# ATBIR v. GOVT. OF N.C.T. OF DELHI

- **Citation:** [2010] 9 S.C.R. 993
- **Court:** Supreme Court of India
- **Decided:** 2010-08-09
- **Case number:** Criminal Appeal No. 870 of 2006
- **Bench:** P. ·sATHASIVAM, Dr. B. S. Chauhan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/atbir-v-govt-of-n-c-t-of-delhi-27105
- **Pages:** 32

## Headnote

A
B
Penal Code, 1860: s. 302134 -
Triple Murder -
Conviction by courts below on the basis of dying declaration
and the motive for murder - One accused sentenced to death
C
while the other sentenced to life imprisonment - On appeal,
held: Dying declaration of one of the deceased is reliable and
admissible in evidence - The prosecution has also proved
motive - Conviction imposed is justified """ As regards the
accused who inflicted the injuries, death sentence is just as
D
his act was barbaric and inhuman - It is a gravest case of
extreme culpability and rarest of rare case - Sentence I
. Sentencing - Death sentence - Evidence Act, 1872 - s.32 -
Dying Declaration - Criminal Law - Motive.
F
The two appellants-accused alongwith two other
E
accused were prosecuted for having killed three
persons. The prosecution case was that the appellantsacc used demanded money and transfer of certain
property in their name from their father (PW-5). PW-5
though agreed to do the same, but the appellantsaccused apprehended that so long as the deceased
persons (their step-mother 'Sh', step-brother 'M' and stepsister 'S') were alive, their father would not give them the
property. Appellants-accused with their mother
(absconding accused) and another person, entered the
G
house of their step-mother 'Sh', (deceased) bolted the
door and asked for the money. On refusal by her,
accused 'At' stabbed all the three inmates one by one,
while the other accused persons were holding them. On
993
H
994
SUPREME COURT REPORTS
[2010] 9 S.C.R.
A information of murder, the police officials went to the
place of occurrence and found the dead bodies of the
deceased 'Sh' and 'M'. 'S' was removed to the hospital.
There she made her statement before the Police Officer
on the endorsement given by the doctor (PW3) to the
B effect that the patient was fit for statement. Subsequently,
'S' succumbed to the injuries. Appellants-accused were
convicted by the trial court while the other accused was
acquitted. The third accused (mother of the appellantaccused) remained absconding. Appellant-accused 'At'
c was sentenced tO death and appellant-accused 'A' was
sentenced to life imprisonment. The High Court
dismissed the appeal of the accused i;ersons upholding
their conviction. Death Reference was also confirmed by
the High Court. Instant appeals were filed by the accused
0 persons.
Dismissing the appeals, the Court
HELD: 1.1. Dying declaration can be the sole basis
of conviction, if it inspires the full confidence of the court.
E The court should be satisfied that the deceased was in a
fit state of mind at the time of making the statement and
that it was not the result of tutoring, prompting or
imagination. Where the court is satisfied that the
declaration is true and voluntary, it can base its
F conviction without any further corroboration. It cannot be
laid down as an absolute rule of law that the dying
declaration cannot form the sole basis of conviction
unless it is corroborated. The rule requiring corroboration
is merely a rule of prudence. Where dying declaration is
suspicious, it should not be acted upon without
G corroborative evidence. A dying declaration which suffers
from infirmity such as the deceased was unconscious
and could never make any statement, cannot form the
basis of conviction. Merely because a dying declaration
does not contain all the details as to the occurrence, it is
H not to be rejected. When the eye-witness affirms that the
ATBIR v. GOVT. OF N.C.T. OF DELHI
995
deceased was not in a fit and conscious state to make
A
the dying declaration, medical opinion cannot prevail. If
after careful scrutiny, the court is satisfied that it is true
and free from any effort to induce the deceased to make
a false statement and if it is coherent and consistent,
there shall be no legal impediment to make it basis of B
conviction, even if there is no corroboration. [Para 16)
1006-H; 1007-A-H; 1008-A-B]
1.2. In the instant case, the trial court found the dying
declaration cr

## Text

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[2010] 9 S.C.R. 993
ATBIR
v.
GOVT. OF N.C.T. OF DELHI
(Criminal Appeal No. 870 of 2006)
AUGUST 9, 2010
[P. ·sATHASIVAM AND DR. B. S. CHAUHAN, JJ.]
A
B
Penal Code, 1860: s. 302134 -
Triple Murder -
Conviction by courts below on the basis of dying declaration
and the motive for murder - One accused sentenced to death
C
while the other sentenced to life imprisonment - On appeal,
held: Dying declaration of one of the deceased is reliable and
admissible in evidence - The prosecution has also proved
motive - Conviction imposed is justified """ As regards the
accused who inflicted the injuries, death sentence is just as
D
his act was barbaric and inhuman - It is a gravest case of
extreme culpability and rarest of rare case - Sentence I
. Sentencing - Death sentence - Evidence Act, 1872 - s.32 -
Dying Declaration - Criminal Law - Motive.
