KHUSHAL RAO versus THE STATE OF BOMBAY

Citation: [1958] 1 S.C.R. 552 · Decided: 25-09-1957 · Supreme Court of India · Bench: BHUVNESHWAR PRASAD SINHA · Disposal: Dismissed

Cited by 2 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

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 judg-
ment 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 dismis-
sed ·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 fact-
Dying 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 res-
pected 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 ques-
tion 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, 195

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