& Ors. Vs. State of Maharashtra  Insc 64 (21 January 2008)
Thakker & Markandey Katju C.K. Thakker, J.
present appeal is filed by the appellants-accused against judgment and order
passed by the High Court of Judicature at Bombay (Aurangabad Bench) on December
20, 2005 in Criminal Appeal No. 321 of 2005 convicting them for offences
punishable under Sections 302 and 342 read with Section 34 of the Indian Penal
Code (IPC). The High Court, by the impugned judgment, partly confirmed the order
passed by the Third Ad-hoc Additional Sessions Judge, Ahmednagar on April 16, 2005 in Sessions Case No. 92 of 2001.
case of the prosecution was that deceased Rekha was given in marriage by PW 1 Laxmn
Pingale to accused No. 1 Vikas Vayse.
No. 2 was brother of Vikas and brother- in-law of deceased Rekha. The marriage
was solemnized in or about 1997-98 before 3 to 4 years of the incident in
question. According to the prosecution, the accused demanded dowry and there
was some dispute even at the time of betrothal ceremony which was locally known
as Sakharpuda. After the marriage, Rekha went to her matrimonial home
at Khandvi. For few months, the marriage relations went on well.
however, all the accused started demanding money towards dowry. They used to
harass and beat Rekha. Rekha could not satisfy the demand of the accused due to
poverty of her parents. She complained to her parents about ill-treatment shown
by the accused whenever she had visited to parental home. Though accused No. 2 Prakash
was serving at Pune, frequently he was coming to Khandvi and staying with other
accused. He used to abuse deceased Rekha and instigate accused persons to give
ill-treatment to Rekha. Meanwhile accused came to know that father of Rekha had
sold his land for Rs. one lakh. They, therefore, repeated demand of dowry and
continued giving more trouble to her.
also gave birth to two children;
the fateful day, i.e. on May
16, 2001, at about 11.00 a.m., accused No.1, husband of Rekha started quarrelling
with the deceased.
Nos. 3 and 4, parents of accused No. 1 also participated in the quarrel. All of
them, according to the prosecution, poured kerosene on the person of Rekha;
accused Vikas ignited match-stick and set Rekha on fire. All the accused then
closed the door from outside and ran away. Rekha cried for help. On hearing the
shouts, neighbours reached the place, opened the door, poured water on her,
extinguished the fire and took her to the hospital. Dying declarations were
recorded by Ramchandra Ganpat Dimale, Special Judicial Magistrate as also by
PSI Bapu Yashwant Kale on May 17 and 18, 2001 respectively. Rekha died on June 1, 2001. After registration of offence
being Crime No. 80 of 2001, investigation was carried out by PSI Kale. On
completion of investigation, charge-sheet was filed in the Court of Judicial
Magistrate, First Class, Karjat and the case was committed to the Court of
of the accused was of total denial. According to them, there was no ill-
treatment towards Rekha. Regarding fire, it was the case of the accused that on
the day of incident, sari of Rekha caught fire by accident while she was
working near a fire place and it was accused No. 1 who extinguished fire. She
was taken in a tractor and then in a jeep to Civil Hospital, Ahmednagar. But a false case was
filed against them at the instigation of Smt. Bondre, maternal aunt of Rekha.
order to establish offence against the accused, prosecution examined seven
witnesses. So far as PW 1 Laxman Pingale, father of the victim is concerned, he
did not support the case of the prosecution and was declared hostile.
