Criminal Appeal No.485 of 2012

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.485 OF 2012

UTTAM .… APPELLANT

VERSUS

THE STATE OF MAHARASHTRA …. RESPONDENT

J U D G M E N T

HIMA KOHLI, J.

1.The present appeal is directed against the judgment dated 26

th

July, 2010 passed by

the Division Bench of the High Court of Bombay at Nagpur Bench. The High Court has

dismissed the appeal preferred by the appellant against the judgment and order dated 29

th

April, 1997 passed by the 8

th

Additional Sessions Judge, Nagpur, convicting him for the offence

under Section 302 of the Indian Penal Code, 1860

1

and sentencing him to suffer imprisonment

for life with a fine of ₹1,000/- (Rupees one thousand) and in default thereof, to suffer simple

imprisonment for a period of three months.

1 for short ‘IPC’

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Criminal Appeal No.485 of 2012

2.The case set up by the prosecution is that the deceased, Pushpabai and the appellant

had got married on 19

th

March, 1994. There was no issue from the marriage. The appellant

was a T.V. Mechanic. It was alleged that the appellant was having an illicit relationship with a

widow residing near their house, namely, Kusum Gaikwad. On 26

th

March, 1995, the appellant

and Kusum Gaikwad went to watch a movie. When he returned home in the evening hours, he

was confronted by his wife for having gone to watch a movie with Kusum Gaikwad. The

appellant quarrelled with Pushpabai and told her that Kusum Gaikwad was his paramour. He

had also beaten Pushpabai. On the very next day, i.e., on 27

th

March, 1995, between 11.00

a.m. and noon, the appellant had again picked up a quarrel with Pushpabai and he told her

that he would not leave Kusum Gaikwad. On Pushpabai demanding a divorce, the appellant

lost his temper and assaulted her. Thereafter, he poured kerosene on his wife and set her on

fire by lighting a match stick. At this, the appellant’s brother rushed to extinguish the fire by

pouring water on her. Pushpabai sustained severe burn injuries on her face, breast, stomach,

both hands and legs. She was taken for treatment to Mayo Hospital, Nagpur where she

succumbed to her injuries on 31

st

March, 1995.

3.The information about the aforesaid incident was communicated by Mayo Police Booth,

Nagpur to the Investigating Officer

2

Sub-Inspector Madhukar Gite (PW-14). The I.O. was

informed that Pushpabai had caught fire on account of the border, i.e., pallu of her saree falling

on the stove where she was preparing snacks. On receiving the above information, the I.O.

2 for short ‘IO’

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Criminal Appeal No.485 of 2012

made an entry in the Station diary and proceeded to the hospital, where he recorded the

statement of Pushpabai at 3.20 p.m. in the presence of two panchas (Ex.47). This was the

first dying declaration of the deceased. In a gap of about one hour, the statement of

Pushpabai was recorded by the Special Executive Magistrate

3

(PW-9) between 4.30 and 5.00

PM (Ex.38). This was the second dying declaration.

4.Vide order dated 3

rd

February, 1997, charges were framed by the trial court against the

appellant under Section 302 IPC. As the appellant pleaded not guilty, the matter was taken to

trial. On its part, the prosecution examined 15 witnesses, including Ramkrishna Mahadeo

Uchale (PW-2), father of the deceased; Raju Larokar;, SEM (PW-9); Samir Vijay Choudhary

Junior Resident Doctor (PW-10); Dr. Naresh Chandra Sethia Medical Officer; (PW-11); Balaji

Mohod (PW-12), the Mediator who had arranged the marriage of the parties; Prabhakar

Bhaurao Patil PSI (PW-13); SI Madhukar Gite (PW-14), who was the I.O.; and Rushi Shionkar

API (PW-15). Out of fifteen witnesses, seven witnesses had turned hostile. Vide judgment

dated 29

th

April, 1997, the appellant was convicted by the trial Court for having murdered his

wife by pouring kerosene on her and setting her on fire. He was handed down a sentence of

life imprisonment with fine. For holding the appellant guilty of the offence, the trial court relied

on the two dying declarations of the deceased recorded in writing by PW-9 and PW-14 and the

evidence of PW-2 and PW-12, who deposed that the deceased had stated to them how the

incident had taken place.

