UTTAM versus THE STATE OF MAHARASHTRA on 2 June 2022

[2022] 5 S.C.R. 863

UTTAM

v.

THE STATE OF MAHARASHTRA

(Criminal Appeal No. 485 of 2012)

JUNE 02, 2022

[B. R. GAVAI AND HIMA KOHLI, JJ.]

Evidence Act, 1872 – Multiple dying declarations –Admissibility, evidentiary value of – Penal Code, 1860 – s.302 –Appellant convicted u/s.302 for having murdered his wife by pouringkerosene on her and setting her on fire, by relying on two dyingdeclarations of the deceased recorded in writing by PW-9 (SpecialExecutive Magistrate) and PW-14 (IO) and the other two being oraland communicated by the deceased to PW-2 (her father) and PW-12 (mediator who had arranged the marriage of the parties) –Appeal filed by appellant, dismissed by High Court discarding thewritten dying declarations but giving credence to the testimony ofPW-2 & PW-12 – On appeal, held: In cases where the Court findsthat there exist more than one dying declarations, each one of themmust be examined with care and caution and only after satisfyingitself as to which of the dying declarations appears to be free fromsuspicious circumstances and has been made voluntarily, should itbe accepted – However, if a dying declaration suffers from someinfirmity, it cannot be the sole basis for convicting the accused – Inthe present case, once the High Court discarded the two writtendying declarations of the deceased due to several glaring lacunaein the procedure adopted by PW-9 & PW-14 in recording the saidstatement, then the appellant could not have been indicted on theoral testimony of PW-2 and PW-12, both of whom were interestedwitnesses and whose evidence runs contrary to the versions of thedeceased recorded by PW-9 and PW-14 – Prosecution failed todischarge the obligation of leading trustworthy corroborativeevidence to back-up the testimonies of PW-2 and PW-12 – Impugnedjudgment set aside – Appellant granted benefit of doubt, acquitted.

Evidence Act, 1872 – ss.32, 60 – Dying declaration – s.32,an exception to general rule contained in s.60 – Held: s.32 is anexception to the general rule contained in s.60 that ‘hearsay

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Evidence Act, 1872 – Dying declaration recorded by theMagistrate – Credibility of – Discussed.

BAllowing the appeal, the Court

HELD: 1.1 Dying declaration is the last statement that ismade by a person as to the cause of his imminent death or thecircumstances that had resulted in that situation, at a stage whenthe declarant is conscious of the fact that there are virtually nilCchances of his survival. On an assumption that at such a criticalstage, a person would be expected to speak the truth, courtshave attached great value to the veracity of such a statement.Section 32 of the Indian Evidence Act, 1872 states that when astatement is made by a person as to the cause of death, or as toany of the circumstances which resulted in his death, in cases inDwhich the cause of that person’s death comes into question, sucha statement, oral or in writing made by the deceased victim tothe witness, is a relevant fact and is admissible in evidence. It isnoteworthy that the said provision is an exception to the generalrule contained in Section 60 of the Evidence Act that ‘hearsayEevidence is inadmissible’ and only when such an evidence is directand is validated through cross-examination, is it considered tobe trustworthy. In cases involving multiple dying declarationsmade by the deceased, the question that arises for considerationis as to which of the said dying declarations ought to be believedby the Court and what would be the guiding factors for arriving atFa just and lawful conclusion. The problem becomes all the moreknotty when the dying declarations made by the deceased arefound to be contradictory. Faced with such a situation, the Courtwould be expected to carefully scrutinize the evidence to findout as to which of the dying declarations can be corroborated byother material evidence produced by the prosecution. Of equalGsignificance is the condition of the deceased at the relevant pointin time, the medical evidence brought on record that wouldindicate the physical and mental fitness of the deceased, the scopeof the close relatives/family members having influenced/tutoredthe deceased and all the other attendant circumstances that would H

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help the Court in exercise of its discretion. In cases where theCourt finds that there exist more than one dying declarations,each one of them must be examined with care and caution andonly after satisfying itself as to which of the dying declarationsappears to be free from suspicious circumstances and has beenmade voluntarily, should it be accepted. It is not necessary thatin every case, a dying declaration ought to be corroborated withmaterial evidence, ocular or otherwise. It is more a rule ofprudence that courts seek validation of the dying declaration fromattending facts and circumstances and other evidence broughton record. For the very same reason, a certificate by the doctorthat the declarant was fit to make a statement is treated as a ruleof caution to establish the truthfulness of the statement made bythe deceased. However, if a dying declaration suffers from someinfirmity, it cannot be the sole basis for convicting the accused.In those circumstances, the court must step back and considerwhether the cumulative factors in a case make it difficult to relyupon the said dying declaration. The credibility of a dyingdeclaration recorded by the Magistrate has also come up forconsideration in several cases and it has been held that aMagistrate being an uninterested witness and a respected officerand there being no circumstances or material to suspect that hewould have any animus against the accused or would in any waybe interested for fabricating a dying declaration, such a declarationrecorded by the Magistrate, ought not be doubted. [Paras 11, 15,19, 22 and 25][872-G; 873-A-C; 875-F-G; 876-A-C; 880-C-D;882-D-F]

Nallapati Sivaiah v. Sub-Divisional Officer, Guntur,Andhra Pradesh (2007) 15 SCC 465 : [2007] 10 SCR347; Arvind Singh v. State of Bihar (2001) 6 SCC 407: [2001] 3 SCR 218; Kundula Bala Subrahmanyam andAnother v. State of Andhra Pradesh, (1993) 2 SCC 684: [1993] 2 SCR 666; Shudhakar v. State of MadhyaPradesh (2012) 7 SCC 569 : [2012] 7 SCR 128;Paniben (Smt.) v. State of Gujarat (1992) 2 SCC 474 :[1992] 2 SCR 197; Lakhan v. State of Madhya Pradesh(2010) 8 SCC 514 : [2010] 9 SCR 705; Amol Singh v.State of Madhya Pradesh (2008) 5 SCC 468 : [2008] 8SCR 956; Sher Singh and Another v. State of Punjab(2008) 4 SCC 265 : [2008] 2 SCR 959; State of Uttar AB

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APradesh v. Veerpal and Another (2022) 4 SCC 741 :2022 (2) JT 503; Khushal Rao v. State of Bombay (1974)4 SCC 264 – relied on.