Similarly, Manohar Sahebrao Vayse, PW 2, Panch witness to the Spot Panchnama
(Ex. 47) also did not support the case and he was also declared
hostile. The prosecution, in the circumstances, mainly relied upon
two witnesses, PW 5 Ramchandra Ganpat Dimale, Special Judicial Magistrate who
recorded dying declaration of deceased Rekha between 11:30 and 11:52
a.m. on May 17, 2001, i.e. next day of the incident and
P.W. 7, Bapu Yashwant Kale, PSI who also recorded dying declaration between 12:30 to 13:00 hrs. on May 18, 2001.
trial Court after considering the evidence on record, held that from the
prosecution evidence and particularly from two dying declarations said to have
been recorded by PW 5 Ramchandra, Special Judicial Magistrate, and PW 7, PSI
Kale, it was clearly established by prosecution beyond reasonable doubt that
accused Nos. 1, 3 and 4 caused death of deceased Rekha. So far as Accused No. 2
is concerned, the trial Court acquitted him presumably on the ground that he
was not present at the time of incident and was also not staying at village Khandvi.
He was serving at Pune. The remaining three accused were held responsible for
demand of dowry and for kiling deceased Rekha and thereafter closing the door
from outside so that she may not be able to come out and save herself. All the
three accused thus were convicted for offences punishable under Sections 498A,
302 and 342 read with Section 34, IPC. For an offence punishable under Section
302 read with Section 34, the accused were ordered to suffer imprisonment for
life and pay a fine of Rs. 5,000/- each. In default of payment of fine, they
were ordered to suffer further rigorous imprisonment for six months each. For
an offence punishable under Section 498A read with Section 34, IPC, they were
ordered to undergo rigorous imprisonment for one year and to pay fine of
Rs.500/- each, in default to payment of fine, to undergo imprisonment for six
months and for offence under Section 342 read with Section 34, they were
ordered to undergo imprisonment for six months.
Being aggrieved by the order of conviction and sentence, the appellants
preferred an appeal in the High Court. The High Court again appreciated the
evidence and by a well-reasoned judgment, came to the conclusion that though PW
1 Laxman Pingale, father of the deceased and PW 2 Panch Manohar Vayse did not
support the case of the prosecution, from two dying declarations, it was
clearly established that the accused had committed offences punishable under
Section 302 and 342 read with Section 34, IPC.
order of conviction and sentence recorded by the trial Court was held proper
and the said order was confirmed by the High Court.
an offence punishable under Section 498A read with Section 34, IPC, however,
the High Court held that since it was not the case of the prosecution that Rekha
was driven to death by committing suicide due to demand of dowry, it could not
be said that the offence was established. All the accused persons were,
therefore, acquitted of offence punishable under Section 498A read with Section
above decision is challenged in the present appeal.
Leave was granted on March
10, 2007, but the
prayer for bail was rejected. The matter was then ordered to be placed for
final hearing and that is how the matter is before us.
have heard the learned counsel for the parties.
The learned counsel for the appellant strenuously urged that both the courts
committed an error of fact and of law in convicting the appellants for offences
punishable under Sections 302 and 342 read with Section 34, IPC. It was
submitted that the genesis of the prosecution story became doubtful when PW 1 Laxman
did not support the case. Similarly, from the evidence of PW 2 Manohar, it was
not established that the appellants were responsible for death of Rekha.
contrary, from the evidence of two witnesses, it was clear that accused No. 1 Vikas
attempted to save Rekha and he also sustained burn injuries. It was further
submitted that in all there were four dying declarations. Two dying
declarations were initial in point of time and they were oral.
first dying declaration was before PW 1 Laxman, father of the deceased by the
deceased wherein she stated that fire was accidental and accused were not
responsible for burn injuries sustained by her. This was clearly proved from
the evidence of PW 1 Laxman. The second dying declaration was also oral and it
was made before PW 2 Manohar, Panch witness. In that dying declaration also,
she stated that nobody was responsible for the incident and the fire was
accidental. Both the courts were wrong in not giving due importance to oral
dying declarations and in heavily relying upon dying declarations of May 17,
2001 before PW 5 Ramchandra, Special Judicial Magistrate and of May 18, 2001
before PW 7 PSI Kale. On all these grounds, it was submitted that the appellants
are entitled to benefit of doubt and the orders passed by both the courts
deserve to be set aside.