3 for short ‘SEM’

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Criminal Appeal No.485 of 2012

5.Aggrieved by the aforesaid judgment, the appellant preferred an appeal before the High

Court. Though the plea of the appellant who raised a question mark on the veracity of the two

written dying declarations was upheld by the High Court, giving credence to the testimony of

PW-2 and PW-12 coupled with the Chemical Analyser Report relating to the clothes of the

deceased and the appellant that detected kerosene on them, the judgment of the trial Court

was upheld and the appeal filed by the appellant was dismissed. The said order has been

challenged by the appellant in the present appeal.

6.Mr. Rohan Thanwani, learned counsel for the appellant has assailed the impugned

judgment on the ground that although the High Court has discarded the two written dying

declarations of the deceased, one recorded by the I.O. (Ex.-47) and the other recorded by the

SEM (Ex.-38), it has still proceeded to uphold the judgment of the Session Court by

erroneously placing reliance on the oral dying declarations stated to have been made by the

deceased to her father, Ramkrishna Mahadeo Uchale (PW-2) and to the Mediator, Balaji

Mohod (PW-12). Learned counsel contended that there were glaring material contradictions

between the statements made by the deceased before PW-9 and PW-14 as against the

statements of PW-2 and PW-12 inasmuch as before PW-9, the deceased had claimed that the

illicit relationship between the appellant and Kusum Gaikwad (PW-8) was the root cause of the

quarrel between the couple, whereas the version of PW-2 and PW-12 was that the entire

incident was attributable to the dowry demands made by the appellant on the deceased. It

was further contended that the version of the deceased as recorded in the first and the second

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Criminal Appeal No.485 of 2012

written dying declarations was entirely different from what was narrated by PW-2 and PW-12

before the Court. In fact, neither PW-2 nor PW-12 had made any statement to the police under

Section 161 of the Code of Criminal Procedure, 1898

4

and both the said witnesses had for the

first time made statements only when they entered the witness box during the trial.

7.It was canvassed by learned counsel for the appellant that once the High Court had

rejected the written dying declarations of the deceased on the ground that there were several

conspicuous loopholes in recording of the said statements, there was no good reason for the

High Court to have relied on the oral statements allegedly made by the deceased to PW-2 and

PW-12, which were equally unreliable and therefore, ought to have met the same fate as the

written dying declarations of the deceased. To buttress his submission that where there are

multiple dying declarations and each one is inconsistent with the other, then all the said dying

declarations ought to be discarded without any hesitation, learned counsel has cited Nallapati

Sivaiah v. Sub-Divisional Officer, Guntur, Andhra Pradesh

5

. The unreliability of an oral

dying declaration made to a family member in the absence of the doctor was sought to be

questioned by citing Arvind Singh v. State of Bihar

6

, Arun Bhandudas Pawar v. State of

Maharashtra

7

, and Poonam Bai v. State of Chhattisgarh

8

.

8.On the other hand, Mr. Sachin Patil, learned counsel appearing for the respondent -

State of Maharashtra has with his usual vehemence, disputed the arguments advanced by the

4 for short ‘Cr.PC’

5 (2007) 15 SCC 465

6 (2001) 6 SCC 407

7 (2008) 11 SCC 232

8 (2019) 6 SCC 145

Page 5 of 25

Criminal Appeal No.485 of 2012

other side and stated that both the written dying declarations, the first one recorded by the I.O.

at 3.20 PM and the second one recorded by the SEM (PW-9) at 4.30 PM, on the very same

day, were consistent and the deceased had clearly stated that it was the appellant who had set

her on fire. He also alluded to the two fitness certificates issued by the attending doctor (PW-

10) in respect of the deceased before her statements were recorded and contended that the

said certificates showed that she was in a sound state of mind and competent to depose.

Similarly, the oral dying declarations subsequently made by the deceased in the presence of

her father (PW-2) and the mediator (PW-12) were also stated to be consistent with the version

of the victim and worthy of credence. The narration as to the manner in which the deceased

was set on fire was stated to be consistent and it was contended that the cross-examination of

the said prosecution witnesses did not elicit anything favourable to the appellant on the above

aspect. Learned State counsel referred to the Chemical Analyser Report in respect of the

clothes of the deceased and the appellant that were seized from the spot to urge that it lent

credence to the version of the prosecution that the appellant had poured kerosene on the

deceased and had set her on fire.

9.In support of his submission that where there are conflicting dying declarations, the

Court can accept one and discard the other as long as it is satisfied that the basic statement of

the deceased had remained consistent, learned State counsel cited State of Uttar Pradesh v.

