# Ravi Pratap Singh @ Tinku v. State of U.P

- **Citation:** (2020) 9 ILRA 821
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-07-10
- **Case number:** Criminal Appeal No.1706 of 2013
- **Bench:** Mrs. Sunita Agarwal, Dinesh Pathak
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ravi-pratap-singh-tinku-v-state-of-u-p-46082
- **Pages:** 20

## Headnote

Dying Declaration U/S 32(1) Evidence Act-
Maxim- "nemo moritusus prasumitus mennre",
- 'no one at the time of death is presumed to lie
and he will not meet his maker with a lie in his
mouth".

Minor Inconsistency in Dying Declaration -
The
deposition
of
the
deceased
before
investigating officer, doctor and executive
magistrate could not shake the credibility of
statement recorded by the executive magistrate
in due exercise of his statutory power.

All inculpatory circumstances unerringly point
towards the guilt of applicant. Conviction
upheld.

Appeal Dismissed. (E-2)

List of Case cited: -

## Text

_Characters 0–39,845 of 68,614. This is a partial read: ask again with offset=39845 for what follows._

9 All. Ravi Pratap Singh @ Tinku Vs. State of U.P.
821
of 315 bore and 2 live cartridges of 315
bore of which he was not authorized have
without license.

64. We are thus of the opinion that the
trial court rightly held the appellant guilty
of murder of deceased Kapil Sharma under
Sections 302, 307 IPC and under Section
25
of
Arms
Act
for
unauthorised
possession of firearms and cartridges.

65. For the reasons stated herein above,
we see no reason to interfere with the order
and judgment dated 16 February 2015, passed
by the Additional Sessions Judge, Court No. 3,
Bulandshahr, in State of U.P. vs. Tushar @
Golu and the same deserves to be sustained.
The appeal is liable to be dismissed and is,
accordingly, dismissed.

66. The appellant is in jail since
1.12.2012, he shall remain in jail to serve
out the sentence awarded by the trial court
pursuant to the impugned judgment.

67. Registrar General is directed to
ensure compliance by forwarding the copy
of the judgment to the District Judge,
Bulandshahr.
----------
(2020)09ILR A821
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.07.2020

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE DINESH PATHAK, J.

Criminal Appeal No.1706 of 2013

Ravi Pratap Singh @ Tinku ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Satyendra Narayan Singh, Sri Dileep
Kumar,
Sri
Rajrshi
Gupta,
Sri
Rajul
Bhargava, Sri Shesh Narain Mishra, Sri
Sanjay Mani Tripathi, Si Satya Prakash
Singh.

Counsel for the Opposite Party:
A.G.A.

Dying Declaration U/S 32(1) Evidence Act-
Maxim- "nemo moritusus prasumitus mennre",
- 'no one at the time of death is presumed to lie
and he will not meet his maker with a lie in his
mouth".

Minor Inconsistency in Dying Declaration -
The
deposition
of
the
deceased
before
investigating officer, doctor and executive
magistrate could not shake the credibility of
statement recorded by the executive magistrate
in due exercise of his statutory power.

All inculpatory circumstances unerringly point
towards the guilt of applicant. Conviction
upheld.

Appeal Dismissed. (E-2)

List of Case cited: -

1. St. of U.P. Vs Kismata @ Krishnawati & ors.

2. Umakant & ors. Vs St. of Chatt.

3. Harish Kumar Vs St. of Hary.

4. St.of Guj Vs Jayrajbhai Punjabhai Varu

5. Chinnamma Vs St. of Kerala

6. Mehiboonsab Abbasabi Nadaf Vs St. of
Karnataka

7. Apex Court in Kushal Rao Vs The St. Of
Bombay

8. Ram Nath Madho Prasad Vs St. of M.P.

9. Godhu & anr. Vs St. of Raj.

10. Harjit Kaur Vs St. of Punj.
822 INDIAN LAW REPORTS ALLAHABAD SERIES
11. Koli Chunnilal Savji & anr. Vs St. of Guj.

12. St. of Pun. Vs Praveen Kumar

13. St. of U.P. Vs Santosh Kumar

14. Prem Kumar Gulati Vs St. of Hary. & anr.

15. Kushal Rao Vs Godhu & anr.

(Delivered by Hon'ble Mrs. Sunita
Agarwal, J. & Hon'ble Dinesh Pathak, J)