1.2 Noting the several loopholes in the procedure adoptedwhile recording the dying declarations by the SEM (PW-9) andBthe IO (PW-14), the High Court found it unsafe to rely on themand kept them aside. Since there is no challenge laid to the findingsreturned by the High Court for discarding the two written dyingdeclarations finding them riddled with deficiencies, thus makingthem unreliable, their credit worthiness is not being delve into.Suffice it is to say that there was every reason for the High CourtCto have found them untrustworthy. Instead, it is consideredappropriate to examine the worth of the oral dying declarationsstated to have been made by the deceased in the presence ofPW-2 and PW-12. A perusal of the testimonies of PW-2 and PW-12 show that they have offered varying versions of what hadDallegedly been narrated to them by the deceased. Both of themstated that failure to satisfy the appellant’s constant dowrydemands had led to the incident. There was no mention of theillicit relationship of the appellant with a widow in theneighbourhood which was a constant cause of quarrel betweenthe deceased and her husband and had led to the incident.EPertinently, both the said witnesses stated that their statementswere not recorded by the police during the investigation and thatthey had deposed for the first time only when they had enteredthe witness box during the trial. Once the High Court haddisagreed with the Session Court and discarded the two writtenFdying declarations of the deceased due to several glaring lacunaein the procedure adopted by the PW-9 and the I.O. (PW-14) inrecording the said statement, then the appellant could not havebeen indicted on the oral testimony of PW-2, father of the deceasedand PW-12, family friend, both of who were interested witnessesand whose evidence runs contrary to the versions of the deceasedGrecorded by PW-9 and PW-14. It must be remembered that allthe four dying declarations, two in writing and the other two oral,were based on the statements given by the deceased at differenttimes on the very same day, i.e., 27th March, 1995, when shehad suffered 93% burn injuries and there are serious doubt aboutHher being mentally and physically fit to give her statement. The IO (PW-14) had recorded the first dying declaration at 3.20 p.m.this was followed by the SEM (PW-9) having recorded the seconddying declaration between 4.30 p.m. and 5.00 p.m. It was on thevery same day that PW-2 and PW-12 had also met the deceasedat the hospital and claimed that she had informed them as to howshe had received the burn injuries and named the appellant asthe culprit. Both, PW-2 and PW-12 have deposed that in her oraldying declaration, the deceased had referred to the dowrydemands made on her by the appellant and the fact that he hadsuspected her character, which led to the alleged incident.Nowhere in their testimonies is there any reference made to theprosecution version that the appellant was having an illicit relationwith a widow residing in the neighborhood, which was the maincause of acrimony between the couple and had resulted in theincident. The diametrically different version of the reasons thatled to the alleged incident casts a shadow on the entire testimonyof PW-2 and PW-12, making it unsafe to rely on them and indictthe appellant for the charge framed against him. The prosecutionhas failed to discharge the obligation cast on it of leadingtrustworthy corroborative evidence to back-up the testimoniesof PW-2 and PW-12. It is difficult to endorse the conclusion arrivedat by the High Court. The evidence of PW-2 and PW-12 cannotbe treated as stellar enough to hold the appellant guilty for theoffence of murdering his wife. Hence, he is entitled to beinggranted benefit of doubt. The appellant is acquitted. [Paras 27,31, 34, 36-39][883-B; 884-E-G; 886-A-C; 888-A-C]

Arun Bhandudas Pawar v. State of Maharashtra, (2008)11 SCC 232 : 2008 (1) JT 348; Poonam Bai v. State ofChhattisgarh (2019) 6 SCC 145 : 2019 (5) JT 403 –relied on.

Rizan and Another v. State of Chhattisgarh (2003) 2SCC 661 : [2003] 1 SCR 457; Bhagwan TukaramDange v. State of Maharashtra (2014) 4 SCC 270 :[2014] 3 SCR 753; Trimukh Maroti Kirkan v. State ofMaharashtra (2006) 10 SCC 681 : [2006] 7 Suppl. SCR156 – referred to.

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ACase Law Reference

DCRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.485 of 2012.

From the Judgment and Order dated 26.07.2010 of the High Courtof Judicature at Bombay, Nagpur Bench, Nagpur in Criminal AppealNo. 149 of 1997.E

Rohan Thanwani, Pratul Pratap Singh, Ms. Vandana Sehgal, Advs.for the Appellant.

Sachin Patil, Rahul Chitnis, Aaditya A. Pande, Geo Joseph,Ms. Shwetal Shepal, Advs. for the Respondent.F

The Judgment and order of the Court were delivered by HIMA KOHLI, J.

1. The present appeal is directed against the judgment dated26[th] July, 2010 passed by the Division Bench of the High Court of BombayGat Nagpur Bench. The High Court has dismissed the appeal preferredby the appellant against the judgment and order dated 29[th] April, 1997passed by the 8[th] Additional Sessions Judge, Nagpur, convicting him forthe offence under Section 302 of the Indian Penal Code, 1860[1] andsentencing him to suffer imprisonment for life with a fine of ` 1,000/- H1 for short ‘IPC’

(Rupees one thousand) and in default thereof, to suffer simpleimprisonment for a period of three months.

2. The case set up by the prosecution is that the deceased,Pushpabai and the appellant had got married on 19[th] March, 1994. Therewas no issue from the marriage. The appellant was a T.V. Mechanic. Itwas alleged that the appellant was having an illicit relationship with awidow residing near their house, namely, Kusum Gaikwad. On26[th] March, 1995, the appellant and Kusum Gaikwad went to watch amovie. When he returned home in the evening hours, he was confrontedby his wife for having gone to watch a movie with Kusum Gaikwad.The appellant quarrelled with Pushpabai and told her that Kusum Gaikwadwas his paramour. He had also beaten Pushpabai. On the very next day,i.e., on 27[th] March, 1995, between 11.00 a.m. and noon, the appellanthad again picked up a quarrel with Pushpabai and he told her that hewould not leave Kusum Gaikwad. On Pushpabai demanding a divorce,the appellant lost his temper and assaulted her. Thereafter, he pouredkerosene on his wife and set her on fire by lighting a match stick. At this,the appellant’s brother rushed to extinguish the fire by pouring water onher. Pushpabai sustained severe burn injuries on her face, breast, stomach,both hands and legs. She was taken for treatment to Mayo Hospital,Nagpur where she succumbed to her injuries on 31[st] March, 1995.

