# UTTAM v. THE STATE OF MAHARASHTRA

- **Citation:** [2022] 5 S.C.R. 863
- **Court:** Supreme Court of India
- **Decided:** 2022-06-02
- **Case number:** Criminal Appeal No. 485 of 2012
- **Bench:** B. R. Gavai, Hima Kohli
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/uttam-v-the-state-of-maharashtra-36461
- **Pages:** 26

## Headnote

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 pouring
kerosene on her and setting her on fire, by relying on two dying
declarations of the deceased recorded in writing by PW-9 (Special
Executive Magistrate) and PW-14 (IO) and the other two being oral
and communicated by the deceased to PW-2 (her father) and PW12 (mediator who had arranged the marriage of the parties) -
Appeal filed by appellant, dismissed by High Court discarding the
written dying declarations but giving credence to the testimony of
PW-2 & PW-12 - On appeal, held: In cases where the Court finds
that there exist more than one dying declarations, each one of them
must be examined with care and caution and only after satisfying
itself as to which of the dying declarations appears to be free from
suspicious circumstances and has been made voluntarily, should it
be accepted - However, if a dying declaration suffers from some
infirmity, it cannot be the sole basis for convicting the accused - In
the present case, once the High Court discarded the two written
dying declarations of the deceased due to several glaring lacunae
in the procedure adopted by PW-9 & PW-14 in recording the said
statement, then the appellant could not have been indicted on the
oral testimony of PW-2 and PW-12, both of whom were interested
witnesses and whose evidence runs contrary to the versions of the
deceased recorded by PW-9 and PW-14 - Prosecution failed to
discharge the obligation of leading trustworthy corroborative
evidence to back-up the testimonies of PW-2 and PW-12 - Impugned
judgment 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 an
exception to the general rule contained in s.60 that 'hearsay
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evidence is inadmissible' and only when such an evidence is direct
and is validated through cross-examination, is it considered to be
trustworthy.
Evidence Act, 1872 - Dying declaration recorded by the
Magistrate - Credibility of - Discussed.
Allowing the appeal, the Court
HELD: 1.1 Dying declaration is the last statement that is
made by a person as to the cause of his imminent death or the
circumstances that had resulted in that situation, at a stage when
the declarant is conscious of the fact that there are virtually nil
chances of his survival. On an assumption that at such a critical
stage, a person would be expected to speak the truth, courts
have attached great value to the veracity of such a statement.
Section 32 of the Indian Evidence Act, 1872 states that when a
statement is made by a person as to the cause of death, or as to
any of the circumstances which resulted in his death, in cases in
which the 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 relevant fact and is admissible in evidence. It is
noteworthy that the said provision is an exception to the general
rule contained in Section 60 of the Evidence Act that 'hearsay
evidence is inadmissible' and only when such an evidence is direct
and is validated through cross-examination, is it considered to
be trustworthy. In cases involving multiple dying declarations
made by the deceased, the question that arises for consideration
is as to which of the said dying declarations ought to be believed
by the Court and what would be the guiding factors for arriving at
a just and lawful conclusion. The problem becomes all the more
knotty when the dying declarations made by the deceased are
found to be contradictory. Faced with such a situation, the Court
would be expected to carefully scrutinize the evidence to find
out as to which of the dying declarations can be corroborated by
other material evidence produced by the prosecution. Of equal

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[2022] 5 S.C.R. 863
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 pouring
kerosene on her and setting her on fire, by relying on two dying
declarations of the deceased recorded in writing by PW-9 (Special
Executive Magistrate) and PW-14 (IO) and the other two being oral
and communicated by the deceased to PW-2 (her father) and PW12 (mediator who had arranged the marriage of the parties) -
Appeal filed by appellant, dismissed by High Court discarding the
written dying declarations but giving credence to the testimony of
PW-2 & PW-12 - On appeal, held: In cases where the Court finds
that there exist more than one dying declarations, each one of them
must be examined with care and caution and only after satisfying
itself as to which of the dying declarations appears to be free from
suspicious circumstances and has been made voluntarily, should it
be accepted - However, if a dying declaration suffers from some
infirmity, it cannot be the sole basis for convicting the accused - In
the present case, once the High Court discarded the two written
dying declarations of the deceased due to several glaring lacunae
in the procedure adopted by PW-9 & PW-14 in recording the said
statement, then the appellant could not have been indicted on the
oral testimony of PW-2 and PW-12, both of whom were interested
witnesses and whose evidence runs contrary to the versions of the
deceased recorded by PW-9 and PW-14 - Prosecution failed to
discharge the obligation of leading trustworthy corroborative
evidence to back-up the testimonies of PW-2 and PW-12 - Impugned
judgment 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 an
exception to the general rule contained in s.60 that 'hearsay
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evidence is inadmissible' and only when such an evidence is direct
and is validated through cross-examination, is it considered to be
trustworthy.
