Can the court refuse to rely on a dying declaration if there was no extreme emergency when it was recorded?

 The submission on behalf of the accused relying upon the decision of this Court in the case of Laxman (supra) that the day on which the dying declaration was recorded, there was no extreme emergency and/or his condition was not so serious or there was any danger to his life and therefore there was no reason and/or cause to record the dying declaration and therefore the dying declaration is not believable, has no substance. In the case of Laxman (supra), which has been relied upon by learned counsel appearing on behalf of the accused there is no absolute proposition of law laid down by this Court that, in a case when at the time when the dying declaration was recorded, there was no emergency and/or any danger to the life, the dying declaration should be discarded as a whole. In the present case, as the deceased was having a stab injury by a knife, there was a possibility of danger to his life and therefore, by way of prudence, if the dying declaration was recorded on 05.12.1980, there is no reason to doubt the dying declaration, which was recorded by Assistant Divisional Transport Officer. Therefore, in our view the Trial Court has rightly relied upon and/or believed the dying declaration recorded by Assistant Divisional Transport Officer on 05.12.1980.

IN THE SUPREME COURT OF INDIA 

CRIMINAL APPELLATE JURISDICTION

 CRIMINAL APPEAL NO. 436 OF 2022; 

The State of Uttar Pradesh Vs Subhash @ Pappu

Print Page

Whether court can rely on dying declaration of victim who has suffered 100% burn?

 Dr. Smt. Asha Bhargava (P.W. 1) examined Lachhibai and found that the whole of her body had sustained hundred per cent burns of second degree. She was conscious but her condition was serious.

 We are unable to accept the contention. Dr. Bhargava had examined Lachhibai. According to her Lachhibai was in a fit state of health to make a declaration. Indeed, her evidence is that when she recorded the dying declaration of Lachhibai, she was capable of deposing and was in her senses. She further stated that when she was recording her dying declaration, "she had started going into coma".

8. The learned First Additional Sessions Judge and the High Court have believed the evidence of Dr. Bhargava and have placed reliance upon the dying declaration in convicting the appellant. We do not find any reason not to believe the evidence of Dr. Bhargava. In the circumstances, we are of the view that the courts below were justified in convicting the appellant under Section 302 of IPC. No other point has been urged on behalf of the appellant.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 354 of 1986

Decided On: 27.01.1987

 Suresh Vs.  State of Madhya Pradesh

Hon'ble Judges/Coram:

G.L. Oza and M.M. Dutt, JJ.

Citation: AIR 1987 SC 860

Print Page

Latest Supreme Court Judgment on dying declaration

 A survey of the decisions would show that the
principles can be culled out as follows:
a. Conviction of a person can be made solely on
the basis of a dying declaration which inspires
confidence of the court;
b. If there is nothing suspicious about the
declaration, no corroboration may be necessary;
c. No doubt, the court must be satisfied that
there is no tutoring or prompting;

d. The court must also analyse and come to the
conclusion that imagination of the deceased was
not at play in making the declaration. In this
regard, the court must look to the entirety of
the language of the dying declaration;
e. Considering material before it, both in the
form of oral and documentary evidence, the court
must be satisfied that the version is compatible
with the reality and the truth as can be gleaned
from the facts established;
f. However, there may be cases where there are
more than one dying declaration. If there are
more than one dying declaration, the dying
declarations may entirely agree with one another.
There may be dying declarations where
inconsistencies between the declarations emerge.
The extent of the inconsistencies would then have
to be considered by the court. The
inconsistencies may turn out to be reconciliable.

g. In such cases, where the inconsistencies go to
some matter of detail or description but is
incriminatory in nature as far as the accused is
concerned, the court would look to the material
on record to conclude as to which dying
declaration is to be relied on unless it be shown
that they are unreliable;
h. The third category of cases is that where there
are more than one dying declaration and
inconsistencies between the declarations are
absolute and the dying declarations are
irreconcilable being repugnant to one another. In
a dying declaration, the accused may not be
blamed at all and the cause of death may be
placed at the doorstep of an unfortunate
accident. This may be followed up by another
dying declaration which is diametrically opposed
to the first dying declaration. In fact, in that
scenario, it may not be a question of an
inconsistent dying declaration but a dying

declaration which is completely opposed to the
dying declaration which is given earlier. There
may be more than two.
i. In the third scenario, what is the duty of the
court? Should the court, without looking into
anything else, conclude that in view of complete
inconsistency, the second or the third dying
declaration which is relied on by the prosecution
is demolished by the earlier dying declaration or
dying declarations or is it the duty of the court
to carefully attend to not only the dying
declarations but examine the rest of the
materials in the form of evidence placed before
the court and still conclude that the
incriminatory dying declaration is capable of
being relied upon?
OUR CONCLUSION ON MULTIPLE DYING DECLARATION
31. We would think that on a conspectus of the law as
laid down by this court, when there are more than one

dying declaration, and in the earlier dying
declaration, the accused is not sought to be roped in
but in the later dying declaration, a summersault is
made by the deceased, the case must be decided on the
facts of each case. The court will not be relived of
its duty to carefully examine the entirety of materials
as also the circumstances surrounding the making of the
different dying declarations. If the court finds that
the incriminatory dying declaration brings out the
truthful position particularly in conjunction with the
capacity of the deceased to make such declaration, the
voluntariness with which it was made which involves, no
doubt, ruling out tutoring and prompting and also the
other evidence which support the contents of the
incriminatory dying declaration, it can be acted upon.
Equally, the circumstances which render the earlier
dying declaration, worthy or unworthy of acceptance,
can be considered.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 967 OF 2015