1. Heard Sri Rajarshi Gupta learned
counsel for the appellant and learned AGA
for the State-respondent.

2. This appeal is directed against the
judgment and order dated 21.03.2013
passed
by
the
Additional
Sessions
Judge/Special Judge (E.C. Act), U.P. at
Basti in Sessions Trial No.141 of 2007
(State
of
U.P.
Vs.
Kismata
@
Krishnawati & others), whereby appellant
Ravi Pratap Singh @ Tinku son of Mukhtar
Singh has been convicted for the offence
under Section 302 IPC and sentenced with
life
imprisonment
alongwith
fine
of
Rs.10,000/- with the condition that in case
of non-deposit of fine, the appellant has to
undergo additional sentence of one year
rigorous imprisonment.

3. The prosecution story has been
unfolded with the first information report
lodged on 02.01.2007 at about 19.30 hours.
It was a written report given by the brother
of victim Sunita @ Babbi, daughter of Sri
Shyam Narayan Singh. It is stated therein
that victim Sunita @ Babbi was got
married to Jai Prakash Singh son of
Mukhtar Singh on 16.05.2005. While Jai
Prakash Singh was employed in Delhi,
victim resided in her marital home with her
in-laws at the village. During the marriage
ceremony, sufficient dowry had been given
by the father of the victim, but Jai Prakash
Singh and his family members were
dissatisfied and adamant on their demand
for a car in the dowry. One month after the
marriage, Sunita came to her parent's house
and told them that her in-laws (father and
mother-in-law, sister and brothers in-law)
were pressing their demand for a car in the
dowry. The victim told her parents that in
case their demand was not fulfilled, it
would be difficult for her to live in her
marital home. Somehow, family members
of the victim had persuaded her to go back
to her marital house. The victim, however,
was being tortured both physically and
mentally by her in-laws on account of nonfulfillment of their demand. The victim also
pleaded her husband to take her alongwith
him to Delhi, but he also stated that unless
the demand is fulfilled, he would not take
her alongwith him.

4. The victim narrated her ordeal to
her family members whenever she came to
her parental home. On 25.12.2006, the
victim telephoned her brother, the first
informant and said that it would not be
possible for her to bear the torture of her inlaws furthermore and if he wanted to see
her alive, the demand of car had to be
fulfilled.
On
hearing
this,
the
first
informant alongwith his father, uncle and
brother-in-law went to meet her in-laws to
persuade
them.
During
the
meeting,
brothers-in-laws
of
the
victim
had
misbehaved with the victim party. The
victim party somehow had tried their best
to convince the father and mother-in-law
but all of them remained adamant and
told that either they should fulfill their
demand or else the girl would suffer.
Being helpless, all of them came back
after counseling the girl. On 01.01.2007,
at
about
11.30
P.M.,
father-in-law
9 All. Ravi Pratap Singh @ Tinku Vs. State of U.P.
823
telephonically informed that the victim
got burnt due to bursting of the gas
cylinder in their house. The first informant
told him to take the victim to the District
Hospital, Basti and that they would also
reach there soon. It is then averred that
father-in-law of the victim got her admitted
in the District Hospital, Basti and left.
Upon asking the reason for the accident,
victim Sunita told that while she was
sleeping after dinner, her mother-in-law
and sister-in-law Sannu poured kerosene oil
upon her and when she tried to escape, her
father-in-law and one brother-in-law caught
hold of her and another brother-in-law (the
appellant) lit the matchsticks and set her on
fire. It is then narrated in the written report
that the Doctor in the District Hospital had
referred the victim to Lucknow because of
her critical condition. The father, uncle and
other relatives of the victim took her to
Lucknow for treatment and that she was
still in a critical condition. On the said
report being lodged by Manoj Kumar
Singh, brother of the victim, the chik FIR
was prepared and the case was registered
and entered in G.D. rapat No.34 at 19.30
hours on 02.01.2007. The said G.D. entry
has been proved by PW-21 and exhibited as
'Exhibit Ka-28'.

5. At the outset, we may note that
there is no dispute about the date and time
of lodging of the first information report
and that on the said date, the victim was
under treatment in a hospital at Lucknow. It
appears that after lodging of the first
information report, police came into action
and an Executive Magistrate namely the
Additional City Magistrate, Lucknow went
to the hospital to record the statement of
victim, which was recorded on 03.01.2007
at about 11.30 AM. The local police had
also inspected the site of the incident and
recovered incriminating materials such as
plastic can, matchbox, half lit matchstick,
broken pieces of bangles, some pieces of
clothes of victim and ash from the spot,
wherefrom smell of kerosene oil was
coming. All of these were sealed and
exhibited as 'Exhibit Ka-2'.

