# Surlnder X-ar and OtMrs v. Gltlll~haNI andOtlwr1 - **Citation:** [1958] 1 S.C.R. 552 - **Court:** Supreme Court of India - **Decided:** 1956-10-15 - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/surlnder-x-ar-and-otmrs-v-gltlll-hani-andotlwr1-1397 - **Pages:** 19 ## Headnote 1951 Surlnder X-ar and OtMrs v. Gltlll~haNI andOtlwr1 Kapvr J. 1951 Septembtr 25. 552 SUPREME COURT REPORTS [1958} appeal. In that event the infirmity in the appellant's case due to the want of proper attestation of the will under s. 63(l)(c) of the Indian Succession Act would be removed. Because of the view we have taken the other objection raised by the respondents becomes wholly inefficacious. The finding of the High Cpurt on this point is therefore reversed. We, therefore, allow this appeal, set aside the judgment and decree of the Punjab High Court and remit the case to the High Court for decision of the other issues which had not been decided. As the appellants did not obtain the probate till after the appeal was filed in this court and made the application for the admission of additional evidence at such a late stage, they will pay Rs. 500 as costs of this court to the respondents within two months. In default of such payment the appeal shall stand dismissed ·with costs, i.e., Rs. 500. Appeal allowed. KHUSHAL RAO v. THE STATE OF BOMBAY (B. P. SINHA, GOVINDA MENON and J. L. KAPUR JJ). Supreme Court, Criminal Appellate Jurisdiction of-Certificate of fitness, if can be granted by High Court on a question of factDying declaration, evldentiary value of-If must be corroborated in order to sustain conviction-Constitution of India, Art. 134(1)(c)- Indlan Evidence Act (I ofl872), s. 32 (!). 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(l)(c) of the Constitution to grarit a certificate 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 Jaw, not even a rule of prudence that has ripened into a rule of Jaw, that a dying declaration in order that it may sustain an order of conviction must be cor· roborated by other independent evidence. The observations made S.C.R. SUPREME COURT REPORTS 553 by this Court in Madhoprasadv. The State of Madhya Pradesh are in the nature of obiter dieta 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. 158, approved. Case-law reviewed. The provision of s. 32(1) 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 relevant, _is an exception to the general rule of exclusion of hearsay evidence and evidence untested by cross-examination. The special sanctity whi¢h the Legislature attaches to such a declaration inust 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 scrutinsed, 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. 134 (l)(c) : Held, that the certificate granted by the High Court wa:s incompetent and as the case disclosed on grounds on which this Court could ## Text _Characters 0–39,631 of 42,415. This is a partial read: ask again with offset=39631 for what follows._ 1951 Surlnder X-ar and OtMrs v. Gltlll~haNI andOtlwr1 Kapvr J. 1951 Septembtr 25. 552 SUPREME COURT REPORTS [1958} appeal. In that event the infirmity in the appellant's case due to the want of proper attestation of the will under s. 63(l)(c) of the Indian Succession Act would be removed. Because of the view we have taken the other objection raised by the respondents becomes wholly inefficacious. The finding of the High Cpurt on this point is therefore reversed. We, therefore, allow this appeal, set aside the judgment and decree of the Punjab High Court and remit the case to the High Court for decision of the other issues which had not been decided. As the appellants did not obtain the probate till after the appeal was filed in this court and made the application for the admission of additional evidence at such a late stage, they will pay Rs. 500 as costs of this court to the respondents within two months. In default of such payment the appeal shall stand dismissed ·with costs, i.e., Rs. 500. Appeal allowed. KHUSHAL RAO v. THE STATE OF BOMBAY (B. P. SINHA, GOVINDA MENON and J. L. KAPUR JJ). Supreme Court, Criminal Appellate Jurisdiction of-Certificate of fitness, if can be granted by High Court on a question of factDying declaration, evldentiary value of-If must be corroborated in order to sustain conviction-Constitution of India, Art. 134(1)(c)- Indlan Evidence Act (I ofl872), s. 32 (!). 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(l)(c) of the Constitution to grarit a certificate 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 Jaw, not even a rule of prudence that has ripened into a rule of Jaw, that a dying declaration in order that it may sustain an order of conviction must be cor· roborated by other independent evidence. The observations made S.C.R. SUPREME COURT REPORTS 553 by this Court in Madhoprasadv. The State of Madhya Pradesh are in the nature of obiter dieta 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. 158, approved. Case-law reviewed. The provision of s. 32(1) 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 relevant, _is an exception to the general rule of exclusion of hearsay evidence and evidence untested by cross-examination. The special sanctity whi¢h the Legislature attaches to such a declaration inust 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 scrutinsed, 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. 