Whether magistrate recording dying declaration should depose about contents of dying declaration?

In our opinion, the recorder of "a statement/dying declaration" does not offer himself for cross examination as if he is the deceased. He is only supposed to bring the statement of the deceased on record and prove the contents thereof. As a matter of fact, the dying declaration can be proved even if its recorder is not available, being dead or who cannot be 

found or, for any reason whose attendance cannot be procured. Any other person such as a Doctor / Nurse, if states, that he/she was present when the deceased made such statement, in our opinion, may be sufficient to admit the dying declaration. In that eventuality, if such witness deposes before the Court that he was present when the statement was recorded by a Magistrate, he heard the deceased making such statement, saw the Magistrate recording it, taking the signature / thumb impression of its maker, and also putting his signature thereon etc. may be sufficient to prove the contents of such statement. Whether to form conviction on the basis thereof, however, would be a matter of appreciation of evidence. It is common knowledge that Magistrates /Executive Magistrates who are always willing and make themselves available to record dying declarations are often called by Police. In some cases, we find that a particular Magistrate records 10/15 dying declarations in a week or 20/25 in a month. In such a situation, it would be humanly impossible for any Magistrate to remember contents of the statements recorded by him and to reproduce while deposing before the Court. It is true that Magistrate while under examination can refresh his memory as provided for under Section 159 of the Evidence Act. That being so, in our opinion,

expecting the Magistrate, after referring to the statement recorded by him, to repeat and/or reproduce contents thereof, would be too technical and would create violence to logic. In criminal trials, while dealing with such evidence Courts have to be rational and realistic and need not take dogmatic and hyper technical approach. The Courts cannot ignore or turn its mind/attention away from the truth of the cause, in disregard to its duty to prevent miscarriage of justice.

Bombay High Court

Ramesh S/O Gyanoba Kamble vs The State Of Maharashtra on 12 August, 2011

Bench: D.B.Bhosale, S.B. Deshmukh, Shrihari P. Davare

1. The Division Bench of this Court, in their order of Reference in this appeal, hereinafter referred to as "Ramesh Gyanoba Kamble's case, doubted the correctness of the judgment of another Division Bench of this Court in Jivan Tulshiram Dhavali & another V. State of Maharashtra, 2008(2) BCR (Cri.) 696, and so also, other Division Bench in Laxmibai w/o Maruti Satpute & others V. State of Maharashtra, 2010 ALL MR (Cri.) 182, with regard to the evidence/deposition of the witness who records a dying declaration. In the opinion of the Division Bench since the issue/question framed by them frequently arises and needs to be considered by Larger Bench, vide order dated 29th April, 2011, directed the office to place the papers before the Chief Justice for constitution of the Larger Bench. Accordingly, the Chief Justice constituted this Bench for consideration of the question/issue framed in the Reference order. The question framed and referred by the Division Bench in Ramesh Gyanoba Kamble's case reads thus:

"Whether for proving a dying declaration recorded by a person, Magistrate, Executive Magistrate, is it essential requirement of law that the person who recorded the dying declaration shall repeat while deposing 4 CR.A.670/2009

before Court the statement made by the maker or the dying person or narrate in exact words the statement of the maker ?"

2. The question formulated by the Division Bench uses the expression "in exact words". Learned Counsel for the parties are ad idem that the expression "in exact words" means, to depose before the Court, the contents of a dying declaration/statement of the dying person, in the words spoken by him, about the name/description, and the act of the accused, which resulted in his death. Thus, we will be considering whether a person/Magistrate/Executive Magistrate, who records a dying declaration, in order to prove the same, needs depose before the Court contents of the "statement" of a dying person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death. We would also like to consider that merely because the presumption under Section 80 of the Indian Evidence Act, 1872 ( for short, "the Evidence Act") in respect of the dying declaration recorded by a Magistrate cannot be drawn, is it necessary that the Magistrate, who records the dying declaration, should depose before the trial Court as to the cause of death of the deceased or to the circumstances of the transaction which resulted in his death and more particularly in respect of the name/description, 5 CR.A.670/2009

and act of the accused, in committing the offense.

3. The Division Bench (A.P.Lavande and A.B.Chaudhari, JJ.) in Jivan Tulshiram Dhavali's case, followed by another Division Bench (P.V.Hardas & A.V.Nirgude, JJ.) in Laxmibai w/o Maruti Satpute's case held that it is necessary for the Magistrate, who records the dying declaration, to depose before the Court about the name and act of the accused which resulted into murder, in the words spoken up by the dying person. In the Reference Order the Division Bench (Naresh H.Patil and T.V.Nalawade, JJ.) doubted the correctness of the view in Jivan Tulshiram Dhavali's case.

4. Before we proceed further, it would be relevant to make reference, to the extent it is necessary, to the judgment/order passed by both the Division Benches in Jivan Tulshiram Dhavali and Ramesh s/o Gyanoba Kamble cases to understand the background facts against which divergent views are taken.

5. In Jivan Tulshiram Dhavali's case (supra), the accused had, allegedly, killed the deceased by pouring kerosene and setting her ablaze. Her statement was recorded by Executive 6 CR.A.670/2009

Magistrate (PW 5). This witness had visited the hospital and asked the Medical Officer on duty to examine the victim (deceased). The Doctor, after examining the victim, gave a certificate that she was conscious and fit to give statement. Having satisfied with her condition, the Executive Magistrate recorded her statement as per her say. The statement was read over to the victim, which she had admitted to be correct. Thereafter, Doctor, again, examined the victim and found her fit, throughout. In this backdrop, it was argued on behalf of the accused that it was necessary for the Executive Magistrate, who recorded the dying declaration, to depose about the name of the accused and the manner in which he committed the offense and, since he did not say so, the dying declaration relied upon by the trial Court cannot be stated to be proved according to law. The Division Bench, in the light of the arguments advanced by learned Counsel appearing for both the sides framed the following questions for consideration:

"(i) Whether presumption under Section 80 of Indian Evidence Act can be drawn in respect of a dying declaration recorded by a Magistrate without proof as to the cause of death of the dying person or as to in all the circumstances of the transaction which resulted in his death and particularly in respect of the name or description of/and act of the accused/offender in committing the offence of murder?

7 CR.A.670/2009

(ii) Whether it is necessary for the Magistrate who recorded the dying declaration to depose before the trial Court about the name and act of the accused which resulted into the murder, in the words spoken up by the dying man?"

6. The Division Bench, after referring to several judgments relied upon by both the sides and, after considering the provisions contained in Section 80 of the Indian Evidence Act, 1872 ( for short, 'the Evidence Act') observed that "the document made by the Magistrate does not amount to a deposition or record of evidence so as to attract the presumption under Section 80 of the Evidence Act. Therefore, what is admissible in evidence is the statement made by the dying man as to who was responsible for causing his death and not the paper on which the declaration is recorded". It was further observed that, "by merely accepting the document of dying declaration, its contents and, in particular, the names of the offender/s, and the role played by them in committing the offense of murder is not proved unless such witness or the Magistrate vouchsafes before the trial Court as to whom did the dying person named offenders".

7. The Division Bench in Jivan Tulshiram Dhavali's case finally agreed with the Division Bench judgments of the Bombay High Court in Reg. Vs. Fata Adaji & two others ( 1874(11) Bom.H.C.R. 8 CR.A.670/2009

247 ), and of the Calcutta High Court in The Empress Vs. Samiruddin ( 1882(8) Cal.211) and King-Emperor Vs. Mathura Thakur & others ( 1902 (6) C.W.N.72). Accordingly, the first question was answered in negative, and the second question in affirmative.

8. Apart from the aforementioned judgments of the High Courts, for recording its view on the questions, reliance was also placed on the judgments of the Supreme Court in Narbada Devi Gupta Vs. Birendra Kumar ( A.I.R. 2004 SC 175) and Dandu Lakshmi Reddy Vs. State of A.P. ( A.I.R. 1999 S.C. 3255). We would make reference to all the judgments relied upon in Jivan Tulsiram Dhavali's case, (supra) to find out whether these judgments lend any support to the view taken therein.

9. At this stage, we would like to make brief reference to the judgments of the Bombay High Court in Fata Adaji's case (supra) and of the Calcutta High Court in Samiruddin's and Mathura Thakur's cases (supra) and so also to the judgments of the Supreme Court in Narbada Devi Gupta's and Dandu Lakshmi Reddy's cases, (supra), relied upon by the Division Bench in Jivan Tulshiram Dhavali's case for answering the second question in the affirmative.

9 CR.A.670/2009

9.1 In Fata Adaji's case, the deceased had made, to a Second Class Magistrate, a declaration before his death, denouncing the accused as his assailants. The question that fell for consideration of the learned Judges was, what evidence is there in the case to show that the statement recorded as No.6, as the dying declaration of the deceased, was actually made by him ? The Magistrate, who recorded the statement, was not the committing Magistrate, and the accused were not present, and had no opportunity of cross-examining the dying man. In this backdrop, it was further observed that, "the law does not provide that mere signature of a Magistrate shall be a sufficient authentication of such a document, and it is obviously desirable that the person who took the statement should be subject to cross-examination as to the dying man's state of mind when he made it, and as to other circumstances". It is clear from the judgment that the Magistrate, who recorded the dying declaration, was not examined.