Evidence Act, 1872 - Dying declaration recorded by the
Magistrate - Credibility of - Discussed.
Allowing the appeal, the Court
HELD: 1.1 Dying declaration is the last statement that is
made by a person as to the cause of his imminent death or the
circumstances that had resulted in that situation, at a stage when
the declarant is conscious of the fact that there are virtually nil
chances of his survival. On an assumption that at such a critical
stage, a person would be expected to speak the truth, courts
have attached great value to the veracity of such a statement.
Section 32 of the Indian Evidence Act, 1872 states that when a
statement is made by a person as to the cause of death, or as to
any of the circumstances which resulted in his death, in cases in
which the 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 relevant fact and is admissible in evidence. It is
noteworthy that the said provision is an exception to the general
rule contained in Section 60 of the Evidence Act that 'hearsay
evidence is inadmissible' and only when such an evidence is direct
and is validated through cross-examination, is it considered to
be trustworthy. In cases involving multiple dying declarations
made by the deceased, the question that arises for consideration
is as to which of the said dying declarations ought to be believed
by the Court and what would be the guiding factors for arriving at
a just and lawful conclusion. The problem becomes all the more
knotty when the dying declarations made by the deceased are
found to be contradictory. Faced with such a situation, the Court
would be expected to carefully scrutinize the evidence to find
out as to which of the dying declarations can be corroborated by
other material evidence produced by the prosecution. Of equal
significance is the condition of the deceased at the relevant point
in time, the medical evidence brought on record that would
indicate the physical and mental fitness of the deceased, the scope
of the close relatives/family members having influenced/tutored
the deceased and all the other attendant circumstances that would
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help the Court in exercise of its discretion. In cases where the
Court finds that there exist more than one dying declarations,
each one of them must be examined with care and caution and
only after satisfying itself as to which of the dying declarations
appears to be free from suspicious circumstances and has been
made voluntarily, should it be accepted. It is not necessary that
in every case, a dying declaration ought to be corroborated with
material evidence, ocular or otherwise. It is more a rule of
prudence that courts seek validation of the dying declaration from
attending facts and circumstances and other evidence brought
on record. For the very same reason, a certificate 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 statement made by
the deceased. However, if a dying declaration suffers from some
infirmity, it cannot be the sole basis for convicting the accused.
In those circumstances, the court must step back and consider
whether the cumulative factors in a case make it difficult to rely
upon the said dying declaration. The credibility of a dying
declaration recorded by the Magistrate has also come up for
consideration in several cases and it has been held that a
Magistrate being an uninterested witness and a respected officer
and there being no circumstances or material to suspect that he
would have any animus against the accused or would in any way
be interested for fabricating a dying declaration, such a declaration
recorded 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 SCR
347; Arvind Singh v. State of Bihar (2001) 6 SCC 407
: [2001] 3 SCR 218; Kundula Bala Subrahmanyam and
Another v. State of Andhra Pradesh, (1993) 2 SCC 684
: [1993] 2 SCR 666; Shudhakar v. State of Madhya
Pradesh (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] 8
SCR 956; Sher Singh and Another v. State of Punjab
(2008) 4 SCC 265 : [2008] 2 SCR 959; State of Uttar
UTTAM v. THE STATE OF MAHARASHTRA
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Pradesh 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 adopted
while recording the dying declarations by the SEM (PW-9) and
the IO (PW-14), the High Court found it unsafe to rely on them
and kept them aside. Since there is no challenge laid to the findings
returned by the High Court for discarding the two written dying
declarations finding them riddled with deficiencies, thus making
them unreliable, their credit worthiness is not being delve into.