JAGBIR SINGH Vs  STATE (N.C.T. OF DELHI) 

K.M. JOSEPH, J.
Dated:September 4, 2019.

Print Page

Whether dying declaration is admissible in civil suits?

There is a clear distinction between the principles governing the evaluation of a dying declaration under the English law and the Indian law. Under the English law, credence and relevancy of a dying declaration is only when the person making such a statement is in hopeless condition and expecting an imminent death. So under the English law, for its admissibility, the declaration should have been made when in the actual danger of death and that the declarant should have had a full apprehension that his death would ensue. However, under the Indian law, the dying declaration is relevant, whether the person who makes it was or was not under expectation of death at the time of such declaration. The dying declaration is admissible not only in the case of homicide but also in civil suits. The admissibility of a dying declaration rests upon the principle of nemo meritorious praesumuntur mentiri (a man will not meet his maker with a lie in  his mouth).

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 301 of 2008

Decided On: 15.03.2012

Bhajju  Vs.  State of M.P.

Hon'ble Judges/Coram:

A.K. Patnaik and Swatanter Kumar, JJ.

Print Page

Whether Dying Declaration by a person explaining circumstances of death of another is admissible?

 In the present case, we are concerned with Point (iii) as we are concerned with the question whether statement of Prabhabai is relevant for determining cause of death of Savita. In other words, when charge is of murder of Savita, whether cause of death of Prabhabai which is integral part of the incident can also be held to be in question.

19. On a plain reading, the statement is admissible about the cause of death or the circumstances of the transaction which resulted in the death of the person making the statement. Question is what happens when two deaths have taken place in the same transaction and circumstances of the transaction resulting in one death is closely interconnected with the other death. Admittedly, the DD of Prabhabai is admissible as to cause of her death as well as the circumstances of the transaction which resulted in her death. Such statement may not by itself be admissible to determine the cause of death of anyone other than the person making the statement. However, when the circumstances of the transaction which resulted in death of the person making the statement as well as death of any other person are part of the same transaction, the same will be relevant also about the cause of death of such other person.

20. Expressions "Relevant" and "facts in issue" are defined in the Evidence Act as follows:

"Relevant"-One fact is said to be relevant to another when the one is connected with the other in any of the ways referred to in the provisions of this Act relating to the relevancy of facts.

"Facts in issue"-The expression "facts in issue" means and includes--any fact from which, either by itself or in connection with other facts, the existence, nonexistence, nature or extent of any right, liability, or disability asserted or denied in any suit or proceeding, necessarily follows.

Section 6 is as follows:

6. Relevancy of facts forming part of same transaction-Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places.

Illustrations

Xxxxxxx

21. Thus, when a dying declaration relating to circumstances of the transaction which resulted in death of a person making the declaration are integral part of circumstances resulting in death of any other person, such dying declaration has relevance for death of such other person also.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1330 of 2009

Decided On: 26.02.2015

Tejram Patil Vs. State of Maharashtra

Hon'ble Judges/Coram:

Dipak Misra and A.K. Goel, JJ.

Print Page

When statement of victim recorded by police can be treated as her dying declaration?

 It is relevant to refer to judgment of this Court in Najjam Faraghi @ Nijjam Faruqui v. State of West Bengal MANU/SC/0949/1998 : (1998) 2 SCC 45. In the above case, the kerosene oil was poured on the victim and she was put on fire on 13.06.1985. She lived for about a month and died on 31.07.1985. This Court referring to Section 32(1) held that mere fact that victim died long after making the dying declaration, the statement does not looses its value. In Para 9, following has been held:

9. There is no merit in the contention that the Appellant's wife died long after making the dying declarations and therefore those statements have no value. The contention overlooks the express provision in Section 32 of the Evidence Act. The second paragraph of Sub-section (1) reads as follows:

Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.

No doubt it has been pointed out that when a person is expecting his death to take place shortly he would not be indulging in falsehood. But that does not mean that such a statement loses its value if the person lives for a longer time than expected. The question has to be considered in each case on the facts and circumstances established therein. If there is nothing on record to show that the statement could not have been true or if the other evidence on record corroborates the contents of the statements, the court can certainly accept the same and act upon it. In the present case both courts have discussed the entire evidence on record and found that two dying declarations contained in Exs. 5 and 6 are acceptable.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1192 of 2018 (Arising out of SLP (Crl.) No. 6225 of 2017)

Decided On: 10.10.2018

 Pradeep Bisoi Vs.  The State of Odisha

Hon'ble Judges/Coram:

A.K. Sikri and Ashok Bhushan, JJ.