6. The injury report dated 2.01.2007
of victim prepared by the Doctor, District
Hospital, Basti indicates that the victim
suffered superficial to deep burns all over
the body except soles both sides. At places
blisters present. At places skin pulled off.
Hair of scalp charred. Kerosene oil smell
from the body was present. In the opinion
of the doctor, burn was about 95% due to
dry flame. The victim was referred to
Lucknow and had succumbed to her
injuries in the hospital namely Mayo
Medical Center Pvt. Limited, Vikas KhandII, Gomti Nagar, Lucknow on 15.01.2007
at about 10.55 AM. After the inquest and
completion of all formalities body was sent
to the RMS Hospital, Gomti Nagar,
Lucknow
and
the
postmortem
was
conducted on 15.01.2007 at about 4.45
P.M. As per opinion of the postmortem
doctor, death was caused due to Septicemia
as a result of Ante-mortem burn injuries.
The Ante-mortem injuries found on the
person of deceased are:-

"Superficial to deep septic burn
wound present on all over the body except
back of neck & both sole, pus slough &
debris & granulation tissues present in
burn wound on opening & section cutting
of both lungs, liver spleen & kidney-
multiple pus focci present."

7. After the investigation was
completed, charge sheet was submitted
against all accused persons named in the
first information i.e. the father and motherin-law, two brother-in-laws one sister-in-
824 INDIAN LAW REPORTS ALLAHABAD SERIES
law of deceased on the charges of committing
offences under Section 498-A, 304-B, 302,
504, 506 IPC and 3⁄4 of the D.P. Act, as also
against her husband Jai Prakash Singh who
was charged under Section 498-A, 307, 304B, 302, 504, 506 IPC and 3⁄4 D.P. Act. The
accused persons denied all the charges and
demanded trial. After committal to the Court
of Sessions, the appellant Ravi Pratap Singh
@ Tinku and Mukhtar Singh father-in-law of
the victim were charged with the offences
under Section 302 read with Section 34 IPC
in addition to the offences under Sections
304-B, 498-A, 504, 506 IPC and 3⁄4 D.P. Act.
Other accused persons namely Daddan
Singh, Jai Prakash Singh and Smt. Kismiata,
the brother-in-law, husband and mother-inlaw of the victim and sister-in-law Sanno @
Sanu were charge sheeted under Section 498A, 304-B, 504, 506 IPC and 3⁄4 D.P. Act.

8. All the witnesses of fact who
happened to be the family members of
deceased girl had turned hostile except the
first informant who also did support the
prosecution case before the Court. The
charges pertaining to demand of dowry and
resultant mental and physical harassment of
victim at the hands of her in-laws and
husband were not proved. Other accused
persons including the appellant herein have
been acquitted of all the charges pertaining
to demand of dowry as also dowry death.
The father-in-law of the victim has also
been acquitted of the offence of murder
with common intention with the accused
appellant Ravi Pratap @ Tinku Singh. The
trial court had, however, found accused
appellant Ravi Pratap Singh @ Tinku Singh
guilty of the offence of murder under
Section 302 IPC and convicted him to
sentence with imprisonment for life.

9. Challenging the decision of the trial
court, the learned counsel for the appellant
argued that there was no evidence against
appellant Ravi Pratap Singh of causing
death of victim by setting her alive on fire.
The only evidence against the appellant is
the dying declaration of deceased which
itself is a weak piece of evidence. It is
further vehemently urged that there are
three dying declarations of the victim
which were given to different persons at
different points of time and they are
contrary to each other. There is no
consistency in the statement of victim. The
first version of the incident given by the
victim has been narrated in the first
information report lodged by her brother
wherein all members of the matrimonial
family including her husband had been
implicated for commission of offences of
demand of dowry, the resultant atrocities as
also burning her to death. Though it has
come up in the statement of the victim as
narrated in the first information report that
her husband was not at home and was away
in Delhi, i.e. place of his employment but
there is a clear indication of demand of
dowry by her husband also.

