<NAME>, J.

1. This action is brought by <NAME> against <NAME> and others to have a declaration that the plaintiff and certain of the defendants are entitled as representatives of the late <NAME> to be sebaits or superintendents of a pagoda, which was endowed by <NAME> to carry out the religious trusts created by his will and for the usual accounts and declarations. The plaintiff also applied that possession of the trust estate-should be delivered over to the representatives of <NAME>, and, if necessary, that a scheme should be framed for carrying out the trusts.

2. <NAME> died on the 1st January 1839, having made a will dated the 15th March 1838, whereby, amongst other things, he made the following bequest: "I give and bequeath <ORG>'s Rs. 20,000 for the religious worship at my house, a lower-roomed house in which the pagoda is established, and another house situated to the north of the pagoda, consisting of about five cottahs of ground, two upper rooms and two lower rooms, and also a flower garden situated to the east of the pagoda, containing more or less five cottahs of ground and two lower brick-built sheds," and then later on in the will the testator directed as follows: "The superintendence of the pagoda I entrust to my wife, and after her death to hold it by my son, <NAME>, after his death by my daughter and her husband, <NAME>, and their male children successively."

3. Probate of the will was granted on the 16th February 1839 to <NAME> and <NAME>. <NAME> did not act in the trusts, and left this country many year ago.

4. "The persons purporting to act under the will as sebaits were first <NAME>, then <NAME>, upon whose death <NAME> became the sebait, his father <NAME> "having died before <NAME>. <NAME> was, the eldest son of <NAME>; <NAME> died in 1884, and thereupon his son, <NAME>, and <NAME>, who was the son of <NAME>'s brother, <NAME>, took over the management and superintendence of the pagodas. The plaintiff, who is the heir of <NAME>, now contends that, upon the true construction of the will, the succession to the ofiice of sebait has wholly failed, and that the right to the management of the pagoda reverted to the heirs of the founder, <NAME>; that the will only provided superintendents of the pagoda during the life of the testator's wife and the lives of his son and daughter and her husband and their male children; and that the last survivor of such male children having died, the succession of sebaits provided by the will determined. It is necessary to scrutinize carefully the words used by the testator in this short paragraph of his will.

5. For the plaintiffs it has been contended that the word "children" used in that paragraph must be read in their ordinary signification, that is, as denoting the immediate offspring. On the other hand, Mr. <NAME> on behalf of the defendant, has forcibly argued that the language of the will manifests an intention on the part, of the testator to confer upon his daughter's family the perpetual sebaitship of the pagoda, and he contends that the words giving the sebaitship to the testator's daughter and her husband and their mole children successively are equivalent to an absolute gift to them of the sebaitship; that these words are equivalent to the expression putra vautradi krame, i.e., son and son's son successively commonly found in a Hindu will, find which are regarded as apt words to pass an estate of inheritance.

6. In construing a will words are to be taken in their ordinary and grammatical sense, unless a clear intention to use them in another can be collected and that other sense can be ascertained.

7. There is a class of cases which supports Mr. <NAME>'s argument, namely, Cases in which an estate is devised to a person and his children in succession where the <ORG>, in order to effectuate the general intent, will construe the gift as of successive estates in tail. The case of Lord <NAME> v. Marquis of Waterford, 1 D. F. and J. p. 613, is an illustration of this class of cases. There the Marquis of Waterford devised estates, to Lord <NAME> and to his children in succession, and it was held that the intention of the testator was to give a succession of fee simple estates, but inasmuch as it would he contrary to law to limit a fee upon a fee, the <ORG> must adopt the <NAME> doctrine and interpret the will so that it may be as nearly in accordance with the intention of the testator as the law will permit. Accordingly the Pull <ORG> of Appeal decided that Lord <NAME> took under the will an estate in tail.

8. This question was discussed in the case of Studdert v. Von Steiglitz, 23 L. E. Ir. 681, in which I was one of the Counsel.

9. In that case the gift of an estate. was to the sons in succession of the testator's eldest sister. The learned Vice-Chancellor of Ireland reviewed all the cases, and following the decision in Lord <NAME> v. The Marquis of <NAME> held that the sons took successive estates in tail. He stated the principle thus: "When there is a devise to several in succession in words sufficient to pass the fee or the whole interest of the testator in freehold, the <ORG> will, in order to give effect to the general intent, construe the gift as of successive estates in tail." The general intent must be ascertained from the whole will.

10. Beading the words of the gift in the present will, is it possible to say that; the testator intended to give the sebaitship absolutely to his daughter or to his--daughter and her husband? I think not.