Suffice it is to say that there was every reason for the High Court
to have found them untrustworthy. Instead, it is considered
appropriate to examine the worth of the oral dying declarations
stated to have been made by the deceased in the presence of
PW-2 and PW-12. A perusal of the testimonies of PW-2 and PW12 show that they have offered varying versions of what had
allegedly been narrated to them by the deceased. Both of them
stated that failure to satisfy the appellant's constant dowry
demands had led to the incident. There was no mention of the
illicit relationship of the appellant with a widow in the
neighbourhood which was a constant cause of quarrel between
the deceased and her husband and had led to the incident.
Pertinently, both the said witnesses stated that their statements
were not recorded by the police during the investigation and that
they had deposed for the first time only when they had entered
the witness box during the trial. Once the High Court had
disagreed with the Session Court and discarded the two written
dying declarations of the deceased due to several glaring lacunae
in the procedure adopted by the 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 of PW-2, father of the deceased
and PW-12, family friend, both of who were interested witnesses
and whose evidence runs contrary to the versions of the deceased
recorded by PW-9 and PW-14. It must be remembered that all
the four dying declarations, two in writing and the other two oral,
were based on the statements given by the deceased at different
times on the very same day, i.e., 27th March, 1995, when she
had suffered 93% burn injuries and there are serious doubt about
her being mentally and physically fit to give her statement. The
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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 second
dying declaration between 4.30 p.m. and 5.00 p.m. It was on the
very same day that PW-2 and PW-12 had also met the deceased
at the hospital and claimed that she had informed them as to how
she had received the burn injuries and named the appellant as
the culprit. Both, PW-2 and PW-12 have deposed that in her oral
dying declaration, the deceased had referred to the dowry
demands made on her by the appellant and the fact that he had
suspected her character, which led to the alleged incident.
Nowhere in their testimonies is there any reference made to the
prosecution version that the appellant was having an illicit relation
with a widow residing in the neighborhood, which was the main
cause of acrimony between the couple and had resulted in the
incident. The diametrically different version of the reasons that
led to the alleged incident casts a shadow on the entire testimony
of PW-2 and PW-12, making it unsafe to rely on them and indict
the appellant for the charge framed against him. The prosecution
has failed to discharge the obligation cast on it of leading
trustworthy corroborative evidence to back-up the testimonies
of PW-2 and PW-12. It is difficult to endorse the conclusion arrived
at by the High Court. The evidence of PW-2 and PW-12 cannot
be treated as stellar enough to hold the appellant guilty for the
offence of murdering his wife. Hence, he is entitled to being
granted 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 of
Chhattisgarh (2019) 6 SCC 145 : 2019 (5) JT 403 -
relied on.
Rizan and Another v. State of Chhattisgarh (2003) 2
SCC 661 : [2003] 1 SCR 457; Bhagwan Tukaram
Dange v. State of Maharashtra (2014) 4 SCC 270 :
[2014] 3 SCR 753; Trimukh Maroti Kirkan v. State of
Maharashtra (2006) 10 SCC 681 : [2006] 7 Suppl. SCR
156 - referred to.
UTTAM v. THE STATE OF MAHARASHTRA
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Case Law Reference
[2007] 10 SCR 347
relied on
Para 7
[2001] 3 SCR 218
relied on
Para 7
[2003] 1 SCR 457
referred to
Para 9
[2014] 3 SCR 753
referred to
Para 9
[2006] 7 Suppl. SCR 156
referred to
Para 9
[1993] 2 SCR 666
relied on
Para 12
[2012] 7 SCR 128
relied on
Para 13
[1992] 2 SCR 197
relied on
Para 14
[2010] 9 SCR 705
relied on
Para 16
[2008] 8 SCR 956
relied on
Para 17
[2008] 2 SCR 959
relied on
Para 18
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
485 of 2012.
From the Judgment and Order dated 26.07.2010 of the High Court
of Judicature at Bombay, Nagpur Bench, Nagpur in Criminal Appeal
No. 149 of 1997.
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.
The Judgment and order of the Court were delivered by
HIMA KOHLI, J.
1. The present appeal is directed against the judgment dated
26th July, 2010 passed by the Division Bench of the High Court of Bombay
at Nagpur Bench. The High Court has dismissed the appeal preferred
by the appellant against the judgment and order dated 29th April, 1997
passed by the 8th Additional Sessions Judge, Nagpur, convicting him for
the offence under Section 302 of the Indian Penal Code, 18601 and
sentencing him to suffer imprisonment for life with a fine of ` 1,000/-
1 for short 'IPC'
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(Rupees one thousand) and in default thereof, to suffer simple
imprisonment 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 19th March, 1994. There
was no issue from the marriage. The appellant was a T.V. Mechanic. It
was alleged that the appellant was having an illicit relationship with a
widow residing near their house, namely, Kusum Gaikwad. On
26th March, 1995, the appellant and Kusum Gaikwad went to watch a
movie. When he returned home in the evening hours, he was confronted
by his wife for having gone to watch a movie with Kusum Gaikwad.