134 (l)(c) : Held, that the certificate granted by the High Court wa:s incompetent and as the case disclosed on grounds on which this Court could possibly grant special leave to appeal under Art. 136 of the Constitution, the appeal must be dismissed. 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. 15of1956, 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. M2SC/61-7 1957 Kltruhal Rao v. State of Bomba; 1957 Khwhal Rao v. State of /Wmbay Sinha J. 554 SUPREME COURT REPORTS [1958} J. N. Banerjee and P. C. Agarwala, for the appellant. Jindra Lal and R. H. Dhebar, 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 (l)(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, Inayatullah, P.W.1, and Tantu, P.W. 5, are said to be the leaders of the opposite faction. Before the time and date of the occurrence, there had been a number of incidents between the two rival factions in respect of some of which lnayatullah and Tantu aforesaid had been prosecuted. Even on the date of the occurrence, apart from the one leading to the murder of Baboolal, which is the subject-matter of the present appeal, Tantu and Inayatullah had made two separate reports about the attacks on them by Khushal's party. There was another report lodged by Sampat-one of the four persons placed on trial along with the appellant, for the murder of Baboolal. That report was lodged at Ganeshpeth police station at about 9. 30 p.m. on the same date-February 12, 1956-against Inayatullah alias Kalia and Tantu, that they had attacked the former with sharp-edged weapons (Ex. P-26). The prosecution case is that the appellant Khushal was on bad terms with Baboolal who was on very friendly terms, with the leaders of the opposite faction aforesaid. Being infuriated by the conduct of Baboolal in associating with the enemies of the party of the accused, Sampat, Mahadeo, Khushal and Tukaram S.C.R. SUPREME COURT REPORTS 555 suddenly attacked Baboolal with swords and spears and inflicted injuries on different parts of his body. The occurrence took place in a narrow lane of Nagpur at about 9 p.m. Baboolal was taken by his father and other persons to the Mayo hospital where he reached 'at about 9.25 p.m. The doctor in attendance Dr. Kanikdale (P.W.14) at once questioned him about the incident and Baboolal is said to have made a statement to the doctor which the latter noted in the bedhead ticket (Ex. P-17) that the had been assaulted by Khushal and Tukaram with swords and spears. After noting the statement aforesaid, of Baboolal, the doctor telephoned to the Ganeshpeth police station where the information was noted at 9. 45 p.m. On receiving the information, Sub-Inspector A. K. Khan recorded (Ex. P-1) and registered an offence under s. 307, Indian Penal Code, and immediately went to the Mayo hospital along with a head-constable and several constables. He found Baboolal in a serious condition and suspecting that he might not survive and apprehending that it might take time for the magistrate to be informed and to be at the spot, to record the dying declaration, he consulted Dr. Ingle, the attending doctor, whether Baboolal was in a fit condition to make a statement. The doctor advised him to have the dying declaration recorded by a magistrate. The Sub-Inspector decided that it would be more advisable for him to record the dying declaration without any delay. Hence, he actually recorded Baboolal's statement in answer to the questions put by him (Ex. P-2) at 10.15 p.m. In the meantime, Shri M. S. Khetkar, a magistrate, first class, was called in, and he recorded the dying declaration (Ex. P-16) between 11.15 and 11. 35 p.m. in the presence of Dr. Ingle who certified that he had examined Baboolal and had found him mentally in a. fit condition to make his dying declaration. Besides these three dying declarations recorded in quick succession, as aforesaid, by responsible public servants, Baboolal is said to have made oral statements to a number of persons, which it is not necessary to set out because the High Court h.as not acted upon those oral dying declarations. We 1957 Khuahal Rao v. State of Bombay Sinha J. 1951 Kluultal Rao v. State of Bombay SinM J. 556 SUPREME COURT REPORTS [1958] shall have to advert, later, to the recorded dying declarations in some detail, in the course of this judgment. Jt is enough to say at this stage that the courts below have founded their orders of conviction of the appellant mainly on those dying declarations. Baboolal died the next morning at about 10 a.m. in hospital. Having come to know the names of two of the alleged assailants of Baboolal from his recorded dying declarations, the police became busy·apprehending those persons. They could not be found at their respective houses. The appellant was arrested four days later in an out-house locked from outside, of a bungalow on Seminary Hill in Nagpur. The other person named as one of the assailants, Tukaram, was arrested much later. The prosecution case is that these persons were absconding and keeping out of the way of the police. After investigation and the necessary inquiry, four persons were placed on trial and the appellant was one of them. The Additional Sessions Judge aquitted two of them and convicted the remaining twothe appellant and