11. The word "successively" appears tome to apply as well to the gift to the testator's daughter and her husband as to their male children; that is, the testator intended that as the sebaitship first went to his wife for her life, and after her death to her son for his life, so after the death of her son he intended that it should go to his daughter for her life only and then to the daughter's husband for his life, and afterwards to their male children in succession.

12. If it had been the intention of the testator to vest the sebaitship absolutely in his daughter and her husband and their male children in succession, it may be that the principle laid down in the cases to which I have referred would have applied, and the contention of Mr. <NAME> would have been well founded. But it appears to me that the language of the will precludes me from adopting this construction. The testator manifestly did not intend that his daughter should, take an absolute interest because after her death the sebaitship was to pass to her husband, and then to their male children successively. I am unable therefore to adopt the argument of the defendants Counsel. In my opinion the words "male children" must be construed as male offspring, and such male offspring were intended to enjoy the sebaitship in succession for life only in the same way as their parents were intended to hold it. Consequently on the death of the last surviving son of the testator's daughter, the succession of sebaits failed.

13. It has been admitted that if this be so, the appointment of sebaits reverts to the heirs of the founder of the trust.

14. The plaintiff and the defendants in the same interest with him are such heirs, and in my opinion are entitled to hare the superintendence of the pagoda and worship of the temple.

15. Another contention has, however, been raised by the defendants. They say a suit was instituted for the administration of this estate on the 30th January 1850, in which <NAME>, <NAME>, and their children <NAME> plaintiffs and <NAME> and <NAME> were defendants.

16. That suit was instituted for the enforcement of the payment of legacies given, by the will of <NAME> and for the administration of his estate. On the 15th August 1851 a primary decree was pronounced. That was an ordinary primary decree not determining rights, but directed accounts and enquiries.

17. <NAME> died and the suit was revived by his son <NAME>. Shortly after this, the suit was compromised and a deed was on the 24th June 1853 executed, whereby <NAME> assigned his interest in the trust properties to the <NAME> to hold upon the trusts declared by the will. It is contended by the defendant that the present plaintiffs are estopped by this deed from raising the present contention. The plaintiffs were not represented in that-suit at all. It is a deed between the immediate parties to that suit for the purpose of carrying out the terms of the compromise. Neither the plaintiffs nor those through whom they claim were parties to the suit or to the deed. Moreover, according to the recital in the deed, <NAME> was then entitled to- the superintendence of the pageda, and it was to him as temporary superintendent the conveyance of the property was made. In the operative part of the deed the property is conveyed to him to the uses and subject to the limitations contained in the will I fail to see therefore how the rights of the plaintiffs in respect of the sebaitship are prejudiced by this deed. On the contrary, the deed appears to me expressly to preserve the rights of all parties in respect of the pagoda according as <ORG> are to be gathered from the language of the will.

18. Consequently, I am of opinion that this deed does not operate as an estoppel, and that the defence wholly fails, and accordingly I must make a decree and declare that the defendants, the Deys, are, as the present representatives of the testator, entitled, in the events which have happened, to be the sebaits and superintended of the pagoda and to carry out tie religious trusts in the will mentioned.

19. Further, the plaintiff and the defendants, the <NAME>, are as such representatives entitled to possession of the trust estate with accumulations. I direct an account of what the trust estate consisted and of what it now consists with accumulations, and an account of the dealings of the defendants with the estate and of the accumulations thereof from the 29th November 1884, the date of the death of <NAME>, to the present time. I do not think it necessary at present to frame a scheme.

20. The defendants <NAME> and <NAME> appealed from this decision to <ORG>, <NAME> and <NAME>., who delivered the following judgment, dismissing the appeal:

For the appellant it was contended by the Advocate-General that one °" three contentions must prevail: (1) That the sebaitship was conferred upon the testator's daughter <NAME> absolutely, or (2) that she, her husband and children took as joint tenants absolutely, or (3) that the sebaitship was given to <NAME> for life, then to her husband for life, and then to their children absolutely. This, in effect, means that we are to read the words 'and their male children successively,' as equivelent to a well-recognized Hindu expression 'putra pautradi krame--'words regarded as sufficient to pass an estate of inheritance; or, to out it in another way, that we must read the words used as words of limitation and not as words of purchase.

