conviction dying declaration

Supreme Court: In a case wherein, a special leave to appeal was filed by the appellant under Article 136 of Constitution before the Supreme Court to set aside the appellant’s conviction under Section 302 of the Penal Code, 1860 (‘IPC’), the Division Bench of Fazl Ali* and Vivian Bose, JJ., opined that there were no sufficient grounds to disturb the concurrent conclusion arrived by the Sessions Judge and the High Court and accordingly, dismissed the appeal and upheld the appellant’s sentence and conviction.


In June 1948, the appellant was married to the deceased. Subsequently, after the marriage, both the appellant and the deceased lived together at Satana, where the appellant was employed. Afterwards, the appellant lost his employment and returned to Nasik.

Subsequently, after that, the appellant’s father and a cow died in the appellant’s house. These mishaps led the appellant’s mother to believe that the deceased had brought ill-luck to the family. Thus, because of such belief, sometimes the appellant used to beat the deceased, and she was ill-treated generally.

Further, on 31-1-1950, the deceased came to Nasik to her parent’s house, and since the deceased left without the appellant’s permission, he was greatly disturbed when he came to Nasik. The deceased’s father and her maternal uncle, Dr Gaidhani insisted that the appellant should give sureties to guarantee good treatment by him and then only the deceased will return to the appellant, but their efforts were not successful.

Thereafter, on 15-5-1950, the appellant wrote two letters to the deceased’s elder sister’s husband, wherein he asked him to ensure that the deceased was returned to the appellant and also insinuated that if nothing was done by 20-5-1950, he would take some drastic steps.

Subsequently, on 18-5-1950, the appellant forcibly brought the deceased to his house. On the same day, the appellant went in great haste to Dr Gaidhani and reported that the deceased was vomiting. Further, Dr Gaidhani and his wife went to the appellant’s house and found symptoms of acid poisoning, as the deceased’s mouth was burnt.

Thereafter, Dr Gaidhani went to the police chowky, after which the Police Sub-Inspector took the deceased to the hospital, where her dying declaration was recorded by the Magistrate.

The dying declaration stated that the deceased was forcibly brought from her mother’s house and the appellant was whispering that she was brought to take vengeance. Further, when she asked for drinking water, the appellant gave her the water first and afterwards administered medicine. The deceased stated that the appellant made her to drink and swallow acid in the house. Subsequently, on 21-5-1950, the deceased died at the hospital and after the police investigation, charge sheet was filed against the appellant and he was committed to the Court of Session.

The appellant was found guilty for an offence under Section 302 of IPC by the Sessions Judge of Nasik and was sentence to transportation for life. Thereafter, an appeal was filed in High Court, which was accordingly, dismissed.

Thus, the appellant file a special leave to appeal before the Supreme Court.

Analysis, Law, and Decision

The Supreme Court noted that the only direct evidence in the present case was of dying declaration. The Supreme Court relied on Tevar, In re, 1939 SCC OnLine Mad 162 and opined that the Sessions Judge and the High Court had carefully weighed the circumstances of the case and then arrived at the conclusion that statements made by the deceased before the Magistrate could be accepted.

The Supreme Court further stated that the Sessions Judge also went and inspected the locality, and then concluded that the deceased had no opportunity to purchase or secure concentrated sulphuric acid, which was administered to her, from a chemist’s shop.

The Supreme Court stated that it had been established that sulphuric acid bottle was thrown into the neighbour’s house. Further, the Supreme Court opined that the Sessions Judge and the High Court had rightly stated that it was unlikely that the deceased had thrown the bottle into the neighbouring house, and if the deceased intended to commit suicide, there was no point in disposing the bottle.

The Supreme Court stated that the Sessions Judge and the High Court had accepted Dr Gaidhani as a truthful witness, and since Dr Gaidhani had taken prominent part in deceased’s marriage and had helped the appellant on numerous occasions, the Supreme Court could not reject the credibility of the witness.

The Supreme Court took note of the following two conduct which supported the appellant:

  1. that he went to Dr Gaidhani and informed him that the deceased was vomiting; and

  2. that he went to Dr Gaidhani’s brother during middle of the day and told him that the deceased had gone out to purchase new bangles and had not returned yet.

The Supreme Court further stated that it could not attach too much importance to such conduct, because if the poisoning was a pre-designed act, a person could also have acted in such a way, to avoid suspicion.

The Supreme Court further stated that the appellant could not stick to any one employment, and believed that the deceased had brought ill-luck to the family. The appellant had also given revenge threats on several occasions, including the day he forcibly brought her to his house. Further, his outbursts on letters dated 15-5-1950 were hardly the utterances of an absolutely normal and balanced person. Further, the Supreme Court stated that, the deceased did not appear to be a violent-tempered and shrewish type of girl, and in spite of all the hardship she suffered, she was prepared to work on her marriage by staying with the appellant.

Thus, Supreme Court stated that there were no sufficient grounds to disturb the concurrent conclusion arrived by the Sessions Judge and the High Court and upheld the appellant’s sentence and conviction.

Accordingly, the Supreme Court dismissed the appeal.

[Vishnu Nagesh Malpathak v. State of Bombay, (1952) 1 SCC 346, decided on 18-3-1952]

Note: Evidence Act, 1872

Section 32 (1) of Evidence Act, 1872, which provides dying declaration. It states that in cases, which relate to the cause of death of a person, the statement made by such person as the cause of his death, or any of the circumstances of the transaction which resulted in his death are relevant.

*Judgment by- Justice Fazl Ali

Advocates who appeared in this case :

For the Appellant: H.J. Umringar, Advocate;

For the Respondent: S.B. Jathar, Advocate

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