Citation: AIR 2018 SC 4787

Print Page

Notes on dying declaration

Central Government Act

Section 32 in The Indian Evidence Act, 1872

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 proceeding in which the cause of his death comes into question.

A dying declaration is a statement made by a dying person as to cause of his death or as to any of the circumstances of the transaction which resulted in his death when the cause of his death is in 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 nature of proceedings in which the cause of his death comes into question.

If the person making dying declaration chances to live,his statement is inadmissible as a dying declaration,but it might be relied on U/S 158 to

corroborate his testimony when examined.Such a statement can also be used to contradict him U/S 145.

Print Page

Whether dying declaration can be rejected if it is not read over to declarant?

A dying declaration cannot be rejected merely because the same is not read over to the declarant and the declarant admitting the same to have been correctly recorded. We hold and clarify that this can be one of the factors, if it assumes significance in the facts and circumstances of any case.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Criminal Appeal No. 186 of 2013

Decided On: 09.03.2018

Ganpat Bakaramji Lad Vs. The State of Maharashtra

Hon'ble Judges/Coram:

R.K. Deshpande, S.B. Shukre and M.G. Giratkar, JJ.

Print Page

Whether recorder of dying declaration should depose about contents of dying declaration in his evidence before court?

It is not necessary for us to delve into the matter at any great length, in view of the fact that relied upon judgment was overruled by a Full Bench of the High Court itself in Ramesh S/o. Gyanoba Kamble v. State of Maharashtra MANU/MH/1547/2011 : 2011 (6) Mh. L.J. 927. The legal position, expressed by the Full Bench of the High Court, was recorded as under:

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.

We are satisfied in holding, that the conclusion which was drawn by the Full Bench of the High Court in Ramesh S/o. Gyanoba Kamble's case (Supra), after examining the issue at great length, and after taking note of a large number of judgments rendered by the Supreme Court, is the correct legal position, on the issue. In the above view of the matter, it was wholly impermissible for the High Court to have overlooked, the two dying declarations of the deceased Nalu Sunil Potdukhe, as had been recorded by PW-2 Rameshwar Amnerkar and PW-6 Ashok Latare.

IN THE SUPREME COURT OF INDIA

Crl. A No. 2053 of 2010

Decided On: 01.09.2016

Sunil Vs. State of Maharashtra

Hon'ble Judges/Coram:

J.S. Khehar and Arun Mishra, JJ.

Citation:(2017) 11 SCC 260.

Print Page

Whether accused can be convicted if dying declaration is recorded by police inspector?

We cannot accept the submission of learned Counsel for the Appellant when he urged that it was the police who falsely implicated the names of the accused in the dying declaration which led to the registration of FIR against them resulting in their conviction.

29. In our view, there is no evidence to accept this submission. The Appellant failed to cite any incident of significance to prove that the police authorities knew the accused persons prior to the date of incident or/and that the accused or police authorities had some kind of grudge/animosity due to some prior incident etc. and due to which the police falsely implicated the accused persons in this case. In our view, there has to be some strong circumstance to prove false implication by the police officials in any serious offence such as the one here. We do not find it to be so here.

33. We are not impressed by the submission of learned Counsel for the Appellant when he urged that the dying declaration is bad because it was recorded by the Inspector and not by any Magistrate.

34. In our considered opinion, firstly, the law does not prescribe any format for recording dying declaration; and secondly, it also does not prescribe any specific authority to record it unless any special law or rule is enacted to that effect. No such rule was brought to the notice of the Courts below and here also. On the other hand, we find that perfect wording and neatly structured dying declaration at times brings about an adverse impression and creates suspicion in the mind of the Court since the dying declaration need not be drawn with mathematical precision.

35. All that the law requires is that the declarant should be in a fit state of mind and be able to recollect the situation resulting in the available state of affairs in relation to the incident and the Court should be satisfied that the reliance ought to be placed thereon rather than distrust.

36. We have not been able to notice any kind of illegality in recording the dying declaration by the Inspector as urged by the learned Counsel for the Appellant. As observed supra, the concerned Inspector before recording the statement had got the deceased medically examined by the Doctor and it was only after the Doctor certified that the deceased was in fit state of mind to speak, his dying declaration was recorded. In the absence of any other suspicious circumstances surfacing the dying declaration it is not possible to discard the dying declaration only on this ground.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 2311 of 2009

Decided On: 14.12.2016

Shama Vs. State of Haryana

Hon'ble Judges/Coram:

A.K. Sikri and Abhay Manohar Sapre, JJ.

Citation:(2017) 11 SCC 535.

Print Page

Whether dying declaration can be relied on if it is not recorded in language of deceased declarant?