The learned counsel for the State, on the other hand, supported the order of
conviction and sentence. He submitted that both the courts considered the
evidence of PW 1, Laxman and PW 2 Manohar and recorded a specific finding that
for some undisclosed reasons, they did not support the case of the prosecution
and supported the defence. But there was no reason for PW 5 Ramchandra, Special
Judicial Magistrate who recorded dying declaration of deceased Rekha on May 17, 2001 to falsely implicate the accused
and he was rightly relied upon and believed by both the courts. Similarly,
there was no reason for PW 7 PSI Kale who also recorded the dying declaration of
the deceased Rekha on May
18, 2001 to involve
the accused. Deceased caught fire on May 16, 2001 and she died after about 15 days on
June 1, 2001. If, in the light of these
circumstances, both the courts recorded a finding of guilt against accused, it
cannot be said that the orders deserve interference by this Court. Moreover,
the trial court acquitted Accused No.2 Prakash by giving benefit of doubt.
Again, the High Court extended benefit of doubt to the remaining accused
(appellants) so far as offence punishable under Section 498A read with Section
34, IPC is concerned. But from the evidence on record and on the basis of
surrounding circumstances, offences punishable under Sections 302 and 342 read
with Section 34, IPC were clearly established and the appeal deserves to be
Having heard the learned counsel for the parties, in our considered opinion,
both the courts were right in convicting the appellants for offences punishable
under Sections 302 and 342 read with Section 34, IPC.
no doubt true that PW 1, Laxman Pingale, father of deceased Rekha did not
support the prosecution. But it is equally true and the High Court has
considered the evidence of the said witness in detail and has come to the
conclusion that for some unknown reasons, he wanted to oblige the accused. The
High Court also noted that from the intrinsic evidence on record, it was proved
that he was a liar. For coming to that finding, the High Court relied
upon several circumstances, such as, it observed that though it was the case of
the Investigating Officer, PW 7 PSI Kale that statement of PW 1 Laxman was
recorded and a supplementary statement was also recorded, PW 1 Laxman had
audacity to depose before the Court on oath that his statement was never
recorded by the police. The High Court, in our opinion, is right in observing
that in such cases, police would normally record statements of all persons who
are near relatives of the deceased.
of the deceased was one such person and police would not fail to record his
PW 1, Laxman had stated on oath that it was accused No. 1 who brought injured Rekha
to the hospital. That was clearly false and it was proved from documentary
evidence of the hospital. According to the prosecution, all the appellants poured
kerosene on Rekha, set her on fire, closed the door from outside and ran away
from the spot. Having heard the cries of Rekha, neighbours reached at the
place, opened the house of the accused and took her to the hospital. This is
also clearly proved from the entry which is found in the hospital register from
which it was proved that it was not accused NO. 1 who brought the injured to
the hospital. Ex.41, which is an intimation received by Topkhana Police Station
on telephone from Civil Hospital, Ahmednagar, dated June 01, 2001 reads as under;
As she was injured due to burns, she was admitted by Bebi Shantilal Vaise on
16.05.2001 at 15/00 hrs. for treatment and white she was under treatment she
expired on 01.06.2001 at 05.45 hrs. i.e. Rekha, who was admitted as a burn
patient by Baby Shantilal Vayse on 16.05.2001 15.00 hours for treatment, has
expired on 01.06.2001 at 5:45 hours.
