It is thus clear that Order XXXVII has suffered a change in 1976, and that change has made a difference in the law laid down. First and foremost, it is important to remember that Milkhiram’s case is a direct authority on the amended Order XXXVII provision, as the amended provision in Order XXXVII Rule 3 is the same as the Bombay amendment which this Court was considering in the aforesaid judgment. The Court hastened to add that the two provisos to Sub-rule (3) were not, however, there in the Bombay amendment. These are new, and the effect to be given to them is something that the Court had to decide. The position in law now is that the trial Judge is vested with a discretion which has to result in justice being done on the facts of each case. But Justice, like Equality, another cardinal constitutional value, on the one hand, and arbitrariness on the other, are sworn enemies. The discretion that a Judge exercises under Order XXXVII to refuse leave to defend or to grant conditional or unconditional leave to defend is a discretion akin to Joseph’s multi-coloured coat-a large number of baffling alternatives present themselves. [17]
The life of the law not being logic but the experience of the trial Judge, is what comes to the rescue in these cases; but at the same time informed by guidelines or principles that the Court proposed to lay down to obviate exercise of judicial discretion in an arbitrary manner. At one end of the spectrum is unconditional leave to defend, granted in all cases which present a substantial defence. At the other end of the spectrum are frivolous or vexatious defences, leading to refusal of leave to defend. In between these two extremes are various kinds of defences raised which yield conditional leave to defend in most cases. It is these defences that have to be guided by broad principles which are ultimately applied by the trial Judge so that justice is done on the facts of each given case. [17]
IDBI Trusteeship Services Ltd. vs. Hubtown Ltd. (15.11.2025 - SC) : MANU/SC/1490/2016
DYING DECLARATION EVEN IN 100% BURN - SUBSTANTIVE EVIDENCE
Case Note:
Criminal - Conviction - Dying declaration - Sections 34, 302 and 498A of Indian Penal Code, 1860 - Appellants/Accused were tried and acquitted by Sessions Court for offences under Sections 302, 34, 498A of Code, 1860 - However, High Court set aside their acquittal by convicting them - Hence, present appeal - Whether impugned order of conviction was sustainable
Facts:
Marriage between Appellant No. 1 and the deceased was solemnized 20 years before the incident. The deceased was being harassed by the Appellants/husband and in-laws on continuous demand of dowry which could not be fulfilled by the parents of the deceased. The Appellants caught hold of the deceased, sprinkled kerosene on her and set her ablaze. On examination by the doctors, it was found that she was suffering from 100% burns. The Sub-Inspector moved the application to the medical officer seeking his opinion with regard to the fitness of the patient. The doctor declared her fit to make a statement. On this, the Sub-Inspector approached the Chief Judicial Magistrate and moved the application for deputing an officer to record her statement. Judicial Magistrate recorded the statement. On the basis of the statement, initially the FIR was registered under Section 307, 498A read with Section 34 of Indian Penal Code, 1860. However, the deceased succumbed to injuries within few hours. After her death, the FIR was modified by substituting Section 302 of Code, 1860 in place of Section 307 of Code, 1860. The Court of Sessions framed the charges against all the Appellants/Accused persons under Section 302 and 498A with the aid of Section 34 of Code, 1860. The Trial Court held that the prosecution could not prove the guilt of the Appellants beyond reasonable doubt. As per the Trial Court, the dying declaration of the victim could not be acted upon for the purpose of conviction. The High Court found fault with the analysis, approach and the manner in which the dying declaration had been dealt with by the Trial Court. According to the High Court, the veracity of the dying declaration could not be examined with reference to the other evidence. It was held that the approach of the Trial Court was blemished. The High Court examined the dying declaration and found that the Doctor had declared the deceased fit to make a statement on the basis of which the Judicial Magistrate recorded the statement and even after recording of the statement, the Doctor again gave endorsement that the deceased remained fit during the period her statement was recorded. The High Court further observed that it was not appropriate on the part of the Trial Court to discard the dying declaration in view of the deposition of her brother. The High Court also noted that merely because the deceased had suffered 100% burns was no ground to discard the dying declaration when there was a specific certificate given by the Doctor about her mental fitness and that she was capable of giving the statement. The High Court set aside the acquittal of the Appellants by convicting them.
Held, while dismissing the appeal:
(i) While exercising its appellate power, the High Court is empowered to reappreciate, review and reconsider the evidence before it. However, this exercise is to be undertaken in order to come to an independent conclusion and unless there are substantial and compelling reasons or very strong reasons to differ from the findings of acquittal recorded by the trial court, the High Court, as an appellate court in an appeal against the acquittal, is not supposed to substitute its findings in case the findings recorded by the trial court are equally plausible. [21]
(ii) The High Court has interfered on the ground that the very approach of the trial court in appreciating the evidence on record was legally unsustainable. If such observations of the High Court are correct, it was fully justified in interjecting with the verdict of the trial court. [25]
(iii) It is immaterial to whom the declaration is made. The declaration may be made to a Magistrate, to a Police Officer, a public servant or a private person. It may be made before the doctor; indeed, he would be the best person to opine about the fitness of the dying man to make the statement, and to record the statement, where he found that life was fast ebbing out of the dying man and there was no time to call the Police or the Magistrate. In such a situation the Doctor would be justified, rather duty bound, to record the dying declaration of the dying man. At the same time, it also needs to be emphasised that in the instant case, dying declaration is recorded by a competent Magistrate who was having no animus with the accused persons. [28]
(iv) The High Court rightly observed that the manner in which the Trial Court proceeded with the matter was legally unsustainable. It was necessary for the trial court, in the first instance, to see as to whether due precautions were taken before recording the statement of the deceased, which became dying declaration as she died within few hours thereafter. [30]
(v) There was no reason to discard the dying declaration. It is trite that dying declaration is a substantive piece of evidence and can be made the basis of conviction once the Court is convinced that dying declaration is made voluntarily and is not influenced by any extraneous circumstances. [33]
(vi) The trend of witnesses turning hostile is due to various other factors. It may be fear of deposing against the accused/delinquent or political pressure or pressure of other family members or other such sociological factors. It is also possible that witnesses are corrupted with monetary considerations. [35]
(vii) Present case appeared to have been stung by ‘culture of compromise’. The statement of the brother of the deceased in attempting to shield the Accused was proved to be false in view of the records of Medical Institute and, therefore, the High Court was right in discarding his testimony. [46]
Ramesh and Ors. vs. State of Haryana (22.11.2025 - SC) : MANU/SC/1517/2016