3. The information about the aforesaid incident was communicatedby Mayo Police Booth, Nagpur to the Investigating Officer[2] Sub-Inspector Madhukar Gite (PW-14). The I.O. was informed that Pushpabaihad caught fire on account of the border, i.e., pallu of her saree fallingon the stove where she was preparing snacks. On receiving the aboveinformation, the I.O. made an entry in the Station diary and proceededto the hospital, where he recorded the statement of Pushpabai at 3.20p.m. in the presence of two panchas (Ex.47). This was the first dyingdeclaration of the deceased. In a gap of about one hour, the statement ofPushpabai was recorded by the Special Executive Magistrate[3] (PW-9)between 4.30 and 5.00 PM (Ex.38). This was the second dyingdeclaration.

4. Vide order dated 3[rd] February, 1997, charges were framed bythe trial court against the appellant under Section 302 IPC. As the appellantpleaded not guilty, the matter was taken to trial. On its part, the prosecution 2 for short ‘IO’

3 for short ‘SEM’

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Aexamined 15 witnesses, including Ramkrishna Mahadeo Uchale(PW-2), father of the deceased; Raju Larokar;, SEM (PW-9); SamirVijay Choudhary Junior Resident Doctor (PW-10); Dr. Naresh ChandraSethia Medical Officer; (PW-11); Balaji Mohod (PW-12), the Mediatorwho had arranged the marriage of the parties; Prabhakar Bhaurao PatilPSI (PW-13); SI Madhukar Gite (PW-14), who was the I.O.; and RushiBShionkar API (PW-15). Out of fifteen witnesses, seven witnesses hadturned hostile. Vide judgment dated 29[th] April, 1997, the appellant wasconvicted by the trial Court for having murdered his wife by pouringkerosene on her and setting her on fire. He was handed down a sentenceof life imprisonment with fine. For holding the appellant guilty of theCoffence, the trial court relied on the two dying declarations of the deceasedrecorded in writing by PW-9 and PW-14 and the evidence of PW-2 andPW-12, who deposed that the deceased had stated to them how theincident had taken place.

5. Aggrieved by the aforesaid judgment, the appellant preferredDan appeal before the High Court. Though the plea of the appellant whoraised a question mark on the veracity of the two written dyingdeclarations was upheld by the High Court, giving credence to thetestimony of PW-2 and PW-12 coupled with the Chemical AnalyserReport relating to the clothes of the deceased and the appellant thatdetected kerosene on them, the judgment of the trial Court was upheldEand the appeal filed by the appellant was dismissed. The said order hasbeen challenged by the appellant in the present appeal.

6. Mr. Rohan Thanwani, learned counsel for the appellant hasassailed the impugned judgment on the ground that although the HighCourt has discarded the two written dying declarations of the deceased,Fone recorded by the I.O. (Ex.-47) and the other recorded by the SEM(Ex.-38), it has still proceeded to uphold the judgment of the SessionCourt by erroneously placing reliance on the oral dying declarations statedto have been made by the deceased to her father, Ramkrishna MahadeoUchale (PW-2) and to the Mediator, Balaji Mohod (PW-12). LearnedGcounsel contended that there were glaring material contradictionsbetween the statements made by the deceased before PW-9 andPW-14 as against the statements of PW-2 and PW-12 inasmuch as beforePW-9, the deceased had claimed that the illicit relationship between theappellant and Kusum Gaikwad (PW-8) was the root cause of the quarrelbetween the couple, whereas the version of PW-2 and PW-12 was thatH

the entire incident was attributable to the dowry demands made by theappellant on the deceased. It was further contended that the version ofthe deceased as recorded in the first and the second written dyingdeclarations was entirely different from what was narrated by PW-2and PW-12 before the Court. In fact, neither PW-2 nor PW-12 hadmade any statement to the police under Section 161 of the Code ofCriminal Procedure, 1898[4] and both the said witnesses had for the firsttime made statements only when they entered the witness box duringthe trial.

7. It was canvassed by learned counsel for the appellant thatonce the High Court had rejected the written dying declarations of thedeceased on the ground that there were several conspicuous loopholesin recording of the said statements, there was no good reason for theHigh Court to have relied on the oral statements allegedly made by thedeceased to PW-2 and PW-12, which were equally unreliable andtherefore, ought to have met the same fate as the written dyingdeclarations of the deceased. To buttress his submission that where thereare multiple dying declarations and each one is inconsistent with theother, then all the said dying declarations ought to be discarded without-any hesitation, learned counsel has cited Nallapati Sivaiah v. SubDivisional Officer, Guntur, Andhra Pradesh5. The unreliability of anoral dying declaration made to a family member in the absence of thedoctor was sought to be questioned by citing Arvind Singh v. State ofBihar6, Arun Bhandudas Pawar v. State of Maharashtra7, and8Poonam Bai v. State of Chhattisgarh.

8. On the other hand, Mr. Sachin Patil, learned counsel appearingfor the respondent - State of Maharashtra has with his usual vehemence,disputed the arguments advanced by the other side and stated that boththe written dying declarations, the first one recorded by the I.O. at 3.20PM and the second one recorded by the SEM (PW-9) at 4.30 PM, onthe very same day, were consistent and the deceased had clearly statedthat it was the appellant who had set her on fire. He also alluded to thetwo fitness certificates issued by the attending doctor (PW-10) in respectof the deceased before her statements were recorded and contended 4 for short ‘Cr.PC’5 (2007) 15 SCC 4656 (2001) 6 SCC 4077 (2008) 11 SCC 232

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Athat the said certificates showed that she was in a sound state of mindand competent to depose. Similarly, the oral dying declarationssubsequently made by the deceased in the presence of her father(PW-2) and the mediator (PW-12) were also stated to be consistentwith the version of the victim and worthy of credence. The narration asto the manner in which the deceased was set on fire was stated to beBconsistent and it was contended that the cross-examination of the saidprosecution witnesses did not elicit anything favourable to the appellanton the above aspect. Learned State counsel referred to the ChemicalAnalyser Report in respect of the clothes of the deceased and the appellantthat were seized from the spot to urge that it lent credence to the versionCof the prosecution that the appellant had poured kerosene on the deceasedand had set her on fire.