9.2 In Samiruddin's case, dying declaration of the deceased had been recorded by the Deputy Magistrate as a `deposition', in the absence of the accused. This evidence was, however, admitted at the trial before the Sessions Judge, although the Deputy Magistrate had not been 10 CR.A.670/2009

called to prove the writing taken down by him. Since the deceased was not examined in the presence of the accused Samiruddin, it was further observed, "Unless he was so examined by the Deputy Magistrate exercising judicial discretion, the writing made by such Magistrate could not be admitted to prove the statement made by the deceased. This statement must have been proved in the ordinary way by a person who heard it made. If the Deputy Magistrate who had been called to prove it, he might have refreshed his memory with the writing made by himself at the time when the statement was made".

9.3 In Mathura Thakur's case, the Deputy Magistrate, who recorded the statement, described it as "the dying declaration of Soman Dhania", had not been examined. Moreover, the statement itself was not recorded in the language it was made, but in English. In that case it was argued on behalf of the appellant that the dying declaration, not having been recorded in the language in which it was made, and not having been proved as required by law, could not be admitted as evidence in the case. The trial Court, in finding the accused guilty, relied in a great measure upon the dying declaration. However, the High Court did not rely upon the dying declaration in convicting the accused. Taylor, J. while agreeing with the remarks in the 11 CR.A.670/2009

judgment delivered by Ghose, J. added that "the inquiry appears to be incomplete and the evidence does not carry to the mind a conviction of its truth" and then proceeded to observe thus:

" The only way of proving the statement was therefore by the oral evidence of some witnesses who heard it made, the said witness being at liberty to refresh his memory by referring to the note made by him or read over by him at or about the time the statement was made.

(Emphasis supplied)

9.4 From bare perusal of the judgments in Fata Adaji, Samiruddin, and Mathura Thakur cases, it is clear that, in all those cases, the Magistrates, who had recorded the dying declarations, were not examined and/or were not subjected to cross examination as to the dying declaration.

9.5 In Narbada Devi Gupta's case, the Supreme Court was dealing with an appeal arising from a Civil suit for recovery of possession of the suit premises. The Supreme Court, after considering Sections 17, 61 and 62 of the Evidence Act; so also, the provisions of Section 101 thereof, observed that, "mere production and marking of a document as exhibit by the Court cannot be held, to be a due proof of its contents. Its execution has to be proved by admissible evidence that is by the evidence of 12 CR.A.670/2009

those persons who can vouchsafe for the truth of the facts in issue". In our opinion, this judgment would not lend any support to the view taken by the Division Bench in Jivan Tulshiram Dhavali's case.

9.6 In Dandu Lakshmi Reddy's case, two inconsistent dying declarations were under consideration before the Supreme Court and, while dealing with them, it was observed that, "Dying declaration is not a deposition in court. It is neither made on oath nor in the presence of an accused. Its credence cannot be tested by cross- examination. Those inherent weaknesses attached to a dying declaration would not justify any initial presumption to be drawn that the dying declaration contains only the truth".

9.7 In Dandu Laxmi Reddy's case, the mother and son were convicted only on the strength of the dying declarations given by the deceased to the Sub Inspector of Police and to the Judicial Magistrate. Except these two witnesses all the other witness in the case deposed that the deceased told them that her clothes caught fire while cooking milk. It is against this backdrop, the Supreme Court was considering the question, whether the said version of the deceased is credible and reliable, or is there room for entertaining any doubt about 13 CR.A.670/2009

truthfulness of her version. The Supreme Court, having noticed a noticeable discrepancy between the two statements made by the same person, ultimately, rejected the evidence in the nature of dying declaration holding that, "As the dying declaration is tested thus on the touchstones available in evidence and permitted by law, it does not stand scrutiny. It will be unsafe to convict any person on the strength of such a fragile and rickety dying declaration". Accordingly, the conviction and sentence was set aside by the Supreme Court.

9.8 It is, thus, clear from the judgments of the Supreme Court in Narbada Devi Gupta and Dandu Lakshmi Reddy's cases that the questions which the Division Bench was considering in Jivan Tulsiram Dhavali's case were not either raised, considered and decided by the Supreme Court. The observations made by the Supreme Court in these judgments, relied upon in Jivan Tulsiram Dhavali's case, in our opinion, do not lend any support to the view taken therein.

10. In Ramesh s/o Gyanoba Kamble's case, (supra), the Division Bench, after considering the judgment in Jivan Tulshiram Dhavali's case, (supra), and making reference to other judgments, cited before them, in paragraph nos.6 and 7 observed thus:

14 CR.A.670/2009

"6 In our considered view, in case the recorder of the dying declaration narrates the contents of the dying declaration before the Court, it may, in a given fact situation of the case, add to more credibility of the dying declaration. But whether the dying declaration could be said to be not proved merely because the person who recorded the dying declaration, fails to narrate the words spoken before him/her by the maker or fails to repeat in exact words, the statement made by the maker, before Court, even if it was found in a given case that the person recording a statement/dying declaration was satisfied that deceased was in a fit state of mind, the statement was read over and was admitted to be correct and the maker and the recorder signed the statement.

7. In our view, the dying declaration could be still exhibited and proved even if the recorder of the dying declaration fails to repeat the exact words of the maker while deposing before the Court. As the issue raised by us, has far reaching consequences in respect of criminal justice system, it requires closer scrutiny and analysis."

(Emphasis supplied)

10.1 Insofar as the observation in respect of Section 80 of the Evidence Act are concerned, the Division Bench expressed doubt whether the application of provisions of Section 80 of the Indian Evidence Act, in respect of proof of contents of dying declaration, is appropriate. Finally, in the reference order dated April 29th, 2011, the Division Bench recorded their disagreement with the view expressed by the Division Benches in Jivan Tulsiram Dhavali (supra) and Laxmibai Maruti Satpute's cases (supra), and requested the learned Chief Justice to make reference of the question to the larger Bench.

15 CR.A.670/2009

10.2 We would also like to make reference to the relevant facts and circumstances of the Ramesh Gyanoba Kamble's case. The dying declaration in that case was recorded by the 4th Joint Civil Judge, Junior Division and Judicial Magistrate, First Class, Nanded (PW 7). She deposed that she was requested to record statement of the victim (deceased) in the case. She, accordingly, went to the Hospital at Nanded. She sought permission of the Medical Officer, who was present at the relevant time. He granted her such permission, informing her that the victim was conscious and well oriented. She obtained Medical Officer's endorsement to that effect on the document on which she recorded the dying declaration. Thereafter, she asked relatives of the victim to go out. She then put few questions to the victim, to ascertain whether she was able to give statement. She recorded her statement in question and answer form. The recorded statement was read over to the victim, who admitted the contents and put her signature in approval thereof. She further stated that victim was conscious throughout. Thereafter, she obtained endorsement of the Medical Officer. She also made endorsement on the declaration. Then she stated that the statement that was given by the deceased was voluntary. The dying declaration 16 CR.A.670/2009

was, thereafter, shown to her and, in the Court, she admitted that it was in her handwriting and contents thereof are correct.

10.3 Since the Magistrate (PW 7) did not depose before the trial Court about the name and act of the appellant/accused, which resulted in the murder, in the words spoken by the deceased, reliance was placed on the judgment in Jivan Tulsiram Dhavali's (supra), to contend that the dying declaration had not at all been proved according to law and if the reliance is placed on such dying declaration, it would result in miscarriage of justice.

11. A careful scrutiny of the judgment in Jivan Tulsiram Dhavali's case would show that no independent reasons are recorded for answering the second question in affirmative. It appears that the second question was answered in affirmative in view of the negative finding recorded in respect of the first question. In other words, after holding that the presumption under Section 80 of the Indian Evidence Act cannot be drawn in respect of the dying declaration recorded by a Magistrate, the Division Bench observed that the Magistrate who recorded the dying declaration, needs to depose before the trial Court about the name and act of the accused which resulted in the murder, in the 17 CR.A.670/2009

words spoken by the declarant. In Laxmibai Maruti Satpute Vs. State ( 2010 ALL MR (CRI) 182), Deorao Sonbaji Bhalerao Vs. State (2008 ALL MR (CRI) 1921), Saheblal s/o Jumassha Sayyad Vs. State (2010 ALL MR (CRI) 766) and Dhanraj Jairam Patil Vs. The State (Criminal Appeal No. 589/2009, decided on 23rd Feb.,2011 - Aurangabad Bench) the other Division Benches of this Court simply followed the judgment in Jivan Tulshiram Dhavali's case. In these judgments the Division Benches did not record independent reasons for following the judgment in Jivan Dhavali's case. Further, from perusal of these judgments it is clear that the argument, as were advanced in Ramesh Gyanoba Kamble's case, were not advanced therein.

11.1 We have noticed that in Jivan Tulsiram Dhavali's case, Section 32 of the Evidence Act had not been referred to or considered at all. In other words, the Division Bench, in that case did not take into consideration the law relating to the test of reliability of the dying declaration as contemplated by Section 32(1). It was not taken into consideration that the dying declaration is an independent piece of evidence like any other piece of evidence - neither extra strong nor weak - and can be acted upon without corroboration if it is found to be otherwise true and reliable. Further, the statement of a dying 18 CR.A.670/2009

person is a substantive evidence and like any other substantive evidence requires no corroboration for forming basis of conviction of an accused. We will be referring to the judgments of the Supreme Court and High Courts making such observations little later.