The appellant quarrelled with Pushpabai and told her that Kusum Gaikwad
was his paramour. He had also beaten Pushpabai. On the very next day,
i.e., on 27th March, 1995, between 11.00 a.m. and noon, the appellant
had again picked up a quarrel with Pushpabai and he told her that he
would not leave Kusum Gaikwad. On Pushpabai demanding a divorce,
the appellant lost his temper and assaulted her. Thereafter, he poured
kerosene 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 on
her. 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 31st March, 1995.
3. The information about the aforesaid incident was communicated
by Mayo Police Booth, Nagpur to the Investigating Officer2 SubInspector Madhukar Gite (PW-14). The I.O. was informed that Pushpabai
had caught fire on account of the border, i.e., pallu of her saree falling
on the stove where she was preparing snacks. On receiving the above
information, the I.O. made an entry in the Station diary and proceeded
to the hospital, where he recorded the statement of Pushpabai at 3.20
p.m. in the presence of two panchas (Ex.47). This was the first dying
declaration of the deceased. In a gap of about one hour, the statement of
Pushpabai was recorded by the Special Executive Magistrate3 (PW-9)
between 4.30 and 5.00 PM (Ex.38). This was the second dying
declaration.
4. Vide order dated 3rd February, 1997, charges were framed by
the trial court against the appellant under Section 302 IPC. As the appellant
pleaded not guilty, the matter was taken to trial. On its part, the prosecution
2 for short 'IO'
3 for short 'SEM'
UTTAM v. THE STATE OF MAHARASHTRA
[HIMA KOHLI, J.]
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examined 15 witnesses, including Ramkrishna Mahadeo Uchale
(PW-2), father of the deceased; Raju Larokar;, SEM (PW-9); Samir
Vijay Choudhary Junior Resident Doctor (PW-10); Dr. Naresh Chandra
Sethia Medical Officer; (PW-11); Balaji Mohod (PW-12), the Mediator
who had arranged the marriage of the parties; Prabhakar Bhaurao Patil
PSI (PW-13); SI Madhukar Gite (PW-14), who was the I.O.; and Rushi
Shionkar API (PW-15). Out of fifteen witnesses, seven witnesses had
turned hostile. Vide judgment dated 29th April, 1997, the appellant was
convicted by the trial Court for having murdered his wife by pouring
kerosene on her and setting her on fire. He was handed down a sentence
of life imprisonment with fine. For holding the appellant guilty of the
offence, the trial court relied on the two dying declarations of the deceased
recorded in writing by PW-9 and PW-14 and the evidence of PW-2 and
PW-12, who deposed that the deceased had stated to them how the
incident had taken place.
5. Aggrieved by the aforesaid judgment, the appellant preferred
an appeal before the High Court. Though the plea of the appellant who
raised a question mark on the veracity of the two written dying
declarations was upheld by the High Court, giving credence to the
testimony of PW-2 and PW-12 coupled with the Chemical Analyser
Report relating to the clothes of the deceased and the appellant that
detected kerosene on them, the judgment of the trial Court was upheld
and the appeal filed by the appellant was dismissed. The said order has
been challenged by the appellant in the present appeal.
6. Mr. Rohan Thanwani, learned counsel for the appellant has
assailed the impugned judgment on the ground that although the High
Court has discarded the two written dying declarations of the deceased,
one 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 Session
Court by erroneously placing reliance on the oral dying declarations stated
to have been made by the deceased to her father, Ramkrishna Mahadeo
Uchale (PW-2) and to the Mediator, Balaji Mohod (PW-12). Learned
counsel contended that there were glaring material contradictions
between the statements made by the deceased before PW-9 and
PW-14 as against the statements of PW-2 and PW-12 inasmuch as before
PW-9, the deceased had claimed that the illicit relationship between the
appellant and Kusum Gaikwad (PW-8) was the root cause of the quarrel
between the couple, whereas the version of PW-2 and PW-12 was that
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the entire incident was attributable to the dowry demands made by the
appellant on the deceased. It was further contended that the version of
the deceased as recorded in the first and the second written dying
declarations was entirely different from what was narrated by PW-2
and PW-12 before the Court. In fact, neither PW-2 nor PW-12 had
made any statement to the police under Section 161 of the Code of
Criminal Procedure, 18984 and both the said witnesses had for the first
time made statements only when they entered the witness box during
the trial.