10. In the second statement recorded
by the Executive Magistrate on 03.01.2007
in the Mayo Hospital, Lucknow the
allegations were made only against the
appellant her brother-in-law. As per the
said statement the appellant had an evil eye
on his sister-in-law (victim) and made
attempts to outrage her modesty on
previous occasions also. On a complaint
made by victim to her husband and motherin-law, the appellant got annoyed and set
her on fire when she went to toilet in their
house at about 11.30 P.M.

11. The victim had given another
version of the incident to the Investigating
Officer Paras Nath Singh as part of the
statement recorded in the case diary. As per
9 All. Ravi Pratap Singh @ Tinku Vs. State of U.P.
825
the deposition of Investigating Officer as
PW-20, the deceased had narrated the
similar story of the incident as averred in
the first information report. According to
the said version, the mother-in-law and
sister-in-law of deceased poured kerosene
oil upon her while she was sleeping and
when she tried to run away, her father-inlaw and brother-in-law namely Daddan
Singh caught hold of her and the appellant
Ravi Pratap Singh set her ablaze by
lightening the matchstick. In the said
statement, the victim had apparently stated
that apart from her husband, no-one in her
matrimonial family wanted her alive and
none of them made any effort to save her
life.

12.

Placing
the
above
three
statements, it is urged by the learned
counsel for the appellant that the dying
declaration is a weak piece of evidence
though sanctity has been attached to it by
Section 32 of the Evidence Act. The
scrutiny of a dying declaration has to be
made with greater circumspection as it is a
statement made behind the back of the
accused and he/they have no opportunity to
cross-examine the witness. Where there are
multiple dying declarations of the victim,
the Court has to see the consistency factor
therein. It is argued that in case of more
than one dying declaration, the intrinsic
contradictions in those declarations are
extremely important. The Court has to
weigh all the attending circumstances and
come to an independent finding as to
whether (i) a dying declaration was
properly recorded and (ii) it was voluntary
and truthful. According to learned counsel
for
the
appellant,
the
apparent
contradictions in the dying declarations of
victim recorded at different points of time
shake the credibility of her version of the
incident. It is clear that the victim was not
in a fit mental condition to make a proper
statement to give correct narration of her
ordeal. A doubt is, thus, created on the
prosecution story that the victim was
murdered by the appellant.

13. This apart, it is contended that
tutoring of the victim cannot be ruled out as
she was under care of her family members,
her own father and sister-in-law in the
hospital. Moreover, the statement recorded
by the Executive Magistrate relied by the
trial court as dying declaration of the victim
cannot be given undue importance, in as
much as, before recording her statement the
Magistrate did not record his independent
satisfaction that she was in a fit medical
condition to make a statement. No separate
fitness certificate was given by the doctor.
The statement was not properly recorded as
it is in the form of a story and not in
question answer form. It cannot be gathered
as to whether the Executive Magistrate
while recording the statement of victim,
had given her hint by putting some leading
questions. The statement does not indicate
the questions which were asked by the
Executive Magistrate.

14. It is further urged that a bare
reading of the statement shakes its
credibility and genuineness as such a large
statement could not have been recorded
with so much of precision by a person who
had suffered 95% burn injuries. This could
not, in any case, be the correct version of
the incident given by deceased. Further,
there is contradiction in the version of the
Doctor and the Executive Magistrate
regarding the presence of the Doctor at the
time of recording of the statement. The
Doctor who gave fitness certificate stated
in the cross examination that he was not
present during the course of recording of
the statement, whereas the Executive
826 INDIAN LAW REPORTS ALLAHABAD SERIES
Magistrate stated that the Doctor was
throughout present. This contradiction in
the version of two officers who put their
endorsement on the dying declaration,
relied by the trial court, is sufficient to
discard the same being untruthful and
untrustworthy. Additionally, the fitness
certificate given by the Doctor on the same
page on which dying declaration was
recorded does not indicate the parameters
on the basis of which the doctor declared
victim being fit enough to make a
statement. The incoherent story of the
incident narrated by victim also becomes
highly unbelievable for her statement that
she called her husband through her mobile
when she was set on fire and locked in the
bathroom,
and
that
the
door
of
toilet/bathroom was opened by her brotherin-law Daddan Singh when her husband
told him to do so. Further, there is no
recovery of mobile nor any electronic
evidence has been produced by the
prosecution to substantiate the said version.
The story allegedly narrated by victim to
the Executive Magistrate itself is full of
embellishment and improbable. Further, the
prosecution witnesses, her family members
themselves had admitted that victim was
not fit enough to make a statement.