12. In this backdrop, we have heard learned Counsel for the parties at great length and with their assistance gone through several judgments of the Supreme Court and High Courts, in support of their submissions. Mrs. Jadhav, learned Counsel for the appellant, submitted that a dying declaration is a statement, which is heard by a Magistrate and reduced into writing, and it is relevant in respect of the transaction which resulted in cause of death. She, therefore, submitted, that the transaction needs to be proved by oral evidence by the recorder of a dying declaration. She then submitted that since the statement is not made by the dying person before the Court, it cannot be treated as evidence, and therefore, if the Magistrate does not depose the contents of the declaration as to the cause of death, no reliance can be placed upon it. She then submitted that a statement of the deceased is not admissible to establish the truth of facts stated by him as it is hit by "hearsay Rule" and does not come within any of the exceptions mentioned in Section 32 of the 19 CR.A.670/2009

Evidence Act but, such evidence is admissible only to establish the fact that such a statement was made.

12.1 Mrs. Jadhav, after inviting our attention to the definition of "fact" in Section 3 of the Evidence Act, submitted that when a Magistrate deposes before the Court, in support of the dying declaration, he proves that he recorded the statement, that he read it over to the deceased, and that the deceased said certain words to him and signed in his presence. His evidence, if he does not repeat the contents of the dying declaration as to the cause of death and, more particularly, the name of the accused and as to how he assaulted the victim, he cannot be stated to have proved the contents of dying declaration.

12.2 Mrs. Jadhav further submitted that signature/thumb impression of the deceased; so also, his own signature and the signature of the Doctor on the dying declaration can only prove the authenticity of the statement and not the contents thereof. The statement of a deceased is not on oath and, therefore, she submitted, there is no guarantee about the truthfulness. She submitted that the Magistrate when deposes about the dying declaration, he, in fact, steps into the shoes of the deceased and, therefore, it is 20 CR.A.670/2009

necessary for him to depose about the actual incident, sustaining fatal injuries, and the name of the accused. Unless he deposes to that effect, the accused will not get an opportunity to cross examine the witness, to test the veracity of the dying declaration. She submitted that this is necessary because the maker of the dying declaration never makes a statement in the Court on oath and that he cannot be subjected to cross examination. In support of this submission, she placed reliance upon the judgment of the Supreme Court in Smt.Laxmi Vs. Omprakash ( 2001 AIR SCW 2481).

12.3 After inviting our attention to the judgment of the Supreme Court in Laxman Vs. State of Maharashtra ((2002) 6 SCC 710), she submitted that there is no specified statutory form for recording a dying declaration and, therefore, it would not be sufficient for the Magistrate to state that he has recorded the statement by following due procedure. She further submitted that a certification by the Doctor is essentially a rule of caution and, therefore, the voluntary and truthful nature of the declaration can be established otherwise. That, in these circumstances, no evidence is available in respect of an identity of the accused as well as mental condition of the deceased when the statement was recorded. Therefore, she submitted 21 CR.A.670/2009

that truthfulness will have to be judged by a statement on oath and that would be evidence before the Court in relation of the fact under inquiry. She submitted that the Magistrate, by no means, can depose that he has followed the procedure because no procedure, neither format, is contemplated by Section 32(1) of the Evidence Act for recording the dying declaration and it is a subject of appreciation of evidence.

12.4 Next, Mrs. Jadhav submitted that a recorded dying declaration is a statement of the dying person which is heard by its recorder and the deponent is unavailable and, therefore, the recorder ought to state before the Court the substance which he has heard as if to say that he is speaking for the deceased. In support of this contention, she placed reliance upon the judgment of Ram Nath Madhoprasad Vs. State of Madhya Pradesh ( AIR 1953 SC 420). At this stage only, we record that this judgment of the Supreme Court has been overruled in Kusa and others v. State of Orissa ( [1980] 2 SCC 207).

12.5 Mrs. Jadhav further submitted that voluntariness and truthfulness of the dying declaration are the main ingredients, and if proved, would inspire confidence of the Court. Hence, voluntariness and truthfulness cannot be established by merely exhibiting the document and 22 CR.A.670/2009

it would be essential requirement of law that the person who records the dying declaration should repeat the words spoken by the deceased. In support of this proposition she placed reliance upon the judgment in Smt.Maria Tecla Goes Fereira vs. Shri Denzyl Lobo and another ( 1993 (1) Bom.C.R. 679).

12.6 Lastly, Mrs. Jadhav submitted that a dying declaration is not a document but a statement because, in the eventuality of the deponent surviving it, after the statement is made, would be a previous statement under Section 161 of Criminal Procedure Code and, therefore, it always remains a statement. She then submitted that the statement of a dead person ought to be proved through substantive evidence and same can be done only by proving the contents of a dying declaration in relation to Section 61 of the Evidence Act. Thus, Mrs. Jadhav submitted that the view taken in Jivan Tulshiram Dhavali's case, followed by other Division Benchs, in Laxmibai w/o Maruti Satpute and other cases is the correct view in the eyes of law. In support of her contentions, Mrs. Jadhav placed reliance upon the following judgments: 1) 2011 ALL M.R. (CRI) 2048 Waikhom Yaima Singh Vs. State of Manipur, 2) 2011 (1) SCC (Cri.) 1173 Brundaban Moharana & Anr vs. The State of Orissa, 3) 2010 ALL MR (Cri) 766 Saheblal s/o Jumassha Sayyad 23 CR.A.670/2009

Vs. State of Maharashtra, 4). 2011 ALL MR (Cri) 2105 Ashok Pandurang Jadhav v. State of Maharashtra. 5) Sukanti Moharana Vs. State of Orissa ( AIR 2009 SCW 6161).

13. On the other hand, Mr.Khandare, learned Public Prosecutor, submitted that the statement of a dying person, if reduced in writing, the piece of paper on which it is written, is also a "document" as defined under Section 3 of the Evidence Act, apart from it being a statement as contemplated by Section 32(1) of the Evidence Act. He submitted that the written statement on the paper being "document", it can be proved, including its contents, as provided for under the provisions of the Evidence Act and, more particularly, the provisions contained in Chapter V and VI thereof. He submitted that if it is proved by the prosecution through its recorder that it was recorded by him in the presence of Doctor, after seeking his opinion in respect of state of mind of the declarant in the beginning and on conclusion of recording of the statement, and further, if it is recorded in the form of questions and answers and in the language spoken by the declarant, the contents of the document will have to be held to be proved. Whether the contents of the document are trustworthy and voluntary is a question of appreciation of evidence. In short, he submitted that after 24 CR.A.670/2009

admission of the statement in writing, the contents thereof will have to be proved by the person who records the statement by stepping into witness box stating that he recorded the statement of the dying person in the words spoken by him as to the cause of death. He submitted that if the recorder of dying declaration, further deposes that he recorded it as it was narrated by the deceased and after recording he read it over to the deceased and obtained his signature/thumb impression in approval thereof will be sufficient to hold that the contents of the dying declaration are proved. Mr. Khandare then submitted that even if a piece of paper on which the dying declaration is reduced into writing by a Magistrate, is not held to be a document as defined in Section 3 of the Evidence Act, still, on the basis of Section 32(1) of the Evidence Act, such statement is admissible and it would stand proved the moment Magistrate says so and/or vouchsafes before the trial Court as to genuineness of the contents thereof. Insofar as the judgment of Division Bench in Jivan Tulsiram Dhavali's case is concerned, he submitted that merely because presumption under Section 80 of the Evidence Act cannot be drawn to prove the dying declaration, does not mean that the Magistrate who recorded the dying declaration needs to repeat the contents thereof as to the cause of death. He 25 CR.A.670/2009

submitted that the Division Bench, in that case, completely overlooked the provisions contained in Section 32(1) of the Evidence Act, which is an exception to the Rule of hearsay and that the statement in writing is admissible under this provision. The view, as taken by the Division Bench in that case, is hyper technical, and if that is upheld, it will be disastrous since, very rarely, we find repetition of the contents of the written statement by its recorder. He submitted that if repetition is held to be essential requirement of law, that would amount to giving fate of the case in the hands of a witness, who records the statement. Mr.Khandare invited our attention to the judgment of the Supreme Court in Sunil Kumar Vs.State of M.P. ( AIR 1997 SUPREME COURT 940) and submitted that under any circumstances the statement recorded by a Magistrate of the victim cannot be treated as a previous statement under Section 161 of Cr.P.C., in the eventuality of declarant surviving it. He submitted that it has to be treated only as a statement under Section 164 of the Cr.P.C. and can be used for corroboration or contradiction, unlike under Section 161, which can be used only for contradicting the witness. Lastly, he submitted that the contents of the statement should disclose the cause of death or the circumstances resulting in death of its maker and, therefore, its repetition by the Magistrate 26 CR.A.670/2009

is not necessary in his deposition as it is necessary in case of oral dying declaration. In case of oral dying declaration, he submitted, it is necessary for the witness to repeat the words spoken by the deceased to bring the oral dying declaration on record. Mr.Khandare, in support of his submissions, placed reliance upon Jai Karan Vs. State of Delhi (NCT) ([1999] 8 SCC 161 ).

14. Mr.P.R.Patil, learned Counsel and amicus curiae, after inviting our attention to the judgments relied upon by the Division Bench in Jivan Tulshiram Dhavali's case, submitted that in none of those cases recorder of the dying declaration was examined and, in view thereof, those judgments did not lend any support for answering the second question framed in the said judgment in affirmative. He also invited our attention to the old judgments referred to in the Reference order of different High Courts and submitted that there is no need to repeat the words of the deceased by the Magistrate as to the cause of death or to the circumstances of the transaction resulting in his death. He invited our attention to Section 3 of the Indian Evidence Act to contend that written dying declaration or 27 CR.A.670/2009

the statement recorded by Magistrate, as contemplated under Section 32(1) of the Evidence Act, is a document and such document, containing the statement/dying declaration of the deceased as to the cause of his death or to the circumstances in the transaction resulting in his death, can be proved taking recourse to the other provisions in the Indian Evidence Act. In support of this contention, he placed reliance upon the judgment of this Court in Bhima Thima Dhotre v, Pioneer Chemical Co.,( [1968] 70 Bom LR 683).

