Kushal Rao VS. The State Of Bombay

Reporting JudgeSinha

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Summary

The Supreme Court does not ordinarily function as a Court of criminal appeal, and it is not competent for a High Court under Art. 134(1)(c) of the Constitution to grant a certifi- cate of fitness for appeal to this Court on a ground which is essentially one of fact.

Haripada Dey v. The -State of West Bengal" - (1956) S.C.R.

639, followed.

There is no absolute rule of law, not even a rule of pru- dence that has- ripened -into a: rule of law- that a dying declaration in order-that it may sustain an order of convic- tion must be corroborated by, other independent evidence.

The observations made 553

by this Court in Madhoprasad v. The State of Madhya Pradesh are in the nature of obiter dicta and do not lay down the law.

Madhoprasad v. The State of Madhya Pradesh, A.I.R. (1953)

S.C. 420, considered.

In re Guruswami Tevar, I.L.R. (1940) Mad. I58, approved.

Case-law reviewed.

The provision of s. 32(I) of the Indian Evidence Act " which makes the statement in a dying declaration as to the cause of death and the circumstances that brought it about rele- vant, is an exception to the general rule of exclusion of hearsay evidence and evidence untested by cross-examination.

The special sanctity which the Legislature attaches to such a declaration must be respected unless such declaration can be shown not to have been made in expectation of death or to be otherwise unreliable and any evidence adduced for this purpose can only detract from its value but not affect its admissibility.

Although a dying declaration has to be very closely scruti- nised, and tested as any other piece of evidence, once the Court comes to the conclusion, in any particular case, that it is true, no question of corroboration arises.

A dying declaration cannot be placed in the same category as the evidence of an accomplice or a confession.

Consequently, in a case where the trial judge as also the High Court founded their orders of conviction of an accused person under S. 302 Of the Indian Penal Code mainly on three dying declarations made by the murdered person in quick succession one after the other, and the High Court, relying on a decision of this Court, sought for corroboration of such dying declarations in the fact that the accused person had absconded and was arrested in suspicious circumstances, but was in doubt as to the sufficiency of such evidence of corroboration and granted the certificate of fitness under Art. I34(I)(c): Held, that the certificate granted by the High Court was incompetent and as the case disclosed no grounds on which this Court could possibly grant special leave to appeal under Art. 136 of the Constitution, the appeal must be dismissed.

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Extract

Kushal Rao VS. The State Of Bombay

PETITIONER: KUSHAL RAO Vs.

RESPONDENT: THE STATE OF BOMBAY

DATE OF JUDGMENT: 25/09/1957

BENCH: SINHA, BHUVNESHWAR P.

MENON, P. GOVINDA

KAPUR, J.L.

CITATION: 1958 AIR 22 1958 SCR 552

ACT: Supreme Court, Criminal Appellate jurisdiction of--Certif- icate of fitness, if can be granted by High Court on a question of fact Dying declaration evidiantry value of-If must be corroborated in order to sustain conviction-Consti- tution of India, Art. 134(1)(c)- Indian Evidence Act (.1 of 1872), s. 32(1).

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: criminal Appeal No. 184 of 1956.

Appeal.. from the judgment and order dated October 15, 1956, of the former Nagpur High Court in Criminal Appeal No. 205 of 1956 and Criminal Reference No. 15 of 1956, arising out of the judgment and order dated July 10, 1956, of the First Additional District Judge, Nagpur in Sessions Trial No. 34 of 1956.

554

J. N. Banerjee and P. C. Agarwala, for the appellant.

Jindra Lal and R.H.Dhebdr, for the respondent.

1957. September 25. The following Judgment of the Court was delivered by

SINHA J.-This appeal on a certificate of fitness under Art.

134(1)(c), granted by the High Court at Nagpur (as it then was), is directed against the concurrent judgment and orders of the courts below, so far as the appellant Khushal is concerned, convicting and sentencing him to death under s.

302, Indian Penal Code, for the pre-meditated murder of Baboolal on the night of February 12, 1956, in one of the quarters of the city of Nagpur.

It appears that there are two rival factions in what has been called the Mill area in Nagpur. The appellant and Tukaram who has been acquitted by the High Court, are the leaders of one of the factions, and Ramgopal, P.W. 4, Inaya- tullah, P.W. 1, and Tantu, P.W. 5, are said to be the lead- ers of the opposite faction. Before the time and date o...

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