VIKAS & ORS. Vs. STATE OF MAHARASHTRA

CASE NO.:Appeal (crl.)  321 of 2006

PETITIONER:VIKAS & ORS.

RESPONDENT:STATE OF MAHARASHTRA

DATE OF JUDGMENT: 21/01/2008

BENCH:C.K. THAKKER & MARKANDEY KATJU

JUDGMENT:J U D G M E N T

C.K. Thakker, J.

1.The 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.

2.The case of the prosecution was that
deceased Rekha was given in marriage by PW 1
Laxmn Pingale to accused No. 1 Vikas Vayse. 
Accused 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. 
Thereafter, 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. 
Rekha also gave birth to two children; (i)
Varsha-daughter, and (ii) Yogesh-son.

3.On 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. 
Accused 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 Session. 

4.Defence 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.

5.In 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. 

6.The 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.

7.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. 
Accordingly, order of conviction and sentence
recorded by the trial Court was held proper and
the said order was confirmed by the High Court. 
As to 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 34, IPC. 
The above decision is challenged in the present appeal.

8.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. 

9.We have heard the learned counsel for the parties.

10.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. 
On the 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. 
The 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.

11.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 dismissed.

READ  Whether the family court has jurisdiction to decide the validity of marriage?

12.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. 
It is 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.
Father of the deceased was one such person and
police would not fail to record his statement. 
Again, 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;
Rekha 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.

13.The High Court, in the circumstances, stated;
     It 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. 
The 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;
     In spite of this hostility,
the father has admitted that
Executing Magistrate removed him
outside room where Rekha was
admitted when he recorded
statement of deceased Rekha. 
Thus, 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:

It 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. 
This is evident from the next statement after this correction.  The father says:
 
 When I was talking with Rekha, accused Vikas went to bring medicine. Accused 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 medicines.

15.The High Court, therefore, rightly
concluded;
     We 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.

16.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.

17.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.
(Ex.55) 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.

18.It 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 11.55 a.m.

19.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 declarations, i.e.
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.

READ  Divorce on Nonconsummated Marriage - SC

20.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. 
Section 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.

21.Section 32 contains several clauses.
Clause (1) relates to cause of death and is
usually known as dying declaration.  The said
clause reads thus;
When it relates to cause of
death.(1) 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.

 Such 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.

Illustration

(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.

Statements 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 facts.

22.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.

23.Truth said Mathew Arnold, sits upon
the lips of a dying man.
24.  Shakespeare, great writer of the
sixteenth century, through one of his
characters explained the basic philosophy thus;
Have 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)

25.The Great poet also said at another
place;Where    words    are     scarce,
 They are  seldom  spent in  vain;
 They    breathe    the     truth,
 That breathe their words in pain.(Richard II)

26.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.
Great 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.
Exclusion of his statement will leave the Court
with no evidence whatsoever and a culprit may
go unpunished causing miscarriage of justice.

27.The question as to admissibility of
dying declaration came up for consideration
before Indian as well as foreign courts.

28.Before more than two centuries, in
R.V. Woodcock, (1789) 1 Leach 500 : 168 ER 352,
Eyre, C.V. proclaimed;
The 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.

29.Khushal 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;
“It 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 declaration. (emphasis supplied)
    
30.In Khushal Rao, this Court stated;
 We have, therefore, to examine the
legal position whether it is settled
law that a dying declaration by itself
can, in no circumstances, be the basis of a conviction.

31.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.

32.The Court then said;
It 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.(emphasis supplied)
    
33.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 its weight.

34.Considering the views expressed by
different High Courts and also leading
commentaries, the Court summarized the
principles thus:
(1) that it cannot be laid down as an
absolute rule of law that a dying
declaration cannot form the sole
basis of conviction unless it is
corroborated;

(2) that each case must be determined
on its own facts keeping in view
the circumstances in which the
dying declaration was made;

(3) that it cannot be laid down as a
general proposition that a dying
declaration is a weaker kind of
evidence than other piece of
evidence;

(4) that a dying declaration stands on
the same footing as another piece
of evidence and has to be judged
in the light of surrounding
circumstances and with reference
to the principles governing the
weighing of evidence;

(5) 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 character, and

READ  498a,304B,No conviction for mere demand of Dowry

(6) 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;
whether 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;
that 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.
    
35.  In 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.
The rule requiring corroboration is merely a
rule of prudence and not a rule of law.
36.  The Court, referring to earlier case
law, summed up principles governing dying
declaration as under:
(i)   There is neither rule of law nor
of prudence that dying
declaration cannot be acted upon
without corroboration.
(ii)  If the Court is satisfied that
the dying declaration is true
and voluntary it can base
conviction on it, without
corroboration.
(iii) 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.
(iv) Where dying declaration is
suspicious it should not be
acted upon without corroborative
evidence.
(v) Where the deceased was
unconscious and could never make
any dying declaration the
evidence with regard to it is to
be rejected.
(vi)  A dying declaration which
suffers from infirmity cannot
form the basis of conviction.
(vii) Merely because a dying
declaration does not contain the
details as to the occurrence, it
is not to be rejected.
(viii) 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.
(ix) 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.
(x)  Where the prosecution version
differs from the version as
given in the dying declaration,
the said declaration cannot be acted upon.
 
37.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.

38.In 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. 
Placing 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.

39.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. 
The conviction was accordingly upheld.

40.Harjit 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. 
It was therefore, held that genuineness of
dying declaration could not be doubted and
conviction recorded on that basis could not be faulted.

41.In 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 upon.

42.In 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.

43.In 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;Though 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. 
This 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 SCC 113]

44.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
(i) PW 5 Ramchandra, Special Judicial
Magistrate on May 17, 2001 (Ex. 56) and (ii) 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. The 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.

45.For the foregoing reasons, the appeal is dismissed. Order of conviction and sentence recorded against the appellants is upheld.

Leave a Comment

Your email address will not be published. Required fields are marked *