F
The two appellants-accused alongwith two other
E
accused were prosecuted for having killed three
persons. The prosecution case was that the appellantsacc used demanded money and transfer of certain
property in their name from their father (PW-5). PW-5
though agreed to do the same, but the appellantsaccused apprehended that so long as the deceased
persons (their step-mother 'Sh', step-brother 'M' and stepsister 'S') were alive, their father would not give them the
property. Appellants-accused with their mother
(absconding accused) and another person, entered the
G
house of their step-mother 'Sh', (deceased) bolted the
door and asked for the money. On refusal by her,
accused 'At' stabbed all the three inmates one by one,
while the other accused persons were holding them. On
993
H
994
SUPREME COURT REPORTS
[2010] 9 S.C.R.
A information of murder, the police officials went to the
place of occurrence and found the dead bodies of the
deceased 'Sh' and 'M'. 'S' was removed to the hospital.
There she made her statement before the Police Officer
on the endorsement given by the doctor (PW3) to the
B effect that the patient was fit for statement. Subsequently,
'S' succumbed to the injuries. Appellants-accused were
convicted by the trial court while the other accused was
acquitted. The third accused (mother of the appellantaccused) remained absconding. Appellant-accused 'At'
c was sentenced tO death and appellant-accused 'A' was
sentenced to life imprisonment. The High Court
dismissed the appeal of the accused i;ersons upholding
their conviction. Death Reference was also confirmed by
the High Court. Instant appeals were filed by the accused
0 persons.
Dismissing the appeals, the Court
HELD: 1.1. Dying declaration can be the sole basis
of conviction, if it inspires the full confidence of the court.
E The court should be satisfied that the deceased was in a
fit state of mind at the time of making the statement and
that it was not the result of tutoring, prompting or
imagination. Where the court is satisfied that the
declaration is true and voluntary, it can base its
F conviction without any further corroboration. It cannot be
laid down as an absolute rule of law that the dying
declaration cannot form the sole basis of conviction
unless it is corroborated. The rule requiring corroboration
is merely a rule of prudence. Where dying declaration is
suspicious, it should not be acted upon without
G corroborative evidence. A dying declaration which suffers
from infirmity such as the deceased was unconscious
and could never make any statement, cannot form the
basis of conviction. Merely because a dying declaration
does not contain all the details as to the occurrence, it is
H not to be rejected. When the eye-witness affirms that the
ATBIR v. GOVT. OF N.C.T. OF DELHI
995
deceased was not in a fit and conscious state to make
A
the dying declaration, medical opinion cannot prevail. If
after careful scrutiny, the court is satisfied that it is true
and free from any effort to induce the deceased to make
a false statement and if it is coherent and consistent,
there shall be no legal impediment to make it basis of B
conviction, even if there is no corroboration. [Para 16)
1006-H; 1007-A-H; 1008-A-B]
1.2. In the instant case, the trial court found the dying
declaration credit-worthy and has held the same to have
C
been made by the deceased 'S' in a fit mental state to
depose. After making the declaration, she herself signed
the same and it also carried an endorsement by the
doctor (PW 30) to the effect that she was in a fit mental
state. After careful analysis, the trial court as well as the
High Court found that there is total clarity in its contents
D
and it is not a case where the deceased was either
rambling, unsure or had contradicted herself. There is rio
compulsion that all dying declarations have to be made
before the Magistrate. In the instant case, the Inspector
who recorded the statement was cross-examined and the
E
details and his evidence was not shattered by the
defence. In fact, not even a suggestion was made to the
Investigation Officer about the availability of Magistrate at
the relevant point of time. Since the statement of tt~e
deceased was very brief as to the circumstances and
F
persons involved who caused brl:ltal injuries on her body
as well as her mother and brother, in additio,n to the
same, the doctor (PW 30) has also certified that at the
relevant time she was in a fit mental state and endorsed
the same by putting his signatures near the signature of G
the deponent i.e. deceased. In such circumstances, there
1is no reason to disbelieve the statement of the deceased
'S', implicating the three accused persons i.e. the
appe11ants-accused and the absconding accused. [Para
17) [1008-C; 1009-E-H; 1010-A-C]
H
996
SUPREME COURT REPORTS
[2010] 9 S.C.R.
A
1.3. The evidence of the doctors (PW-26 and PW-30),
who had treated the deceased 'S', indicate that
immediately after admission in the hospital and at the
time of making statement, she was in a fit condition. It is
also clear that immediately after her statement, because
B of the injuries, she was taken to emergency ward and she
was kept therein till her death. It is also clear that in
respect of injury on the 'carotid', in view of the fact that it
was only partially cut and able to speak and inform what
had happened at the time of the incident, her statement
c to the Inspector (PW-41) in the presence of the doctor
PW-30 is legally permissible and admissible in evidence.
[Para 22) [1013-G-H; 1014-A]
Munnu Raja and Anr. vs. The State of Madhya Pradesh
(1976) 3 SCC 104; Paras Yadav and Ors. vs. State of Bihar
D (1999) 2 SCC 126; Balbir Singh and Anr. vs. State of Punjab
(2006) 12 SCC 283; State of Rajasthan vs. Wakteng (2007)
14 SCC 550; Bijoy Oas vs. State of West Bengal (2008) 4
SCC 511; Muthu Kutty and Anr vs. State by Inspector of
Police T. N. (2005) 9 SCC 113; Panneerselvam vs. State of
E Tamil Nadu (2008) 17 SCC 190; Paniben vs. State of Gujarat
(1992) 2 sec 474, relied on.