The High Court, in the circumstances, stated;
can be seen that these two statements, which have come in the chief examination
at the cost of prosecution, are improvements over and above the Police
statement. The falsehood of the father is obvious when he denies that his
statement was recorded by Police. When it is unnatural death by burning, Police
are bound to record the statement of every possible person, who can throw some
light upon the relationship of victim with her husband and in- laws and the
enquiry is bound to continue till the Police can reach a logical conclusion as
to the nature of death i.e. whether accidental, suicidal or homicidal.
father, when he denies that Police have recorded his statement, it ought to be
read in between the lines that he is telling patent lies. Father of the victim
would be the closest person and Police would not be in a position to close the
investigation without recording the statement of father of the victim. It is
difficult to swallow this version of the father that although dead body was
handed over to him after post mortem, Police have not recorded his statement. These
are the days when we are required to attend to writ petitions even on the
criminal side filed by aggrieved complainant or relatives of victim when Police
show laxity or keep any lacunae in their investigation. The deposition of the
father that he did not give any statement to the Police can, therefore, be seen
to be a patent lie. 14. The Court proceeded to state;
spite of this hostility, the father has admitted that Executing Magistrate
removed him outside room where Rekha was admitted when he recorded statement of
further deposition confirms recording of the statement of Rekha by the
Magistrate. During the cross examination by defence, father claims that he
reached Civil Hospital, Ahmednagar, on 16.05.2001 after telephonic message of Rekha
having suffered burn injuries. Here he repeated the exonerating dying
declaration by saying:
is true that she was also telling Police that her one end of saree fell on fire
and she was burnt. Accused Vikas told me that he poured water from the mud pot
to extinguish the fire of Rekha. Thereafter, he switched over to correct
himself that this was told by Rekha and not by Vikas. This concluding part of
the cross examination clearly indicates that father is making exonerating
statements in a calculated manner.
is evident from the next statement after this correction.
I was talking with Rekha, accused Vikas went to bring medicine.
brought Rekha in the Civil Hospital, Ahmednagar. Probably, father felt necessity of
absence of Vikas to be of importance when he learnt about accused Vikas having
tried to extinguish the victim and, therefore, he corrected himself by saying
that he learnt about the action of accused trying to extinguish Rekha, from Rekha,
and for the purpose, he also claimed that Vikas had gone to fetch
The High Court, therefore, rightly concluded;
must say that for the reasons unknown to this Court, father is a witness having
scant respect for the truth and we are, therefore, not inclined to accept any
of his admissions favourable to defence, either to challenge the inculpatory
material or to dilute the effect of the same.
The High Court also dealt with the evidence of PW 2 Manohar, Panch witness and
observed that for some reason, he wanted to oblige the accused. He stated that
the accused brought Rekha to the hospital, which was obviously incorrect since
as per the hospital record, she was taken to the hospital by Baby Shantilal.
The Court, however, in our opinion, rightly observed that the prosecution had
to stand on its own legs and the case against the accused could not be said to
be established because of weakness or infirmity in defence version. But in our
view, the Court was right in relying upon evidence of PW 5, Ramchandra, Special
Judicial Magistrate and in the dying declaration of deceased Rekha. According
to the Court, PW 5 was a retired Gazetted Officer of Armed Forces aged about 76
years. He stated on oath that on May 17, 2001, he received requisition from
police at about 11.00 a.m.
requesting him to record a dying declaration. He obtained the details of the
victim from the police, took them down on a piece of paper upon which he
proposed to record dying declaration and proceeded to Out Patient Department
(OPD). He contacted the Medical Officer on duty, requested him to accompany to
examine the patient and give his opinion whether she was in a position to make
statement. The doctor certified that the patient was conscious and fit to give
statement. The doctor expressed that opinion after putting certain questions to
the patient and certified that she was in a position to give a statement. PW5
thereafter recorded the dying declaration of Rekha at 11-25 a.m. which was read
over to her. She admitted it to be correct and put her thumb impression on it.
The recording of dying declaration was over at 11.52 a.m. The witness put his
signature as Special Judicial Magistrate in margin along with the seal.
