MUTHU KUTTY AND ANR. versus STATE BY INSPECTOR OF POLICE, TAMIL NADU

Citation: [2004] SUPP. 6 S.C.R. 222 · Decided: 19-11-2004 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Dismissed

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Judgment (excerpt)

A 
B 
MUTHU KUTTY AND ANR. 
v. 
STATE BY INSPECTOR OF POLICE, TAMIL NADU 
NOVEMBER 19, 2004 
[ARiflT PASAYAT AND S.H. KAPADIA, JJ.] 
Evidence Act, 1872; Ss. 32, 60 and 113B!Penal Code, 1860; 
Ss. 302, 304B and 498 : 
C 
Demand of dowry-Daughter-in-law tortured to death by in:-laws by 
setting her on fire-Conviction based on dying declaration-Correctness 
of-Held : Dying declaration should be of such nature as to inspire full 
confidence of the Court in its correctness and not the result of tutoring, 
prompting or imagination-Courts must ensure that the deceased was in 
D a fit state of mind and had an opportunity to observe and identify the 
assailants-Once the Court is satisfied that the declaration was true and 
voluntary, it could base its conviction without any further corroboration-
The declaration satisfied all such tests to the satisfaction of the Court, thus 
trustworthy and reliable-Hence, Courts below rightly recorded the conviction. 
E 
Dowry Prohibition Act, Section 4-Scope of-Discussed 
Legal Maxims : 
.. 
Maxim "Nemo Moriturus Prosemuitur Mentiri"-Applicability of 
F 
Appellants, In-laws of the deceased, allegedly set her on fire since 
her parents could not meet out their demands of dowry. On hearing cry 
of the victim, some of the neighbourers, (prosecution witnesses) came 
to her rescue and took her to a nearby hospital and also informed about 
the incident to her mother. The Medical Officer found 90% burn injuries 
G on her body and informed the matter to Police. Dying declaration of the 
deceased was recorded by the Judicial Magistrate in the presence of a 
doctor, who certified that the deceased was conscious and able to give 
the declaration. Later, the deceased succumbed to the burn injuries in 
the Hospital. Police, after completion of the investigation, submitted 
H 
charge~sheet against the accused under Section 498A, 304B r/w ~ection 
222 
I. 
MUTHU KUTTYv. STATE BY INSPECTOR OF POLICE, TAMIL NADU 223 
302 IPC and Section 4 of the Dowry Prohibition Act. Trial Court found A 
the accused persons guilty of the offence under Section 498A and 304B 
IPC, and sentenced them to imprisonment accordingly. The appeal was 
dismissed by the High Court. Hence the present appeal. 
Accused-appellant contended that there was no cogent evidence B 
furnished by the prosecution in support of the allegation of demand of 
dowry; that the deceased was not in a fit condition to give any statement, 
moreover the medical officer did not certify so; and that the deceased 
had committed suicide due to depression. 
Respondent-State submitted that the dying declaration was recorded C 
by the Judicial Magistrate following the due procedure of law; and that 
the Medical officer has certified fitness of the deceased before recording 
her evidence. 
Dismissing the appeal, the Court 
HELD : I.I. The situation in which a person is on deathbed is so 
solemn and serene when he is dying that the grave position in which he 
is placed, is the reason in law to accept the veracity of his statement. 
It is for this reason the requirements of oath and cross-examination are 
dispensed with. Besides, the dying declaration, if excluded, will result 
in miscarriage of justice because the victim being generally and only 
eye-witness in the serious crime, the exclusion of the statement would 
leave the Court without a scrap of evidence. (231-F-H) 
R. v. Wood Cock, (1789) 1 Leach 500, referred to. 
1.2. Though a dying declaration is entitled to great weight, but then 
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 
why the Court insists that the dying declaration should be ofsuch a nature 
as to inspire full confidence of the court in its correctness. The Court has 
D 
E 
F 
G 
to be on guard that the statement of deceased was not as a result of 
either tutoring or prompting or a product of imagination. The Court 
must also be satisfied that the deceased was in a fit state of mind after a 
clear opportunity to observe and identify the assailant. The dying 
declaration is only a piece of untested evidence and must like any H 
224 
SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R. 
A other evidence, satisfy the Court that what is stated therein is the unalloyed 
truth and that it is absolutely safe to act upon it. If after careful 
scrutiny the Court is satisfied that it is true and free form any effort 
to induce the deceased to make a false stat

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