As regards the suggested construction pointing to the creation of a joint tenancy, I may at once point out that the principle of joint tenancy as known to the English Law is one unknown to Hindu Law, except in the case of co-parcenary between the members of an undivided family. ( <CITATION> (1896) I. L. R. 28 Calc. 670, 679; L. R. 23 I. A. 37, 44. On the other hand, the plaintiff contends that the sebaitship was given to <NAME> and her husband successively for life, then to their male children successively for life, and that, upon the death of the survivor of such children, the management reverted to the heirs of the testator <NAME>.

It was contended before us for the respondent that we are not dealing with an actual bequest or gift of immovable property, but only with the appointment of (sic)pers(sic) to superintend and manage the pagoda. It would appear, however, from the observations of their Lordships of <ORG> in the recent, and, as yet, unreported case of <NAME> v. <NAME> (1899) L. R. 27 I. A. 69; I. L. R. 23 Mad. 271, delivered on the 19th December 1899, that the ruling in the <NAME> case (1872) L. R. I. A. Sup. Vol. 47; 9 B. L. R. 877, is applicable to a hereditary office and endowment as well as to other immovable property.

For the appellant it is urged that, looking to the general scope of the will, the testator intended to exclude from the sebaitship the adopted son of his son <NAME>, and also the heirs of his eldest son <NAME>, who predeceased his father; and that, in this view', he intended to confer upon his daughter's family the perpetual sebaitship of the pagoda. To which it is answered that one must gather the testator's intention from the language he has used, and that it may very well be that he was satisfied to leave the management of the pagoda in the hands of his daughter and her husband and their male children, all of whom were living at the date of his will and death; and that, after their deaths, he was equally willing that the management should revert to his heirs.

In construing the will, I ought to mention that the case is not touched by the Indian Succession Act . We are guided by the principles laid down by their Lordships of <ORG>, in the case of <NAME> v. <NAME> (1857) 6 <NAME>'s I.A. 526, 550, where their Lordships say at page 550 of the report.

In determining that construction, what we must look to is the intention of the testator. The Hindu Law, no less than the English Law, points to the intention as the element by which we are to he guided in determining the effect of a testamentary disposition nor, so far as we are aware, is there any difference between the one law and the other as to the materials from which the intention is to be collected. Primarily the words of the will are to be considered. They convey the expression of the testator's wishes; but the meaning to be attached to them may he affected by. surrounding circumstances; and where this is the case, those circumstances no doubt must be regarded. Amongst the circumstances thus to be regarded is the law of, the country under which the will is made and its dispositions are to be carried out. If that law has attached to particular words a particular meaning, or to a particular disposition a particular effect, it must be assumed that the testator, in the dispositions which he has made, had regard to that meaning or to that effect, unless the language of the will or the surrounding circumstances displace that assumption.

The case is not free from difficulty; but upon the best consideration I can give to the language used, I do not think the testator intended to confer a perpetual sebaitship upon the daughter or her husband, or their male children. I do not see what reasonable effect we can give to the word 'successively' if we adopt such a construction.

It is true, no doubt, that in another part of his will he has, when he intended a gift to his wife to be only for life, used the expression 'for life,' and from this we are invited to infer that, inasmuch as in the matter of the sebaitship he has not used the expression 'for life,' he must have intended to create a perpetual sebaitship. This reasoning seems to me rather fallacious, for we are at once led to inquire what meaning in this view we can fairly attribute to the word 'successively,' and which are the words which create the perpetual sebaitship. The scheme of the clause appears to be based on life sebaitships. The wife was to have it for life, <NAME> was to have it for life, and the daughter,' her husband and their male children were to have it 'successively.' The latter expression, which to my mind controls the whole gift to the daughter, her husband and male children, must mean, I think, that the daughter, her husband and their male children were to take it one after another for their respective lives, and in that sense 'successively;' and that the words 'male children' must be read as words of purchase and not as words, of limitation. I do not think we can reasonably read, as the appellants invite us to do, the word 'successively' as meaning 'sons and sons' sons in succession.' I see nothing in the will which would justify us in reading the expression ' male children,' save in its ordinary acceptation.

In my opinion the view taken by the <ORG> below is right; and, in this view, it is not disputed that the sebaitship would revert to the heirs of the testator.