14.1 After inviting our attention to Section 32(1) of the Evidence Act, Mr.Patil further submitted that the statement referred to in the said provision is the statement of deceased and not the witness who records dying declaration. He, therefore, submitted that the statement made by a person who is dead as to cause of his death or as to any of the circumstances of the transaction which resulted in his death, in cases in which cause of his death comes into question, is relevant under Section 32 of the Evidence Act and is also admissible in evidence. Therefore, it is not necessary for the witness, who records dying declaration, to repeat the words spoken by the deceased. He then, after inviting our attention to Section 313, submitted that it is 28 CR.A.670/2009

necessary for the Court to put questions to the accused, to personally explain the circumstances reflected in the dying declaration. Failure to do so would not vitiate the trial. Even at appellate stage the Courts are empowered and can call for explanation from the accused, if the remaining evidence is sufficient to bring home the guilt of the accused. In support of this contention, he placed reliance upon judgment of the Supreme Court in State of Punjab vs.Naib Din, (2001) 8 SCC 578.

14.2 Learned Counsel for the parties, in addition to the judgments referred to here-in- above, also placed reliance upon the following judgments:

1. State of H.P. vs. Lekh Raj

(2000) 1 SCC 247

2 Zahira Habibulla H.Sheikh V. State of Gujarat (2004) 4 SCC 158,

3) Khushal Rao Vs. State of Bombay

( AIR 1958 SC 22)

4) Padmaben Shamalbhai Patel V. State of Gujarat ( [1991] 1 SCC 744)

5) Paniben (Smt) vs State Of Gujarat (1992) 2 SCC 474

6) Meesala Ramkrishan v. State of A.P. ( [1994] 4 SCC 182)

7) Ramilaben Hasmukhbhai Khristi Vs. State of 29 CR.A.670/2009

Gujrat ( (2002) 7 SCC 56),

8. Bhabanand Kakoti Vs. State of Meghalaya, 2008 CRI.L.J.194,

9. Bakshish Singh V. State of Punjab, AIR 1957 S.C.904 (C.134 Dec.),

10. Tehal Singh V. State of Punjab,

1980 Supp (1) SCC 400

11. Srinivasa and others Vs. State,

(2005) 9 SCC 327,

12. (Ram Bihari Yadav V. State of Bihar

1998 CRI.L.J. 2515).

13. Bhogilal Chunilal Pandya V/s State of Bombay AIR 1959 SC 356 (V 46 C 47).

14. (P.V.Radhakrishna Vs. State of Karnataka ( AIR 2003 SUPREME COURT 2859).

15. State of Uttar Pradesh Vs. Ramsagar Yadav ( AIR 1985 SC 416)

16. Uka Ram Vs. State of Rajasthan

(2001) 5 SCC 254

17. Jayaraj Vs. State of T.N. (1976 SC 1519)

18. Panchdeo Singh V. State of Bihar ( [2002] 1 SCC 577)

19. Tarachand Damu Sutar Vs. State of Maharashtra ( AIR 1962 SC 130),

20. Kusa Vs. State of Orissa ( (1980) 2 SCC 207,

21. Govardhan Raoji Ghaire Vs. State of Maharashtra ( (1993) (Suppl.) SCC 316

30 CR.A.670/2009

22. Gangotri Sing Vs. State of U.P. ( (1993) Suppl.) (1) SCC 327.)

23. Arvind Sing Vs. State of Bihar (2001) 6 SCC 407).

24. (Manohar Dadarao Landage Vs. State of Maharashtra, 2000 (2) Mh.L.J. 3).

25. Sunder Singh Vs. State of Uttaranchal ( (2010) 10 SCC 611),

26. Malekha V. State of A.P.

( 2005-ALT(Cri)-3-30, 2005 ALD (Cri.)-1-962)

27. (Shivaji Sahebrao Bobade Vs. State of Maharashtra, (1973) 2 SCC 793)

28. Basavraj R.Patil v. State of Karnataka, (2000) 8 SCC 740,

29. State of Delhi V. Shri Ram Lohia,

AIR 1960 SUPREME COURT 490

15. Before we proceed to consider the question referred to this Bench we would like to refer to two more judgments of the Supreme Court, laying down the principles, which, in our opinion, need to be borne in mind. The Supreme Court in State of H.P. vs. Lekh Raj (2000) 1 SCC 247 observed that, The legal trial is conducted to ascertain the guilt or innocence of the accused arraigned. In arriving at a conclusion about the truth, the Courts are required to adopt rational approach and judge the evidence by its intrinsic worth and the animus of the witnesses. 31 CR.A.670/2009

The hyper technicalities or figment of imagination should not be allowed to divest the court of its responsibility of sifting and weighing the evidence to arrive at the conclusion regarding the existence or otherwise of a particular circumstances keeping in view the peculiar facts of each case, the social position of the victim and the accused, the larger interests of the society particularly the law and order problem and degrading values of life inherent in the prevalent system. The realities of life have to be kept in mind while appreciating the evidence for arriving at the truth. The courts are not obliged to make efforts either to give latitude to the prosecution or loosely construe the law in favour of the accused. The traditional dogmatic hyper technical approach has to be replaced by rational, realistic and genuine approach for administering justice in a criminal trial. Criminal Jurisprudence cannot be considered to be a Utopian thought but has to be considered as part and parcel of the human civilization and the realities of life. The courts cannot ignore the erosion in values of life which are a common feature of the present system. Such erosions cannot be given a bonus in favour of those who are guilty of polluting society and the mankind."

32 CR.A.670/2009

15.1 In Zahira Habibulla H.Sheikh V. State of Gujarat (2004) 4 SCC 158, the Supreme Court observed that, though justice is depicted to be blind-folded, as popularly said, it is only a veil not to see who the party before it is while pronouncing judgment on the cause brought before it by enforcing law and administering justice, and not to ignore or turn the mind/attention of the Court away from the truth of the cause or lis before it, in disregard of its duty to prevent miscarriage of justice. Courts have always been considered to have an over-riding duty to maintain public confidence in the administration of justice - often referred to as the duty to vindicate and uphold the "majesty of the law". Due administration of justice has always been viewed as a continuous process, not confined to determination of the particular case, protecting its ability to function as a Court of law in the future as in the case before it.

15.2 Thus, the Courts while dealing with criminal trials or appeals have to keep the realities of life in mind while appreciating the evidence for arriving at the truth. The Courts are not obliged to make efforts either to give latitude to the prosecution or loosely construe the law in favour of the accused. A traditional, dogmatic, hyper-technical approach needs to be replaced by a rational, realistic and genuine 33 CR.A.670/2009

approach while dealing with the questions such as the one under consideration before us. Criminal jurisprudence have to be considered as a part and parcel of the human civilization and realities of law. The Courts cannot ignore or turn its mind/attention away from the truth of the cause, in disregard of its duty to prevent miscarriage of justice.

16. In the course of hearing learned Counsel for the parties referred to several judgments of the Supreme Court in support of their submissions. Before we deal with the question referred, we would like to make reference to some of the judgments wherein the Supreme Court has laid down propositions of law relating to the test of reliability of dying declaration and/or the principles governing dying declaration. In our opinion, it would be advantageous to make reference to those propositions and the principles in order to address the question referred for consideration.

16.1 At the outset we would like to make reference to the landmark judgment of the Supreme Court in Khushal Rao Vs. State of Bombay ( AIR 1958 SC 22) wherein the Supreme Court has laid down propositions of law relating to the test of reliability of dying declaration. The relevant paragraph thereof reads thus:

34 CR.A.670/2009

"16. On a review of the relevant provisions of the Evidence Act and of the decided cases in the different High Courts in India and in this Court, we have come to the conclusion, in agreement with the opinion of the Full Bench of the Madras High Court, aforesaid, (1) that it cannot be laid down as an absolute rule of law that 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 pieces 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 (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."

(Emphasis supplied)

16.2 The Supreme Court in Padmaben Shamalbhai Patel V. State of Gujarat ( [1991] 1 SCC 744) has observed thus:

35 CR.A.670/2009

" If, in the facts and circumstances of the case, it is found that the maker of the statement was in a fit state of mind and had voluntarily made the statement on the basis of personal knowledge without being influenced by others and the court on strict scrutiny finds it to be reliable there is no rule of law or even of prudence that such a reliable piece of evidence cannot be acted upon unless it is corroborated. A dying declaration is an independent piece of evidence like any other piece of evidence - neither extra strong nor weak - and can be acted upon without corroboration if it is found to be otherwise true and reliable."

(Emphasis supplied)

16.3 The observations made by the Supreme Court in paragraph No. 18 in Paniben (Smt) vs State Of Gujarat (1992) 2 SCC 474 would be relevant which reads thus:

18. 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, 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 assailants. 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 coroborated. The rule requiring corroboration is merely a rule of prudence. This Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under:

(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without 36 CR.A.670/2009

corroboration. Mannu Raja v. State of M.P., [1976] 2 SCR 764.

(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. State of M. P. v. Ram Sagar Yadav, AIR 1985 Sc 416; Ramavati Devi v. State of Bihar, AIR 1983 SC 164.