According to PW 5 Ramchandra, the doctor was present by his side all throughout
when he was recording the statement of Rekha. After the statement was recorded,
the Doctor again certified the fitness of the patient and put his signature,
date and time. The said dying declaration was exhibited as Ex. 56.
was strenuously urged by the learned counsel for the appellants before the High
Court as well as before us that after the dying declaration was recorded, an
endorsement was made by the Doctor and he put his signature by putting time as
11.55 p.m. It was, therefore, contended that either the dying declaration was
not recorded by PW 5 Ramchandra, Special Judicial Magistrate between 11.30 to
11.52 a.m. as asserted by him or the Doctor was not there when the dying
declaration was recorded and his endorsement was not taken at 11.55 a.m., but
it was subsequently placed before him for his signature at 11.55 p.m. In our
opinion, however, the High Court was right in relying upon substantive evidence
of PW 5 Ramchandra and in relying upon the dying declaration observing that the
typist in putting the time at 11.55 p.m., had committed mistake, really it was
The High Court was also right in relying upon another dying declaration
recorded by PW 7 PSI Kale. During the course of investigation, the Investigating
Officer on May 18, 2001, between 12.30 to 13.00 hrs. recorded the dying
declaration of Rekha after taking opinion of the doctor that she was in a
position and in a fit condition to give statement. In both the dying
declaration recorded by PW 5 Ramchandra, Special Judicial Magistrate and dying
declaration recorded by PW 7 PSI Kale, Rekha clearly and unequivocally
attributed burn injuries caused to her to the appellants herein. Both the
courts, relying on the dying declarations, convicted the appellants. So far as
oral dying declarations are concerned, as observed by us, the High Court was
right in discarding them observing that PW 1 and PW 2 were favouring the defence
and deliberately did not support the case of the prosecution in Court.
The question thus is confined to evidentiary value of dying declarations of Rekha.
Section 32 of the Evidence Act, 1872 (hereinafter referred to as the Act)
deals with statement by persons who cannot be called as witnesses either because
they are dead, or they cannot be found, or they have become incapable of giving
evidence, or their attendance cannot be procured without an amount of delay or
expense. Those statements themselves are relevant facts in certain cases.
32 is an exception to the general rule reflected in Section 60 of the Act which
enacts that oral evidence in all cases must be direct, viz., if it refers to a
fact which could be seen, it must be the evidence of a witness who says he saw
it; if it refers to a fact which could be heard, it must be the evidence of a
witness who says he heard it; if it refers to a fact which could be perceived
by any other sense or in any other manner, it must be the evidence of a witness
who says he perceived it by that sense or in that manner.
Section 32 contains several clauses.
(1) relates to cause of death and is usually known as dying
declaration. The said clause reads thus;
it relates to cause of death.
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 persons death comes into question.
statements are relevant whether the person who made them was or was not, at the
time when they were made, under expectation of death, and whatever may be the
nature of the proceeding in which the cause of his death comes into question.
(a) The question is, whether A was murdered by B; or A dies of injuries
received in a transaction in the course of which she was ravished. The question
is, whether she was ravished by B; or The question is whether A was killed by B
under such circumstances that a suit would lie against B by As widow.
made by A as to the cause of his or her death referring respectively to the
murder, the rape and the actionable wrong under consideration are relevant
The principle underlying admissibility of dying declaration is reflected in the
well- known legal maxim: Nemo moriturus praesumitur mentire; i.e. a man will
not meet his Maker with a lie in his mouth. A dying man is face to face with
his Maker without any motive for telling a lie.
Truth said Mathew Arnold, sits upon the lips of a dying
Shakespeare, great writer of the sixteenth century, through one of his
characters explained the basic philosophy thus;
I met hideous death within my view, Retaining but a quantity of life, Which
bleeds away, Even as a form of wax, Resolveth from his figure, Against the
Fire? What is the world should Make me now deceive, Since I must lose the use
of all deceit? Why should I then be false, Since it is true That I must die
here, Live hence by truths? (King John, Act V, Sect. IV)
The Great poet also said at another place;
words are scarce, They are seldom spent in vain;
breathe the truth, That breathe their words in pain.
