KUSA & ORS. versus STATE OF ORISSA

Citation: [1980] 2 S.C.R. 801 · Decided: 17-01-1980 · Supreme Court of India · Bench: S. MURTAZA FAZAL ALI · Disposal: Dismissed

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Judgment (excerpt)

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801 
KUSA & ORS. 
v. 
ST A TE OF ORISSA 
January 17, 1980 
[S. MuRTAZA FAZAL Au AND A. D. KosHAL, JJ.] 
Supretne Cofltt (Enlargc1nent of Criminal Appellate Juri.1dic!ion) Act 1970, 
S. 2(a)-Scope. 
Indian Evidence Act 1872, S. 32(1). 
JJyi111: declaration-Evidentiary value of-Eye~witnesses account ittco-11siste11t 
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'tt.ith dying declaration-Dying declaration if could be relied upon. 
Dying declaration-Evidence of doctor that deceased was in a state of shock-
lnability of deceased to answer the last question of doctor-Whether invalidates 
the dying declaration. 
Dying declaration-Deceased naming some other persons than accused-Such 
persons not challaned-Validity of dying declaration. 
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The appellants along with other accused persons were tried und~r section 
302/149 l.P.C. for cauging murder of two persons. While one of the deceased 
died on the spot tlre other wOO was removed to hospital, gave a dying decla-
ration to the doctor before dying. The Sessions Judg'e finding 
that none of 
the. eye-\vitnesses examined was reliable and as the accused could not be 
convicted on the basis of their testimony acquitted all the accused. 
fle further 
held that the evidence of the eye-witnesses was rendered improbable and was 
in fact falsified by the dying declaration Ex. 9. 
On appeal by the State, 
the High Court held that the dying declaration Ex. 9 was absolutely true 
and reliable and was sufficient to establish the prosecution case. 
It accord-
-- ingly convicted and sentenced the appellants to in1prisonment for life. 
( In the appeal to this Court, it was contended on behalf of the appellants 
that ( 1) as the deceased was in a state of shock, it was unsafe to rely on 
the dying declaration, (2) as the dying declaration was incomplete it could 
not be acted upon, and ( 3) as the deceased had implicated some persons 
other than the accused, the dying declaration could not be said to be 
true. 
Dismissing the appeal, 
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HELD : I. The High Court was right in holding that even excluding: the 
evidence of the eyeMwitnesses the dying declaration is true and reliable and 
sufficient to found the conviction of the appellants. [808 FJ 
2. The Sessions Judge committed an error in law in rejecting the dying 
declaration because if the evidence of the eyeMwitnesses was to be rejected on 
the ground that it \Vas inconsistent with the dying declaration, it would not 
necessarily follow that the dying declaration was also unreliable and unworthy 
of credence. [804 CJ 
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SUPREME COURT REPORTS 
[1980] 2 S.C.J\.. 
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3. (a) This Court has held that whenever a particular view taken by 
authors of Medical Jurisprudence, is adumbrated, the same must be put -to 
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the doctor to assess how far the view taken by the experts apply to the 
facts of the particular case. 
[805 G1 
In the instant case though the doctor who had recorded the dying decla-
ration had stated that the deceased was in a state of shock because he had 
received a serious injury in the abdomen w•hich had to be stitched, he woo 
however not crossed-examined as to the fact whether or not despite the ::.hock, 
the deceased 
had retained 
his mental 
faculties. 
On the 
other hand, the 
last certificate given by the doctor towards the end of the dying declaration 
that the patient became semi-conscious clearly shows that the deceased 
was fully conscious wh'en he started making the dying declaration before the 
doctor. [804 H, 805 GJ 
(b) A perusal of the entire dying declaration clearly shows that the doctor 
had asked all the necessary questions that could be asked from the deceased 
and the last question "what more you want to say" V/as merely in the nature 
of a formality. I-laving narrated the full story, there was no:hing more that 
the deceased could add. 
The dying declaration was therefore not incon1plete 
one. [806 BJ 
Cyril Waugh v. The King, 54 CWN 503, distinguished. 
(c) Merely because some other persons named in the dying declaration 
were not challaned \Vould not by· itself prove the falsity of the dying declaration. 
It may be that these, persons were left out from the category of a-~cused in the 
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F.I.R. or the challan due to ulterior motives. [806 E, 805 CJ 
4. A person on the verge of death is most unlikely to mn.ke an untrue 
statement unless prompted or tutored by his friends or relatives. 
The shadow 
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of immediate death is the best guarantee of the truth of the staten1ent by 
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a dying person 

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