(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. Ram Chandra Reddy v. Public Prosecutor, AIR 1976 S.C. 1994.

(iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence. Rasheed Beg v. Sate of Madhya Pradesh, [1974] 4 S.C.C. 264.

(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.., AIR 1982 S.C. 1021.

(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. Ram Manorath v. State of U.P. 1981 SCC (Crl.) 531.

(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. Krishnamurthi Laxmipati Naidu, AIR 1981 SC 617.

(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 Bihar, AIR 1979 SC 1505.

(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 and another v. State of M.P., AIR 1988 SC

912.

(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 Mohan 1989 S.C. 1519.

(Emphasis supplied)

37 CR.A.670/2009

16.4 In Meesala Ramkrishan v. State of A.P. ( [1994] 4 SCC 182) the Supreme Court observed that the dying declaration on the basis of gestures not only as admissible but also possessing evidentiary value. The statement was recorded by the Magistrate and the certificate of the mental condition was appended by the Doctor who had stated that the nods given by the deceased were effective and meaningful. The dying declaration formed basis for conviction in that case. In such case the question of a Magistrate repeating the statement of a dying person in the words spoken by him as to the cause of death does not arise, but still there is no legal impediment to form such dying declaration the basis of conviction.

16.5 In Ramilaben Hasmukhbhai Khristi Vs. State of Gujrat ( (2002) 7 SCC 56), the Supreme Court observed thus:

"28. Under the law, dying declaration, can form sole basis of conviction, if it is free from any kind of doubt and it has been recorded in the manner as provided under the law. It may not be necessary to look for corroboration of the dying declaration. As envisaged, a dying declaration is generally to be recorded by an Executive Magistrate with certificate of a medical doctor about the mental fitness of the declarant to make the statement. It may be in the form of question and answer and the answers be written in the words of the person making the declaration. But Court cannot be too technical and in substance if feels convinced about the trustworthiness of the statement which may inspire 38 CR.A.670/2009

confidence such a dying declaration can be acted upon, without any corroboration.

(Emphasis supplied)

16.6 In Laxman vs State Of Maharashtra ((2002) 6 SCC 710, the Supreme Court has laid down the following propositions of law relating to the test of reliability of the dying declaration:

"3. The juristic theory regarding acceptability of a dying declaration is that such declaration is 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 man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on death bed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the court 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, however has to always be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, 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 the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in 39 CR.A.670/2009

writing and in any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a magistrate is absolutely necessary, although to assure authenticity it is usual to call a magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a magistrate and when such statement is recorded by a magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a 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 even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise."

(Emphasis supplied)

16.7 It would be relevant to reproduce the observations made by the the High Court of Assam, in Bhabanand Kakoti Vs. State of Meghalaya, 2008 CRI.L.J.194, after considering the judgments of the Supreme Court in Bakshish Singh V. State of Punjab, AIR 1957 S.C.904 (C.134 Dec.), Tehal Singh V. State of Punjab, 1980 Supp (1) SCC 400 and Srinivasa and others Vs. State, (2005) 9 SCC 327, in paragraph No.21 observed thus:

40 CR.A.670/2009

"21. There is no doubt that if the dying declaration is recorded in the words of the injured, it would be the best dying declaration. It however appears that exact words of the injured cannot be always insisted upon. It has been held by the Apex Court in Baksish Singh v. State or Punjab that simply because the very words uttered by the injured are not reproduced, it is no reason to reject the dying declaration if the Court is otherwise satisfied that the dying declaration, as recorded, correctly reproduces what was stated by the injured. The Supreme Court in Tehal Singh V. State of Punjab has held that the substance of the dying declaration written in the words of the writer attaches no infirmity. Relying on the law laid down in this case, the H.P. High Court in State of H.P. v. Gopi 1985 Cri LJ 984 (sic) has held that statement made in one language and recorded in another language is legal. In Srinivasa and ors. v. State (2005) 9 SCC 327, the declarant and recorder of dying declaration were not speaking the same language. The dying declaration was therefore recorded with the help of a translator. The correctness of the translation was confirmed by the Doctor who knew both languages. In the circumstances, it was held by the Apex Court that the veracity of the dying declaration stands established.

21.1 It would be clear from the above that it is not the law that the exact words uttered by the injured need always be reproduced.

16.8 It is pertinent to note that the Supreme Court in Bakshish Singh also indicated that the dying declaration recorded in the language other than known to the maker or spoken by him would not be an infirmity in accepting the dying declaration.

17. We would not like to burden this judgment with other precedents at this stage and it is now necessary to deal with the question referred to for our consideration. Section 60 of the Evidence Act rests on the cardinal rule that the best evidence available must always be given. It provides that oral evidence must always be 41 CR.A.670/2009

direct or positive. The statements or declarations, oral or written, of persons not called as witnesses but repeated by third persons are excluded as hearsay, but there are important exceptions to the rule which we find in Sections 17 to 39 and more particularly Section 32(1) of the Evidence Act, with which we are concerned in this appeal.

17.1 Though we do not find the term "hearsay" or definition of the term "hearsay" in the Evidence Act, it means that the evidence which a witness does not give of his own knowledge, but says that another person has said or signified to him. The correct rule as to "hearsay" therefore, is the statements, oral or written, reported to have been made by persons, not called as witnesses, are not admissible in evidence, subject to certain exceptions. Section 32(1) is one such exception, under which the statement of a dying person is made admissible in evidence.

17.2 A dying declaration is indirect evidence, being a specie of "hearsay" yet, it is an exception to the rule against admissibility of hearsay evidence. It is substantive evidence and like any other substantive evidence requires no corroboration for forming basis of conviction of an accused. How much weight can be attached to a dying declaration, however, is a question of 42 CR.A.670/2009

fact and has to be determined on the facts and circumstances of each case (Ram Bihari Yadav V. State of Bihar 1998 CRI.L.J. 2515).

18. Section 32(1) of the Evidence Act was not referred or considered in Jivan Tulshiram Dhavali's case. We would, therefore, like to consider the said provision in depth and its effect on the view taken in that case.

18.1 To understand the purport of Section 32(1) of the Evidence Act it would be relevant to have a glance at it. Section 32(1) reads thus:

"32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant -

Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:

(1) When it relates to cause of death. When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that 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 proceedings in which the cause of his death comes into question."

(Emphasis supplied)

43 CR.A.670/2009

18.2 Before we proceed further, it would be relevant to see what the Supreme Court has observed while dealing with Section 32 in P.V.Radhakrishna which reads thus:

"10. At this juncture, it is relevant to take note of Section 32 of the Indian Evidence Act, 1872 (in short 'Evidence Act') which deals with cases in which statement of relevant fact by person who is dead or cannot be found, etc. is relevant. The general rule is that all oral evidence must be direct viz., if it refers to a fact which could be seen it must be the evidence of the witness who says he saw it, if it refers to a fact which could be heard, it must be the evidence of the witness who says he heard it, if it refers to a fact which could be perceived by any other sense, it must be the evidence of the witness who says he perceived it by that sense. Similar is the case with opinion. These aspects are elaborated in Section 60. The eight clauses of Section 32 are exceptions to the general rule against hearsay just stated. Clause (1) of Section 32 makes relevant what is generally described as dying declaration, though such an expression has not been used in any Statute. It essentially means statements made by a person as to the cause of his death or as to the circumstances of the transaction resulting in his death. The grounds of admission are; firstly, necessity for the victim being generally the only principal eye-witness the crime, the exclusion of the statement might deflect the ends of justice; and secondly, the sense of impending death, which creates a sanction equal to the obligation of an oath. 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 is induced by the most powerful considerations to speak the truth; a situation so solemn and so lawful 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."

(Emphasis supplied)

44 CR.A.670/2009

18.3 In Sukanti Moharna Vs. State of Orissa (2009 AIR SCW 6161), while dealing with Section 32 of the Evidence Act, the Supreme Court observed thus:

"22. Section 32 of the Indian Evidence Act, 1872 deals with the statement of persons who cannot be called as witnesses as because they are dead or they cannot be found or they have become incapable of giving evidence or their evidence cannot be procured without an amount of delay or expense. Such statements themselves are relevant facts in certain cases. The aforesaid Section 32 was enacted as an exception to the general rule as reflected in Section 60 of the said Act which mandates that oral evidence in all cases must be direct i.e. if it refers to a fact which could be seen, it should be the evidence of a witness who says he saw it, whereas if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it or 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."

(Emphasis supplied)

18.4 Section 32(1) of the Evidence Act renders a statement relevant which was made by a person who is dead in cases in which cause of his death comes into question. Therefore, before the "statement" under Section 32(1), which is generally described as "dying declaration", is admitted, it must be proved that the person who made it is dead. Its admissibility depends upon one of the two conditions embodied in the Section. Firstly, either such statement should relate to the cause of his death or, secondly, it should relate to any of the circumstances of the 45 CR.A.670/2009

transaction which resulted in his death. Thus, a statement of relevant facts by person who is dead is relevant under Section 32(1) of the Evidence Act.

18.5 A plain reading of Section 32(1), shows that statements, oral or verbal, of relevant fact made by a person who is dead, are themselves relevant fact when it 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 where 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.

18.6 Section 32(1) uses the expression "written or verbal". If both these words are deleted and the Section is read, still it conveys the same meaning. It does not make any distinction between "written" and "verbal" statement of relevant facts made by a person who is dead. However, by using the words "written or verbal" the Legislature has made its intention clear so as to say that there could be either written or verbal statement of relevant fact made by a person who is dead. In other words though 46 CR.A.670/2009

Section on the face of it does not make any distinction, the language employed would show that there could be either "verbal" or "written" statement by a person who is dead, as to the cause of his death or the circumstances resulting in his death in cases in which cause of his death comes into question.