21. <NAME> and <NAME> for the appellants contended that the intention of the testator was that the superintendence of the endowment should he held by his daughter, her husband, and their descendants in regular succession, and this intention was sufficiently evidenced by the language he used. <CITATION> (1872) L. R. I. A. Sup. Vol. 47, 65; 9 B. L. R. 377, 395 and <CITATION> (1878) L. R. 5 I. A. 138, I. L. R. 4 Calc. 23, 28, were cited to show that such an interpretation was borne out by decisions of <ORG>. In cases of religious trusts the fact that a perpetuity is created does not make the trust invalid by the Hindu Law. <NAME> v. <NAME> (1863) <NAME> 573, 581; (1867) 11 Moore's I. A. 405, 428. <CITATION> (1874) L. R. 1 I. A. 209, 228 and <CITATION> (1882) L. R. 10 I. A. 32; I. L. R. Calc. 766. Gnanasambanda Pandara Sanadhi v. <NAME> (1899) L. R. 27 I. A. 69, 77; I. L. R. 23 Mad. 271, 280, 281, were referred to.

22. <ORG> and <NAME> for the respondents were not called upon.

23. The judgment of their Lordships was delivered by Lord <NAME>, J.

24. Their Lordships think <ORG> has given a perfectly correct interpretation of the will, which is the subject-matter of this appeal, and that no other interpretations possible.

25. Their Lordships will therefore humbly recommend His Majesty to dismiss this appeal, and the appellant must pay the costs of the first respondent, who alone appeared therein.


PETITIONER: KUSHAL RAO Vs. RESPONDENT: THE STATE OF BOMBAY DATE OF JUDGMENT: 25/09/1957 BENCH: <NAME>, BHUVNESHWAR P. BENCH: <NAME>, BHUVNESHWAR P. MENON, P. GOVINDA KAPUR, J.L. CITATION: 1958 AIR 22 1958 SCR 552 ACT: <ORG>, Criminal Appellate jurisdiction of--Certif- icate of fitness, if can be granted by <ORG> on a question of fact Dying declaration evidiantry value of-If must be corroborated in order to sustain conviction-Consti- tution of India, Art. 134(1)(c)-  Indian Evidence Act (.1 of 1872), s. 32(1) . HEADNOTE: The <ORG> does not ordinarily function as a <ORG> of criminal appeal, and it is not competent for a <ORG> under Art. 134(1)(c) of the Constitution to grant a certifi- cate of fitness for appeal to this <ORG> on a ground which is essentially one of fact. <CITATION> " - (1956) S.C.R. 639, followed. There is no absolute rule of law, not even a rule of pru- dence that has- ripened -into a: rule of law- that a dying declaration in order-that it may sustain an order of convic- tion must be corroborated by, other independent evidence. The observations made 553 by this <ORG> in <CITATION> are in the nature of obiter dicta and do not lay down the law. <CITATION> , A.I.R. (1953) S.C. 420, considered. In re <NAME>, I.L.R. (1940) Mad. I58, approved. Case-law reviewed. The provision of s. 32(I) 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 rele- vant, is an exception to the general rule of exclusion of hearsay evidence and evidence untested by cross-examination. The special sanctity which the <ORG> attaches to such a declaration must 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 scruti- nised, and tested as any other piece of evidence, once the <ORG> 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 <ORG> 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 <ORG>, relying on a decision of this <ORG>, 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. I34(I)(c): Held, that the certificate granted by the <ORG> was incompetent and as the case disclosed no grounds on which this <ORG> could possibly grant special leave to appeal under Art. 136 of the Constitution, the appeal must be dismissed. JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: criminal Appeal No. 184 of 1956.

Appeal.. from the judgment and order dated October 15, 1956, of the former <ORG> in Criminal Appeal No. 205 of 1956 and Criminal Reference No. 15 of 1956, 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.

<NAME> and <NAME>, for the appellant. <NAME> and <NAME> for the respondent. 1957. September 25. The following Judgment of the Court was delivered by <NAME> appeal on a certificate of fitness under Art. 134(1)(c ), granted by <ORG> at Nagpur (as it then was), is directed against the concurrent judgment and orders of the courts below, so far as the appellant <NAME> is concerned, convicting and sentencing him to death under s. 302 , Indian Penal Code , for the pre-meditated murder of <NAME> 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 <NAME> who has been acquitted by <ORG>, are the leaders of one of the factions, and <NAME>, P.W. 4, <NAME>, P.W. 1, and <NAME>, P.W. 5, are said to be the lead- ers 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 <NAME> and <NAME> aforesaid had been prosecuted. Even on the date of the occurrence, apart from the one leading to the murder of <NAME>, which is the subject-matter of the present appeal, <NAME> and <NAME> had made two separate reports about the attacks on them by <NAME>'s party. There was another report lodged by <NAME>-one of the four persons placed on trial along with the appellant, for the murder of <NAME>. That report was lodged at Ganeshpeth police station at about 9.30 p.m. on the same date-February 12, 1956-against <NAME> alias <NAME> and <NAME>, that they had attacked the former with sharp-edged weapons (Ex. P-