Tukar/clm-under s. 302, Indian Penal Code, or in the alternative, under s. 302, read with s. 34, Indian Penal Code. He sentenced the appellant to death because in his opinion, he had caused Baboolal's death intentionally, and there were no extenuating circumstances. He sentenced Tukaram to imprisonment for life, because in the learned Judge's view of the case, Tukaram had acted under the instigation of the appellant. Accordingly, the learned Additional Sessions Judge made a reference to the High Court for confirmation of the sentence of death. That reference was heard along with the appeal filed by the condemned prisoner. The reference, the appeal by the convicted accused persons, as also the appeal by the Government of Madhya fradesh, against the two accused persons who had been acquitted by the learned trial Judge, and the revisional application for enhancement of sentence passed upon Tukaram, also filed by the State Government, were all heard together and disposed of by one judgment, S.C;R. SUPREME COURT REPORTS 557 by a bench consisting of Hidayatullah C.J. and Mangalmurti J. The High Court, apparently with a view to understanding the evidence adduced in the case on behalf of the parties, made a local inspeetion on September 17, 1956, and recorded their impressi.ons in a note which forms part of the record of the High Court. In a very well-considered judgment, the High Court, by its judgment and orders dated October 13, 1956, acquitted Tukaram, giving him the benefit of the doubt caused chiefly by the fact that in the dying declaration (Ex. P-16) recorded by the magistrate _as aforesaid, he has been described as a Teli, whereas Tukaram before the Court is a Kolhi, as stated in the charge-sheet. The doubt was further accentuated by the fact that there were three or four persons of the name of Tukaram, residing in the neighbourhood and some of I.hem are Te/is. The High Court examined, in meticulous details, the evidence of the eye-witnesses Inayatullah, P.W. 1, and Sadashiv, P.W. 3, and agreed wjth the trial Judge in his estimate of their testimony that those witnesses being partisan, their evidence could not be relied upon to base a conviction. The High Court went further and came to the conclusion that their evidence being suspect, could not be used even as corroboration, if corroboration was needed of the three dying declarations made by Baboolal, as aforesaid. They upheld the conviction and sentence of the appellant on the ground that the dying declarations were corroborated by the fact that the appellant had been absconding and keeping out of the way of the police, and had been arrested under very suspicious circumstances. These circumstances and the alleged absconding by Tukaram were not so suspicious as to afford corroboration against him. In that view, the High Court "very reluctantly" gave the benefit of the doubt to Tukaram and allowed his appeal. The High Court also agreed with the trial Judge in acquitting the other two accused persons-. Sampat and Mahadeo-because these two persons had not been named in the dying declarations, and the oral testimony was not of such a character as to justify conviction. Accordingly, the Government appeal and 1957 i:Au11io11Wo v. State of /Joml>ay S/Ma I. 558 SUPREME COURT REPORTS (1958] 1951 application in revision were dismissed. As against Khus/uJI Rao the appellant, the reference made by the learned trial s v.Bo Judge was accepted and his appeal dismissed. Thus, tate 01 mbay under the orders of the High Court, only the appellant Sinha J. stood convicted on the charge of murder with a sentence of death against him. He moved the High Court for a certificate under art. 134(l)(c) of the Constitution, and the High Court granted a "certificate of fitness". Hence, this appeal. At the outset, we must repeat what this Court has observed in a number of appeals<•coming up to this Court on certificates of fitness granted by High Courts, mainly on questions of fact. The main ground for the grant of the certificate may be reproduced in the words of the High Court itself: "The main ground is that there is not enough evidence against the accused and that there is an error in our judgement in holding that there was no evidence to show that Khushal whose absconding has been held to corroborate the dying declaration, was involved in a liquor case. During the course of the argument neither side drew our attention to the documents which were in the record; nor was any point made of it, though we questioned why the absconding should not be taken into consideration. Now it seems that there are one or two defence exhibits in which it has been shown that Khushal was not found in his house when he was wanted in a liquor case after a search on 5th February, 1956. In view of the fact that there is this error and the sufficiency of the evidence might be a matter for consideration in the light of this additional evidence, we think this is a fit case for a special certificate under art. 134 (1) (c) of the Constitution." It is clear that the High Court granted the certificate of fitness under Art. 134 (1) (c) of the Constitution not on any difficult question of law or procedure which it thought required to be settled by this Court, but on a question which is essentially one of fact, nemely, whether there was