Veerpal and Another

9

, Rizan and Another v. State of Chhattisgarh

10

and Bhagwan

9 (2022) 4 SCC 741

10 (2003) 2 SCC 661

Page 6 of 25

Criminal Appeal No.485 of 2012

Tukaram Dange v. State of Maharashtra

11

. The decision in Trimukh Maroti Kirkan v. State

of Maharashtra

12

was cited to state that the onus remains on the accused to explain how the

death had taken place within the privacy of the home, away from public gaze.

10.We have given our thoughtful consideration to the arguments advanced by learned

counsel for the parties and carefully perused the record. The entire issue in the present case

hinges on the admissibility and evidentiary value of the dying declarations made by the

deceased, two of which were in writing and recorded by PW-9 and PW-14 and the other two

were oral and communicated by the deceased to PW-2 and PW-12.

11.Dying declaration is the last statement that is made by a person as to the cause of his

imminent death or the circumstances that had resulted in that situation, at a stage when the

declarant is conscious of the fact that there are virtually nil chances of his survival. On an

assumption that at such a critical stage, a person would be expected to speak the truth, courts

have attached great value to the veracity of such a statement. Section 32 of the Indian

Evidence Act, 1872

13

states that when a statement is made by a person as to the cause of

death, or as to any of the circumstances which resulted in his death, in cases in which the

cause of that person’s death comes into question, such a statement, oral or in writing made by

the deceased victim to the witness, is a relevant fact and is admissible in evidence. It is

noteworthy that the said provision is an exception to the general rule contained in Section 60 of

11 (2014) 4 SCC 270

12 (2006) 10 SCC 681

13 for short ‘Evidence Act’

Page 7 of 25

Criminal Appeal No.485 of 2012

the Evidence Act that ‘hearsay evidence is inadmissible’ and only when such an evidence is

direct and is validated through cross-examination, is it considered to be trustworthy.

12.In Kundula Bala Subrahmanyam and Another v. State of Andhra Pradesh

14

, this

Court had highlighted the significance of a dying declaration in the following words :

“18. Section 32(1) of the Evidence Act is an exception to the general rule that

hearsay evidence is not admissible evidence and unless evidence is tested by

cross-examination, it is not creditworthy. Under Section 32, when a statement is

made by a person, as to the cause of death or as to any of the circumstances

which result in his death, in cases in which the cause of that person's death

comes into question, such a statement, oral or in writing, made by the deceased

to the witness is a relevant fact and is admissible in evidence. The statement

made by the deceased, called the dying declaration, falls in that category provided

it has been made by the deceased while in a fit mental condition. A dying

declaration made by person on the verge of his death has a special sanctity as at

that solemn moment, a person is most unlikely to make any untrue statement. The

shadow of impending death is by itself the guarantee of the truth of the statement

made by the deceased regarding the causes or circumstances leading to his

death. A dying declaration, therefore, enjoys almost a sacrosanct status, as a

piece of evidence, coming as it does from the mouth of the deceased victim. Once

the statement of the dying person and the evidence of the witnesses testifying to

the same passes the test of careful scrutiny of the courts, it becomes a very

important and a reliable piece of evidence and if the court is satisfied that the

dying declaration is true and free from any embellishment such a dying

declaration, by itself, can be sufficient for recording conviction even without

looking for any corroboration…….”

13.In Shudhakar v. State of Madhya Pradesh

15

, this Court had opined that once a dying

declaration is found to be reliable, it can form the basis of conviction and made the following

observations :

14 (1993) 2 SCC 684

15 (2012) 7 SCC 569

Page 8 of 25

Criminal Appeal No.485 of 2012

“20. The “dying declaration” is the last statement made by a person at a stage

when he is in serious apprehension of his death and expects no chances of his

survival. At such time, it is expected that a person will speak the truth and only

the truth. Normally in such situations the courts attach the intrinsic value of

truthfulness to such statement. Once such statement has been made voluntarily,

it is reliable and is not an attempt by the deceased to cover up the truth or falsely

implicate a person, then the courts can safely rely on such dying declaration and

it can form the basis of conviction. More so, where the version given by the

deceased as dying declaration is supported and corroborated by other

prosecution evidence, there is no reason for the courts to doubt the truthfulness

of such dying declaration.”

14.In Paniben (Smt.) v. State of Gujarat

16

, on examining the entire conspectus of the law

on the principles governing dying declaration, this Court had concluded thus :

“18. …….. (i) There is neither rule of law nor of prudence that dying declaration

cannot be acted upon without corroboration. (Munnu Raja v. State of M.P.

17

)

(ii) If the Court is satisfied that the dying declaration is true and voluntary it can

base conviction on it, without corroboration. (State of U.P. v. Ram Sagar

Yadav

18

; Ramawati Devi v. State of Bihar

19

).