On the showing of the prosecution itself, the deceased was an illiterate, coolie with rustic background, it cannot be presumed or assumed that she would have narrated the motive for the incident as above in a sophisticated language which was not familiar to her. Had if the vital portion of the dying declaration, as answered to question No.21 was recorded verbatim in the language of the declarant and was the actual version of her statement, then same could have been acted upon dehors corroboration to record conviction. The sophisticated bookish language employed above raises reasonable doubt, as to whether declarant's mind was translated into writing in its true sense?

12. As per Criminal Rules of Practice in the neighbouring State, the declaration should be taken down in the words of the declarant as far as possible. There is no such corresponding provision in Karnataka Criminal Rules of Practice. However, the rule of wisdom would caution that the declarant's version shall be recorded in the language expressed by him/her.

Karnataka High Court

Chikkanna Shetty vs The State Of Karnataka on 11 October, 2017

Author: Rathnakala And K.S.Mudagal

Print Page

Whether dying declaration not certified by doctor can be relied on?

In case of Chacko vs. State of Kerala reported in
2003(1) SCC 112, the Apex Court has held as follows :-
“ It is always not necessary that a dying declaration
should be certified by a doctor before the reliance could be
placed on the same but then in the absence of any such
certificate, the Court should be satisfied that from the
material on record it is safe to place reliance on such uncertified
declaration.”
13. It appears that this statement was taken by the Police
Officer immediately after reaching the informant‟s bed at the Primary
Health Centre and for the said reason, the fardbeyan is to be treated as
dying declaration and there is no point to disbelieve it merely because
it was not certified by the doctor relating to his consciousness and
mental condition of the informant. Besides this, there is corroborative
evidence also as the appellant was seen fleeing away by P.W.1 and
P.W.2 and informant also disclosed name of the appellant as his 
assailant.
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.1401 of 2010

Hari Narayan Singh, V The State of Bihar

 CORAM:  MR. JUSTICE SAMARENDRA PRATAP SINGH
 And
 MR. JUSTICE ARUN KUMAR

Date: 05 -07-2017

Print Page

Whether court can rely on dying declaration if it is not signed by victim?

 Another argument of Shri Bhatia is that the dying declaration as

well as the Dehati Nalishi have not been signed by the victim but have

been thumb marked. When a person has been burnt even though the

person may be asked it is not possible for that person to sign a

document and there is nothing unusual in getting it thumb marked. We

must also remember that PW-5 and PW-9 are a doctor and a NaibTahsildar,

respectively. They are independent witnesses. They have

no personal axe to grind. We cannot disbelieve their statements.

Nothing has been brought on record to show why these people should

tell a lie and why they should have created a false document with a

view to implicate the accused. The fact that Suresh was caught hold of

by the villagers and was brought to the hospital itself indicates that he

was at the spot and he has given no explanation in this regard.

24. Keeping in view all these facts, we are of the considered view that

the Learned Trial Court was fully justified in relying upon the dying

declaration (Ex.P-4).

HIGH COURT OF CHHATTISGARH, BILASPUR

Criminal Appeal No.1063 of 2002

Dated : 29.9.2016

Suresh Purushottam,

v

State of Chhattisgarh, 

Coram:

 Shri Deepak Gupta, Chief Justice

 Shri Justice P. Sam Koshy

Citation: 2017 CRLJ 91 Chhatis

Print Page

Whether dying declaration not recorded by Magistrate is admissible in evidence?

 Dying declaration made by the deceased is admissible in evidence Under Section 32(1) of the Evidence Act, 1872. In the absence of any kind of infirmity or/and suspicious circumstances surrounding its execution, once it is proved in evidence in accordance with law, it can be relied on for convicting an accused even in the absence of corroborative evidence but with a Rule of prudence that it should be so done with extreme care and caution. (See-Panchdeo Singh v. State of Bihar, MANU/SC/0775/2001 : AIR 2002 SC 526)

33. One of the principles, which is always kept in mind, while examining the dying declaration of the deceased is that "a man will not meet his Maker with a lie in his mouth". As aptly said by Mathew Arnold in very old English case [see-Lyre LCR in R v.Woodcock (1789) 1 Leach 500]-"Truth sits on the lips of a dying man". This principle is deduced from a well known Latin legal maxim "nemo moriturus praesumitur mentire".

34. We are not impressed by the submission of learned Counsel for the Appellant when he urged that the dying declaration is bad because it was recorded by the Inspector and not by any Magistrate.

35. In our considered opinion, firstly, the law does not prescribe any format for recording dying declaration; and secondly, it also does not prescribe any specific authority to record it unless any special law or Rule is enacted to that effect. No such Rule was brought to the notice of the Courts below and here also. On the other hand, we find that perfect working and neatly structured dying declaration at times brings about an adverse impression and creates suspicion in the mind of the Court since the dying declaration need not be drawn with mathematical precision.

36. All that the law requires is that the declarant should be in a fit state of mind and be able to recollect the situation resulting in the available state of affairs in relation to the incident and the Court should be satisfied that the reliance ought to be placed thereon rather than distrust.