2. The prosE;!cution has also proved motive. It is
abundantly clear from the evidence of PW-5 that his
F sons, particularly, appellant-accused 'At' apprehended
that because of the presence of his step-mother and her
children, he might not get properties of his father (PW5),
at once. Since this was in his mind and in consultation
with his mother (the absconding accused), he planned to
G eliminate the entire family of the second wife of his father
(PW 5). These aspects have been amply projected by the
prosecution and rightly accepted by the trial court and
the High Court. [Para 22) [1014-C-E)
3. The guidelines indicated in Bachan Singh's case
H have to be culled out and applied to the facts of each
ATBIR v. GOVT. OF N.C.T. OF DELHI
997
individual case where the question of imposing of death
A
sentence arises. In the instant case, the murders
committed by accused 'At' is extremely brutal and
diabolical one. The cold blooded murder is committed
with deliberate design in order to inherit the entire
property of his father (PW5) without waiting for his death.
B
The magnitude of the crime is also enormous in
proportion since accused 'At', with the assistance of his
mother and brother, committed multiple murders of all the
members of the family. Apart from this, the victims are
none else than his step-mother, brother and sister. The c
victims are innocent who could not have or has not
provided even an excuse much less a provocation for
murder. Further, the victims were unaware of the sudden
. entry of accused 'At' and others and after bolting the door
from inside, they have no other way to go out or resist 0
except subjecting themselves to the wishes of accused
'At'. Though accused 'At' was also at the age of 25 at the
relevant point of time, considering his hunger and lust for
property, killing his own family members when they had
no occasion to provoke or resist, and causing 37 knife
blows on vital parts of all the three persons, it is a gravest
case of extreme culpability and rarest of rare case and
death sentence alone would be proper and adequate.
Taking into consideration all the facts and materials, it is
crystal clear that the entire act of accused 'At' amounts
to a barbaric and inhuman behaviour of the highest
order. The manner in which the murder was carried out
E
F
in the instant case is extremely brutal, gruesome,
diabolical, and revolting as to shock the collective
conscience of the community. In the circumstances, the
conviction and the sentence of death iinposed on
G
accused 'At' is confirmed. The conviction and the
setence of life imprisonment imposed on accused 'A' is
also confirmed. [Paras 26 and 34] [1019-C; 1023-D-H]
Bachan Singh v. State of Punjab (1980) 2 SCC 684,
H
A
B
c
D
E
F
998
SUPREME COURT REPORTS
[2010] 9 S.C.R.
followed Machhi Singh vs. State of Punjab (1983) 3 SCC
470, relied on.
Case Law Reference:
(1976) 3 sec 104
Relied on.
Para 9
(1999) 2 sec 126
Relied on.
Para 10
(2006) 12 sec 283
Relied on.
Para 11
(2001) 14 sec 550
Relied on.
Para 12
(2008) 4 sec 511
Relied on.
Para 13
(2005) 9 sec 113
Relied on.
Para 14
(2008) 11 sec 190
Relied on.
Para 15
(1992) 2 sec 474
Relied on.
Para 15
(1980) 2 sec 684
Followed.
Para 24
(1983) 3 sec 410
Relied on.
Para 25
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 870 of 2006.
From the Judgment & Order dated 13.01.2006 of the High
Court of Delhi at New Delhi in Criminal Appeal No. 805 of 2004
and Murder Reference No. 3 of 2004.
WITH
Crl. A. No. 877 of 2006.
K.B. Sinha, A.T.M. Rangaramanujam, J.S. Atri, V. Senthil
G Kumar, Ashok Kumar Singh, Shanti Kumar Jaisani, Sanjeev
Kumar Sharma, Bhakti Pasrija, J.K. Mishra, Subhash Kaushik,
Niraj Jha, Anil Katiyar for the appearing parties.
The Judgment of the Court was delivered by
H
ATBIR v. GOVT. OF N.C.T. OF DELHI
999
P. SATHASIVAM, J. 1. These appeals are directed
A
against the final judgment and order dated 13.01.2006 of the
High Court of Delhi at New Delhi in Criminal Appeal No. 805
of 2004, Murder Reference No. 3 of 2004 and Criminal Appeal
No. 876 of 2004 whereby the High Court dismissed the criminal
appeals filed by the appellants herein and confirmed the
B
sentence awarded by the learned Additional Sessions Judge,
Delhi in Murder reference.
2. The case of the prosecution is as under:
(a) Atbir, the appellant in Criminal Appeal No. 870 of 2006
C
is the son of one Jaswant Singh. Jaswant Singh had married ·
accused Chandra @ Chandrawati, who is absconding and
from the said wedlock, three children, namely, Satbir, Atbir and
Anju were born to them. Thereafter, Jaswant Singh married
Sheela Devi, the deceased and from their wedlock, one
D
daughter Sonu @ Savita and one son Manish @ Mannu - the
deceased, were born. Sheela Devi - the 2nd wife of Jaswant
Singh was staying at Mukherjee Nagar, Delhi, with her children.
They were having dispute over the division of their properties.