(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. (K. Ramachandra Reddy v. Public Prosecutor

20

) .

(iv) Where dying declaration is suspicious it should not be acted upon without

corroborative evidence. (Rasheed Beg v. State of M.P.

21

)

(v) Where the deceased was unconscious and could never make any dying

declaration the evidence with regard to it is to be rejected. (Kake Singh v. State

of M. P.

22

)

(vi) A dying declaration which suffers from infirmity cannot form the basis of

conviction. (Ram Manorath v. State of U.P.

23

)

16 (1992) 2 SCC 474

17 (1976) 3 SCC 104

18 (1985) 1 SCC 552

19 (1983) 1 SCC 211

20 (1976) 3 SCC 618

21 (1974) 4 SCC 264

22 1981 Suppl. SCC 25

23 (1981) 2 SCC 654

Page 9 of 25

Criminal Appeal No.485 of 2012

(vii) Merely because a dying declaration does not contain the details as to the

occurrence, it is not to be rejected. (State of Maharashtra v. Krishnamurti

Laxmipati Naidu

24

)

(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

25

).

(ix) Normally the court in order to satisfy whether deceased was in a fit mental

condition to make the dying declaration look up to the medical opinion. But where

the eye witness has said that the deceased was in a fit and conscious state to

make this dying declaration, the medical opinion cannot prevail. (Nanahau Ram

v. State of M.P.

26

).

(x) Where the prosecution version differs from the version as given in the dying

declaration, the said declaration cannot be acted upon. (State of U.P. v. Madan

Mohan

27

).

15.In cases involving multiple dying declarations made by the deceased, the question that

arises for consideration is as to which of the said dying declarations ought to be believed by

the Court and what would be the guiding factors for arriving at a just and lawful conclusion.

The problem becomes all the more knotty when the dying declarations made by the deceased

are found to be contradictory. Faced with such a situation, the Court would be expected to

carefully scrutinize the evidence to find out as to which of the dying declarations can be

corroborated by other material evidence produced by the prosecution. Of equal significance is

the condition of the deceased at the relevant point in time, the medical evidence brought on

record that would indicate the physical and mental fitness of the deceased, the scope of the

close relatives/family members having influenced/tutored the deceased and all the other

attendant circumstances that would help the Court in exercise of its discretion.

24 1980 Suppl. SCC 455

25 1980 Suppl. SCC 769

26 1988 Suppl. SCC 152

27 (1989) 3 SCC 390

Page 10 of 25

Criminal Appeal No.485 of 2012

16.In Lakhan v. State of Madhya Pradesh

28

, where the deceased was burnt by pouring

kerosene oil on her and was brought to the hospital by the accused and his family members,

the Court noticed that she had made two varying dying declarations and held thus :

“9. The doctrine of dying declaration is enshrined in the legal maxim nemo

moriturus praesumitur mentire, which means “a man will not meet his Maker with

a lie in his mouth”. The doctrine of dying declaration is enshrined in Section 32 of

the Evidence Act, 1872 (hereinafter called as “the Evidence Act”) as an exception

to the general rule contained in Section 60 of the Evidence Act, which provides

that oral evidence in all cases must be direct i.e. it must be the evidence of a

witness, who says he saw it. The dying declaration is, in fact, the statement of a

person, who cannot be called as witness and, therefore, cannot be cross-

examined. Such statements themselves are relevant facts in certain cases.

10. This Court has considered time and again the relevance/probative value of

dying declarations recorded under different situations and also in cases where

more than one dying declaration has been recorded. The law is that if the court is

satisfied that the dying declaration is true and made voluntarily by the deceased,

conviction can be based solely on it, without any further corroboration. It is neither

a rule of law nor of prudence that a dying declaration cannot be relied upon

without corroboration. When a dying declaration is suspicious, it should not be

relied upon without having corroborative evidence. The court has to scrutinise the

dying declaration carefully and must ensure that the declaration is not the result

of tutoring, prompting or imagination. The deceased must be in a fit state of mind

to make the declaration and must identify the assailants. Merely because a dying

declaration does not contain the details of the occurrence, it cannot be rejected

and in case there is merely a brief statement, it is more reliable for the reason

that the shortness of the statement is itself a guarantee of its veracity. If the dying

declaration suffers from some infirmity, it cannot alone form the basis of

conviction. Where the prosecution version differs from the version given in the

dying declaration, the said declaration cannot be acted upon. (Vide Khushal

Rao v. State of Bombay

29

, Rasheed Beg v. State of M.P.

