ertify on that aspect. · 1-r-
8. In addition, we find that the High Court recorded the_
finding that the accused_ brought the intimation from_ the hospital
"H to the police station which is Ex.P 12, the FIR. The factual
STATE OF TAMIL NADU v. KARUPP.ASAMY 489
[DR ARIJIT PASAYAT, J.)

position is clearly to the contrary. The accused did not tak.e the A
intimation because PW 12 who was working as Grade I
constable at the out post police station attached to the medical
college hospital received Ex. P 4 intimation from the hospital
on 12.9.1990 at 1.15 PM.
B
9. According to PW 12, after receiving the intimation he
went to the hospital, examined the deceased· who was
undergoing treatment for burn injuries. The deceased gave the
statement regarding the occurrence which was recorded as Ex.
P 1 and he sent the intimation through the phone to the police C
regarding the substance of the statement. The High Court has
also not assigned any reason as to why the declaration made
before PWs 1, 2, 4, 5 & 6 was unreliable. The Trial Court had
analysed their evidence and come to the conclusion that the
deceased made statement before them as to the cause of death
clearly implicating the accused. Similarly the evidence of the D
doctor, PW 8 has been discarded without even indicating
reason for doing so.

10. Above being the position the High Court's judgment
is clearly unsustainable and is set aside. The respondent shall E
surrender to custody forthwith to serve the remainder of
sentence. The appeal is allowed.

N.J. Appeal allowed.