(b) On the afternoon of 22.01.1996, on receiving
information of m1;1rder of a man and that of one injured at N-33,
Mukherjee Nagar, Delhi, Inspector Virender Singh, Addi. S.H.O.,
Mukherjee Nagar Police Station along with ASI Kanwar Lal, Ct.
Manoj Kumar and Ct. Jogender Singh rushed to the place of
occurrence and found two dead bodies, one of female and
other of a boy aged about 16 years in the adjacent room on
E
F
the ground floor of N-33, Mukherjee Nagar, Delhi. Both were
later identified as Smt. Sheela Devi, second wife of Jaswant
Singh and her son Manish @ Mannu. It was revealed at the spot
that one injured, namely, Sonu @ Savita, daughter of Sheela
G
Devi was removed to Hindu Rao Hospital in a PCR Gypsy. After
leaving ASI Kanwar Lal at the spot, Inspector Virender Singh
along with his team rushed to Hindu Rao Hospital and on
endorsement given by Dr. Sharat Chandra Jai Singh-PW 30
H
1000
SUPREME COURT REPORTS
[2010] 9 S.C.R.
A that "patient fit for statement", recorded the statement given by
Sonu @ Savita. In the statement, Sonu @ Savita alleged that
Chandra @ Chandrawati her step-mother, along with her son
Atbir, one Ashok-appellant herein in Crl. Appeal No. 877 of
2006 and one person whose name she did not know entered
B their house and demanded money from her mother Sheela Devi
but she refused. Accused persons bolted the doors from inside
and Atbir took out a knife and stabbed Manish @ Mannu, who
was held by Chandra @ Chandrawati, Ashok and another.
Thereafter, Atbir stabbed Sheela Devi and then Sonu @ Savita
c with knife. On the above statement, a case under Sections 307
and 302 of the Indian Penal Code (hereinafter referred to as
"l.P.C.") was registered at Mukherjee Nagar Police Station and
investigation started. On 24.01.1996, Sonu @ Savita
succumbed to her injuries and died at Hindu Rao Hospital.
D
(c) On completion of the formalities, the challan was filed
in the Court of Metropolitan Magistrate and after completion of
committal proceedings, the case was re-allocated to the Court
of Additional Sessions Judge, Delhi. On 12.08.1997, a charge
under Section 302 read with Section 34 l.P.C. was framed
E C!gainst accused Atbir, Ashok and Chandra @ Chandrawati.
On 24.08.1999, on filing the supplementary challan against
accused Arvind, the charge was re-framed against all the
accused persons, namely, Atbir, Ashok, Arvind and Chandra
@ Chandrawati by the Court of Additional Sessions Judge, to
F which they pleaded not guilty and claimed trial. Prosecution
examined as many as 41 witnesses and their statements were
recorded. The Additional Sessions Judge, vide order dated
27.09.2004, convicted Atbir - appellant in Crl.A. No.870/2006
with death penalty and Ashok- appellant in Crl. A. No. 877/2006
G with life imprisonment and acquitted Arvind. The accused
Chandra @ Chandrawati remained absconding. Being
aggrieved by the order of the Additional Sessions Judge, Delhi,
the appellants herein filed appeal before the High Court. The
murder reference was also sent by the Sessions Court to the
H High Court. The High Court, by the impugned judgment and
ATBIR v. GOVT. OF N.C.T. OF DELHI
1001
[P. SATHASIVAM, J.]
order dated 13.01.2006, confirmed the findings recorded by the
A
Additional Sessions Judge and upheld the conviction of the
appellants awarded by him. Against the said judgment, the
appellants have preferred these appeals by way of special
leave before this Court.
3. Heard Mr. K.B. Sinha, learned senior counsel for the
appellant in Crl. Appeal No. 870 of 2006, Mr. A.T.M.
Rangaramanujam, learned senior counsel for the appellant in
Crl. Appeal No. 877 of 2006 and Mr. J.S. Atri, learned senior
counsel for the respondent-State.
4. Mr. K. 8. Sinha, learned senior counsel, has raised the
following contentions:-
B
c
(i) Whether the dying declaration made before the police
officer without there being any corroboration from any other
D
independent witness in itself is sufficient to convict the
accused with capital punishment.
(ii) When there was sufficient time for the Magistrate to be
called for recording the dying declaration, the statement
made before the Investigating Officer can be treated as
E
dying declaration and the conviction of the accused with
capital punishment can be sustained.
(iii) When the Doctor-PW 30, in whose presence the
alleged statement "Dying Declaration" was recorded, has
F
stated in his deposition that the trachea of the deceased
Sonu @ Savita was torn then whether the dying
declaration made before the Investigation Officer inspire
the confidence to base the conviction on the said sole
statement.
G
(iv) When all the injuries responsible for causing the death,
as noted in the statement of doctor C. B. Dabbas-PW 9,
who conducted the post-mortem on the dead body, were
on the neck then whether the dying declaration made
H
1002
SUPREME COURT REPORTS
[2010] .9 S.C.R.
A
before the 1.0. can be relied on to base the conviction.
B
c
-.
(v) Whether no corroboration of any kind is required to the
dying declaration and the conviction can be based solely
on the dying declaration.
(vi) Whether the High Court is justified in holding that the
lust for property was the motive of the accused persons
for committing the murder.