26). The prosecution case is that the appellant <NAME> was on bad terms with <NAME> who was on very friendly terms with the leaders of the opposite faction aforesaid. Being infuriated by the conduct of <NAME> in associating with the enemies of the party of the accused, <NAME>, <NAME>, <NAME> and <NAME> suddenly attacked <NAME> with swords and spears and in- flicted injuries on different parts of his body. The occur- rence took place in a narrow lane of Nagpur at about 9 p.m. <NAME> was taken by his father and other persons to <ORG> hospital where he reached at about 925 p.m. The doctor in attendance Dr. <NAME> (P.W. 14) at once questioned him about the incident and <NAME> is said to have made a statement to the doctor which the latter noted in the bed- head ticket (Ex. P-17) that he had been assaulted by Khu- shal and <NAME> with swords and spears. After noting the statement aforesaid, of <NAME>, the doctor telephoned to the Ganeshpeth police station where the information was noted at 9.45 p.m. On receiving the information, Sub-Inspec- tor <NAME> recorded 'Ex. P-1) and registered an offence under s. 307 , Indian Penal Code , and immediately went to <ORG> hospital along with a head-constable and several con- stables. He found <NAME> in a serious condition and suspecting that he might not survive and apprebending that it might take time for the magistrate to be informed and to be at the spot, to record the dying declaration, he consult- ed Dr. <NAME>, the attending doctor, whether <NAME> 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 <NAME>'s statement in answer to the questions put by him (Ex. P-2) at 10-15 p.m. In the meantime, <NAME>, 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. <NAME> who certified that he had examined <NAME> and had found him mentally in a fit condition to make his dying declara- tion. Besides these three dying declarations recorded in quick succession, as aforesaid, by responsible public serv- ants, <NAME> is said to have made oral statements to a number of persons, which it is not necessary to set out because <ORG> has not acted upon those oral dying declarations. We  shall have to advert, later, to the recorded dying declara- tions in some detail, in the course of this judgment. It 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. <NAME> died the next morning at about 10 a.m. in hospital.

Having come to know the names of two of the alleged assail- ants of <NAME> 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 out- side, of a bungalow on Seminary Hill in Nagpur. The other person named as one of the assailants, <NAME>, 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 acquitted two of them and convict- ed the remaining two the appellant and <NAME>-under s. 302 . Indian Penal Code , or in the alternative, tinder s. 302 , read with s. 34 , Indian Penal Code . He sentenced the appel- lant to death because in his opinion, he had caused <NAME>'s death intentionally, and there were no extenuat- ing circumstances. He sentenced <NAME> to imprisonment for life, because in the learned Judge's view of the case, <NAME> had acted under the instigation of the appellant. Accordingly, the learned Additional Sessions Judge made a reference to <ORG> 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 <ORG>, against the two accused per- sons who had been acquitted by the learned trial Judge, and the revisional application for enhancement of sentence passed upon <NAME>, also filed by the State Government, were all heard together and disposed of by one judgment, by a Bench consisting of <NAME> and <NAME> <ORG>, apparently with a view to understanding the evidence adduced in the case on behalf of the parties, made a local inspection on September 17, 1956, and recorded their impressions in a note which forms part of the record of <ORG>. In a very well-considered judgment, <ORG>, by its judgment and orders dated October 13, 1956, acquitted <NAME>, 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 <NAME> before the <ORG> 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 <NAME>, residing in the neigh- bourhood and some of them are Telis. <ORG> exam- ined, in meticulous details, the evidence of the eye-wit- nesses <NAME>, P.W. 1, and <NAME>, P.W. 3, and agreed with 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. <ORG> 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 <NAME>, 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 appel- lant had been absconding and keeping out of the way of the police, and had been arrested under very suspicious circum- stances. These circumstances and the alleged absconding by <NAME> were not so suspicious. as to afford corroboration against him. In that view, <ORG> " very reluctant- ly " gave the benefit of the doubt to <NAME> and allowed his appeal. <ORG> also agreed with the trial Judge in acquitting the other two accused persons <NAME> and Maha- deo-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 Gov- ernment appeal and application in revision were dismissed. As against the appellant, the reference made by the learned trial judge was accepted and his appeal dismissed. Thus, under the orders of <ORG>, only the appellant stood convicted on the charge of murder with a sentence of death against him. He moved <ORG> for a certificate under art. 134(1)(c) of the Constitution, and <ORG> granted a " certifi- cate 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 certifi- cates of fitness granted by <ORG>, mainly on questions of fact. The main ground for the grant of the certificate may be reproduced in the words of <ORG> itself: "The main ground is that there is not enough evidence against the accused and that there is an error in our judg- ment in holding that there was no evidence to show that <NAME> 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 <NAME> 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 sufficien- cy 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 <ORG> 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 <ORG>, but on a question which is essentially one of fact, namely, whether there was sufficient evidence of the guilt of the accused. The latest reported case of this <ORG>, bearing on this aspect of this appeal, is <CITATION> (1), to the effect that a High <ORG> 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 <ORG> is not justified in sending up such a case for further consideration by this <ORG> which does not, ordinarily, concern itself with deciding mere questions of fact unless such questions arise on a certifi- cate granted under cls. (a) or (b) of Art. 134 (1) of the Constitution. In other words, this <ORG> does not function' ordinarily, as a <ORG> of Criminal Appeal. Under the Con- stitution, it has the power, and it is its duty, to hear appeals, as a Regular <ORG> of Appeal, on facts involved in cases coming up to this <ORG> on a certificate under Art. 134(1)(a) or (b). To the same effect are the other deci- sions of this <ORG>, referred to in the reported decision aforesaid, for example, <NAME> v. The State of Uttar Pradesh (2) <CITATION> (3) sunder <CITATION> (4) It is, therefore, incumbent upon <ORG>s to be vigilant in cases coming up before them, by way of an appli- cation for a certificate of fitness under Art. 134(1) (c) of the Constitution.