sufficient evidence of the guilt of the accused. The latest reported case of this Court, bearing on this aspect of this appeal, is Haripada S.C.R. SUPREME COURT REPORTS 559 Dey. v. The State of West Benga/(1), to the effect that a High Court exceeds its power of granting a certificate of fitness under that article if the certificate discloses that the main ground on which it was based related to a question of fact, and that the High Court is not justified in sending up such a case for further consideration by this Court which does not, ordinarily, concern itself with deciding mere questions of fact unless such questions arise on a certificate granted under els. (a) or (b) of Art. 134(1) of the Constitution. In other words, this Court does not function, ordinarily, as a Court of Criminal Appeal. Under the Constitution, it has the power, _and it is its duty, to hear appeals, as a Regular Court of Appeal, on facts involved in cases coming up to this Court on a certificate under Art. 134(1)(a) or (b). To the same effect are the other decisions of this Court, referred to in the reported decision aforesaid, for example, Narsing v. The State of Uttar Pradesh(2) Baladin v. The State of Uttar Pradesh (3) Sunder Singh v. The State of Uttar Pradesh(4). It is, therefore; incumbent upon the High Courts to be vigilant in cases coming up before them, by way of an application for a certificate of fitness under Art. 134(1) (c) of the Constitutiob. In view ~f these considerations, it h.as got to be held that the certificate of fitness granted by the High Court does not satisfy the requirements of Art. 134(1)(c) of the Constitution. The appeal on such a certificate has, therefore, to be dismissed in limine,· but we have to satisfy ourselves whether there are such grounds as would justify this Court in granting special leave to appeal to this Court, if the appellant had approached this Court in that behalf. We have, therefore, examined the record of this case from that point of view. It appears from the judgments of the courts below that the prosecution case rests mainly upon the three dying declarations of Baboolal who died shortly after making those statements as to his assailants, in quick succession within about two and a half hours of th~ (1) [1956] S.C.R. 639. · (2) [1955] 1 s.c.R. 23!J. (3) A.I.R. 1956 S.C. 181. (4) A.I.R. 1956 S.C. 411• 19'7 Khwlial Rao v. State of Bombay SlnhaJ. 1951 KlwsluJ/ Rao v. State of Bombay Sinha J. 560 SUPREME COURT REPORTS [1958} occurrence-indeed, the first one to the doctor, was made within half an hour; as also upon the evidence of two persons Inayatullah, P.W. 1 and Sadashiv, P.W. 3, who figure as eye-witnesses, and Trimbak, P.W. 2 and Ramgopal, P.W. 4, who claimed to have turned up in the nick of time, to witness the last stages of the occurrence. Though the trial Judge did not disbelieve the oral testimony of the witnesses aforesaid, and only insisted upon corroboration, the High Court was more pronounced in its view that the testimony of those four witnesses was not trustworthy. The High Court has discussed their evidence in great detail, and was not prepared to accept any part of their testimony on the ground that they were strongly partisan witnesses and that they did not come to the rescue of the victim of the murderous assault if they were really in the neighbourhood of the place of the occurrence, as claimed by them: If we had to assess the value of that body of oral evidence, we may not have come to the same conclusion, but we proceed on the assumption that the High Court is right in its estimate of the oral testimony adduced on behalf of the prosecution. After discussing all that evidence, the High Court took the view that it could not pl(\ce any reliance on the oral testimony of what Baboolal had spoken to P.Ws. 2 and 19 when they deposed that Baboolal had named two of his assailants, namely, the appellant and Tukaram. The High Court relied upon the three dying declarations recorded at the .hospital-first, by the attending doctor, second, by the Sub-Inspector of police and the third, by the magistrate, first class, between 9.25 and 11.35 p.m. As regards authenticity of the record of those three statements of the deceased, the High Court had no doubt, nor has any doubt been cast upon them by counsel for the appellant. The High Court then considered the question whether the conviction of the accused could be based on those dying declarations alone. It pointed out that in that High Court as also in other High Courts, convictions on dying declarations alone had been rested if the Court was satisfied that the dying declaration was true and, therefore, could be acted upon. But the decision o S.C.R. SUPREME COURT REPORTS '561 this Court in Ram Nath Madhoprasad v. State of Madhya Pradesh(1) was brought to their notice, and in view of that decision, the High Court looked for corroboration of the dying declarations aforesaid. It found that corroboration in the subsequent conduct of the· appellant in that, as deposed to by prosecution witness 31-the Sub-Inspector in-charge of Ganeshpeth police station-the appellant could not be traced till February 16, 1956, on which day, the police obtained information to the effect that the accused had been concealing himself in the premises of Ganesh dhobi at Hazari