(vii) Whether the courts below are justified in awarding
death sentence in the facts and circumstances of the case
and principles laid down by this Court.
5. Mr. Rangaramanujam, learned senior counsel for one
of the appellants reiterated very same contentions relating to
0
recording of dying declaration by the police officer when the
Magistrate was very well available. He also submitted that in
the absence of any corroborative evidence, conviction solely
on the basis of dying declaration cannot be sustained. He
further submitted that though, the knife, which was said to be
used and recovered, prosecution has not established the
E ownership of the same.
6. Mr. Atri, learned senior counsel for the State has
submitted that in view of the cate'gorical statements by way of
dying declaration by Sonu@ Savita, recorded by police officer
F after certifying that she was in a fit state of mind to make a
statement by the doctor coupled with the admissible portion of
Suresh Chauhan PW-2, Arvind Monga PW-4, Jaswant Singh
PW-5, Ct. Kulvinder Singh PW-8. Dr. C.B. Dabbas PW-9, Dr.
Ruma Jain PW-26 and Dr. Sharat Chandra Jai Singh PW-30,
G absolutely there is no ground for interference. He also
highlighted that in view of aggravating circumstances,
eliminating the entire family and considering the brutality and
exceptional depravity, the appellant-Atbir deserves capital
punishment. The life imprisonment imposed on the other
H accused, namely, Ashok is also justifiable and there is no valid
ATBIR v. GOVT. OF N.C.T. OF DELHI
1003
[P. SATHASIVAM, J.]
ground for interference and prayed for dismissal· of both the
A
appeals.
7. We have carefully considered the rival contentions and
perused the relevant materials.
8. Among the various contentions raised by both the sides,
major part relates to two legal submissions:-
(a) Admissibility and reliability of the dying declaration
made by Sonu @ Savita before the Investigating officer.
B
c
(b) Whether death sentence insofar as Atbir and life
sentence insofar as Ashok is warranted.
{A) "Dying Declaration".
It is true that in the case on hand, conviction under Section o
302 was based solely on the dying declaration made by Sonu
@ Savita and recorded by Investigating Officer in the presence
of a Doctor. Since we have already harrated the case of
prosecution which led to three deaths, eliminating the second
wife and the children of one Jaswant Singh, there is no nee·d
to traverse the same once again. This Court in a series of
decisions enumerated and analyzed, that while recording the
dying declaration, factors such as mefltal condition of the maker,
alertness of mind and memory, evidentiary value etc. have to
be taken into account.
9. In MunnuRaja and Another vs. The State of Madhya
Pradesh, (1976) 3-scc 104, this Court held:-
" .... It is well settled that though a dying declaration must
E
F
be approached with caution for the reason that the maker
G
of the statement cannot be subject to cross-examination,
there is neither a rule of law nor a rule of prudence which
has hardened into a rule of law that a dying declaration
cannot be acted upon unless it is corroborated .... "
H
1004
SUPREME COURT REPORTS
[2010] 9 S.C.R.
A
lf1s true that in the same decision, it was held, since the
B
c
Investigating Officers are naturally interested in the success of
the investigation and the practice of the Investigating Officer
himself recording a dying declaration during the course of an
investigation ought not to have been encouraged.
10. In Paras Yadav and Ors. vs. StQte of Bihar, (1999) 2
SCC 126, this Court held that lapse on the part of the .
Investigation Officer in not bringing the Magistrate to record the
statement of the deceased should not be taken in favour of the
accused. This Court further held that a statement of the
deceased recorded by a police officer in a routine manner as
a complaint and not as a dying declaration can also be treated
as dying declaration after the death of the injured and relied
upon if the evidence of the prosecution witnesses clearly
establishes that the deceased was conscious and was in a fit
D state of health to make the statement.
11. The effect of dying declaration not recorded by the
Magistrate was considered and reiterated in Bafbir Singh &
Anr. VS:- State of Punjab, (200G) 12 SCC 283. Paragraph 23
E of the said judgment is relevant which reads as under:
F
G
-·
"23. However, in State of Karnataka v. Shariff, (2003) 2
SCC 473, this Court categorically held that there was no
requirement of law that a dying declaration must necessarily
be made before a Magistrate. This Court therein noted its
Era"rlier decision in Ram Bihari Yadav v. State of Bihar,
(1998) 4 sec 517' wherein it was also held that the dying
declaration need not be in the form of questions and
answers. (See also Laxman v. State of Maharashtra,
(2002) 6 sec 11 O)."
-
It is clear that merely because che dying declaration was not
recorded by the Magistrate, by itself cannot be a ground to
reject the whole prosecution case. It also clarified that where
the declaration is wholly inconsistent or contradictory statements
H are made or if it appears from the records that the dying
ATBIR v. GOVT. OF N.C.T. OF DELHI
1005
[P. SATHASIVAM, J.]
declaration is not reliable, a question may arise as to why the
A
Magistrate was not called for, but ordinarily the same may not
be insisted upon. This Court further held that the statement of
the injured, in event of her death may also be treated as FIR.
12. In State of Rajasthan vs. Wakteng, (2007) 14 SCC
B
550, the view in Balbir Singh's case(supra) has been reiterated.