9. In support of his submission that where there are conflictingdying declarations, the Court can accept one and discard the other aslong as it is satisfied that the basic statement of the deceased had remainedDconsistent, learned State counsel citedState of Uttar Pradesh v. Veerpal and Another9, Rizan and Another v. State of Chhattisgarh10 andBhagwan Tukaram Dange v. State of Maharashtra11. The decisionin Trimukh Maroti Kirkan v. State of Maharashtra12 was cited tostate that the onus remains on the accused to explain how the death hadtaken place within the privacy of the home, away from public gaze.E

10. We have given our thoughtful consideration to the argumentsadvanced by learned counsel for the parties and carefully perused therecord. The entire issue in the present case hinges on the admissibilityand evidentiary value of the dying declarations made by the deceased,two of which were in writing and recorded by PW-9 and PW-14 and theFother two were oral and communicated by the deceased to PW-2 andPW-12.

11. Dying declaration is the last statement that is made by a personas to the cause of his imminent death or the circumstances that hadresulted in that situation, at a stage when the declarant is conscious ofGthe fact that there are virtually nil chances of his survival. On anassumption that at such a critical stage, a person would be expected to

9 (2022) 4 SCC 74110 (2003) 2 SCC 66111 (2014) 4 SCC 270H12 (2006) 10 SCC 681

speak the truth, courts have attached great value to the veracity of sucha statement. Section 32 of the Indian Evidence Act, 1872[13] states thatwhen a statement is made by a person as to the cause of death, or as toany of the circumstances which resulted in his death, in cases in whichthe cause of that person’s death comes into question, such a statement,oral or in writing made by the deceased victim to the witness, is a relevantfact and is admissible in evidence. It is noteworthy that the said provisionis an exception to the general rule contained in Section 60 of the EvidenceAct that ‘hearsay evidence is inadmissible’ and only when such anevidence is direct and is validated through cross-examination, is itconsidered to be trustworthy.

12. InKundula Bala Subrahmanyam and Another v. State ofAndhra Pradesh14, this Court had highlighted the significance of a dyingdeclaration in the following words :

“18. Section 32(1) of the Evidence Act is an exception to thegeneral rule that hearsay evidence is not admissible evidence andunless evidence is tested by cross-examination, it is notcreditworthy. Under Section 32, when a statement is made by aperson, as to the cause of death or as to any of the circumstanceswhich result in his death, in cases in which the cause of thatperson’s death comes into question, such a statement, oral or inwriting, made by the deceased to the witness is a relevant factand is admissible in evidence. The statement made by thedeceased, called the dying declaration, falls in that categoryprovided it has been made by the deceased while in a fit mentalcondition. A dying declaration made by person on the verge of hisdeath has a special sanctity as at that solemn moment, a person ismost unlikely to make any untrue statement. The shadow ofimpending death is by itself the guarantee of the truth of thestatement made by the deceased regarding the causes orcircumstances leading to his death. A dying declaration, therefore,enjoys almost a sacrosanct status, as a piece of evidence, comingas it does from the mouth of the deceased victim. Once thestatement of the dying person and the evidence of the witnessestestifying to the same passes the test of careful scrutiny of thecourts, it becomes a very important and a reliable piece of evidence 13 for short ‘Evidence Act’

14 (1993) 2 SCC 684

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Aand if the court is satisfied that the dying declaration is true andfree from any embellishment such a dying declaration, by itself,can be sufficient for recording conviction even without lookingfor any corroboration…….”

13. In Shudhakar v. State of Madhya Pradesh15, this CourtBhad opined that once a dying declaration is found to be reliable, it canform the basis of conviction and made the following observations :

“20. The “dying declaration” is the last statement made by a personat a stage when he is in serious apprehension of his death andexpects no chances of his survival. At such time, it is expectedCthat a person will speak the truth and only the truth. Normally insuch situations the courts attach the intrinsic value of truthfulnessto such statement. Once such statement has been made voluntarily,it is reliable and is not an attempt by the deceased to cover up thetruth or falsely implicate a person, then the courts can safely relyon such dying declaration and it can form the basis of conviction.DMore so, where the version given by the deceased as dyingdeclaration is supported and corroborated by other prosecutionevidence, there is no reason for the courts to doubt the truthfulnessof such dying declaration.”

14. In Paniben (Smt.) v. State of Gujarat16, on examining theEentire conspectus of the law on the principles governing dying declaration,this Court had concluded thus :

“18. …….. (i) There is neither rule of law nor of prudence thatdying declaration cannot be acted upon without corroboration.(Munnu Raja v. State of M.P.[17] )F

(ii) If the Court is satisfied that the dying declaration is true andvoluntary it can base conviction on it, without corroboration. (Stateof U.P. v. Ram Sagar Yadav[18]; Ramawati Devi v. State ofBihar[19]).

(iii) This Court has to scrutinise the dying declaration carefullyGand must ensure that the declaration is not the result of tutoring, 15 (2012) 7 SCC 56916 (1992) 2 SCC 47417 (1976) 3 SCC 10418 (1985) 1 SCC 552H19 (1983) 1 SCC 211

prompting or imagination. The deceased had opportunity to observeand identify the assailants and was in a fit state to make thedeclaration. (K. Ramachandra Reddy v. Public Prosecutor[20]) .

(iv) Where dying declaration is suspicious it should not be actedupon without corroborative evidence. (Rasheed Beg v. State ofM.P.[21])

(v) Where the deceased was unconscious and could never makeany dying declaration the evidence with regard to it is to be rejected.(Kake Singh v. State of M. P.[22])

(vi) A dying declaration which suffers from infirmity cannot formthe basis of conviction. (Ram Manorath v. State of U.P.[23])

(vii) Merely because a dying declaration does not contain thedetails as to the occurrence, it is not to be rejected. (State ofMaharashtra v. Krishnamurti Laxmipati Naidu[24])

(viii) Equally, merely because it is a brief statement, it is not bediscarded. On the contrary, the shortness of the statement itselfguarantees truth. (Surajdeo Oza v. State of Bihar[25]).