Pahar. He went there and found the appellant sitting in a room which had been locked from the front side. He arrested the accused. The High Court did not believe the defence suggestion that the appellant had been concealing himself for fear of the police in connection with an excise case in which he had been. suspected. The records in connection with that case have been placed before us, and, after examip.ing those records, we do not find any good reasons for differing from the High Court in its appreciation of the circumstances connected with the absconding of the accused. The High Court took the view that the circumstance of the appellant's conduct in concealing himself and evading the police for a number of days was consistent with the prosecution case that he was concerned in the crime which was the subject-matter of the charge against him. Thus, in effect, the High Court found corroboration which, according to the ruling of this Court referred to above, was necessary in order to base the conviction upon the dying declarations of Baboolal. The question whether the circumstances of the appellant's alleged keeping out of the way of the police, for a number of days after the occurrence, can be used as corroboration of the dying declarations, is not free from doubt and difficulty. The argument on behalf of the accused that he had been keeping out of the way of the police because he was suspected in the excise case is not entirely unfounded. He had not left the city of Nagpur and gone out of the jurisdiction of the local police. In those circumstances we are not (1) A.I.R. 1953 S.C. 420. 1951 Klualuzl Rao v. State of Bombay Sinha J. 19'7 ..._ Khusha/ RAo v. State of Bombay Sinha J. 562 SUPREME COURT REPORTS [1958) prepared to say that the alleged absconding of the accused could afford sufficient corroboraton, if corroboration of the dying declarations was needed. In this Court, a good deal of argument was addressed to us, to the effect that the ruling of this Court lays down a sound proposition of law which should have been followed by the High Court, and that the alleged fact of the accused absconding and keeping out of the way of the police could not be used as corroboration of the dying declaration. The decision of this Court in Ram Nath Madhoprasad v. State of Madhya Pradesh('), contains the following obervations, at p. 423, which have been very strongly relied upon, on behalf of the appellant, as having a great bearing upon the value to be placed upon the dying declarations: "It is settled law that it is not safe to convict an accused person merely on the evidence furnished by a dying declaration without further corroboration because such a statement is not made on oath and is not subject to cross-examination and because the maker of it might be mentally and physically in a state of confusion and might well be drawing upon his imagination while he was making the declaration. It is in this light that the different dying declarations made by the deceased and sought to be proved in the case have to be considered .......... " We have, therefore, to examine the legal position whether it is settled law that a dying declaration by itself can, in no circumstances, be the basis of a conviction. In the first place, we have to examine the decision aforesaid of this Court from this point of view. This Court examined the evidence in detail with a view to satisfying itself that the dying declarations relied upon in that case were true. In that case, apart from the dying declarations, there was the evidence of the approver. This Court found that the evidence of the approver and other oral testimony had been rightly rejected by the High Court. In that case also, the Court had mainly relied upon the dying declarations for basing the conviction under s. 302, (1) A.I.R. 1953 S.C. 420. S.C.R. SUP.REME COURT REPORTS 563 read with s. 34, Indian Penal Code. This Court examined for itself, the dying declarations and the other evidence bearing upon· the truth and reliability of the dying declarations, and after an elaborate discussion of all that evidence, came to the conclusion that the dying declarations did not contain "a truthful version of what actually happened". Thus, after a . very careful and cautious examination of the facts of the case, connected with the recording of the dying declaration, and of the other evidence in the case and of the fact that it was a dark night without any lights available at the place of occurrence, this Court distinctly came to the conclusion that the dying declaration was not true and could not be relied upon to base, upon that alone, the conviction of the appellants. It is, thus, clear that the observations quote~ . above, of this Court, are in the nature of obiter dicta. But as it was insisted that those observatio~s were. binding upon the courts in India and upon us, we have to examine them with the care and caution they rightly deserve. · The Legislature in its wisdom has enacted ins. 32(1) of the Evidence Act that "When the statement is made by a person as to the ca,,use 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 person's death comes into question", such a statement written or verbal made by a person who is dead (omitting the unnecessary words) is itself a relevant fact. This provision has