15. It is further pointed out that the
Investigating Officer (PW-20) in his
examination-in-chief had stated that on
05.01.2007 he went to Lucknow to record
the statement of the victim under Section
164 Cr.P.C. as no such statement was
available by that time. This shows that the
dying declaration dated 03.01.2007 was not
in existence and is a fabricated document.
As far as the narration recorded by the
Investigating Officer in the case diary, it is
contended
that
it
was
nothing
but
reproduction of the version of the first
informant in the first information report.
The submission, thus, is that infact the
Investigating Officer did not record any
statement of the victim on 05.01.2007 and
simply implicated all the accused persons
on his own by reproducing the same story
as narrated in the written report given by
the first informant to gave it a colour of the
statement of the victim under Section 164
Cr.P.C.

16. It is, thus, urged by the learned
counsel for the appellant that entire version
of the prosecution case was faulty in as
much as, the Investigating Officer had
submitted charge sheet against all the
accused persons under the influence of the
family members of victim who later turned
hostile and did not support the prosecution
story.

17. Lastly, it is contended that the
dying
declaration
recorded
by
the
Executive Magistrate is belied by the site
plan prepared by the Investigating Officer
which shows that the place where the
incident had occurred was different than
that narrated in the said dying declaration.
As per the site plan, the in-laws of deceased
had threatened her to set ablaze by pouring
kerosene on her in the Verandah outside
her room. Hearing that, to save her life, the
victim ran towards the latrine located
outside the house within the precincts of
residential location. A place just outside the
latrine has been shown in the site plan
where kerosene oil was poured on victim
by her in-laws and fire was lit. The margin
note in the site plan further indicates that
the accused persons made an effort to lock
the victim inside the latrine. By placing the
above narration from the site plan, it is
argued by the learned counsel for the
appellant that the statement of the victim
that she was locked in the latrine by the
9 All. Ravi Pratap Singh @ Tinku Vs. State of U.P.
827
appellant after setting her ablaze and lock
was opened when she called her husband
through mobile is false. The dying
declaration recorded by the Executive
Magistrate, thus, cannot be treated as
trustworthy.

18. Placing the decision of the Apex
Court in Umakant & others Vs. State of
Chatisgarh1, it is contended that inspite of
all the importance attached and the sanctity
given to the piece of dying declaration,
Courts have to be very careful while
analyzing the truthfulness, genuineness of
the dying declaration to arrive at a proper
conclusion that the dying declaration is not
a product of prompting or tutoring. Relying
upon the decision of the Apex Court in
Harish Kumar Vs State of Haryana2, it is
contended that it was held therein that the
presumption as to the dowry death under
Section 304-B could not have been
weighed by the trial court to convict the
accused when it did not rely on the dying
declaration recorded by the Naib Tehsildar.

19. On the strength of the decision in the
State of Gujrat Vs. Jayrajbhai Punjabhai
Varu3, it is contended that in case of more
than one dying declaration, they have to be
very scrupulously examined while the court
must remain alive to all the attendant
circumstances at the time when the dying
declaration came into being. Any contradiction
in multiple dying declarations are extremely
important. It cannot be such that a dying
declaration which supports the prosecution
alone can be accepted while the other dying
declarations have to be rejected. The Court has
to come to an independent finding whether
dying declaration was properly recorded and
whether it was voluntary and truthful.

20.

Placing
the
decision
in
Chinnamma Vs. State of Kerala4 and
Mehiboonsab Abbasabi Nadaf Vs. State
of Karnataka5, it is submitted that
contradictory and inconsistent stand taken
in multiple dying declarations in the instant
case, had created suspicion with regard to
correctness of the statement, in addition to
fact that tutoring by family members was
possible as deceased was being attended in
the hospital by her own father and sister-inlaw.

21. In the crux, it is submitted that the
statement of victim implicating her all
relatives in-law was not believed by the
trial court for the apparent contradictions
therein and on insufficient evidence to
corroborate the demand of dowry and the
atrocities committed upon the victim by her
in-laws. Once this is the situation, the only
evidence remains is the dying declaration
dated
03.01.2007
recorded
by
the
Executive Magistrate which does not stand
the
test
of
scrutiny
being
highly
improbable. In the said situation, the
conviction of the appellant under Section
302 IPC cannot be sustained and the appeal
deserves to be allowed by setting aside the
judgment of the trial court.