37. We have not been able to notice any kind of illegality in recording the dying declaration by the Inspector as urged by the learned Counsel for the Appellant. As observed supra, the concerned Inspector before recording the statement had got the deceased medically examined by the Doctor and it was only after the Doctor certified that the deceased was in fit state of mind to speak, his dying declaration was recorded. In the absence of any other suspicious circumstances surfacing the dying declaration, it is not possible to discard the dying declaration only on this ground.

38. This takes us to the next argument of learned Counsel for the Appellant. It was urged that since the deceased died 10 days after the incident, his statement could have been recorded by the Magistrate during this intervening period.

39. We find no merit in this submission. Once the statement of the deceased had been recorded after taking due procedural care and pursuant to which the police started the investigation and promptly arrested the Appellant herein on 13.10.1997, there was no need to record another statement of the deceased during the intervening period of 10 days. It was neither a case of infirmity in the prosecution case and nor was the requirement of law to do so.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 2311 of 2009

Decided On: 14.12.2016

Shama Vs. State of Haryana

Hon'ble Judges/Coram:

A.K. Sikri and Abhay Manohar Sapre, JJ.

Citation: 2017 ALLMR(CRI)448 SC

Print Page

Whether dying declaration recorded by magistrate will be preferred over dying declaration recorded by police?

From perusal of above dying declarations it is evident that in the first
dying declaration, deceased made no allegation against anyone but
termed the incident as an accident, whereas in the second dying
declaration the deceased accused her appellant husband of pouring
kerosene oil and then setting her on fire, but this did not contain the
certificate of the doctor that the deceased was in a fit state of mind to
make a declaration. However, the Magistrate, who recorded the second
declaration, clarified in his evidence that since the police had already
obtained opinion of the doctor as to fitness of mind of the deceased to
make statement, he himself did not enquire in this regard.
Besides the aforesaid two declarations, there is yet another
statement of the deceased recorded by a police officer in a routine
manner as Dehati FIR (Ex.P-12) and not as a dying declaration wherein
she accused her husband of pouring kerosene oil on her and then setting
her on fire. According to evidence of A.K. Prajapati (PW-12), after getting
certificate from the doctor that the deceased was in a fit condition to give
her statement, he recorded Dehati FIR Ex.P-12 in the manner as was
told by her. Though various suggestions have been put to this witness to
make Ex.P-12 doubtful, he has denied all those adverse suggestions and
remained very firm. Thus, this version of the deceased in Dehati FIR
(Ex.P-12) can also be treated as dying declaration after her death and for
this view I am fortified from the judgment of the Supreme Court in the
matter of Paras Yadav vs. State of Bihar reported in (1999) 2 SCC 126wherein it has been held by the Supreme Court that “a statement of the
deceased recorded by a police officer in a routine manner as a complaint
and not as a dying declaration can also be treated as dying declaration
after the death of the injured and relied upon if the evidence of the
prosecution witnesses clearly establishes that the deceased was
conscious and was in a fit state of health to make the statement”.
On comparison of Ex.P-8 & Ex.P-12, we find that Ex.P-12 is
consistent with Ex.P-8 i.e. second dying declaration recorded by the
Executive Magistrate. More so, it also stands corroborated by the oral
declaration made by the deceased to her brothers Budheshwar (PW-1) &
Kamlesh Kumar (PW-7) in the hospital. The defence has not been able
to elicit anything in the cross-examination of aforesaid witnesses to
discredit their testimonies to the extent that the deceased has not made
any dying declaration before them.
True it is that first dying declaration of the deceased was totally tilted
in favour of appellant husband and the version put forward was that she
had caught fire from the stove while cooking, but the settled position is
that in case there are more than one dying declaration and there are
inconsistencies between them, then the dying declaration recorded by
the higher officer like a Magistrate can be relied upon as the same would
stand on a much higher footing than the declaration recorded by officer of
lower rank. Furthermore, evidence available on record reflects that the
deceased was admitted in the hospital by the appellant husband and thus
the possibility of the deceased making first statement in favour of the
accused under threat, duress or compulsion by her husband that she
would be admitted in hospital only if she would give a statement in his
favour, cannot be ruled out.
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 1068 of 2012
 Tumendra Kumar Gahare @ Vijay Kumar Gahare 
V
State Of Chhattisgarh 
Per P. Diwaker, J
DATED:18/03/2016
Citation:2016 CRLJ3138 Chhatis

Print Page

How to appreciate dying declaration?

This Court in Atbir v. Government of NCT of Delhi  (2010) 9 SCC 1 has summarized the principles laid down earlier, as under:
“(i) Dying declaration can be the sole basis of
conviction if it inspires the full confidence of the
court.
(ii) The court should be satisfied that the deceased
was in a fit state of mind at the time of making the
statement and that it was not the result of
tutoring, prompting or imagination.
(iii) Where the court is satisfied that the
declaration is true and voluntary, it can base its
conviction without any further corroboration.
(iv) It cannot be laid down as an absolute rule of
law that the dying declaration cannot form the sole
basis of conviction unless it is corroborated. The
rule requiring corroboration is merely a rule of
prudence.