In view of these considerations, it has got to be held -that the certificate of fitness granted by <ORG> does not satisfy the requirements of Art. 134(1)(c) of the Con- stitution. 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 <ORG> in granting special leave to appeal to this <ORG>, if the appellant had approached this <ORG> 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 <NAME> who died shortly after making those statements as to his assailants, in quick succession within about two and a half hours of the (1) [I956] S.C.R. 639.

(2) [1955] i S.C.R. 238.

(3) A.I.R. 1956 S.C. 181.

(4) A.I.R. 1956 S.C.411.

occurrence-indeed, the first one to the doctor, was made within half an hour; as also upon the evidence of two per- sons <NAME>, P.W. I and <NAME>, P.W. 3, who figure as eye-witnesses, and <NAME>, P.W. 2 and <NAME>, 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, <ORG> was more pronounced in its view that the testimony of those four witnesses was not trustworthy. <ORG> 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 as- sault 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 assump- tion that <ORG> is right in its estimate of the oral testimony adduced on behalf of the prosecution. After discussing all that evidence, <ORG> took the view that it could not place any reliance on the oral testimony of what <NAME> had spoken to P.Ws. 2 and 19 when they deposed that <NAME> had named two of his assailants, namely, the appellant and <NAME>. <ORG> reiied 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, <ORG> had no doubt, nor has any doubt been cast upon them by counsel for the appellant. <ORG> then considered the question whether the conviction of the accused could be based on those dying declarations alone. It pointed out that in that <ORG> as also in other <ORG>s, con- victions 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 of this Court in <NAME> v. State of Madhya Pra- desh (1) was brought to their notice, and in view of that decision, <ORG> 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 Ganeshpetli 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 <NAME> 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. <ORG> did not believe the defence suggestion that the appellant bad been concealing himself for fear of the police in connection with an excise case in which be had been suspected. The records in connection with that case have been placed before us, and, after examining those records, we do not find any good reasons for differing from <ORG> in its appreciation of the circumstances connected with the absconding of the accused. <ORG> 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, <ORG> 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 <NAME>. 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 diffi- culty. 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 juris- diction of the local police. In those circumstances we are not (1) A.I.R. 1953 S.C. 420.

prepared to say that the alleged absconding of the accused could afford sufficient corroboration, 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 <ORG>, 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 <CITATION> (1), contains the following observations, 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 declara- tion 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 <ORG> from this point of view. This <ORG> 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 <ORG> found that the evi- dence of the approver and other oral testimony had been rightly rejected by the High <ORG>. In that case also, the <ORG> had mainly relied upon the dying declarations for basing the conviction under s. 302 ,

(i) A.I.R. 1953 S.C. 420.

read with s. 34 , Indian Penal Code . This <ORG> examined for itself, the dying declarations and the other evidence bear- ing upon the truth and reliability of the dying declara- tions, and after an elaborate discussion of all that evi- dence, came to the conclusion that the dying declarations did not contain "a truthful version of what actually hap- pened". 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 <ORG> 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 quoted above, of this <ORG>, are in the nature of obiter dicta. But as it was insisted that those observations were binding upon the courts in India and upon us, we have to examine them with the care and caution they rightly deserve.