30

, K. Ramachandra

Reddy v. Public Prosecutor

31

, State of Maharashtra v. Krishnamurti Laxmipati

Naidu

32

, Uka Ram v. State of Rajasthan

33

, Babulal v. State of M.P.

34

, Muthu Kutty

v. State.

35

, State of Rajasthan v. Wakteng

36

and Sharda v. State of Rajasthan

37

”.

28 (2010) 8 SCC 514

29 AIR 1958 SC 22

30 (1974) 4 SCC 264

31 (1976) 3 SCC 618

32 1980 Supp SCC 455

33 (2001) 5 SCC 254

34 (2003) 12 SCC 490

35 (2005) 9 SCC 113

36 (2007) 14 SCC 550

37 (2010) 2 SCC 85

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Criminal Appeal No.485 of 2012

17.In Amol Singh v. State of Madhya Pradesh

38

, when faced with two dying declarations

containing inconsistencies, the approach to be adopted by the Court was summarized as

under:

“13. Law relating to appreciation of evidence in the form of more than one dying

declaration is well settled. Accordingly, it is not the plurality of the dying

declarations but the reliability thereof that adds weight to the prosecution case. If

a dying declaration is found to be voluntary, reliable and made in fit mental

condition, it can be relied upon without any corroboration. The statement should

be consistent throughout. If the deceased had several opportunities of making

such dying declarations, that is to say, if there are more than one dying

declaration they should be consistent. (See Kundula Bala

Subrahmanyam v. State of A.P.

39

) However, if some inconsistencies are noticed

between one dying declaration and the other, the court has to examine the nature

of the inconsistencies, namely, whether they are material or not. While

scrutinising the contents of various dying declarations, in such a situation, the

court has to examine the same in the light of the various surrounding facts and

circumstances.”

18.In Sher Singh and Another v. State of Punjab

40

, this Court has held thus :

“16. Acceptability of a dying declaration is greater because the declaration is

made in extremity. When the party is at the verge of death, one rarely finds any

motive to tell falsehood and it is for this reason that the requirements of oath and

cross-examination are dispensed with in case of a dying declaration. Since the

accused has no power of cross-examination, the court would insist that the dying

declaration should be of such a nature as to inspire full confidence of the court in

its truthfulness and correctness. The court should ensure that the statement was

not as a result of tutoring or prompting or a product of imagination. It is for the

court to ascertain from the evidence placed on record that the deceased was in a

fit state of mind and had ample opportunity to observe and identify the culprit.

Normally, the court places reliance on the medical evidence for reaching the

conclusion whether the person making a dying declaration was in a fit state of

mind, but where the person recording the statement states that the deceased was

in a fit and conscious state, the medical opinion will not prevail, nor can it be said

that since there is no certification of the doctor as to the fitness of mind of the

declarant, the dying declaration is not acceptable. What is essential is that the

person recording the dying declaration must be satisfied that the deceased was in

a fit state of mind. Where it is proved by the testimony of the Magistrate that the

declarant was fit to make the statement without there being the doctor's opinion

to that effect, it can be acted upon provided the court ultimately holds the same to

38 (2008) 5 SCC 468

39 (1993) 2 SCC 684

40 (2008) 4 SCC 265

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Criminal Appeal No.485 of 2012

be voluntary and truthful. A certificate by the doctor is essentially a rule of caution

and, therefore, the voluntary and truthful nature of a statement can be established

otherwise.”

19.It is thus clear that in cases where the Court finds that there exist more than one dying

declarations, each one of them must be examined with care and caution and only after

satisfying itself as to which of the dying declarations appears to be free from suspicious

circumstances and has been made voluntarily, should it be accepted. As observed in the

judgments quoted above, it is not necessary that in every case, a dying declaration ought to

be corroborated with material evidence, ocular or otherwise. It is more a rule of prudence that

courts seek validation of the dying declaration from attending facts and circumstances and

other evidence brought on record. For the very same reason, a certificate by the doctor that

the declarant was fit to make a statement, is treated as a rule of caution to establish the

truthfulness of the statement made by the deceased.

20.In Kundula Bala Subrahmanyam (supra), this Court had observed that if there are

more than one dying declarations, then the Court must scrutinize each one of them to find out

whether the different dying declarations are consistent with each other in material particulars

before accepting and relying on the same. At the end of the day, each case must be decided

on its own peculiar facts. There can be no hard and fast rule on evaluation of the evidence

brought before the Court, including the surrounding circumstances at the time when the

deceased had made the dying declaration. The focus of the Court is of ensuring the

voluntariness of the process, of being satisfied that there was no tutoring or prompting, of

Page 13 of 25

Criminal Appeal No.485 of 2012

being convinced that the deceased was in a fit state of mind before making the dying

declaration, of ascertaining that ample opportunity was available to the declarant to identify

the accused.