(v) Where the dying declaration is suspicious, it
should not be acted upon without corroborative
evidence.
(vi) A dying declaration which suffers from
infirmity such as the deceased was unconscious
and could never make any statement cannot form
the basis of conviction.
(vii) Merely because a dying declaration does not
contain all the details as to the occurrence, it is
not to be rejected.
(viii) Even if it is a brief statement, it is not to be
discarded.
(ix) When the eyewitness affirms that the deceased
was not in a fit and conscious state to make the
dying declaration, medical opinion cannot prevail.
(x) If after careful scrutiny, 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 shall be no legal
impediment to make it the basis of conviction,
even if there is no corroboration.”
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 951 OF 2007
STATE (GOVERNMENT OF NCT OF DELHI)
Vs
NITIN GUNWANT SHAH 
Citation;  2015CriLJ4759, 2015(4)Crimes51(SC),  (2016)1SCC472,
Pinaki Chandra Ghose, J.

Print Page

Whether dying declaration will be vitiated on ground that relatives were present at the time of its recording?

 As such it is clear that the dying declaration does not need
corroboration in all cases.  If the court is satisfied with the correctness of the
dying   declaration,   the   conviction   can   be   based   on   the   basis   of   dying
declaration only.  Learned Counsel Shri N.A. Badar has submitted that there
was every possibility of deceased being tutored by his relatives, particularly
his mother Revati.  His argument is based on the cross­examination of P.W.9,

the Medical Officer, who had given fitness certificate.  It is admitted by this
witness   that   Uncle   of   the   deceased   was   present   when   the   statement   of
deceased was recorded by the Executive Magistrate.  Learned Counsel Shri
N.A. Badar has invited my attention to cross­examination of P.W.5 also where
it was suggested that the relatives were present when the statement was
recorded.  If one goes through the cross­examination of P.W.5, it can safely be
said that Uncle of the deceased was present when the statement of deceased
was being recorded.  However, the question, which arises for determination,
is as to whether presence of uncle by itself will vitiate the sanctity of dying
declaration.     In   my   opinion,   presence   of   relative   by   itself   may   not   be
sufficient to reject the dying declaration.   There should be something on
record   that   the   relative   of   the   deceased   had   in   any   manner   tutored   or
influenced   the  deceased   to  give   a   particular  statement.     Unless   there   is
evidence to suggest that there was interference on the part of the relative,
the presence of relative itself cannot vitiate the dying declaration.   In the
present   case,   there   is   nothing   more   in   the   cross­examination   except
admission on the part of   P.W.9 that Uncle of the deceased was present when
the statement of deceased was recorded.  I do not think that admission on
the part of P.W.9 caused damage to the prosecution case. 
  IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO.186 OF 2012
Sukhdeo s/o Tikaram Bhardwaj,

VERSUS
The State of Maharashtra, 

                             CORAM : M.L. TAHALIYANI, J.
                                  DATED   : 16th JULY, 2014.
Citation;2016 CRLJ(NOC)75 Bom

Print Page

Presumption that person in dead-bed expecting death at any moment will not tell a lie have no universal application

The remaining piece of evidence is the dying declaration (Ex.P17)
recorded by the Judicial Magistrate who was examined as PW28.  Though there  
is a presumption that the persons in dead-bed expecting death at any moment
will not tell a lie, such a presumption shall not have universal application.
It depends upon the facts and circumstances of each case.  If the statement
recorded as the dying declaration of the deceased inspires the confidence of
the Court, then there would not be any impediment for the Court to act on
such dying declaration to base a conviction. However it shall be prudent to
seek corroboration. Such dying declarations shall have weight provided it is
not proved that maker was not exposed to the tutoring of others before making
such dying declaration.
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT               


                PRONOUNCED ON :       10.12.2015    
CORAM   

MR.JUSTICE P.R.SHIVAKUMAR             

Criminal Appeal(MD) No.377 of 2006 


Raja                                          Vs.  State 
     

Print Page

How to appreciate dying declaration of victim of Dowry death if defence is relying upon said dying declaration?