(ix) Normally the court in order to satisfy whether deceased wasin a fit mental condition to make the dying declaration look up tothe medical opinion. But where the eye witness has said that thedeceased was in a fit and conscious state to make this dyingdeclaration, the medical opinion cannot prevail. (Nanahau Ramv. State of M.P.[26]).

(x) Where the prosecution version differs from the version asgiven in the dying declaration, the said declaration cannot be actedupon. (State of U.P. v. Madan Mohan[27]).

15. In cases involving multiple dying declarations made by thedeceased, the question that arises for consideration is as to which of thesaid dying declarations ought to be believed by the Court and what would 20 (1976) 3 SCC 61821 (1974) 4 SCC 26422 1981 Suppl. SCC 2523 (1981) 2 SCC 65424 1980 Suppl. SCC 45525 1980 Suppl. SCC 76926 1988 Suppl. SCC 15227 (1989) 3 SCC 390

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Abe the guiding factors for arriving at a just and lawful conclusion. Theproblem becomes all the more knotty when the dying declarations madeby the deceased are found to be contradictory. Faced with such asituation, the Court would be expected to carefully scrutinize the evidenceto find out as to which of the dying declarations can be corroborated byother material evidence produced by the prosecution. Of equalBsignificance is the condition of the deceased at the relevant point in time,the medical evidence brought on record that would indicate the physicaland mental fitness of the deceased, the scope of the close relatives/family members having influenced/tutored the deceased and all the otherattendant circumstances that would help the Court in exercise of itsCdiscretion.

16. In Lakhan v. State of Madhya Pradesh28, where thedeceased was burnt by pouring kerosene oil on her and was brought tothe hospital by the accused and his family members, the Court noticedthat she had made two varying dying declarations and held thus :

D“9. The doctrine of dying declaration is enshrined in the legalmaxim nemo moriturus praesumitur mentire, which means “aman will not meet his Maker with a lie in his mouth”. The doctrineof dying declaration is enshrined in Section 32 of the EvidenceAct, 1872 (hereinafter called as “the Evidence Act”) as anEexception to the general rule contained in Section 60 of theEvidence Act, which provides that oral evidence in all cases mustbe direct i.e. it must be the evidence of a witness, who says hesaw it. The dying declaration is, in fact, the statement of a person,who cannot be called as witness and, therefore, cannot be cross-examined. Such statements themselves are relevant facts in certainFcases.

10. This Court has considered time and again the relevance/probative value of dying declarations recorded under differentsituations and also in cases where more than one dying declarationhas been recorded. The law is that if the court is satisfied that theGdying declaration is true and made voluntarily by the deceased,conviction can be based solely on it, without any furthercorroboration. It is neither a rule of law nor of prudence that adying declaration cannot be relied upon without corroboration.

When a dying declaration is suspicious, it should not be reliedupon without having corroborative evidence. The court has toscrutinise the dying declaration carefully and must ensure that thedeclaration is not the result of tutoring, prompting or imagination.The deceased must be in a fit state of mind to make the declarationand must identify the assailants. Merely because a dying declarationdoes not contain the details of the occurrence, it cannot be rejectedand in case there is merely a brief statement, it is more reliablefor the reason that the shortness of the statement is itself aguarantee of its veracity. If the dying declaration suffers fromsome infirmity, it cannot alone form the basis of conviction. Wherethe prosecution version differs from the version given in the dyingdeclaration, the said declaration cannot be acted upon.(Vide Khushal Rao v. State of Bombay[29], Rasheed Beg v. Stateof M.P.[30], K. Ramachandra Reddy v. Public Prosecutor[31], State of Maharashtra v. Krishnamurti Laxmipati Naidu[32], UkaRam v. State of Rajasthan[33], Babulal v. State of M.P.[34], MuthuKutty v. State.[35], State of Rajasthan v. Wakteng[36]and Sharda v. State of Rajasthan[37]".

17. In Amol Singh v. State of Madhya Pradesh38, when facedwith two dying declarations containing inconsistencies, the approach tobe adopted by the Court was summarized as under:

“13. Law relating to appreciation of evidence in the form of morethan one dying declaration is well settled. Accordingly, it is not theplurality of the dying declarations but the reliability thereof thatadds weight to the prosecution case. If a dying declaration is foundto be voluntary, reliable and made in fit mental condition, it can berelied upon without any corroboration. The statement should beconsistent throughout. If the deceased had several opportunities of making such dying declarations, that is to say, if there are more 29 AIR 1958 SC 2230 (1974) 4 SCC 26431 (1976) 3 SCC 61832 1980 Supp SCC 45533 (2001) 5 SCC 25434 (2003) 12 SCC 49035 (2005) 9 SCC 11336 (2007) 14 SCC 55037 (2010) 2 SCC 8538 (2008) 5 SCC 468

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Athan one dying declaration they should be consistent. (See KundulaBala Subrahmanyam v. State of A.P.[39]) However, if someinconsistencies are noticed between one dying declaration andthe other, the court has to examine the nature of the inconsistencies,namely, whether they are material or not. While scrutinising thecontents of various dying declarations, in such a situation, the courtBhas to examine the same in the light of the various surroundingfacts and circumstances.”

18. InSher Singh and Another v. State of Punjab40, this Courthas held thus :

C“16. Acceptability of a dying declaration is greater because thedeclaration is made in extremity. When the party is at the vergeof death, one rarely finds any motive to tell falsehood and it is forthis reason that the requirements of oath and cross-examinationare dispensed with in case of a dying declaration. Since the accusedhas no power of cross-examination, the court would insist that theDdying declaration should be of such a nature as to inspire fullconfidence of the court in its truthfulness and correctness. Thecourt should ensure that the statement was not as a result oftutoring or prompting or a product of imagination. It is for thecourt to ascertain from the evidence placed on record that theEdeceased was in a fit state of mind and had ample opportunity toobserve and identify the culprit. Normally, the court places relianceon the medical evidence for reaching the conclusion whether theperson making a dying declaration was in a fit state of mind, butwhere the person recording the statement states that the deceasedwas in a fit and conscious state, the medical opinion will not prevail,Fnor can it be said that since there is no certification of the doctoras to the fitness of mind of the declarant, the dying declaration isnot acceptable. What is essential is that the person recording thedying declaration must be satisfied that the deceased was in a fitstate of mind. Where it is proved by the testimony of the MagistrateGthat the declarant was fit to make the statement without therebeing the doctor’s opinion to that effect, it can be acted uponprovided the court ultimately holds the same to be voluntary and 39 (1993) 2 SCC 684H40 (2008) 4 SCC 265

truthful. A certificate by the doctor is essentially a rule of cautionand, therefore, the voluntary and truthful nature of a statementcan be established otherwise.”