The following conclusions are relevant which read as under:
"14. Though conviction can be based solely on the dying
declaration, without any corroboration the same should not
be suffering from any infirmity.
C
15. While great solemnity and sanctity is attached to the
words of a dying man because a person on the verge of
death is not likely to tell lie or to concoct 'a case so as to
implicate an innocent person but the court has to be o
careful to ensure that the statement was not the result of
either tutoring, prompting or a product of the imagination.
It is, therefore, essential that the court must be satisfied
that the deceased was in a fit state of mind to make the
statement, had clear capacity to observe and identify the
E
assailant and that he was making the statement without any
influence or rancour. Once the court is satisfied that the
dying declaration is true and voluntary it is sufficient for the
purpose of conviction."
13. In Bijoy Das vs. State of West Bengal, (2008) 4 SCC
F
511, this Court after quoting various earlier decisions,
reiterated the same position.
14. In Muthu Kutty & Anr. Vs. State By Inspector of Police,
T.N., (2005) 9 SCC 113, the following discussion and the
G
ultimate conclusion are relevant which read as under:
"14. This is a case where the basis of conviction of
the accused is the dying declaration. The situation in which
a person is on the deathbed is so solemn and serene when
he is dying that the grave position in which he is placed,
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is the reason in law to accept veracity of his statement. It
is for this reason that the requirements of oath and crossexamination are dispensed with. Besides, should the dying
declaration be excluded it will result in miscarriage of
justice because the victim being generally the only
eyewitness in a serious crime, the exclusion of the
statement would leave the court without a scrap of
evidence.
15. Though a dying declaration is entitled to great
weight, it is worthwhile to note that the accused has no
power of cross-examination. Such a power is essential for
eliciting the truth as an obligation of oath could be. This is
the reason the court also insists that the dying declaration
should be of such a nature as to inspire full confidence of
the court in its correctness. The court has to be on guard
that the statement of the deceased was not as a result of
either tutoring, or prompting or a product of imagination.
The court must be further satisfied that the deceased was
in a fit state of mind after a clear opportunity to observe
and identify the assailant. Once the court is satisfied that
the declaration was true and voluntary, undoubtedly, it can
base its conviction without any further corroboration. It
cannot be laid down as an absolute rule of law that the
dying declaration cannot form the sole basis of conviction
unless it is corroborated. The rule requiring corroboration
is merely a rule of prudence."
15. The same view has been reiterated by a three Judge
Bench decision of this Court in Panneerselvam vs. State of
Tamil Nadu, (2008) 17 SCC 190 and also the principles
G governing the dying declaration as summed up in Paniben vs.
State of Gujarat, (1992) 2 SCC 474.
16. The analysis of the above decisions clearly shows that,
(i)
Dying declaration can be the sole basis of
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ATBIR v. GOVT. OF N.C.T. OF DELHI
1007
[P. SATHASIVAM, J.]
conviction if it inspires the full confidence of
A
the Court.
(ii)
The Court should be satisfied that the
deceased was in a fit state of mind at the
time of making the statement and that it was
8
not the result of tutoring, prompting or
imagination.
(iii)
Where the Court is satisfied that the
declaration is true and voluntary, it can base
its
conviction
without any further
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corroboration.
(iv)
It cannot be laid down as an absolute rule of
law that the dying declaration cannot form the
sole basis of conviction unless it is o
corroborated.
The
rule
requiring
corroboration is merely .a rule of prudence.
(v)
Where dying declaration is suspicious, it
should not be acted upon without
corroborative evidence.
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(vi)
A dying declaration which suffers from
infirmity such as the deceased was
unconscious and could never make any
statement cannot form the basis of
F
conviction.
(vii)
Merely because a dying declaration does not
contain all the details as to the occurrence,
it is not to be rejected.
(viii) Even if it is a brief statement, it is not to be
discarded.
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(ix)
When the eye-witness at.firms that the
deceased was not in a fit and conscious
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state to make. the dying declaration, medical
opinion cannot prevail.
(x)
If after careful scrutiny, the Court is satisfied
that it is true and free from any effort to induce
the deceased to make a false statement and
if it is coherent and consistent, there shall be
no legal impediment to make it basis of
conviction, even if there is no corroboration.
17. In the case on hand, the Additional Sessions Judge
C has found the dying declaration credit worthy and has held the
same to have been made by the deceased in a fit mental state
to depose. The English translation of the dying declaration, as
made by the deceased to Inspector V.S. Chauhan-PW-41 in
the presence of Dr. Sharat Chandra Jai Singh, PW-30 and as
D recorded by him, which was registered as FIR reads thus:
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F
G
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Ms Sonu @ Savita, d/o Shri Jaswant Singh, aged 16
years, r/o - N-33, Mukherjee Nagar, Delhi made the following
statement:-
"I reside at the aforesaid address. My father's name is
Jaswant Singh and that of my mother is Sheela. Today at
about 2:30 p.m. My mother Sheela, brother Mannu and
myself were present in the house and were doing our
work. At that time, my step mother Chandra, her son Atbir,
one Ashok and one more person, whose name I do not
know, entered our house and demanded money from my
mother whereupon, my mother told that she was not having
money. Thereafter, Atbir took out a knife while my step
mother Chandra, Ashok and the third one caught hold of
my brother Manish @ Mannu. Atbir, then stabbed upon my
brother and injured him badly. Then, they caught hold of
my mother. Atbir also injured my mother badly. Thereafter
they caught hold of me and gave several knife blows upon
me as a result of which I also got badly injured. I have
ATBIR v. GOVT. OF N.C.T. OF DELHI
1009
[P. SATHASIVAM, J.]
witnessed the incidence. A. PCR Van has brought me (to
A
the hospital). Legal action may be taken accordingly."