22. Learned AGA, however, defends
the judgement of the trial court to support
the conviction and the sentence awarded by
it. It is contended that the dying declaration
recorded by the Executive Magistrate
clearly inculpates the appellant for the
offence of murder and it is not possible for
the Court to reject the same on the above
pleas of the learned counsel for the
appellant.

23. Having heard learned counsel for
the parties and perused the record, this
Court finds that all the prosecution
witnesses of fact PW-2 to PW-12 except
PW-1 had turned hostile. None of them
828 INDIAN LAW REPORTS ALLAHABAD SERIES
including PW-1, the first informant had
supported the allegations of demand of
dowry and the atrocities or harassment of
victim. The appellant as also the other
accused persons had, therefore, been
acquitted of the offences relating to
demand of dowry and dowry death. The
acquittal of the co-accused has not been
challenged by the State.

24. As far as the appellant is
concerned, we find that he has rightly been
acquitted under Section 304-B IPC as
evidence regarding dowry death were
insufficient. No infirmity in the acquittal
recorded by trial court could be pointed out
by the prosecution. We, are therefore, left
with the only question as to whether the
conviction of the appellant under Section
302 IPC for causing murder of his sister-inlaw is supported by the evidence lead by
the prosecution.

25. Having noticed the statement of
the prosecution witnesses specially the
parents and sibling of deceased, we find
that no-one had supported the prosecution
story. There is no eye witnesses of the
occurrence. The incident had occurred
inside the periphery of the marital house of
victim. The case of the prosecution rests
entirely on the dying declaration recorded
by the Executive Magistrate. It is the case
of
the
appellant
that
three
dying
declarations of the deceased are full of
inconsistencies
which
is
a
material
contradiction in the story put forth by the
prosecution solely through the dying
declaration of deceased. First account of
the incident was given by deceased to her
brother, the first informant who had entered
in the witness box as PW-1. Second
statement of deceased was recorded on
03.01.2007 by the Executive Magistrate
and third statement was recorded on
05.01.2007 by the Investigating Officer
(PW-20) as part of the Case diary. By
placing the decisions of the Apex Court it
is asserted that the contradictions in the
dying declaration recorded at different
points of time shake the credibility of
deceased as a witnesses of the occurrence.

26. To understand the law pertaining
to the appreciation of dying declaration and
to answer the question before us, in our
opinion, it would be appropriate at this
stage
that
the
legal
pronouncements
pertaining to the statement of victim
recorded prior to his/her death termed as
Dying declaration, which is covered under
Section 32(1) of the Evidence Act, are
examined.

27. The legislature in its wisdom has
enacted in Section 32 (1) of the Evidence
Act as under:-

"When the statement is made by a
person as to the cause of his death, or as to
any of the circumstances of the transaction
which resulted in his death, in cases in
which the cause of that person's death
comes into question. Such 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."

28. (i) The legislative intent and the
first principle governing the statement of
victim covered by the Section 32(1) of the
Evidence Act has been considered by the
Apex Court in Kushal Rao vs The State
Of Bombay6.

It was held in Kushal Rao6 that
such a statement written or verbal made by
9 All. Ravi Pratap Singh @ Tinku Vs. State of U.P.
829
a person who is dead is itself a relevant
fact. This provision has been made by the
Legislature as a matter of sheer necessity
by way of an exception to the general rule
that hearsay is no evidence and that the
evidence which has not been tested by
cross examination is not admissible. The
purpose of cross-examination is to test the
veracity of the statement made by a
witness. In the view of the Legislature, that
test is supplied by the solemn occasion
when it was made, namely, at a time when
the person making the statement was in
danger of losing his life.

The philosophy of law which
signifies the importance of a dying
declaration is based on the maxim "nemo
moritusus
prasumitus
mennre",
which
means 'no one at the time of death is
presumed to lie and he will not meet his
maker with a lie in his mouth". The
philosophy is that at such a serious and
solemn moment, that person is not expected
to tell lies. The sanctity attached to the
dying declaration is firstly for the above
reason and secondly that the test of cross
examination would not be available. In
such a case, the necessity of oath also has
been dispensed with for the same reason.

It was held therein that a
statement made by the dying person as to
the cause of death has been accorded by the
legislature, 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, not that that circumstance would
affect the admissibility of the statement, but
only its weight. It may also be shown by
the evidence that a dying declaration is not
reliable because it was not made at the
earliest opportunity, and, thus, there was a
reasonable ground to believe it having been
put into the mouth of the dying man, when
his power of resistance against telling a
falsehood, was ebbing away; or because the
statement has not been properly recorded,
for example, the statement had been
recorded as a result of prompting by some
interested parties or was in answer to
leading questions put by the recording
officer, or, by the person purporting to
reproduce that statement. These may be
some of the circumstances which can be
said to detract from the value of a dying
declaration.