19. It is thus clear that in cases where the Court finds that thereexist more than one dying declarations, each one of them must beexamined with care and caution and only after satisfying itself as towhich of the dying declarations appears to be free from suspiciouscircumstances and has been made voluntarily, should it be accepted. Asobserved in the judgments quoted above, it is not necessary that in everycase, a dying declaration ought to be corroborated with material evidence,ocular or otherwise. It is more a rule of prudence that courts seekvalidation of the dying declaration from attending facts and circumstancesand other evidence brought on record. For the very same reason, acertificate by the doctor that the declarant was fit to make a statement,is treated as a rule of caution to establish the truthfulness of the statementmade by the deceased.

20. In Kundula Bala Subrahmanyam(supra), this Court hadobserved that if there are more than one dying declarations, then theCourt must scrutinize each one of them to find out whether the differentdying declarations are consistent with each other in material particularsbefore accepting and relying on the same. At the end of the day, eachcase must be decided on its own peculiar facts. There can be no hardand fast rule on evaluation of the evidence brought before the Court,including the surrounding circumstances at the time when the deceasedhad made the dying declaration. The focus of the Court is of ensuringthe voluntariness of the process, of being satisfied that there was notutoring or prompting, of being convinced that the deceased was in a fitstate of mind before making the dying declaration, of ascertaining thatample opportunity was available to the declarant to identify the accused.

21. In Veerpal (supra), this Court has clarified that a dyingdeclaration can be acted upon without any other corroboration andobserved as below :

“16. Now, on the aspect, whether in the absence of anycorroborative evidence, there can be a conviction relying uponthe dying declaration only is concerned, the decision of this Courtin Munnu Raja[41], and the subsequent decision in Paniben v. State A

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Aof Gujarat[42], are required to be referred to. In the aforesaiddecisions, it is specifically observed and held that there is neithera rule of law nor of prudence to the effect that a dying declarationcannot be acted upon without a corroboration. It is observed andheld that if the Court is satisfied that the dying declaration is trueand voluntary it can base its conviction on it, without corroboration.BSimilar view has also been expressed in State of U.P. v. RamSagar Yadav[43] and Ramawati Devi v. State of Bihar[44].Therefore, there can be a conviction solely based upon the dyingdeclaration without corroboration.”

22. However, if a dying declaration suffers from some infirmity, itCcannot be the sole basis for convicting the accused. In thosecircumstances, the court must step back and consider whether thecumulative factors in a case make it difficult to rely upon the said dyingdeclaration. In this context, it would be profitable to refer to NallapatiSivaiah (supra), wherein this Court held as under :

D“46. It is the duty of the prosecution to establish the charge againstthe accused beyond reasonable doubt. The benefit of doubt mustalways go in favour of the accused. It is true that dying declarationis a substantive piece of evidence to be relied on provided it isproved that the same was voluntary and truthful and the victimEwas in a fit state of mind. The evidence of the Professor of ForensicMedicine casts considerable doubt as regards the condition of thedeceased to make a voluntary and truthful statement. It is for thatreason non-examination of Dr. T. Narasimharao, Casualty MedicalOfficer, who was said to have been present at the time of recordingof both the dying declarations attains some significance. It is notFbecause it is the requirement in law that the doctor who certifiedabout the condition of the victim to make a dying declaration isrequired to be examined in every case. But it was the obligationof the prosecution to lead corroborative evidence available in thepeculiar circumstances of the case.

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42 (1992) 2 SCC 47443 (1985) 1 SCC 552H44 (1983) 1 SCC 211

52. The dying declaration must inspire confidence so as to makeit safe to act upon. Whether it is safe to act upon a dying declarationdepends upon not only the testimony of the person recording thedying declaration—be it even a Magistrate but also all the materialavailable on record and the circumstances including the medicalevidence. The evidence and the material available on record mustbe properly weighed in each case to arrive at a proper conclusion.The court must satisfy itself that the person making the dyingdeclaration was conscious and fit to make statement for whichpurposes not only the evidence of persons recording the dyingdeclaration but also cumulative effect of the other evidenceincluding the medical evidence and the circumstances must betaken into consideration.”

23. In Arvind Singh(supra), this Court has held that dyingdeclaration should be dealt with care and caution and corroborationthereof, though not essential, is expedient in order to strengthen theevidentiary value of the declaration. Even where independent witnessesmay not be available, all the precautions should be taken when it comesto acceptance of such a statement as trustworthy evidence. In otherwords, even though direct evidence may not be available, circumstantialevident without a break in the chain of events, would add weight to theevidentiary value of the dying declaration.

24. The principles governing the circumstances where the courtscan accept a dying declaration without corroboration, have been dealtwith extensively in Khushal Rao(supra) and for ready reference,reproduced as under :

“16. On a review of the relevant provisions of the Evidence Actand of the decided cases in the different High Courts in India andin this Court, we have come to the conclusion, in agreement withthe opinion of the Full Bench of the Madras High Court, aforesaid,(1) that it cannot be laid down as an absolute rule of law that adying declaration cannot form the sole basis of conviction unlessit is corroborated; (2) that each case must be determined on itsown facts keeping in view the circumstances in which the dyingdeclaration was made; (3) that it cannot be laid down as a generalproposition that a dying declaration is a weaker kind of evidencethan other pieces of evidence; (4) that a dying declaration standson the same footing as another piece of evidence and has to be AB

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Ajudged in the light of surrounding circumstances and with referenceto the principles governing the weighing of evidence; (5) that adying declaration which has been recorded by a competentMagistrate in the proper manner, that is to say, in the form ofquestions and answers, and, as far as practicable, in the words ofthe maker of the declaration, stands on a much higher footingBthan a dying declaration which depends upon oral testimony whichmay suffer from all the infirmities of human memory and humancharacter, and (6) that in order to test the reliability of a dyingdeclaration, the Court has to keep in view, the circumstances likethe opportunity of the dying man for observation, for example,Cwhether there was sufficient light if the crime was committed atnight; whether the capacity of the man to remember the factsstated, had not been impaired at the time he was making thestatement, by circumstances beyond his control; that the statementhas been consistent throughout if he had several opportunities ofmaking a dying declaration apart from the official record of it;Dand that the statement had been made at the earliest opportunityand was not the result of tutoring by interested parties.”