7. It was canvassed by learned counsel for the appellant that
once the High Court had rejected the written dying declarations of the
deceased on the ground that there were several conspicuous loopholes
in recording of the said statements, there was no good reason for the
High Court to have relied on the oral statements allegedly made by the
deceased to PW-2 and PW-12, which were equally unreliable and
therefore, ought to have met the same fate as the written dying
declarations of the deceased. To buttress his submission that where there
are multiple dying declarations and each one is inconsistent with the
other, 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 an
oral dying declaration made to a family member in the absence of the
doctor was sought to be questioned by citing Arvind Singh v. State of
Bihar6, Arun Bhandudas Pawar v. State of Maharashtra7, and
Poonam Bai v. State of Chhattisgarh8.
8. On the other hand, Mr. Sachin Patil, learned counsel appearing
for the respondent - State of Maharashtra has with his usual vehemence,
disputed the arguments advanced by the other side and stated that both
the written dying declarations, the first one recorded by the I.O. at 3.20
PM and the second one recorded by the SEM (PW-9) at 4.30 PM, on
the very same day, were consistent and the deceased had clearly stated
that it was the appellant who had set her on fire. He also alluded to the
two fitness certificates issued by the attending doctor (PW-10) in respect
of the deceased before her statements were recorded and contended
4 for short 'Cr.PC'
5 (2007) 15 SCC 465
6 (2001) 6 SCC 407
7 (2008) 11 SCC 232
8 (2019) 6 SCC 145
UTTAM v. THE STATE OF MAHARASHTRA
[HIMA KOHLI, J.]
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that the said certificates showed that she was in a sound state of mind
and competent to depose. Similarly, the oral dying declarations
subsequently made by the deceased in the presence of her father
(PW-2) and the mediator (PW-12) were also stated to be consistent
with the version of the victim and worthy of credence. The narration as
to the manner in which the deceased was set on fire was stated to be
consistent and it was contended that the cross-examination of the said
prosecution witnesses did not elicit anything favourable to the appellant
on the above aspect. Learned State counsel referred to the Chemical
Analyser Report in respect of the clothes of the deceased and the appellant
that were seized from the spot to urge that it lent credence to the version
of the prosecution that the appellant had poured kerosene on the deceased
and had set her on fire.
9. In support of his submission that where there are conflicting
dying declarations, the Court can accept one and discard the other as
long as it is satisfied that the basic statement of the deceased had remained
consistent, learned State counsel cited State of Uttar Pradesh v. Veerpal
and Another9, Rizan and Another v. State of Chhattisgarh10 and
Bhagwan Tukaram Dange v. State of Maharashtra11. The decision
in Trimukh Maroti Kirkan v. State of Maharashtra12 was cited to
state that the onus remains on the accused to explain how the death had
taken place within the privacy of the home, away from public gaze.
10. We have given our thoughtful consideration to the arguments
advanced by learned counsel for the parties and carefully perused the
record. The entire issue in the present case hinges on the admissibility
and 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 the
other two were oral and communicated by the deceased to PW-2 and
PW-12.
11. Dying declaration is the last statement that is made by a person
as to the cause of his imminent death or the circumstances that had
resulted in that situation, at a stage when the declarant is conscious of
the fact that there are virtually nil chances of his survival. On an
assumption that at such a critical stage, a person would be expected to
9 (2022) 4 SCC 741
10 (2003) 2 SCC 661
11 (2014) 4 SCC 270
12 (2006) 10 SCC 681
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speak the truth, courts have attached great value to the veracity of such
a statement. Section 32 of the Indian Evidence Act, 187213 states that
when a statement is made by a person as to the cause of death, or as to
any of the circumstances which resulted in his death, in cases in which
the 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 relevant
fact and is admissible in evidence. It is noteworthy that the said provision
is an exception to the general rule contained in Section 60 of the Evidence
Act that 'hearsay evidence is inadmissible' and only when such an
evidence is direct and is validated through cross-examination, is it
considered to be trustworthy.