The <ORG> in its wisdom has enacted in s. 32(1) of the Evidence Act that "When the statement is made by a person as to the cause 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 <ORG>, 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-exami- nation, 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 <ORG>, that test is supplied by the solemn occasion 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  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 <ORG> a special sanctity which should, on first principles, be respected unless there are clear circum- stances 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 bad been recorded as a result of prompting by some interested parties or was in answer to leading questions put by the recording officer, or, by the person purporting to reproduce that statement. These may be some of the circum- stances 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 corrobo- rated by other independent evidence, is Dot 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 <ORG> 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, <ORG> of <ORG>, presided over by Sir <NAME>, has laid down in the case of <CITATION> ), 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

(i) I.L.R. (1932) 56 Bom. 31.

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 declara- tion 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 declara- tion must necessarily be disregarded. <ORG>, thus, did not agree with the observations of <ORG> in the case of <CITATION> (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 <ORG>, reported in the case of the King v. <NAME> (2). In that case, the positive evidence led on behalf of the prose- cution was found to have been tampered with and unreliable. The <ORG> 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 <ORG> observed that there was. no such rule of prudence as had been invoked in aid of the accused by the trial judge who had 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 <ORG> further observed that in order to found on a dying declaration alone, a judgment of conviction of an accused person, the <ORG> 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 <ORG> was satisfied that the dying declara- tion 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. 1938 Rang. 282 In <ORG>, there was a difference of judicial opinion, as expressed in certain unreported cases, which resulted in a reference to a Full Bench. Sir <NAME> presiding over the Full Bench (In re, <NAME> (1) ), delivered the unanimous opinion of the <ORG> after examining the decisions of that High <ORG> and of other High <ORG>s in India. His conclusions are expressed in the penultimate paragraph of his judgment, thus:- " In my judgment it is not possible to lay down any hard and fast rule when a dying declaration should be accepted, beyond saying that each case must be decided in the light of the other facts and the surrounding circumstances, but if the <ORG>, after taking everything into consideration, is convinced that the statement is true, it is its duty to convict, notwithstanding that there is no corroboration in the true sense. The <ORG> must, of course, be fully con- vinced of the truth of the statement and, naturally, it could not be fully convinced if there were anything in the other evidence or in the surrounding circumstances to raise suspicion as to its credibility."

To the same effect are the decisions of <ORG> in the case of <CITATION> (2), and of <ORG> in <NAME> v. King Emperor(3).

<ORG> had to consider, in the case of <NAME> v. <NAME>, the question whether mere signs made by the victim of a murderous attack which had resulted in the cutting of the throat, thus, disabling her from speaking out, could come within the meaning of s. 32 of the Ceylon Evidence Ordinance, which was analogous to S. 32(1) of the Indian Evidence Act. <ORG> affirmed the decision of <ORG>, and made the following observa- tions in the course of their judgment, which would suggest that a dying declaration, if found reliable by a jury, may, by itself, sustain a conviction:

(1) I.L.R. [1940] Mad. 158,170.

(2) A.I.R. 1941 Patna 409.

(3) I.L.R. [1945] Nag. 613; A.I.R. 1945 Nag. 153. (4) [I937] A.C. 220, 229.

"...... Apart from the evidence proceeding from the deceased woman, the other evidence was not sufficient to warrant a conviction, but at the same time that other evidence was not merely consistent with the deceased's statement but pointed in the same direction.' It was.% case in which, if the deceased's statement was received, and was believed, as it evidently was by the jury, to be clear and unmistakable in its effect, then a conviction was abundantly justified and, indeed, inevitable."

In 'Phipson on Evidence', 9th ed., p. 335, the author has discussed the question Whether, a dying declaration without other evidence in corroboration, could be sufficient for a conviction, and has made the following observations which are pertinent to this case :