21.In Veerpal (supra), this Court has clarified that a dying declaration can be acted upon

without any other corroboration and observed as below :

“16. Now, on the aspect, whether in the absence of any corroborative evidence,

there can be a conviction relying upon the dying declaration only is concerned,

the decision of this Court in Munnu Raja

41

, and the subsequent decision

in Paniben v. State of Gujarat

42

, are required to be referred to. In the aforesaid

decisions, it is specifically observed and held that there is neither a rule of law nor

of prudence to the effect that a dying declaration cannot be acted upon without a

corroboration. It is observed and held that if the Court is satisfied that the dying

declaration is true and voluntary it can base its conviction on it, without

corroboration. Similar view has also been expressed in State of U.P. v. Ram

Sagar Yadav

43

and Ramawati Devi v. State of Bihar

44

. Therefore, there can be a

conviction solely based upon the dying declaration without corroboration.”

22.However, if a dying declaration suffers from some infirmity, it cannot be the sole basis

for convicting the accused. In those circumstances, the court must step back and consider

whether the cumulative factors in a case make it difficult to rely upon the said dying

declaration. In this context, it would be profitable to refer to Nallapati Sivaiah (supra),

wherein this Court held as under :

“46. It is the duty of the prosecution to establish the charge against the accused

beyond reasonable doubt. The benefit of doubt must always go in favour of the

accused. It is true that dying declaration is a substantive piece of evidence to be

relied on provided it is proved that the same was voluntary and truthful and the

victim was in a fit state of mind. The evidence of the Professor of Forensic

Medicine casts considerable doubt as regards the condition of the deceased to

41 (1976) 3 SCC 104

42 (1992) 2 SCC 474

43 (1985) 1 SCC 552

44 (1983) 1 SCC 211

Page 14 of 25

Criminal Appeal No.485 of 2012

make a voluntary and truthful statement. It is for that reason non-examination of

Dr. T. Narasimharao, Casualty Medical Officer, who was said to have been

present at the time of recording of both the dying declarations attains some

significance. It is not because it is the requirement in law that the doctor who

certified about the condition of the victim to make a dying declaration is required

to be examined in every case. But it was the obligation of the prosecution to

lead corroborative evidence available in the peculiar circumstances of the case.

xxxx xxxx xxxx

52. The dying declaration must inspire confidence so as to make it safe to act

upon. Whether it is safe to act upon a dying declaration depends upon not only

the testimony of the person recording the dying declaration—be it even a

Magistrate but also all the material available on record and the circumstances

including the medical evidence. The evidence and the material available on

record must be properly weighed in each case to arrive at a proper conclusion.

The court must satisfy itself that the person making the dying declaration was

conscious and fit to make statement for which purposes not only the evidence

of persons recording the dying declaration but also cumulative effect of the

other evidence including the medical evidence and the circumstances must be

taken into consideration.”

23.In Arvind Singh (supra), this Court has held that dying declaration should be dealt

with care and caution and corroboration thereof, though not essential, is expedient in order to

strengthen the evidentiary value of the declaration. Even where independent witnesses may

not be available, all the precautions should be taken when it comes to acceptance of such a

statement as trustworthy evidence. In other words, even though direct evidence may not be

available, circumstantial evident without a break in the chain of events, would add weight to

the evidentiary value of the dying declaration.

24.The principles governing the circumstances where the courts can accept a dying

declaration without corroboration, have been dealt with extensively in Khushal Rao(supra)

and for ready reference, reproduced as under :

“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

Page 15 of 25

Criminal Appeal No.485 of 2012

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.”

25.The credibility of a dying declaration recorded by the Magistrate has also come up for

consideration in several cases and it has been held that a Magistrate being an uninterested

witness and a respected officer and there being no circumstances or material to suspect that

he would have any animus against the accused or would in any way be interested for

fabricating a dying declaration, such a declaration recorded by the Magistrate, ought not be

doubted. Absence of corroborative evidence for convicting an accused based on a dying

declaration has been a matter of discussion in several cases [Ref.: Munnu Raja (supra),

Paniben (Smt.) (supra), Ram Sagar Yadav (supra), Ramawati Devi (supra) and Veerpal

(supra)].