Sd/- Sonu
(In English)
Attested
Sd/- V.S. Chauhan
B
(In English)
Dt. 2.1.1996
S.H.O.
P.S. Mukherjee Nagar,Delhi c
'The statement has been taken in my presence. The patient
is in composed mentis.'
Sd/- Sarat Chandra
Jai Singh
(In English)
0
Dt. 22.1. 1996
C.M.O.(o)"
After making the above declaration she herself signed the
same and it also carries an endorsement by Dr. Sharat
Chandra to the effect that she was in a fit mental state. After
E
careful analysis, the trial Judge as well as the High Court found
that there is total clarity in its contents and it is not a case where
the deceased was either rambling, unsure or had contradicted
herself. We have already adverted to the several decisions of
this Court holding that there is no compulsion that all dying
F
declarations have to be made before the Magistrate. In the case
on hand, the incident occurred on 22.01.1996 at 2.30 p.m., the
injured Sonu @ Savita was admitted in the hospital at 3.30 p.m.
and she made declaration at 4.05 p.m. on the same day. It is
also relevant to note that immediately after recording her
G
statement, doctor referred her to Emergency Ward to save her
life. However, she died on 24.01.1996 at 12.30 p.m. The
Inspector who recorded the statement was cross-examined and
the details and his evidence was not shattered by the defence,
in fact, not even a suggestion to the Investigation Officer about
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the availability of Magistrate at the relevant point of time. Since
the statement of Sonu @ Savita was very brief as to the
_ circumstances and persons involved who caused brutal injuries
on her body as well as her mother and brother, in addition to
the same, Dr. Sharat Chandra has also certified that at the
B relevant time she was in a fit mental state and endorsed the
same by putting his signatures near the signature of the
deponent Sonu @ Savita. In such circumstances, there is no
reason to disbelieve the statement of Sonu @ Savita
implicating the three accused persons i.e. Atbir, Ashok
c (appellants herein) and Chandra @ Chanarawati (absconding
accused).
18. Learned counsel appearing for the appellants, by
pointing out the nature of injuries on the neck of Sonu @ Savita
and her medical report, contended that it would be highly
D improbable to make such a statement after sustaining such
injuries. In order to meet the above contention, the prosecution
has heavily relied on the statements of Dr. C.B. Dabas-PW-9,
Dr. (Mrs.) Ruma Jain-PW-26 and Dr. Sharat Chandra-PW30.
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19. Dr. C.B. Dabas-PW-9, on 25.01.1995, conducted
postmortem examination on the body of the deceased Savita.
He noticed 21 external injuries. After internal examination, he
found the following injuries on the neck:
"Neck: Wounds of the neck were further explode and it
was observed that muscles of neck on both sides were cut.
Under injury No .. 2, 4, 5 and 6. With evidence of surgical
devridement and repair. There was infusion of blood in
neck tissues and blood rest and blood was still oozing out
from neck vessel of rt. Side. Both external jugular veins and
left facial artery were cut under injury No. 2 and 4 with
surgical cultures present in situ. Right carotid was partially
cut under injury No. 6 alongwith the muscles and smaller
vessels of blood was still oozing out of the severed
vessels. There was a stitched wound on tracheal thyroid.
Traches was patent. Other neck structure were intact."
ATBIR v. GOVT. OF N.C.T. OF DELHI
1011
[P. SATHASIVAM, J.]
/
Since emphasis was about' damage to carotid cartridge, there
A
is no need to refer his examination about chest, abdomen and
head. It is also relevant to note question and answer and crossexamination about damage to carotid artery .
./
"Que: Kindly name the blood vessel which had been
B
severed in injury No. 6?
Ans. Mainly it was right common carotid cartridge and other
small vessels.
It is correct that injuries no. 2, 4 and 5 external jugular c
veins and left facial arteries were cut. It is correct that
jugular and carotid artery are major blood vessels. Carotid
artery supplies blood to the brain. Carotid artery was
partially cut. It is correct that with this partial cut in the
carotid artery the blood supply to the brain will be reduced.
D
Que: Whether this reduced blood supply to the brain will
adversely affect the functioning of the brain and will induce
coma?
Ans. It will depend upon the amount of blood oozing out of E
cut in common carotid artery.
I have not given the dimension of the cut in the
common carotid artery as described. The bigger the size
of the cut in the artery it will speed up the process of F
affecting the brain function."
It is clear that according to PW-9, right carotid was partially cut.
Trachea was patent and other neck structures were intact. He
has reiterated the same in cross-examination also. Inasmuch
as the injury on the carotid was partial coupled with opinion of G
Dr. Sharat Chandra PW-30, it cannot be claimed that she was
fully disabled from making any statement.