12. In Kundula Bala Subrahmanyam and Another v. State of
Andhra Pradesh14, this Court had highlighted the significance of a dying
declaration in the following words :
"18. Section 32(1) of the Evidence Act is an exception to the
general rule that hearsay evidence is not admissible evidence and
unless evidence is tested by cross-examination, it is not
creditworthy. Under Section 32, when a statement is made by a
person, as to the cause of death or as to any of the circumstances
which result in his death, in cases in which the cause of that
person's death comes into question, such a statement, oral or in
writing, made by the deceased to the witness is a relevant fact
and is admissible in evidence. The statement made by the
deceased, called the dying declaration, falls in that category
provided it has been made by the deceased while in a fit mental
condition. A dying declaration made by person on the verge of his
death has a special sanctity as at that solemn moment, a person is
most unlikely to make any untrue statement. The shadow of
impending death is by itself the guarantee of the truth of the
statement made by the deceased regarding the causes or
circumstances leading to his death. A dying declaration, therefore,
enjoys almost a sacrosanct status, as a piece of evidence, coming
as it does from the mouth of the deceased victim. Once the
statement of the dying person and the evidence of the witnesses
testifying to the same passes the test of careful scrutiny of the
courts, 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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and if the court is satisfied that the dying declaration is true and
free from any embellishment such a dying declaration, by itself,
can be sufficient for recording conviction even without looking
for any corroboration......."
13. In Shudhakar v. State of Madhya Pradesh15, this Court
had opined that once a dying declaration is found to be reliable, it can
form the basis of conviction and made the following observations :
"20. The "dying declaration" is the last statement made by a person
at a stage when he is in serious apprehension of his death and
expects no chances of his survival. At such time, it is expected
that a person will speak the truth and only the truth. Normally in
such situations the courts attach the intrinsic value of truthfulness
to such statement. Once such statement has been made voluntarily,
it is reliable and is not an attempt by the deceased to cover up the
truth or falsely implicate a person, then the courts can safely rely
on such dying declaration and it can form the basis of conviction.
More so, where the version given by the deceased as dying
declaration is supported and corroborated by other prosecution
evidence, there is no reason for the courts to doubt the truthfulness
of such dying declaration."
14. In Paniben (Smt.) v. State of Gujarat16, on examining the
entire 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 that
dying declaration cannot be acted upon without corroboration.
(Munnu Raja v. State of M.P.17 )
(ii) If the Court is satisfied that the dying declaration is true and
voluntary it can base conviction on it, without corroboration. (State
of U.P. v. Ram Sagar Yadav18; Ramawati Devi v. State of
Bihar19).
(iii) This Court has to scrutinise the dying declaration carefully
and must ensure that the declaration is not the result of tutoring,
15 (2012) 7 SCC 569
16 (1992) 2 SCC 474
17 (1976) 3 SCC 104
18 (1985) 1 SCC 552
19 (1983) 1 SCC 211
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prompting or imagination. The deceased had opportunity to observe
and identify the assailants and was in a fit state to make the
declaration. (K. Ramachandra Reddy v. Public Prosecutor20) .
(iv) Where dying declaration is suspicious it should not be acted
upon without corroborative evidence. (Rasheed Beg v. State of
M.P.21)
(v) Where the deceased was unconscious and could never make
any 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 form
the basis of conviction. (Ram Manorath v. State of U.P.23)
(vii) Merely because a dying declaration does not contain the
details as to the occurrence, it is not to be rejected. (State of
Maharashtra v. Krishnamurti Laxmipati Naidu24)
(viii) Equally, merely because it is a brief statement, it is not be
discarded. On the contrary, the shortness of the statement itself
guarantees truth. (Surajdeo Oza v. State of Bihar25).
(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. (Nanahau Ram
v. State of M.P.26).
(x) Where the prosecution version differs from the version as
given in the dying declaration, the said declaration cannot be acted
upon. (State of U.P. v. Madan Mohan27).