The defence has rested very heavily nay, almost entirely, on the alleged
Dying Declaration attributed to the deceased. The admissibility of a Dying
Declaration as a piece of evidence in a Trial is governed by Section 32(1) of the
Evidence Act, 1872. Section 32, as a whole, enunciates the exceptions to the rule
of non-admissibility of hearsay evidences, eventuated out of necessity to give
relevance to the statements made by a person whose attendance cannot be procured
for reasons stipulated in the section. Postulating the essential ingredients to define
what exactly would constitute a hearsay is an arduous task, and since we are only
concerned with one of its exceptions, we should forbear entering into the entire
arena. The risks while admitting a Dying Declaration and the statements falling
within the domain of Section 32(1) run higher in contrast to other sundry
evidences, and this entails a huge bearing on their admissibility and credibility.
Such statements are neither made on oath nor the maker of the statement would be
available for cross-examination nor are they made under the influence of the
supremacy and the solemnity of the court-room. This is the reason why this Court
has consistently underlined the necessity to examine this specie of evidence with
great circumspection and care. However, once a Dying Declaration is held to be
authentic, inspiring full confidence beyond the pale of doubt, voluntary, consistent
and credible, barren of tutoring, significant sanctity is endowed to it; such is the
sanctitude that it can even be the exclusive and the solitary basis for conviction
without seeking any corroboration. At this juncture, it is worthwhile noting that
the sanctity attached to a Dying Declaration springs up from the rationale that a
person genuinely under the sense of imminent death would speak only the truth. In
addition to the Dying Declaration, which is only one of the species of the genus of
Section 32(1), there could be other statements, written or verbal, which also would
be encompassed within the sweep of this section, and at this point the Indian law
drifts from the English law. This is further evident from the usage of phraseology
in the section, embracing not only statements made about “cause of death” but also
about “any of the circumstances of the transaction which resulted in the death”,
whether or not the person making the statement was under “expectation of death”.
These statements could be in the form of a suicide note, a letter, a sign or a signal,
or a product of any reliable means of communication; their genuineness and
credibility shall, of course, be reckoned by the Court entertaining the concerned
matter. A Dying Declaration enjoys a higher level of credence vis-à-vis any other
statement abovementioned, which is on account of the former being made in the
“contemplation of death”. “Contemplation of death” is the primal factor to
segregate Dying Declarations from other statements. But no hard-and-fast rule can
be laid down to confine the contemplation within the circumference of few hours
or a few days in which death of the maker of the statement must happen so as to
elevate that statement to the level of a Dying Declaration. Moreover, the state of
mind of the maker would also be material in discerning completely as to whether
the maker was mentally fit to make the statement and whether the maker actually
could have contemplated death.
6 Definition of this legal concept found in Black’s Law Dictionary (5th
Edition) justifies reproduction: Dying Declarations – Statements made by a person
who is lying at the point of death, and is conscious of his approaching death, in
reference to the manner in which he received the injuries of which he is dying, or
other immediate cause of his death, and in reference to the person who inflicted
such injuries or the connection with such injuries of a person who is charged or
suspected of having committed them; which statements are admissible in evidence
in a trial for homicide (and occasionally, at least in some jurisdictions, in other
cases) where the killing of the declarant is the crime charged to the defendant.
Shepard v. U.S., Kan., 290 U.S. 96, 54 S.Ct. 22, 78 L.Ed. 196. Generally, the
admissibility of such declarations is limited to use in prosecutions for homicide;
but is admissible on behalf of accused as well as for prosecution. In a prosecution
for homicide or in a civil action or proceeding, a statement made by a declarant
while believing that his death was imminent, concerning the cause or
circumstances of what he believed to be his impending death is not excluded by the
hearsay rule. Fed.Evid.R. 804(b)(2). 
When a person makes a statement while being aware of the prospect that his
death is imminent and proximate, such a statement assumes a probative value
which is almost unassailable, unlike other statements which he may have made
earlier, when death was not lurking around, indicating the cause of his death. That
is to say that a person might be quite willing to implicate an innocent person but
would not do so when death is knocking at his door. That is why a Dying
Declaration, to conform to this unique specie, should have been made when death
was in the contemplation of the person making the statement/declaration.
 In the case before us, the statement, if made by the deceased, would qualify
to be treated as a Dying Declaration because she was admitted in the hospital,
having sustained 90-95 per cent burn injuries, and because of this grave burn
injuries, she would be expecting to shortly breathe her last.
9 The central question, however, remains as to whether the alleged Dying
Declaration attracts authenticity. Since the prosecution has succeeded in
showing/proving by preponderance of probability that a dowry death has occurred,
the burden of proving innocence has shifted to the accused. It appears to us to be
unexceptionable that whenever a person is brought to a hospital in an injured state
which indicates foul-play, the hospital authorities are enjoined to treat it as a
medico-legal case and inform the police. If the doctor, who has attended the
injured, is of the opinion that death is likely to ensue, it is essential for him to
immediately report the case to the police; any delay in doing so will almost never
be brooked. The police in turn should be alive to the need to record a
declaration/statement of the injured person, by pursuing a procedure which would
make the recording of it beyond the pale of doubt. This is why an investigating
officer (I.O.) is expected to alert the jurisdictional Magistrate of the occurrence,
who in turn should immediately examine the injured. When this procedure is
adopted, conditional on the certification of a doctor that the injured is in a fit state
to make a statement, a Dying Declaration assumes incontrovertible evidentiary
value. We cannot conceive of a more important duty cast on the Magistrate, since
the life & death of a human being is of paramount importance. We think that only
if it is impossible for the Magistrate to personally perform this duty, should he
depute another senior official. Non-adherence to this procedure would needlessly
and avoidably cast a shadow on the recording of a Dying Declaration. The
prosecution, therefore, would be expected to prove that every step was diligently
complied with. The prosecution would have to produce the doctor or the medical
authority to establish that on the examination of the injured/deceased, the police
had been immediately informed. The I.O. who was so informed would then have
to testify that he alerted the Magistrate, on whose non- availability, some
responsible person was deputed for the purpose of recording the Dying
Declaration. We are not in any manner of doubt that where medical opinion is to
the effect that a person is facing death as a consequence of unnatural events, the
responsibility of the Magistrate to record the statement far outweighs any other
responsibility. There may be instances where there was no time to follow this
procedure, but that does not seem to be what has transpired in the case in hand. In
cases where some other person is stated to be recipient of a Dying Declaration,
doubts may reasonably arise.
10 Since the burden of proving innocence beyond reasonable doubt shifts to the
Accused in the case of a dowry death, as it has in the present case, it was
imperative for the defence to prove the sequence of events which lead to the
recording of the alleged Dying Declaration by the Tehsildar DW1. This burden
has not even been faintly addressed. It appears that at the time of seeking bail the
accused had requested the Sessions Court to call for the alleged Dying Declaration.
Keeping in perspective that none of the Accused was present when the deceased
was receiving medical treatment in the hospital, or when the Dying Declaration
was allegedly recorded, or at the time of death, or even at the time of cremation,
the manner in which the Accused learnt of the existence of the Dying Declaration
has not been disclosed. The statement of the I.O. also does not clarify the
position; he has stated that he learnt of the existence of the Dying Declaration from
the relatives of the deceased. On the application of Sher Singh, the burden and
necessity of proving this sequence of events stood transferred to the shoulders of
the Accused since Section 304B of the IPC had been attracted. The I.O. has
deposed that all the Accused, including the late father-in-law, Gorakh Nath, had
absconded after the incident. In fact, in the cross-examination, the I.O. states that
– “there is no reliable information about the Dying Declaration… On keeping this
information that the Dying Declaration of Vijay Lakshmi was recorded by the
Magistrate I did not consider any need of this thing”. Neither the Doctor DW2 who
had allegedly certified that the deceased was in a fit condition to make a statement
nor the Tehsildar who had allegedly written down the alleged Dying Declaration
has stated the manner in which the Tehsildar had been conscripted or located to
perform this important recording. The Dying Declaration appears to have
mysteriously popped up and referred to at the time of praying for bail. The chain
or sequence of events which lead to its recording remains undisclosed. In his
statement, the Tehsildar has not clarified the manner in which he happened to
record the Dying Declaration and the timing of its transmission to the Court.
Since the onus of proof had shifted to the Accused, this alleged sequence of events
should have been proved beyond reasonable doubt by them. We may emphasise
that the Tehsildar as well as the Doctor who allegedly certified that the deceased
was in a fit state to make the Dying Declaration has been produced by the defence.
The Doctor should have spoken of the sequence of events in which the Tehsildar
came to record the Dying Declaration. The alleged exculpating Dying Declaration
is, therefore, shrouded in suspicion and we have not been persuaded to accept that
it is a genuine document. The defence has failed to comply with Section 113B of
the Evidence Act. The Accused being charged of the commission of a dowry
death ought to have entered the witness box themselves. The Accused were
present on the scene at the time of the occurrence, which turned out to be fatal, and
that added to their responsibility to give a credible version of their innocence in the
dowry death.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS.1279-1281 OF 2011
RAMAKANT MISHRA @ LALU ETC. 
VS.
STATE OF U.P.
Citation;(2015) 8 SCC299