It was, however, observed in
Kushal Rao6 that there is no absolute rule
of law, or even a rule of prudence which
has ripened into a rule of law, that a dying
declaration unless corroborated by other
independent evidence is not fit to be acted
upon and made the basis of a conviction.
Thus, it cannot be laid down as an absolute
rule of law that a dying declaration cannot
form the sole basis of conviction unless it is
corroborated.
Each
case
must
be
determined on its own facts keeping in
view the circumstances in which the dying
declaration was made. It was held that it
cannot be laid down as a general
proposition that a dying declaration is a
weaker kind of evidence than other pieces
of evidence. It was stated that a dying
declaration stands on the same footing as
another piece of evidence and has to be
judged
in
light
of
surrounding
circumstances and with reference to the
principles governing the weighing of
evidence.

"16.The requirement is 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
830 INDIAN LAW REPORTS ALLAHABAD SERIES
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....................."

It was further stated:-

"17. Hence, in order to pass the
test of reliability, a dying declaration has
to be subjected to a very close scrutiny,
keeping in view the fact that the statement
has been made in the absence of the
accused who had no opportunity of testing
the veracity of the statement by crossexamination. But once the court has come
to the conclusion that the dying declaration
was the truthful version as to the
circumstances of the, death and the
assailants of the victim, there is no question
of further corroboration.

If, on the other hand, the court,
after examining the dying declaration in all
its aspects, and testing its veracity has
come to the conclusion that it is not
reliable by itself, and that it suffers from an
infirmity, then, without corroboration it
cannot form the basis of a conviction. Thus,
the -necessity for corroboration arises not
from any inherent weakness of a dying
declaration as a piece of evidence, as held
in some of the re- ported cases, but from
the fact that the court, in a given case, has
come to the conclusion that that particular
dying declaration was not free from the
infirmities referred to above or from such
other infirmities as may be disclosed in
evidence in that case."

(ii) In Ram Nath Madho Prasad
Vs. State of M.P.7 it was held that in the
case of a dying declaration where the exact
words stated by a deceased matter and are
of importance, a suggestion of the kind that
deceased might have said something by a
mistake
cannot
be
entertained.
The
conviction of the appellants on the
uncorroborated
dying
declaration
of
deceased recorded by the Magistrate which
was not only vague but which admittedly
did not at all represent the whole truth was
set aside therein by observing that there
was no warrant for such a suggestion.

 (iii) In Godhu & another Vs.
State of Rajasthan8, it was held that there
may be cases wherein a part of the dying
declaration is not found to be correct, the
remaining
part,
however,
must
not
necessarily be rejected. Meaning thereby
that if a part of the dying declaration has
not been proved to be correct, it must not
resolved for necessary rejection of the
whole of the dying declaration. The Court
would be put on the guard to apply the rule
of caution for appreciation of the remaining
part. Where the part of the dying
declaration which is not found to be correct
is so indissolubly linked with the other part
of the dying declaration that it is not
possible to sever the two parts, the Court
would be justified in rejecting the whole of
the dying declaration. Whereas in other
cases wherein two parts of the dying
declaration may be severable and the
correctness of one part does not depend
upon the correctness of the other part, the
Court
would
normally
look
for
corroboration in a material particular by the
other evidence on record to rely on that
part. If such other evidence shows that that
part of the dying declaration relied upon is
correct and trustworthy, the Court can act
upon that part of the dying declaration
despite the fact that another part of the
dying declaration has not been proved to be
correct.
9 All. Ravi Pratap Singh @ Tinku Vs. State of U.P.
831

(iv) In Harjit Kaur Vs. State of
Punjab9, the Court was faced with two
dying
declarations
which
were
contradictory to each other. The sole basis
to assail the conviction based on the second
dying declaration was that it was not
recorded in the question and answer form
and that the victim in her first dying
declaration made to the police officer had
stated that she had received burn injuries as
a result of an accident and that no-one else
was responsible for the same. Having
perused the surrounding circumstances
therein, the Apex Court had accepted the
reasoning given by the trial court and the
High Court for rejecting the first dying
declaration
as
not
voluntary.
The
circumstances therein clearly indicated that
the deceased was surrounded by her inlaws at the time of making the first dying
declaration and she was not a free person.
The second dying declaration made before
the Magistrate was found to be more
probable and natural for the reasons above
stated.