25. The credibility of a dying declaration recorded by theMagistrate has also come up for consideration in several cases and ithas been held that a Magistrate being an uninterested witness and aErespected officer and there being no circumstances or material to suspectthat he would have any animus against the accused or would in any waybe interested for fabricating a dying declaration, such a declarationrecorded by the Magistrate, ought not be doubted. Absence ofcorroborative evidence for convicting an accused based on a dyingFdeclaration has been a matter of discussion in several cases [Ref.:Munnu Raja(supra), Paniben (Smt.)(supra), Ram Sagar Yadav(supra), Ramawati Devi(supra) and Veerpal (supra)].

26. Coming back to the case at hand, there is no dispute about thefact that the deceased did receive severe burn injuries on 27[th] March,G1995 at her house. Dr. Nareshchandra Sethia (PW-11), who hadconducted the postmortem, stated that she had received burn injuries onboth arms and legs, chest, abdomen, back, head, neck and face to theextent of 93%. He also deposed that the probable cause of her deathwas due to the said burn injuries.

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27. For convicting the appellant, the trial Court had primarily reliedupon the two written dying declarations of the deceased, one recordedby the SEM (PW-9) and the other by the IO (PW-14) and the oral dyingdeclarations stated to have been made by the deceased to her father(PW-2) and Balaji (PW-12), the Mediator who had settled the marriageof the parties. However, noting the several loopholes in the procedureadopted while recording the dying declarations by the SEM (PW-9) andthe IO (PW-14), the High Court found it unsafe to rely on them and keptthem aside. The reasons are not far to see.

28. Coming to the first dying declaration recorded by the IO, Sub-Inspector Madhukar Gite (PW-14), the High Court found it difficult torely on the same for the following reasons:

(a) the requisition letter that PW-14 had stated he had receivedat the police station mentioning inter alia that the deceasedhad caught fire due to the border of her saree (Pallu) fallingon the burning stove at the time of preparing snacks on thestove at her house at about 12.30 p.m., on the fateful day,did not mention the name of the hospital where the deceasedwas admitted. Pertinently, it was on the basis of the saidrequisition letter that PW-14 had proceeded to the Hospitalto meet the deceased and record her statement; (b)there was an ambiguity regarding the source from whichPW-14 had received the aforesaid information and no effortwas made to clarify the said ambiguity during the course oftrial;

(c) PW-14 did not obtain any certificate from the attendingdoctor so as to establish the physical and mental conditionof the deceased before recording her statement; (d)the doctor was not even present when the statement of thedeceased was recorded; (e)the dying declaration was not recorded by PW-14 inseclusion. Due to the presence of the relatives of thedeceased at the time of recording her statement, theprobability of the deceased being prompted/tutored couldnot be ruled out.

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A29. Following were the reasons that collectively weighed with theHigh Court for disregarding the second written dying declaration recordedby the SEM (PW-9):

(a) the attending doctor did not examine the deceased in thepresence of PW-9 before her statement was recorded; B

(b) the statement of the deceased was recorded by PW-9 inthe absence of the doctor;

(c) the doctor did not make any endorsement on the requisitionletter in thepresence of PW-9; (d)PW-9 did not record the statement of the deceased himself.Instead, he delegated the task to the police constable whoreduced the statement of the deceased into writing; C

(e) after reducing the statement into writing, the same was notread over to the deceased before her signatures wereobtained;D

(f) the statement of the deceased was not recorded in aquestion-answer format.

30. The above infirmities were considered more than adequatefor the High Court to have wholly discarded the two written dyingEdeclarations of the deceased.

31. Since there is no challenge laid to the findings returned by theHigh Court for discarding the two written dying declarations finding themriddled with deficiencies, thus making them unreliable, we do not proposeto delve into their credit worthiness. Suffice it is to say that there wasFevery reason for the High Court to have found them untrustworthy.Instead, it is considered appropriate to examine the worth of the oraldying declarations stated to have been made by the deceased in thepresence of PW-2 and PW-12.

32. Ramkrishna Mahadeo Uchale (PW-2), father of the deceasedGdeposed that he had received a message regarding his daughter gettingburnt and had rushed to Mayo Hospital where she was admitted. Henoticed that the deceased had sustained burn injuries and was in a seriouscondition. He enquired from her as to how did the incident take place towhich she stated that when she was cleaning wheat grain, on the fatefulday, the appellant had come to the house, beaten her, poured keroseneH

oil on her body and had set her on fire, while tying her hands. PW-2deposed that after her marriage to the appellant in the year 1994, hisdaughter used to complain that the appellant used to illtreat her on accountof demanding money and used to suspect her character. He stated thathe had lodged a report with the Pardi Village Police Station regardingthe same. During his cross-examination, PW-2 had denied that hisstatement was recorded by the police during the investigation. Althoughthe Assistant Public Prosecutor was permitted to re-examine PW-2 onthe above aspect, but nothing material emerged from the saidre-examination except that he stated that an inquiry was made byLakadganj police relating to the burning of his daughter. Significantly,during the extensive cross-examination of the I.O. Sub-InspectorMadhukar Gite (PW-14), he had categorically stated that he had recordedthe statement of PW-2, but during his cross-examination, PW-14 wasnot confronted with any of the claims made by PW-2 pertaining to theappellant having assaulted the deceased for money or of suspecting hercharacter, etc. In fact, at his turn, PW-14 had denied the fact that he hadnot recorded the statement of PW-2.