18.7 When statement of a dying person is recorded by a person/Magistrate/Executive Magistrate in writing it would be a "written statement" or "statement in writing" within the meaning of Section 32(1) of the Evidence Act. A recorder of such statement is supposed to be an independent person, having no concern with the incident in which a maker of the statement sustained fatal injuries or is not acquainted with the facts and circumstances of the case. In other words, he is not a witness to the incident and/or supposed to have any knowledge about the name and act of the accused which caused fatal injuries to the deceased.

18.8 On the other hand, oral statement as to the cause of death or to the circumstances resulting in death, made by the deceased to a witness, who may or may not have any connection with the accused/deceased/alleged incident, would be a "verbal statement" within the meaning of Section 32(1) of the Evidence Act. A verbal 47 CR.A.670/2009

statement of the deceased to the witnesses, is a weak kind of evidence, since the exact words uttered by the deceased are not available, particularly because of the failure of memory of the witnesses, who are said to have heard it. However, the verbal statements against interest are equally receivable as written, although the weight of the latter (written) may be much greater than the former (verbal). Oral dying declaration can also be a basis for conviction of the accused. In short, where the statement, written or verbal, of relevant facts made by a person who is dead, is relevant when it relates to the cause of death, they both are equally receivable, though the reliability thereof always depends upon facts and circumstances of each case.

18.9 A verbal statement made by a person who is dead as to the cause of death, or as to any of the circumstances of the transaction which resulted in death, under any circumstances, cannot be admitted in evidence or held to be proved unless the person who heard it made, repeats the words spoken by the deceased or deposes as to what was stated by the deceased. In other words, a oral statement of the deceased could be treated as "verbal statement" of the relevant facts, within the meaning of Section 32(1), only if the words spoken by the deceased 48 CR.A.670/2009

or the gist of what the deceased told to any "witness" as to the cause of his death or as to the circumstances which resulted in his death are repeated/stated in the deposition before Court by the witness who heard it made. Thus, deposing the gist or the "words spoken" by the deceased as to the cause of death, or to the circumstances of the transaction which resulted in death, by the "witness" who heard it made, is an essential requirement of law to bring it on record. If the witness examined in order to prove the oral dying declaration, does not depose/state what the deceased told him as to the cause of death or the circumstances resulted in his death, it cannot be treated as relevant facts as contemplated by Section 32(1) of the said Act. 18.10 The word "statement" in Section 32(1) of the Evidence Act is not defined in the Act, though it has been used in number of Sections. We have, therefore, to go to its primary meaning that "something that is stated". (Bhogilal Chunilal Pandya V/s State of Bombay AIR 1959 SC 356 (V 46 C 47)). In short, statement could be written or verbal as contemplated by Section 32(1). A "Verbal statement" as contemplated by Section 32(1) means repetition/reproduction of the words spoken by or of the statement of the deceased by the witness who heard him made. A 49 CR.A.670/2009

"written statement", contemplated by Section 32(1) means a statement that is taken down in writing as made by the deceased, as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death.

18.11 Thus, the statements contemplated by Section 32(1), are the statements, written or verbal, made by a person who is dead, are themselves relevant facts, when it relates to the cause of his death. There is a requirement of law that the "statement" as contemplated by Section 32(1) should contain the cause of death, or any of the circumstances of the transaction which resulted in death of its maker, and in the absence thereof it cannot be treated as "relevant facts in issue" and admitted in evidence under this provision. Section 32(1) does not provide that a recorder of the dying declaration should repeat the contents of such "statement" of the deceased. Even in case of "verbal statement", the witness who heard it made, requires to repeat its contents/gist in order to bring it on record, being a relevant fact in issue, and though it is hearsay, repetition thereof is made an exception to the hearsay rule.

18.12 If it is held to be essential requirement of law that statement / dying 50 CR.A.670/2009

declaration in writing needs to be repeated / reproduced in the words spoken by the deceased as to the cause of his death, then there would be no difference between "oral dying declaration" and "written dying declaration" and in that eventuality it would not be necessary to reduce the dying declaration in writing. Such anomaly would frustrate the purport of statute. A Magistrate who records the statement is not supposed to be acquainted with the facts and circumstances of the case. He records dying declaration at the request of Police. Sometimes, Doctor records the cause of death as stated by the victim in the medical papers, and in some cases, Police officer records it. They are all independent witnesses,having no concern with the alleged incident, or with the accused / victim. They are not supposed to be acquainted with the facts and circumstances of the case. That is the reason why statements of such witnesses are never recorded under Section 161 of the Cr.P.C. by any Police officer in the course of investigation.

18.13 Under Section 161, any Police officer making an investigation is empowered to examine orally any person supposed to be acquainted with the facts and circumstances of the case. No question, as submitted by learned P.P., can be put to such witness as to the cause of death; in the sense, the Magistrate cannot be questioned in 51 CR.A.670/2009

respect of an identity of the accused who, allegedly, caused fatal injuries, how the declarant was assaulted, what was the reason, etc. Therefore, even if the Magistrate does not repeat the words spoken by the deceased or the contents of his statement, as to the cause of his death, in our opinion, that would not cause any prejudice to the accused. It was further submitted that one can put questions/case in the cross examination to such witness challenging the procedure that was followed for recording a dying declaration, mental fitness/condition of a dying person, or his physical condition so as to prove that no statement could have been made and/or the statement so recorded suffers from infirmities, and so also that it was not voluntary and result of prompting/tutoring, vindictive and product of imagination. However, in our opinion, the Courts cannot place any embargo on the prerogative of the accused to cross examine the witness unless the question/s is/are irrelevant in facts of the case.

18.14 In our opinion, the recorder of "a statement/dying declaration" does not offer himself for cross examination as if he is the deceased. He is only supposed to bring the statement of the deceased on record and prove the contents thereof. As a matter of fact, the dying declaration can be proved even if its recorder is not available, being dead or who cannot be 52 CR.A.670/2009

found or, for any reason whose attendance cannot be procured. Any other person such as a Doctor / Nurse, if states, that he/she was present when the deceased made such statement, in our opinion, may be sufficient to admit the dying declaration. In that eventuality, if such witness deposes before the Court that he was present when the statement was recorded by a Magistrate, he heard the deceased making such statement, saw the Magistrate recording it, taking the signature / thumb impression of its maker, and also putting his signature thereon etc. may be sufficient to prove the contents of such statement. Whether to form conviction on the basis thereof, however, would be a matter of appreciation of evidence. 18.15 It is common knowledge that Magistrates /Executive Magistrates who are always willing and make themselves available to record dying declarations are often called by Police. In some cases, we find that a particular Magistrate records 10/15 dying declarations in a week or 20/25 in a month. In such a situation, it would be humanly impossible for any Magistrate to remember contents of the statements recorded by him and to reproduce while deposing before the Court. It is true that Magistrate while under examination can refresh his memory as provided for under Section 159 of the Evidence Act. That being so, in our opinion, 53 CR.A.670/2009

expecting the Magistrate, after referring to the statement recorded by him, to repeat and/or reproduce contents thereof, would be too technical and would create violence to logic. In criminal trials, while dealing with such evidence Courts have to be rational and realistic and need not take dogmatic and hyper technical approach. The Courts cannot ignore or turn its mind/attention away from the truth of the cause, in disregard to its duty to prevent miscarriage of justice.

18.16 In Paniben (Supra), the Supreme Court observed that the situation in which a person is on death bed is so solemn and serene when he is dying, the grave position in which he is placed, is the reason in law to accept veracity of his statement. It is for this reason that the requirements of oath and cross examination are dispensed with. Besides, should the dying declaration be excluded, it will result in miscarriage of justice because the victim being generally the only eye witness in a serious crime, and that it would leave the Court without a scrap of evidence. (P.V.Radhakrishna Vs. State of Karnataka (AIR 2003 SUPREME COURT 2859).

19. Having considered the provisions contained in Section 32(1) of the Evidence Act, we would now like to consider as to when the 54 CR.A.670/2009

"statement" of a deceased recorded in writing by a Magistrate could be said to be proved and Court can base its conviction with or without further corroboration. To prove a dying declaration, so as to form the sole basis of conviction, in our opinion, it has to pass through three stages in the course of trial, and if the dying declaration passes through all the stages successfully, the accused could be convicted solely on the basis thereof without corroboration. The first stage is to admit and exhibit the statement/dying declaration, the second is to prove the contents thereof, and lastly, it should be proved that the statement was voluntary and trustworthy, apart from the fact it is equally necessary to prove that such statement was made by the deceased in a fit state of mind. Unless the dying declaration passes through all the stages and stands to all the tests successfully, it cannot form the sole basis of conviction without corroboration. Each case, therefore, must be determined on its own facts keeping in view the circumstances in which dying declaration is made. 19.1 To prove the dying declaration the prosecution needs to bring it on record through a competent witness or it should come on record from proper custody and, once it is placed on record, the Court can admit and exhibit the same. However, mere production and marking of the dying 55 CR.A.670/2009

declaration as exhibit cannot be held to be a proof of its contents. Therefore, the next stage is to prove the contents of the statement. The best person/witness to prove the contents of the statement, within the meaning of Section 32(1), is its recorder. If the recorder of the statement appears before the Court as a witness and deposes that he recorded the said statement by following the proper procedure, that is to say, in the form of questions and answers and, as far as practicable, in the words of the maker of the statement/declaration, and that the maker was well oriented/in a fit state of mind to make the declaration and if the declaration is signed by or thumb impression is put by the declarant in approval thereof, and was also signed by the Magistrate, in our opinion, the contents thereof would stand proved provided nothing is elicited in the cross examination so as to create doubt about its contents. In similar manner, as observed earlier, the contents can also be proved by any other witness, if the recorder is not available, who was present when the statement was recorded by the Magistrate.