(v) In Koli Chunnilal Savji &
another Vs. State of Gujrat10, multiple
dying declarations were made by the
deceased. First statement was recorded by
the police which was treated as the first
information report and another in the
presence of the Executive Magistrate. It
was argued that both the dying declarations
cannot be relied upon as the Doctor had not
made any endorsement on the dying
declaration recorded by the Executive
Magistrate and further that the Doctor in
whose presence the statement was allegedly
recorded had not been examined. While
upholding the conviction based upon the
second dying declaration, it was observed
by the Apex Court that the Executive
Magistrate was a disinterested witness and
a responsible officer and that there was no
circumstance or material on record to
suspect that the Executive Magistrate had
any animus against the accused or in any
way interested in fabricating the dying
declaration. The question of genuineness of
the dying declaration recorded by the
Executive Magistrate to be doubted did not
arise. The Executive Magistrate further
deposed before the Court that when she
reached the Hospital, she enquired from the
Doctor about the condition of deceased
who categorically stated that deceased was
in a conscious condition. It was further
found
that
though
there
was
no
endorsement on the dying declaration
recorded by the Magistrate with regard to
the condition of the patient but there had
been an endorsement on the police yadi,
indicating
that
deceased
was
fully
conscious.

Having analyzed both the dying
declaration, it was held therein that the
statement made by deceased at two
different points of time to two different
persons, corroborate each other and there
was
no
inconsistency
in
those
two
declarations made. Having found them
truthful and voluntary, it was held that the
prosecution had established its case beyond
reasonable doubt.

(vi) In State of Punjab Vs.
Praveen
Kumar11
faced
with
the
challenge to the judgement of acquittal on
appreciation
of
two
different
and
inconsistent dying declarations, it was held
by the Apex Court that while appreciating
the credibility of the evidence produced
before the Court, the Court must view the
evidence as a whole to reach at a
conclusion as to its genuineness and
truthfulness. The mere fact that in two
different versions one name was common
would not be a ground for convicting the
832 INDIAN LAW REPORTS ALLAHABAD SERIES
named person. The Court must be satisfied
that the dying declaration is truthful. If
there are two dying declarations giving two
different versions, a serious doubt is
created about the truthfulness of the
statement. It may be that if there was any
other reliable evidence on record, the Court
could have considered such corroborative
evidence to test the truthfulness of the
dying declarations. It was held that where
there is no reliable evidence on record by
reference to which their truthfulness can be
tested, two inconsistent dying declarations
cannot be made basis of conviction. It was
observed that:-

"The two dying declarations,
however, in the instant case stand by
themselves and there is no other reliable
evidence on record by reference to which
their truthfulness can be tested. It is well
settled that one piece of unreliable
evidence cannot be used to corroborate
another piece of unreliable evidence. The
High Court while considering the evidence
on record has rightly applied the principles
laid down by this Court in Thurukanni
Pompiah and another Vs. State of Mysore,
AIR 1965 SC 939, and Khusal Rao Vs.
State of Bombay, 1958 SCR 552"

(vii) In State of U.P. Vs.
Santosh
Kumar12
three
dying
declarations were made by the deceased.
The first was to the father of deceased and
second was recorded under Section 161 of
the Cr.P.C. in the Case diary by the
Investigating
Officer.
Third
dying
declaration was made before the Magistrate
on the certificate of the Doctor that
deceased was in her full senses and she was
in a fit condition to give her statement.

The
veracity
of
the
dying
declaration was considered on the same
principles on which the statement of the
prosecution witnesses are appreciated. It
was observed in paragraph Nos.24, 25 and
26 as under:-

"24. In any criminal case where
statements
are
recorded
after
a
considerable
lapse
of
time,
some
inconsistencies are bound to occur. But it is
the duty of the court to ensure that the truth
prevails. If on material particulars, the
statements of prosecution witnesses are
consistent, then they cannot be discarded
only because of minor inconsistencies.

25.
While
appreciating
the
evidence, the courts must also consider the
fact carefully as to why would the father of
the deceased falsely implicate only one of
the members of the family and let go the
real culprit? At that juncture, usual anxiety
is to ensure that the real assailant must be
punished.

26.