Page 16 of 25

Criminal Appeal No.485 of 2012

26.Coming back to the case at hand, there is no dispute about the fact that the deceased

did receive severe burn injuries on 27

th

March, 1995 at her house. Dr. Nareshchandra Sethia

(PW-11), who had conducted the postmortem, stated that she had received burn injuries on

both arms and legs, chest, abdomen, back, head, neck and face to the extent of 93%. He also

deposed that the probable cause of her death was due to the said burn injuries.

27.For convicting the appellant, the trial Court had primarily relied upon the two written

dying declarations of the deceased, one recorded by the SEM (PW-9) and the other by the IO

(PW-14) and the oral dying declarations stated to have been made by the deceased to her

father (PW-2) and Balaji (PW-12), the Mediator who had settled the marriage of the parties.

However, noting the several loopholes in the procedure adopted while recording the dying

declarations by the SEM (PW-9) and the IO (PW-14), the High Court found it unsafe to rely on

them and kept them aside. The reasons are not far to see.

28.Coming to the first dying declaration recorded by the IO, Sub-Inspector Madhukar Gite

(PW-14), the High Court found it difficult to rely on the same for the following reasons:

(a)the requisition letter that PW-14 had stated he had received at the police station

mentioning inter alia that the deceased had caught fire due to the border of her

saree (Pallu) falling on the burning stove at the time of preparing snacks on the

stove at her house at about 12.30 p.m., on the fateful day, did not mention the

name of the hospital where the deceased was admitted. Pertinently, it was on

Page 17 of 25

Criminal Appeal No.485 of 2012

the basis of the said requisition letter that PW-14 had proceeded to the Hospital

to meet the deceased and record her statement;

(b)there was an ambiguity regarding the source from which PW-14 had received

the aforesaid information and no effort was made to clarify the said ambiguity

during the course of trial;

(c)PW-14 did not obtain any certificate from the attending doctor so as to establish

the physical and mental condition of the deceased before recording her

statement;

(d)the doctor was not even present when the statement of the deceased was

recorded;

(e)the dying declaration was not recorded by PW-14 in seclusion. Due to the

presence of the relatives of the deceased at the time of recording her statement,

the probability of the deceased being prompted/tutored could not be ruled out.

29.Following were the reasons that collectively weighed with the High Court for

disregarding the second written dying declaration recorded by the SEM (PW-9):

(a)the attending doctor did not examine the deceased in the presence of PW-9

before her statement was recorded;

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Criminal Appeal No.485 of 2012

(b)the statement of the deceased was recorded by PW-9 in the absence of

the doctor;

(c)the doctor did not make any endorsement on the requisition letter in the

presence of PW-9;

(d)PW-9 did not record the statement of the deceased himself. Instead, he delegated

the task to the police constable who reduced the statement of the deceased into

writing;

(e)after reducing the statement into writing, the same was not read over to the

deceased before her signatures were obtained;

(f)the statement of the deceased was not recorded in a question-answer format.

30.The above infirmities were considered more than adequate for the High Court to have

wholly discarded the two written dying declarations of the deceased.

31.Since there is no challenge laid to the findings returned by the High Court for discarding

the two written dying declarations finding them riddled with deficiencies, thus making them

unreliable, we do not propose to delve into their credit worthiness. Suffice it is to say that there

was every reason for the High Court to have found them untrustworthy. Instead, it is

considered appropriate to examine the worth of the oral dying declarations stated to have been

made by the deceased in the presence of PW-2 and PW-12.

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Criminal Appeal No.485 of 2012

32.Ramkrishna Mahadeo Uchale (PW-2), father of the deceased deposed that he had

received a message regarding his daughter getting burnt and had rushed to Mayo Hospital

where she was admitted. He noticed that the deceased had sustained burn injuries and was in

a serious condition. He enquired from her as to how did the incident take place to which she

stated that when she was cleaning wheat grain, on the fateful day, the appellant had come to

the house, beaten her, poured kerosene oil on her body and had set her on fire, while tying her

hands. PW-2 deposed that after her marriage to the appellant in the year 1994, his daughter

used to complain that the appellant used to illtreat her on account of demanding money and

used to suspect her character. He stated that he had lodged a report with the Pardi Village

Police Station regarding the same. During his cross-examination, PW-2 had denied that his

statement was recorded by the police during the investigation. Although the Assistant Public

Prosecutor was permitted to re-examine PW-2 on the above aspect, but nothing material

emerged from the said re-examination except that he stated that an inquiry was made by

Lakadganj police relating to the burning of his daughter. Significantly, during the extensive

cross-examination of the I.O. Sub-Inspector Madhukar Gite (PW-14), he had categorically

stated that he had recorded the statement of PW-2, but during his cross-examination, PW-14

was not confronted with any of the claims made by PW-2 pertaining to the appellant having

assaulted the deceased for money or of suspecting her character, etc. In fact, at his turn, PW-

14 had denied the fact that he had not recorded the statement of PW-2.