20. Dr. (Mrs.) Ruma Jain, PW-26, attached to Hindu Rao
Hospital as CMO, on the date of the incident i.e. on 22.01.1996,
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in her evidence deposed that on that day at about 3.30 PM
Savita was brought by ASI Shanti. She medically examined her.
Though she found her general condition was not satisfactory
she had stated that she was conscious and responding to
verbal command. She also noted various injuries including the
B
injury on the neck. Though during cross-examination, she has
stated that the drowsiness was excessive but in respect of a
specific question by the Public Prosecutor, she answered that
"I did not indicate the extent of drowsiness in the MLC
Ex.PW26/A. What was mentioned by me was drowsiness and
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responding to verbal command." She also clarified that before
signing her statement before re-examination she had stated that
the word excessive appearing in the cross-examination should
not have been there. If we analyze the evidence of PW-26, which
also makes it clear that at the time when Sonu @ Savita was
D
admitted in the hospital at 3.30 PM though there was indication
of drowsiness, the fact remams that she was responding to
verbal command and able to make a statement.
21. The other doctor examined by the prosecution is Dr.
Sarat Chandra Jai Singh PW-30. In his evidence, he deposed
E
that on 22.01.1996, he was posted in Hindu Rao Hospital as
Superintendent of Surgery. On that day injured Sonu was
brought to the hospital and she was medically examined by Dr.
Tomar, Casualty Medical Officer and he had opined injured to
be fit for statement on the MLC Ex.PW-26/A. His further
F
statement and assertion are as follows:-
G
H
"On that day lnsp. V.S. Chauhan had met me at MLC Ward
and he had told me that a dying declaration was to be
recorded by him (by the lnsp.). On the request of lnsp.
Chauhan I medically examined injured Ms. Sonu. She was
mentally fit to maker her statement i.e. she could
understand the questions and could answer the questions
put to her. After I certified the injured to be medically fit for
statement lnsp. V.S. Chauhan had recorded the statement
of injured Ms. Sonu Ex. PW4/A in my presence and I made
ATBIR v. GOVT. OF N.C.f OF DELHI
1013
[P. SATHASIVAM, J.]
my.endorsement Ex. PW-30/A to the erect that the
A
statement had ~een taken in presence and the patient was
in composed mentis and the endorsement bears my
signatures at point P. lnsp. Chauhan had read over
statement Ex. PW 4/A to the injured Ms. Sonu and she
signed statement at point Q in token of correctness of her
B
statement."
In the cross-examination, he deposed that:
"When lnsp. Chauhan was recording the statement of Ms.
Sonu I heard her statement and then after the recording
C
of this statement was over, lnsp. Chauhan read over the
statement to me and at that time Ms. Sonu was also there
and then I signed this statement by giving my
endorsement. It is correct that I did not mention in my
endorsement Ex. PQ 30/A that lnsp. Chauhan read over
D
this statement. To me and Ms. Sonu. During this time, Ms.
Sonu was in surgical emergency ward. Patient had stab
injuries and the injuries were pleading profusely."
PW-30 also asserted that immediately after her statement,
E
Sonu was taken to surgical emergency ward, since she had
stab injuries and was bleeding profusely. It was in evidence that
she was continuously in the emergency ward and ultimately
died on 24.01.1996 at 12.30 PM. This was the reason that
because of her critical position after admission and making her
F
statement, the Magistrate could not be secured to record her
statement.
22. The evidence of PW-26 and PW-30, who had treated
Sonu, indicate that immediately after admission in the hospital
at 3.30 PM on 22.01.1996 and at the time of making statement
G
at 4.05 PM she was in a fit condition. It is also clear that
immediately after her statement because of the injuries she was
taken to emergency ward and she was kept therein till her death
on 24.01.1996. It is also clear thatiq respect of injury on the
carotid in view of the fact that it was only partially cut and able
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A to speak and inform what had happened at 2.30 PM, her
statement to Inspector P.S.Chauhan PW-41 in the presence of
Dr. Sarat Chandra Jai Singh PW-30 is legally permissible and
admissible in evidence. The learned trial Judge has rightly
relied on those materials and the High Court correctly approved
B the same. We accept the said conclusion and reject the
contentions raised by Mr. Sinha and Mr. Rangaramanujam.
(B) "Motive"
The prosecution has also proved motive. It is abundantly
C clear from the evidence of Jaswant Singh, PW-5 that when
Satbir and his brother Atbir demanded 25-26 Bighas of
agricultural land in Bulandshahar,. U.P. though agreed but
executed a Will (Ex. PW-5/D) bequeathing those lands in their
favour but the same was not acceptable by his sons, particularly
D Atbir and he apprehended that because of the presence of his
step-mother and her children, he may not get properties of his
father, both movable and immovable, at once. Since this was
in his mind and in consultation with his mother Chandra @
Chandawati, he planned to eliminate the entire family of Sheela.
E These aspects have been amply projected by the prosecution
and rightly accepted by the trial Court and the High Court.
(C) Death sentence
24. When the constitutional validity of death penalty for
F murder provided in Section 302 of the Penal Code and
sentencing procedure embodied in sub-section (3) of Section
354 of the Code of Criminal Procedure, 1973, was questioned,
the Constitution Bench of this Court in Bachan Singh v.