Clause (1) of Section 32 of the Act has been enacted by the Legislature
advisedly as a matter of necessity as an exception to the general rule that
hearsay evidence is no evidence and the evidence which
cannot be tested by cross-examination of a witness is not admissible in a Court
of Law. But the purpose of cross-examination is to test the veracity of the
statement made by a witness. The requirement of administering oath and cross-
examination of a maker of a statement can be dispensed with considering the
situation in which such statement is made, namely, at a time when the person
making the statement is almost dying. A man on the death-bed will not tell
lies. It has been said that when a person is facing imminent death, when even a
shadow of continuing in this world is practically over, every motive of
falsehood is vanished. The mind is changed by most powerful ethical and moral
considerations to speak truth and truth only.
solemnity and sanctity, therefore, is attached to the words of a dying man. A
person on the verge of permanent departure from his earthly world is not likely
to indulge into falsehood or to concoct a case against an innocent person,
because he is answerable to his Maker for his act. Moreover, if the dying-
declaration is excluded from admissibility of evidence, it may result in
miscarriage of justice inasmuch as in a given case, the victim may be the only
eye-witness of a serious crime.
of his statement will leave the Court with no evidence whatsoever and a culprit
may go unpunished causing miscarriage of justice.
The question as to admissibility of dying declaration came up for consideration
before Indian as well as foreign courts.
Before more than two centuries, in R.V. Woodcock, (1789) 1 Leach 500 : 168 ER
352, Eyre, C.V. proclaimed;
general principle on which this species of evidence is admitted is that they are
declarations made in extremity, when the party is at the point of death, and
when every hope of this world is gone, when every motive to falsehood is
silenced and the mind induced by the most powerful consideration to speak the
truth; situation so solemn and so awful is considered by the law as creating an
obligation equal to that which is imposed by a positive oath administered in a
Court of Justice.
Rao v. State of Bombay, 1958 SCR 552 was probably the first leading case
decided by this Court on admissibility of dying declaration. In that case, the
accused was convicted by the Court relying on three dying declarations recorded
by the attending Doctor, Sub-Inspector of Police and First Class Magistrate. It
was contended before this Court on behalf of the accused relying on conflicting
views expressed by various High Courts that no conviction can be recorded
solely on the basis of dying declaration. Reference was made to an earlier
decision of this Court in Ram Nath Madhoprasad v. State of Madhya Pradesh, AIR
1953 SC 420, in which the following observations were made by this Court;
is settled law that it is not safe to convict an accused person merely on the
evidence furnished by a dying declaration 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 his imagination while he was making the
Khushal Rao, this Court stated;
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
The Court then observed that in Ram Nath, considering factual situation and
other evidence on record, this Court ruled that the dying declaration was not
true and could not be solely relied upon to base the conviction.
The Court then said;
is, thus, clear that the observations quoted above, of this Court, 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.
Considering Clause (1) of Section 32 of the Act, this Court held that the
provision has been made by the Legislature 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 examination is
not admissible. But it observed that when a person making the statement is in
danger of losing his life, at such serious and solemn moment, he will not tell
lies. Since he cannot be cross- examined, necessity of administering oath has
been dispensed with. The Legislature, in the circumstances, has accorded a
special sanctity which should, on first principles, be respected unless there
are clear circumstances brought out in the evidence to show that the person making
the statement was not in expectation of death. It was further observed that the
said circumstance would not affect the admissibility of the statement but only
Considering the views expressed by different High Courts and also leading commentaries,
the Court summarized the principles thus:
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;
each case must be determined on its own facts keeping in view the circumstances
in which the dying declaration was made;
it cannot be laid down as a general proposition that a dying declaration is a
weaker kind of evidence than other piece of evidence;
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 principles governing the weighing of evidence;
that a dying declaration which has been recorded by a competent magistrate 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
that in order to test the reliability of a dying declaration, the Court 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;
the capacity of the man to remember the facts stated had not been impaired at
the time he was making the statement, by circumstances beyond his control;
the statement has been consistent throughout if he had several opportunities of
making a dying declaration apart from the official record of it; and that the
statement had been made at the earliest opportunity and was not the result of
tutoring by interested parties.