15. In cases involving multiple dying declarations made by the
deceased, the question that arises for consideration is as to which of the
said dying declarations ought to be believed by the Court and what would
20 (1976) 3 SCC 618
21 (1974) 4 SCC 264
22 1981 Suppl. SCC 25
23 (1981) 2 SCC 654
24 1980 Suppl. SCC 455
25 1980 Suppl. SCC 769
26 1988 Suppl. SCC 152
27 (1989) 3 SCC 390
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be the guiding factors for arriving at a just and lawful conclusion. The
problem becomes all the more knotty when the dying declarations made
by the deceased are found to be contradictory. Faced with such a
situation, the Court would be expected to carefully scrutinize the evidence
to find out as to which of the dying declarations can be corroborated by
other material evidence produced by the prosecution. Of equal
significance is the condition of the deceased at the relevant point in time,
the medical evidence brought on record that would indicate the physical
and mental fitness of the deceased, the scope of the close relatives/
family members having influenced/tutored the deceased and all the other
attendant circumstances that would help the Court in exercise of its
discretion.
16. In Lakhan v. State of Madhya Pradesh28, where the
deceased was burnt by pouring kerosene oil on her and was brought to
the hospital by the accused and his family members, the Court noticed
that she had made two varying dying declarations and held thus :
"9. The doctrine of dying declaration is enshrined in the legal
maxim nemo moriturus praesumitur mentire, which means "a
man will not meet his Maker with a lie in his mouth". The doctrine
of dying declaration is enshrined in Section 32 of the Evidence
Act, 1872 (hereinafter called as "the Evidence Act") as an
exception to the general rule contained in Section 60 of the
Evidence Act, which provides that oral evidence in all cases must
be direct i.e. it must be the evidence of a witness, who says he
saw it. The dying declaration is, in fact, the statement of a person,
who cannot be called as witness and, therefore, cannot be crossexamined. Such statements themselves are relevant facts in certain
cases.
10. This Court has considered time and again the relevance/
probative value of dying declarations recorded under different
situations and also in cases where more than one dying declaration
has been recorded. The law is that if the court is satisfied that the
dying declaration is true and made voluntarily by the deceased,
conviction can be based solely on it, without any further
corroboration. It is neither a rule of law nor of prudence that a
dying declaration cannot be relied upon without corroboration.
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When a dying declaration is suspicious, it should not be relied
upon without having corroborative evidence. The 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 must be in a fit state of mind to make the declaration
and must identify the assailants. Merely because a dying declaration
does not contain the details of the occurrence, it cannot be rejected
and in case there is merely a brief statement, it is more reliable
for the reason that the shortness of the statement is itself a
guarantee of its veracity. If the dying declaration suffers from
some infirmity, it cannot alone form the basis of conviction. Where
the prosecution version differs from the version given in the dying
declaration, the said declaration cannot be acted upon.
(Vide Khushal Rao v. State of Bombay29, Rasheed Beg v. State
of M.P.30, K. Ramachandra Reddy v. Public Prosecutor31,
State of Maharashtra v. Krishnamurti Laxmipati Naidu32, Uka
Ram v. State of Rajasthan33, Babulal v. State of M.P.34, Muthu
Kutty v. State.35, State of Rajasthan v. Wakteng36
and Sharda v. State of Rajasthan37".
17. In Amol Singh v. State of Madhya Pradesh38, when faced
with two dying declarations containing inconsistencies, the approach to
be adopted by the Court was summarized as under:
"13. Law relating to appreciation of evidence in the form of more
than one dying declaration is well settled. Accordingly, it is not the
plurality of the dying declarations but the reliability thereof that
adds weight to the prosecution case. If a dying declaration is found
to be voluntary, reliable and made in fit mental condition, it can be
relied upon without any corroboration. The statement should be
consistent throughout. If the deceased had several opportunities
of making such dying declarations, that is to say, if there are more
29 AIR 1958 SC 22
30 (1974) 4 SCC 264
31 (1976) 3 SCC 618
32 1980 Supp SCC 455
33 (2001) 5 SCC 254
34 (2003) 12 SCC 490
35 (2005) 9 SCC 113
36 (2007) 14 SCC 550
37 (2010) 2 SCC 85
38 (2008) 5 SCC 468
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than one dying declaration they should be consistent. (See Kundula
Bala Subrahmanyam v. State of A.P.39) However, if some
inconsistencies are noticed between one dying declaration and
the other, the court has to examine the nature of the inconsistencies,
namely, whether they are material or not. While scrutinising the
contents of various dying declarations, in such a situation, the court
has to examine the same in the light of the various surrounding
facts and circumstances."