19.2 The third stage is to prove that the dying declaration is trustworthy and voluntary. In criminal cases mere proving the contents of the dying declaration would not be sufficient and the Courts require to further examine whether 56 CR.A.670/2009

the statement was voluntary; whether it is truthful/trustworthy. In short, merely because the proper procedure was followed by the recorder of a dying declaration/statement, and he proves the contents thereof would not mean that the contents of the dying declaration are truthful/trustworthy, and voluntary to form the basis for conviction without corroboration. Whether to accept the dying declaration as a truthful evidence, and to convict the accused on the basis thereof is a matter of appreciation of evidence and the Court, where prosecution is relying solely on the dying declaration, has to be on guard that the statement of the deceased was not as a result of tutoring, prompting, vindictive or a product of imagination, apart from the satisfaction of the Court that the deceased was in a fit state of mind and that he had clear opportunity to observe and identify the accused.

19.3 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 57 CR.A.670/2009

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. ( Khushal Rao Vs. State of Bombay, AIR 1958 SC 22.

19.4 In State of Uttar Pradesh Vs. Ramsagar Yadav ( AIR 1985 SC 416) the Supreme Court observed that it is well settled, as a matter of law, that a dying declaration can be acted upon without corroboration. There is not even Rule of prudence which has hardened into a Rule of Law that a dying declaration cannot be acted upon unless it is corroborated. The primary effort of the Court is to find out whether the dying declaration is true, if it is, no question of corroboration arises. It is only if the circumstances surrounding the dying declaration are not clear or convincing that the Court may, for its assurance, look for corroboration to the dying declaration.

19.5 In Uka Ram Vs. State of Rajasthan (2001) 5 SCC 254 the Supreme Court, after considering the principle on which the dying declarations are admitted in evidence, which is based upon the legal maxim Nemo Moriturus Praesumitur Mentire i.e. a man will not meet his 58 CR.A.670/2009

maker with a lie in his mouth, observed that it has always to be kept in mind that though a dying declaration is entitled to great weight, yet it is worthwhile to note that as the maker of the statement is not subjected to cross- examination, it is essential for the court to insist that dying declaration should be of such nature as to inspire full confidence of the court in its correctness. The court is obliged to rule out the possibility of the statement being the result of either tutoring, prompting or vindictive or product of imagination. Before relying upon a dying declaration, the court should be satisfied that the deceased was in a fit state of mind to make the statement. Once the court is satisfied that the dying declaration was true, voluntary and not influenced by any extraneous consideration, it can base its conviction without any further corroboration as rule requiring corroboration is not a rule of law but only a rule of prudence.

19.6 The observations made by the Supreme Court in Jayaraj Vs. State of T.N. (1976 SC 1519) are also relevant, which read thus:

" When the deponent ( while making his dying declaration) was in severe bodily pain ( because of stabbing injuries in abdomen), and words were scarce, his natural impulse would be to tell the Magistrate, without wasting his breath on details, as to who had stabbed him. The very brevity of dying declaration, in the 59 CR.A.670/2009

circumstances of the case, far from being a suspicious circumstance, was an index of its being true and free from the taint of tutoring, more so when the substratum of the dying declaration was fully consistent with the ocular account given by the eyewitnesses."

19.7 In Meesala Ramkrishan Vs. State of A.P. (1994) 4 SCC 182, the Supreme Court accepted the dying declaration on the basis of gestures not only as admissible but also possessing evidentiary value. The certificate of the mental condition was approved by the Doctor who had stated that the nods given by the deceased were effective and meaningful.

19.8 In Panchdeo Singh V. State of Bihar ( [2002] 1 SCC 577), the Supreme Court, after referring to the decision of Arvind Singh v. State of Bihar ( [2001] 6 SCC 407) and after noticing care and caution factors observed Thus:

"That apart from the care and caution factors as noticed earlier the dying declaration ought otherwise to be treated as trustworthy. The issue thus becomes as to whether the dying declaration has been able to bring about a confidence thereon or not - is it trustworthy or is it a mere attempt to cover up the latches of investigation: it must allure to the satisfaction of the court that reliance ought to be placed thereon rather than a distrust: The confidence of the court is the summum bonum and in the event of there being any affirmation thereto in the judicial mind, question of any disbelief or distrust would not arise.In the event however of there being some infirmity, howsoever negligible it 60 CR.A.670/2009

be, the Court unless otherwise satisfied about the credibility thereof, ought to look for some corroboration, if however it is otherwise, question of requirement of a corroboration would not arise: dying declaration alluring confidence of the court would be a sufficient piece of evidence to sustain conviction."

(Emphasis supplied)

19.9 In Laxmi V. Om Prakash ( 2001 AIR SCW 2481), the Supreme Court held thus:

" A dying declaration, if found reliable, can form the basis of conviction. A court of facts is not excluded from acting upon an uncorroborated dying declaration for finding conviction. A dying declaration, as a piece of evidence, stands on the same footing as any other piece of evidence. It has to be judged and appreciated in the light of the surrounding circumstances and its weight determined by reference to the principles governing the weighing of evidence. It is, as if the maker of the dying declaration was present in the court, making a statement, stating the facts contained in the declaration, with the difference that the declaration is not a statement on oath and the maker thereof cannot be subjected to cross-examination."

19.10 Thus, it is well settled that the dying declaration, after its careful scrutiny, if the Court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there is no legal impediment to form such dying declaration the basis of conviction, even if there is no corroboration. ( See Tarachand Damu Sutar Vs. State of Maharashtra ( AIR 1962 SC 130), Kusa Vs. State of Orissa ( (1980) 2 SCC 61 CR.A.670/2009

207, Misala Ramkrishnan Vs. State of A.P. (1994 4 SCC 182), Govardhan Raoji Ghaire Vs. State of Maharashtra ( (1993) (Suppl.) 4 SCC 316 and Gangotri Sing Vs. State of U.P. ( (1993) Suppl.) (1) SCC 327.)

20. Over the years, by judicial pronouncements, it is now settled as to what procedure needs to be followed while recording a dying declaration. Though no statutory form is prescribed for recording a statement by a Magistrate under Section 32(1) of the Evidence Act, how it should be recorded, what precautions, before, during and after recording of the statement, one should take, is almost settled by judicial pronouncements to which we have already made reference in the earlier part of the judgment. We would further like to browse the law settled in that regard.

20.1 There is no requirement of law that a dying declaration must necessarily be made to a Magistrate. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. A dying declaration which has been recorded by a competent Magistrate in the proper manner, i.e. to say, in the form of questions and answers, and as far as practicable, in the words of the maker of the declaration, 62 CR.A.670/2009

stands on a much higher footing than a dying declaration which depends on oral testimony which may suffer from all infirmities of human memory and human character. ( Khushal Rao Vs. State of Bombay (AIR 1958 SC 22).

20.2 It is true that a dying declaration is generally to be recorded by a competent Magistrate. But the Court cannot be too technical and in substance, if feels convinced about the trustworthiness of the statement which may inspire confidence, such a dying declaration can be acted upon, even if it is not recorded by Magistrate. The Supreme Court, in Laxmi Vs. Omprakash and others, (Supra), however, deprecated the practice of Police officers recording dying declaration except where condition of the deceased was so precarious that no other alternative was left. In other words, merely because the statement of a deceased, as contemplated by Section 32(1) of the Evidence Act, is recorded by a Police Officer, cannot be a ground for rejecting the same outright. If the Court is satisfied that the investigating agency was left with no alternative, and if the statement recorded by Police Officer, otherwise satisfies all the tests governing dying declarations, it can form the basis for conviction with or without corroboration, as the case may be.

63 CR.A.670/2009

20.3 Generally, the dying declaration ought to be recorded in the form of questions-answers but, if the dying declaration is not elaborate but consists of only a few sentences and is in the actual words of the maker, the mere fact that it is not in question and answer form cannot be a ground against its acceptability or reliability. But, to lend assurance to those factors, having regard to the importance of the dying declaration, the certificate of a medically trained person is insisted upon. In the absence of availability of a Doctor to certify the above mentioned factors, if there is other evidence to show that the recorder of the statement satisfied himself about those requirements before recording the dying declaration, there is no reason as to why it should not be accepted. ( Ram Bihari Yadav (supra). If it is proved by the testimony of the Magistrate that the declarant was fit to make the statement, even without examination by the Doctor, the declaration can be accepted provided the Court ultimately holds the same to be voluntary and truthful. Thus, a certification by the Doctor is essentially a Rule of caution and, therefore, the voluntary and truthful nature of the declaration can be established otherwise. (Laxman Vs. State of Maharashtra (supra)).

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20.4 There is no format as such of the dying declaration; neither the declaration need to be of longish nature and neatly structured. As a matter of fact, perfect wording and neatly structured dying declaration may bring about an adverse impression and create a suspicion in the mind of the Court since dying declaration need not be drawn with mathematical precision - that the declarant should be able to recollect the circumstances resulting in the available state of affairs. ( Panchdeo Singh Vs. State of Bihar (2002) 1 SCC 577 and Arvind Sing Vs. State of Bihar (2001) 6 SCC 407).