Smt. Paniben v. State of Gujarat, (1992) 2 SCC 474, this Court again considered
the law relating to dying declaration and as to when such declaration can form
sole basis of conviction. Referring to earlier cases, the Court held that a
dying declaration is entitled to great weight. Once the Court is satisfied that
the declaration is true and voluntary, it could base conviction without
corroboration. It cannot be laid down as an absolute rule of law that the dying
declaration cannot form the sole basis of conviction unless it is corroborated.
rule requiring corroboration is merely a rule of prudence and not a rule of
The Court, referring to earlier case law, summed up principles governing dying
declaration as under:
There is neither rule of law nor of prudence that dying declaration cannot be
acted upon without corroboration.
If the Court is satisfied that the dying declaration is true and voluntary it
can base conviction on it, without corroboration.
This Court has to scrutinise the dying declaration carefully and must ensure
that the declaration is not the result of tutoring, prompting or imagination.
The deceased had opportunity to observe and identify the assailants and was in
a fit state to make the declaration.
Where dying declaration is suspicious it should not be acted upon without
Where the deceased was unconscious and could never make any dying declaration
the evidence with regard to it is to be rejected.
dying declaration which suffers from infirmity cannot form the basis of
Merely because a dying declaration does not contain the details as to the
occurrence, it is not to be rejected.
Equally, merely because it is a brief statement, it is not to be discarded. On
the contrary, the shortness of the statement itself guarantees truth.
Normally the court in Order to satisfy whether deceased was in a fit mental
condition to make the dying declaration look up to the medical opinion. But
where the eye witness has said that the deceased was in a fit and conscious
state to make this dying declaration, the medical opinion cannot prevail.
Where the prosecution version differs from the version as given in the dying
declaration, the said declaration cannot be acted upon.
One of the principles formulated by this Court in Khushal Rao was that where a
dying declaration is recorded by a competent Magistrate, it would stand on a
much higher footing. We are in respectful agreement with the above view.
In our judgment, this is also based on ordinary course of human conduct. A
competent Magistrate has no axe to grind against the person named in the dying
declaration of the victim and in absence of circumstances showing anything to
the contrary, he should not be disbelieved by the Court.
Ravi Chander & Ors. v. State of Punjab, (1998) 9 SCC 303 : JT 1998 (8) SC
211, accused were prosecuted for offences punishable under Sections 498A, 302,
304B read with Section 34, IPC. Dying declaration of the bride was recorded.
Veracity of the said declaration was questioned by the accused.
reliance mainly on the dying declaration recorded by the Executive Magistrate,
the trial Court convicted the accused and the High Court confirmed the
conviction. The aggrieved accused approached this Court.
The Court noted that though the dying declaration recorded by the Executive
Magistrate was sent to the Investigating Officer after a fortnight, the
genuineness of the dying declaration could not be doubted. It was observed that
in the first dying declaration said to have been recorded by the Investigating
Officer, death was shown to be accidental. But it was held that the second
dying declaration before the Executive Magistrate was reliable. It was further
observed that in absence of any circumstance or material on record to establish
that the Executive Magistrate had any animus against the person or in any way
interested in fabricating the dying declaration, it ought to be accepted.
conviction was accordingly upheld.
Kaur v. State of Punjab, (1999) 6 SCC 545 : JT 1999 (5) SC 317, was another
case of bride burning. There dying declaration was recorded by Sub-Divisional
Magistrate, the genuineness of which was challenged inter alia on the ground
that there was an agitation by the relatives of the deceased and the
declaration was recorded by the Sub-Divisional Magistrate under pressure. The
Court, however, held that Sub-Divisional Magistrate being independent witness
holding high position, had no reason to do anything which was not proper.
therefore, held that genuineness of dying declaration could not be doubted and
conviction recorded on that basis could not be faulted.