"...... The deceased then signed a statement implicating the prisoner, but which was not elicited by question and answer, and died on March 20. It was objected that being begun in that form, it was inadmissible:-Held (1) the questions and answers as to his state of mind were no part of the dying declaration; (2) that even if they were, they only affected its weight, not its admissibility ; and (3) that the decla- ration was sufficient, without other evidence, for convic- tion (R. v. <NAME> (1910) 46 Ir. L.T.R. 173, C.C.R)." Sometimes, attempts have been made to equate a dying decla- ration with the evidence of an accomplice or the evidence furnished by a confession as against the maker, if it is retracted, and as against others, even though not retracted. But,,in our opinion, it is not right in principle to do so. Though under s. 133 of the Evidence Act, it is not illegal to convict a person on the uncorroborated testimony of an accomplice, illustration (b) to s. 114 of the Act lays down as a rule of prudence based on experience, that an accom- plice is unworthy of credit unless his evidence is corrobo- rated in material particulars and this has now been accepted as a rule of law. The same cannot be said of a dying decla- ration because a dying declaration may not, unlike a confes- sion, or the testimony of an approver, come from a tainted source. If a dying declaration has been made by a person whose antecedents are as doubtful as in the other cases, that may be a ground for looking upon it with suspicion, but generally speaking, the maker of a dying declaration cannot be tarnished with the same brush as the maker of a confession or an approver. On a review of the relevant provisions of the Evidence Act and of the decided cases in the different <ORG> in India and in this <ORG>, we have come to the conclusion, in agreement with the opinion of <ORG> of <ORG>, aforesaid, (1) that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; (2) that each case must be determined on its own facts keeping in view the circumstances in which the dying decla- ration was made ; (3) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence; (4) that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the princi- ples governing the weighing of evidence; (5) that a dying declaration which has been recorded by a competent magis- trate in the proper manner, that is to say, in the form of questions -and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human, memory and human character, and (6) that in order to test the reliability of a dying declaration, the <ORG> has to keep in view the. circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated had not been impaired at the time he was making the state- ment, by circumstances beyond his control; that the state- ment has been consistent throughout if he had several oppor- tunities of making a dying declaration apart from the offi- cial record of it-; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties.

Hence, in order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination. But once the court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the, death and the assailants of the victim, there is no question of further corroboration. If, on the other hand, the court, after examining the dying declaration in all its aspects, and testing its veracity has come to the conclusion that it is not reliable by itself, and that it suffers from an infirmity, then, without corroboration it cannot form the basis of a conviction. Thus, the -necessity for corrobora- tion arises not from any inherent weakness of a dying decla- ration as a piece of evidence, as held in some of the re- ported cases, but from the fact that the court, in a given case, has come to the conclusion that that particular dying declaration was not free from the infirmities referred to above or from such other infirmities as may be disclosed in evidence in that case.

Having made the general observations bearing on the question of the legality of basing a conviction on a dying declara- tion alone, and keeping in view the tests set out above, let us examine the dying declarations now in question before us. The most remarkable fact which emerges from an examination of the three successive dying declarations made in the course of about two hours, by the deceased, is that he con sistently named the appellant and <NAME> as the persons who had assaulted him with sword and spear. The injuries found on his person, namely, the punctured wounds and the incised wounds on different parts, of his body, are entirely con- sistent with his statement that he was attacked by a number of persons with cutting and piercing weapons. No part of his dying declarations has been shown to be false. Of the two assailants named by him, <NAME> was convicted by the learned trial judge, but acquitted by <ORG> which very reluctantly gave him the bene- fit of the doubt created by the similarity of names in that locality, as already stated. There was no such confusion in the case of the appellant. The deceased indicated that there were two more persons concerned in the crime, but he could not name them. The other two accused persons who were acquitted by the courts below had not been named in the dying declarations and, therefore, their acquittal did not, in any way militate against the truth of the dying declara- tions. The courts below also agreed in holding that <NAME> was in a position to see his assailants and to identify them in the light of the electric lamp nearby. They have also pointed out that there was no "coaching". There is no doubt, therefore, that <NAME> had been consistent through- out in naming the appellant as one of his assailants, and he named him within less than half an hour of the occurrence and as soon as he reached <ORG>. There was, thus, no opportunity or time to tutor the dying man to tell a lie. At all material times, he was in a proper state of mind in spite of multiple injuries on his person, to remem- ber the names of his assailants. Hence, we have no reasons to doubt the truth of the dying declarations and their reliability. We have also no doubt that from the legal and from the practical points of view, the dying declarations of the deceased <NAME> are sufficient to sustain the appellant's conviction for murder. The only other question that remains to be considered is whether there are any extenuating circumstances in favour of the accused justify- ing the lesser of the two sentences prescribed by law. In our opinion, there are none. It was a case of a deliberate cold-blooded murder.

For the reasons given above, we uphold the judgment and order of <ORG> convicting the appellant of murder and sentencing him to death. The appeal is, accordingly, dismissed.

Appeal dismissed.