33. The second oral dying declaration was made by the deceasedto Balaji (PW-12), the Mediator who was instrumental in solemnizingthe marriage of the appellant and the deceased. Though he deposed thatthe appellant had made several demands on the deceased after themarriage, including cash and a gold chain and that he used to threatenher that if she did not bring money from her parents, he would beat her,during his cross-examination, he admitted that he did not state so beforethe police. PW-12 further stated that he along with PW-2 had gone tovisit the deceased at her house in the absence of the appellant and atthat time, she had complained that the appellant used to beat her andrequested that she be taken back to her parental home. Thereafter, PW-12 and PW-2 had lodged a report against the appellant at the LakadganjPolice Station. He further stated that the deceased was brought back toher parent’s home for fifteen days. After she had returned to hermatrimonial house, fifteen days down the line, PW-12 claimed to havereceived a chit stating that the deceased had caught fire and was admittedin Mayo Hospital. When he visited the hospital, the deceased told himthat when she was cleaning wheat, the appellant had come home, tiedher hands with a ribbon and had taken her inside. Thereafter, the appellanthad poured kerosene on the body of the deceased and lighted a matchstick setting her on fire.

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A34. A perusal of the testimonies of PW-2 and PW-12 show thatthey have offered varying versions of what had allegedly been narratedto them by the deceased. Both of them stated that failure to satisfy theappellant’s constant dowry demands had led to the incident. There wasno mention of the illicit relationship of the appellant with a widow in theneighbourhood which was a constant cause of quarrel between theBdeceased and her husband and had led to the incident. Pertinently, boththe said witnesses stated that their statements were not recorded by thepolice during the investigation and that they had deposed for the firsttime only when they had entered the witness box during the trial.

35. InArun Bhanudas Pawar(supra), cited by learned counselCfor the appellant, this Court had declined to accept the testimony of aninterested witness who happened to be the mother of the victim, in theabsence of any corroboration from an independent witness including theMedical Officer who was attending to the victim, to prove that the victimhad regained consciousness when the mother had met him in the hospitalDand had named the accused as the assailant along with two otherassociates. An additional factor that weighed with the court for rejectingthe testimony of the mother was that she had not stated so in her statementrecorded by the Police under Section 161 Cr.P.C. and it was for the firsttime before the Court that she had made such a statement. Holding thatthe oral dying declaration made by the deceased ought to be treatedEwith care and caution, since the maker of the statement cannot besubjected to any cross-examination, the Court found fault with the HighCourt and trial Court for having accepted the said oral dying declarationallegedly made by the deceased to her mother, an interested witness,when there was nothing to show that the deceased was in a fit conditionFto make an oral declaration to his mother. In Poonam Bai(supra), asimilar view was taken by this Court and it was held thus:

“16. As far as the oral dying declaration is concerned, the evidenceon record is very shaky, apart from the fact that evidence relatingto oral dying declaration is a weak type of evidence in and ofGitself. As per the case of the prosecution, the deceased had madean oral dying declaration before Lalita Sahu (PW 2), Pilaram Sahu(PW 3), Parvati Bai (PW 4), and others. Though PWs 2, 3 and 4have deposed that the deceased did make an oral dying declarationbefore them implicating the appellant, this version is clearly onlyan afterthought, inasmuch as the same was brought up before the H

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trial court for the first time. In their statements recorded by thepolice under Section 161 of the Code of Criminal Procedure, thesewitnesses had not made any statement relating to the alleged oraldying declaration of the deceased. These factors have been notedby the trial court in its detailed judgment. Thus, the evidence ofPWs 2, 3 and 4 relating to the oral dying declaration is clearly animproved version, and this has been proved by the defence inaccordance with law.”

36. We are of the opinion that once the High Court had disagreedwith the Session Court and discarded the two written dying declarationsof the deceased due to several glaring lacunae in the procedure adoptedby the SEM (PW-9) and the I.O. (PW-14) in recording the said statement,then the appellant could not have been indicted on the oral testimony ofPW-2, father of the deceased and PW-12, family friend, both of whowere interested witnesses and whose evidence runs contrary to theversions of the deceased recorded by PW-9 and PW-14. It must beremembered that all the four dying declarations, two in writing and theother two oral, were based on the statements given by the deceased atdifferent times on the very same day, i.e., 27[th] March, 1995, when shehad suffered 93% burn injuries and there are serious doubt about herbeing mentally and physically fit to give her statement. The IO (PW-14)had recorded the first dying declaration at 3.20 p.m. this was followedby the SEM (PW-9) having recorded the second dying declarationbetween 4.30 p.m. and 5.00 p.m. It was on the very same day thatPW-2 and PW-12 had also met the deceased at the hospital and claimedthat she had informed them as to how she had received the burn injuriesand named the appellant as the culprit.

37. Both, PW-2 and PW-12 have deposed that in her oral dyingdeclaration, the deceased had referred to the dowry demands made onher by the appellant and the fact that he had suspected her character,which led to the alleged incident. As noted above, nowhere in theirtestimonies is there any reference made to the prosecution version thatthe appellant was having an illicit relation with a widow residing in theneighbourhood, which was the main cause of acrimony between thecouple and had resulted in the incident. The diametrically different versionof the reasons that led to the alleged incident casts a shadow on theentire testimony of PW-2 and PW-12, making it unsafe to rely on themand indict the appellant for the charge framed against him. We are A

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Atherefore of the opinion that the prosecution has failed to discharge theobligation cast on it of leading trustworthy corroborative evidence toback-up the testimonies of PW-2 and PW-12.

38. In the light of the evidence discussed above and being mindfulof the principles governing appreciation of the evidence related to multipleBdying declarations, we find it difficult to endorse the conclusion arrivedat by the High Court. The evidence of PW-2 and PW-12 cannot betreated as stellar enough to hold the appellant guilty for the offence ofmurdering his wife. Hence, he is entitled to being granted benefit ofdoubt.

C39. As a result of the aforesaid discussion, the impugned judgmentis quashed and set aside. Consequently, the appellant is acquitted of thecharge framed against him and is directed to be set at liberty forthwith,if not required in connection with any other case.

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DFor the reasons to be recorded separately, the appeal isallowed.

The judgment and order of the Additional Sessions Court,Nagpur dated 29.04.1997 and that of the High Court dated26.07.2010 are quashed and set aside.

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The appellant is acquitted of all the charges and directed tobe set at liberty forthwith, if not required in connection with anyother case.

Divya PandeyF(Assisted by : Roopanshi Virang, LCRA)

Appeal allowed.

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