18. In Sher Singh and Another v. State of Punjab40, this Court
has held thus :
"16. Acceptability of a dying declaration is greater because the
declaration is made in extremity. When the party is at the verge
of death, one rarely finds any motive to tell falsehood and it is for
this reason that the requirements of oath and cross-examination
are dispensed with in case of a dying declaration. Since the accused
has no power of cross-examination, the court would insist that the
dying declaration should be of such a nature as to inspire full
confidence of the court in its truthfulness and correctness. The
court should ensure that the statement was not as a result of
tutoring or prompting or a product of imagination. It is for the
court to ascertain from the evidence placed on record that the
deceased was in a fit state of mind and had ample opportunity to
observe and identify the culprit. Normally, the court places reliance
on the medical evidence for reaching the conclusion whether the
person making a dying declaration was in a fit state of mind, but
where the person recording the statement states that the deceased
was in a fit and conscious state, the medical opinion will not prevail,
nor can it be said that since there is no certification of the doctor
as to the fitness of mind of the declarant, the dying declaration is
not acceptable. What is essential is that the person recording the
dying declaration must be satisfied that the deceased was in a fit
state of mind. Where it is proved by the testimony of the Magistrate
that the declarant was fit to make the statement without there
being the doctor's opinion to that effect, it can be acted upon
provided the court ultimately holds the same to be voluntary and
39 (1993) 2 SCC 684
40 (2008) 4 SCC 265
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truthful. A certificate by the doctor is essentially a rule of caution
and, therefore, the voluntary and truthful nature of a statement
can be established otherwise."
 19. It is thus clear that in cases where the Court finds that there
exist more than one dying declarations, each one of them must be
examined with care and caution and only after satisfying itself as to
which of the dying declarations appears to be free from suspicious
circumstances and has been made voluntarily, should it be accepted. As
observed in the judgments quoted above, it is not necessary that in every
case, a dying declaration ought to be corroborated with material evidence,
ocular or otherwise. It is more a rule of prudence that courts seek
validation of the dying declaration from attending facts and circumstances
and other evidence brought on record. For the very same reason, a
certificate 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 statement
made by the deceased.
20. In Kundula Bala Subrahmanyam (supra), this Court had
observed that if there are more than one dying declarations, then the
Court must scrutinize each one of them to find out whether the different
dying declarations are consistent with each other in material particulars
before accepting and relying on the same. At the end of the day, each
case must be decided on its own peculiar facts. There can be no hard
and fast rule on evaluation of the evidence brought before the Court,
including the surrounding circumstances at the time when the deceased
had made the dying declaration. The focus of the Court is of ensuring
the voluntariness of the process, of being satisfied that there was no
tutoring or prompting, of being convinced that the deceased was in a fit
state of mind before making the dying declaration, of ascertaining that
ample opportunity was available to the declarant to identify the accused.
21. In Veerpal (supra), this Court has clarified that a dying
declaration can be acted upon without any other corroboration and
observed as below :
"16. Now, on the aspect, whether in the absence of any
corroborative evidence, there can be a conviction relying upon
the dying declaration only is concerned, the decision of this Court
in Munnu Raja41, and the subsequent decision in Paniben v. State
41 (1976) 3 SCC 104
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of Gujarat42, are required to be referred to. In the aforesaid
decisions, it is specifically observed and held that there is neither
a rule of law nor of prudence to the effect that a dying declaration
cannot be acted upon without a corroboration. It is observed and
held that if the Court is satisfied that the dying declaration is true
and voluntary it can base its conviction on it, without corroboration.
Similar view has also been expressed in State of U.P. v. Ram
Sagar Yadav43 and Ramawati Devi v. State of Bihar44.
Therefore, there can be a conviction solely based upon the dying
declaration without corroboration."
22. However, if a dying declaration suffers from some infirmity, it
cannot be the sole basis for convicting the accused. In those
circumstances, the court must step back and consider whether the
cumulative factors in a case make it difficult to rely upon the said dying
declaration. In this context, it would be profitable to refer to Nallapati
Sivaiah (supra), wherein this Court held as under :
"46. It is the duty of the prosecution to establish the charge against
the accused beyond reasonable doubt. The benefit of doubt must
always go in favour of the accused. It is true that dying declaration
is a substantive piece of evidence to be relied on provided it is
proved that the same was voluntary and truthful and the victim
was in a fit state of mind.