20.5 If the dying declaration is recorded by a person/Magistrate/Executive Magistrate it is the duty of the prosecution to specifically bring on record that the deceased had heard the statement so recorded and he/she admitted to be correct and true and puts his/her thumb impression in approval thereof. This is not mere formality but an essential part while recording a dying declaration, because the person who cannot be examined afterwards must, at least that time, should confirm correctness of the statement. (Manohar Dadarao Landage Vs. State of Maharashtra, 2000 (2) Mh.L.J. 3).

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20.6 Thus, in our opinion, if a competent Magistrate and, in his absence, Police Officer, if by and large follows the procedure recognized by judicial pronouncements and/or observes the principles laid down by the Supreme Court in various judgments, including the judgments referred to in this judgment, the statement in writing, as contemplated by Section 32(1) of the Evidence Act, can be said to be recorded properly.

20.7 Thus, in our opinion, if a dying declaration is recorded properly, that is to say, by following due procedure as reflected in the judgments referred to in the foregoing paragraphs, if its contents are held to be proved, and if it stands to all tests to hold it trustworthy / truthful and voluntary, and if the Court is satisfied that the deceased was in fit state of mind when he made the declaration, it can form the basis for conviction without corroboration, irrespective of the fact whether the recorder repeats the contents thereof in his deposition before the Court. The essential requirement of law, as observed earlier, is that the statement, verbal or written, of the deceased should contain the cause of his death or the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question and not its repetition by the 66 CR.A.670/2009

recorder before the Court.

21. Next, we would like to deal with the contentions advanced on the basis of Section 313 of the Code of Criminal Procedure (for short, "Cr.P.C."). Our attention was invited to Section 313 by Mrs.Jadhav, learned Counsel for the appellant to contend that under this provision it is mandatory for the Court, in the course of trial, to put to the accused, to personally explain all circumstances appearing in the evidence against him, without administering oath. She further submitted the "circumstances appearing in the evidence" against the accused under this provision mean only the circumstances reflected in the oral evidence or stated by the witnesses before the Court. In short, she submitted that unless the contents of the statement are repeated by its recorder, they cannot be put to the accused and those circumstances will have to be excluded from the evidence. She further submitted that if every incriminating circumstance appearing in the oral evidence is not put to the accused personally to explain, he will be entitled for acquittal. Ms.Jadhav raised this contention, since, according to her, in the present case contents of the dying declaration were not put to the accused.

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21.1 Section 313 of Cr.P.C. uses the expression "to explain any circumstances appearing in the evidence". The word "evidence", employed in this Section is not defined in the Code of Criminal Procedure. However, it is defined in Section 3 of the Evidence Act which means and includes all "statements" which the Court permits or require to be made before it by witness, in relation to matters of fact under inquiry; such statements are called "oral evidence", and all documents, including electronic records produced for inspection of the Court. A plain reading of this definition means and includes all statements which the Court permits in relation to matters of fact under inquiry. Section 32 also uses the expression "statement, oral or verbal". The word statement, as observed earlier, is not defined in the Evidence Act though it has been used in number of Sections. We have, therefore, to go to its primary meaning - "that something that is stated". Written dying declaration as contemplated by Section 32(1) produced on record in a criminal trial is a "statement of relevant fact" when it relates to the cause of death, made by person who is dead or cannot be found, is relevant. It can form basis to convict the accused if such statement is recorded by following the due procedure and found to be voluntary and truthful. It is, thus, clear that 68 CR.A.670/2009

the word "evidence" used in Section 313 of the Code of Criminal Procedure would also include "statement" of a deceased reduced in writing as contemplated by Section 32(1) of the Evidence Act. It is, therefore, necessary for the Court to put such question to the accused to personally explain the circumstances appearing in the written "statement" (dying declaration) of the facts relating to the cause of death of its maker.

21.2 The Supreme Court in Sunder Singh Vs. State of Uttaranchal ( (2010) 10 SCC 611), while dealing with Section 313 of the Code of Criminal Procedure, observed that record must show that meticulous care is taken to put all "incriminating circumstances" to the accused. If facts and circumstances appearing in the statement of a deceased, relating to the cause of his death, are incriminating, the Court under Section 313 has to put questions to the accused personally to explain, failing which it could be treated as illegality/irregularity, as the case may be. In the judgment of the Andhra Pradesh High Court in Malekha V. State of A.P. ( 2005- ALT(Cri)-3-30, 2005 ALD (Cri.)-1-962) Justice Bilal Nazki, the Acting Chief Justice, speaking for the Bench, while dealing with the submission that the contents of the declaration were not put to the accused when they were examined under 69 CR.A.670/2009

Section 313, observed that "the contents of the dying declaration" ought to have been put to the accused when the accused was examined under Section 313. While making such observation, the Division Bench of the Andhra Pradesh High Court made reference to several judgments of the Supreme Court. In our opinion, what is necessary to put to the accused, to personally explain, when examined under Section 313 of Cr.P.C., all incriminating circumstance appearing in the statements of a dying person, written or verbal, as to the cause of his death or the circumstances resulting in his death. We have also gone through the judgment of the Supreme Court in Satyavir Singh Rathi V State, 2011 (5) SCALE 339, relating to the interpretation of Section 313 of Cr.P.C which in general supports the view expressed herein above. In our opinion, therefore, the submission advanced on the basis of Section 313 that recorder of the dying declaration should repeat the words spoken by the deceased as to the cause of his death or circumstances resulting in his death is without any merits and deserves to be rejected outright.

21.3 Further, we observe that insofar as the statement of an accused under Section 313 of the Cr.P.C. is concerned, if the evidence brought on record is sufficient to bring home guilt of the 70 CR.A.670/2009

accused, the omission to put any particular circumstances to the accused under Section 313, does not, ipso facto, vitiate the proceedings unless any prejudice caused to the accused is established by him. If the accused succeeds in showing prejudice caused to him, the appellate Court can afford an opportunity to the prosecution to make up the lapse and avoid miscarriage of justice. (Shivaji Sahebrao Bobade Vs. State of Maharashtra, (1973) 2 SCC 793) It is relevant to note the observations made by the Supreme Court in State of Punjab Vs. Naib Din, (2001) 8 SCC 578, while dealing with Section 313 of Cr.P.C., which read thus:

"12. That apart, respondent failed to show that there was any failure of justice on account of the omission to put a question concerning such formal evidence when he was examined under Section 313 of the code. No objection was raised in the trial court on the ground of such omission. No ground was taken up in the appellate court on such ground. If any appellate court or revisional court comes across that the trial court had not put any question to an accused even if it is of a vital nature, such omission alone should not result in setting aside the conviction and sentence as an inevitable consequence. Effort should be made to undo or correct the lapse. If it is not possible to correct it by any means the court should then consider the impact of the lapse on the overall aspect of the case. After keeping that particular item of evidence aside, if the remaining evidence is sufficient to bring home the guilt of the accused, the lapse does not matter much, and can be sidelined justifiably. But if the lapse is so vital as would affect the entire case, the appellate or revisional court can endeavour to see whether it could be rectified."

(Emphasis supplied)

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21.4 In Basavraj R.Patil v. State of Karnataka, (2000) 8 SCC 740, the Supreme Court observed that the explanation offered by the Counsel of the accused at the appellate stage in respect of a vital circumstance which was not put to the accused, was held to be a sufficient substitute for the answers given by the accused himself.

22. Lastly, we would like to consider the contention urged on behalf of the appellant that the dying declaration, in the eventuality of declarant surviving it, would be a previous statement under Section 161 of the Criminal Procedure Code. Though, this submission is not relevant for our purpose, in our opinion, deserves to be rejected outright, in view of the law settled by the Supreme Court in Sunil Kumar and others Vs. State of M.P. ( AIR 1997 SC 940). In this case the Supreme Court, while dealing with the statement of injured witness, which was then recorded as a dying declaration by the Magistrate, observed that the statement of injured which was recorded as a dying declaration which, consequent upon his survival, is to be treated as a statement under Section 164 of the Criminal Procedure and can be used for "corroboration or contradiction", unlike the statement under Section 161, which can be used only for "contradiction". Such statement 72 CR.A.670/2009

recorded by the Magistrate, at the earliest available opportunity, would clearly disclose the substratum of the prosecution case, including the names of the persons as assailants, particularly when it is found to be not an upshot of his tutoring. In State of Delhi V. Shri Ram Lohia, AIR 1960 SUPREME COURT 490, the Supreme Court observed that the statement of a witness recorded under Section 164 of the Cr.P.C. can be used for both, corroboration and contradiction of the statement of a witness in Court.

23. In the result, we are of the opinion that for proving a dying declaration recorded by a person/Magistrate/Executive Magistrate it is not essential requirement of law that the recorder should repeat, while deposing before the Court, the contents of the declaration in the words spoken by the deceased as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death. In other words, the recorder of a dying declaration need not depose before the Court, in the words spoken by the deceased, about the name/description, and the act of the accused, which resulted in his death. Accordingly, the question referred to this Full Bench is answered in negative.

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Having answered the referred question as afore-stated, we now direct the Registry to place the appeal before the appropriate Bench for its disposal in accordance with law.

This Court records its appreciation for the valuable assistance rendered by Advocate Mr.P.R.Patil as amicus curiae.

(D.B.BHOSALE,J.)

(S.B.DESHMUKH, J.)

(SHRIHARI P.DAVARE, J.)

...

AGP/670-09cr.a

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