Koli Chunilal Savji & Anr. v. State of Gujarat, (1999) 9 SCC 562 : JT 1999
(7) SC 568, there was no specific endorsement of doctor as to mental fitness of
the deceased to make the dying declaration. However, it had come in evidence
that the deceased was certified to be in a position to make dying declaration
and accordingly, the dying declaration was recorded. This Court held that
requirement as to doctors endorsement as to mental fitness of the deceased
was only a rule of prudence and the ultimate test was whether the
dying declaration was truthful and voluntary. The Magistrate who recorded the
dying declaration was examined as a witness and he categorically deposed that
at the hospital, on being asked, the doctor told her that the deceased was
conscious and in a fit mental condition. It was held that it was sufficient to
come to the conclusion that dying declaration was proper and could be relied
Uka Ram v. State of Rajasthan, (2001) 5 SCC 254 : JT 2001 (4) SC 472, it was
indicated that the Court must be satisfied about the trustworthiness and voluntary
nature of the dying declaration and fitness of the mind of the deceased. If
despite knowing that deceased was a mental patient, Investing Agency fails to
take precaution to ensure that whether the death was suicidal or homicidal,
conviction cannot be based solely on dying declaration of the deceased.
P.V. Radhakrishna v. State of Karnataka, (2003) 6 SCC 443 : JT 2003 (6) SC 84,
this Court considered doctrine of dying declaration indicated in legal maxim
nemo moriturus praesumitur mentire (a man will not meet his Maker
with a lie in his mouth), and stated;
a dying declaration is entitled to great weight, it is worthwhile to note that
the accused has no power of cross- examination. Such a power is essential for
eliciting the truth as an obligation of oath could be.
is the reason the Court also insists that the dying declaration should be of
such a nature as to inspire full confidence of the Court in its correctness.
The Court has 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 be
further satisfied that the deceased was in a fit state of mind after a clear
opportunity to observe and identify the assailant. Once the Court is satisfied
that the declaration was true and voluntary, undoubtedly, it can base its
conviction without any further corroboration. It cannot be laid down as an
absolute rule of law that the dying declaration cannot form the sole basis of
conviction unless it is corroborated. The rule requiring corroboration is
merely a rule of prudence. [see also Babu Lal v. State of M.P., (2003) 12 SCC 490; Muthu Kutty v. State, (2005) 9
Applying the above principles to the facts of the case, in our judgment, both
the courts were wholly right and fully justified in relying upon two dying
declarations recorded by
5 Ramchandra, Special Judicial Magistrate on May 17, 2001 (Ex. 56) and
PW 7 PSI Kale on May
18, 2001 (Ex. 62) and
in discarding evidence of PW 1 Laxman, father of victim Rekha and PW2 Manohar, Panch.
Courts were also right in observing that for some unknown reasons PW 1 Laxman,
father of victim Rekha was supporting the defence. But in the light of other
evidence on record oral as well as documentary PW 1 Laxman could not be said
to be trustworthy and reliable witness. At the time of investigation, his case
was that the accused were responsible for causing death of her daughter Rekha,
but subsequently he took totally opposite stand and supported the defence. The
prosecution, however, was successful in bringing before the Court PW 5 Ramchandra,
Special Judicial Magistrate and PW 7 PSI Kale who recorded dying declarations
of deceased Rekha. Both the witnesses were rightly believed by the courts
below. We, therefore, see no ground to interfere with the order of conviction
and sentence recorded by the trial Court and confirmed by the High Court. The
appeal, therefore, deserves to be dismissed.
For the foregoing reasons, the appeal is dismissed. Order of conviction and
sentence recorded against the appellants is upheld.