been made by the Legislature, advisedly, as a matter of sheer necessity by way of an exception to the general rule that hearsay is no evidence and that evidence, which has not been tested by cross-examination, is not admissible. The purpose of cross-examination is to test the veracity of the statements made by a witness. In. the view of the Legislature, that test is supplied by the solemn pccasion when it was made, namely, at a time when the person making the statement was in danger of losing his life. At such a serious and solemn moment, that person is not expected to tell lies; and secondly, the test of cross-examination would not be available. In · such a case, the necessity of oath also has been 1957 Kltu.rhal Rao v. State of Bombay Sinha I. Klrtulial Rao v. State of Bombay SlnhaJ. 564 SUPREME COURT REPORTS (1958) dispensed with for the same reasons. Thus, a statement made by a dying person as to the cause of death has been accorded by the Legislature a special sanctity which should, on first principles, be respected unless there are clear circumstances brought out in the evidence to show that the person making the statement was not in expectation of death, not that that circumstance would affect the admissibility of the statement, but only its weight. It may also be shown by evidence that a dying declaration is not reliable because it was not made at the earliest opportunity, and, thus, there was a reasonable ground to believe its having been put into the mouth of the dying man, when his power of resistance against telling a falsehood was ebbing away; or because the statement has not been properly recorded, for example the statement had been recorded as a result of prompting by some interested parties or was ~n answer to leading questions put by the recording officer, or, by the person purporting to reproduce that statement. These may be some of the circumstances which can be said to detract from the value of a dying declaration. But in our opinion, there is no absolute rule of law, or even a rule of prudence which has ripened into a rule of law, that a dying declaration unless corroborated by other independent evidence, is not fit to be acted upon, and made the basis of a conviction. No decision of this Court, apart from the decision already noticed, has been pointed out to us as an authority for the proposition that a dying declaration, in order to be acted upon by a court, must be corroborated by independent evidence. On the other hand, the different High Courts in . India (including Burma) have taken conflicting views as to the value of a dying declaration in part or in its entirety, without any independent corroboration. For example, a Division Bench of the Bombay High Court, presided over by Sir John Beaumont C.J., has laid down in the case of Emperor v. Akbara/i Karimbhai('), that a statement which is covered by s. 32(1) of the Evidence Act is relevant evidence and has to be judged on the same principles as other evidence, bearing in mind that such a (1) I.L.R. (193•) 58 Bom. 31 . . , S.C.R. SUPREME COURT REPORTS 565 declaration·was not made on oath and was not subject to cross-examination, and is, therefore, a weaker type _ of evidence than that given by a witness on oath. Therefore, if a part of a dying declaration is deliberately false, it will not be safe to act upon the other part of the declaration without very definite corroboration. That Bench also ruled that it is not correct to postulate that because some part of the dying -declaration is false, the whole declaration must necessarily be disregarded. The Bombay High Court, thus, did not agree with the observations of the Calcutta High Court in the case of Emperor v. Premananda Dutt(1) to the effect that it is not permissible to accept a dying declaration in part and to reject _the other part and that a dying declaration stood on a widely different footing from the testimony of a witness given in Court. On the other hand, we have the decision of the Rangoon High Court, reported in the case of the King v. Maung Po Thif). In that case, the positive evidence led on behalf of the prosecution was found to have been tampered with and unreliable. The Court set aside the order of acquittal passed by the trial judge, and recorded an order of conviction for murder, practically on the dying declaration of the victim of the crime. The Court observed that there was no such rule of prudence as had been invoked in aid of the accused by the trial judge who has observed that an accusation by a dying man, without corroboration from an independent source, could not be the sole basis for conviction. The learned Judges of the High Court further observed that in order to found on a dying declaration alone,_ a judgment of conviction of a accused person, the Court must be fully -satisfied that the dying declaration has the impress of truth on it, after examining all the circumstances in which the dying person made his statement ex parte and without the accused having the opportunity of cross-examining him. If, on such an examination, the Court was satisfied that the dying declaration was the true version of the occurrence, conviction could be based solely upon it. (1) (1925) I.L.R. 52 Cal. 987. (2) A·I·R· r938Rang. 282. 1957 KhushalRao v. State of Bomba_,· Sinha I. 1957 Kliu