Print Page

Whether dying declaration will not be admissible merely because magistrate did not record it in form of questions and answers?

    Nor    would    a    dying
          declaration go bad merely because
          the magistrate did not record it
          in  the  form  of  questions  and
          answers.  It  is  axiomatic  that
          what matters is the substance and
          not the form. Questions put to
          the dying   man would have been
          formal  and  hence   the  answers
          given    are  material.  Criminal
          courts   may evince interest in
          knowing the contents of what the
          dying   person   said   and   the
          questions put to him are not very
          important  normally. That part of
          the statement which relates    to
          the    circumstances    of    the
          transaction which resulted in his
          death  gets   the   sanction   of
          admissibility.    Here   it    is
          improper  to throw such statement
          overboard on a pedantic premix
          that it was not recorded in the


          form of questions and answers.
          (Vide  Ganpat  Mahadeo  Mane  v.
          State of Maharashtra (1993 Supp
          (2) SCC 242)).
IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

 MR.JUSTICE M.SASIDHARAN NAMBIAR
&
MR.JUSTICE  P.BHAVADASAN

TUESDAY, THE 3RD DAY OF JULY 2012

CRL.A.No. 108 of 2009 


         BIJU @ JOSEPH V  STATE OF KERALA
         
Read full judgment here;click here

Print Page