Page 20 of 25

Criminal Appeal No.485 of 2012

33.The second oral dying declaration was made by the deceased to Balaji (PW-12), the

Mediator who was instrumental in solemnizing the marriage of the appellant and the deceased.

Though he deposed that the appellant had made several demands on the deceased after the

marriage, including cash and a gold chain and that he used to threaten her that if she did not

bring money from her parents, he would beat her, during his cross-examination, he admitted

that he did not state so before the police. PW-12 further stated that he along with PW-2 had

gone to visit the deceased at her house in the absence of the appellant and at that time, she

had complained that the appellant used to beat her and requested that she be taken back to

her parental home. Thereafter, PW-12 and PW-2 had lodged a report against the appellant at

the Lakadganj Police Station. He further stated that the deceased was brought back to her

parent’s home for fifteen days. After she had returned to her matrimonial house, fifteen days

down the line, PW-12 claimed to have received a chit stating that the deceased had caught fire

and was admitted in Mayo Hospital. When he visited the hospital, the deceased told him that

when she was cleaning wheat, the appellant had come home, tied her hands with a ribbon and

had taken her inside. Thereafter, the appellant had poured kerosene on the body of the

deceased and lighted a match stick setting her on fire.

34.A perusal of the testimonies of PW-2 and PW-12 show that they have offered varying

versions of what had allegedly been narrated to them by the deceased. Both of them stated

that failure to satisfy the appellant’s constant dowry demands had led to the incident. There

was no mention of the illicit relationship of the appellant with a widow in the neighbourhood

Page 21 of 25

Criminal Appeal No.485 of 2012

which was a constant cause of quarrel between the deceased and her husband and had led to

the incident. Pertinently, both the said witnesses stated that their statements were not

recorded by the police during the investigation and that they had deposed for the first time only

when they had entered the witness box during the trial.

35.In Arun Bhanudas Pawar (supra), cited by learned counsel for the appellant, this

Court had declined to accept the testimony of an interested witness who happened to be the

mother of the victim, in the absence of any corroboration from an independent witness

including the Medical Officer who was attending to the victim, to prove that the victim had

regained consciousness when the mother had met him in the hospital and had named the

accused as the assailant along with two other associates. An additional factor that weighed

with the court for rejecting the testimony of the mother was that she had not stated so in her

statement recorded by the Police under Section 161 Cr.P.C. and it was for the first time before

the Court that she had made such a statement. Holding that the oral dying declaration made

by the deceased ought to be treated with care and caution, since the maker of the statement

cannot be subjected to any cross-examination, the Court found fault with the High Court and

trial Court for having accepted the said oral dying declaration allegedly made by the deceased

to her mother, an interested witness, when there was nothing to show that the deceased was

in a fit condition to make an oral declaration to his mother. In Poonam Bai (supra), a similar

view was taken by this Court and it was held thus:

Page 22 of 25

Criminal Appeal No.485 of 2012

“16. As far as the oral dying declaration is concerned, the evidence on record is

very shaky, apart from the fact that evidence relating to oral dying declaration is a

weak type of evidence in and of itself. As per the case of the prosecution, the

deceased had made an oral dying declaration before Lalita Sahu (PW 2), Pilaram

Sahu (PW 3), Parvati Bai (PW 4), and others. Though PWs 2, 3 and 4 have

deposed that the deceased did make an oral dying declaration before them

implicating the appellant, this version is clearly only an afterthought, inasmuch as

the same was brought up before the trial court for the first time. In their

statements recorded by the police under Section 161 of the Code of Criminal

Procedure, these witnesses had not made any statement relating to the alleged

oral dying declaration of the deceased. These factors have been noted by the

trial court in its detailed judgment. Thus, the evidence of PWs 2, 3 and 4 relating

to the oral dying declaration is clearly an improved version, and this has been

proved by the defence in accordance with law.”

36.We are of the opinion that once the High Court had disagreed with the Session Court

and discarded the two written dying declarations of the deceased due to several glaring

lacunae in the procedure adopted by the SEM (PW-9) and the I.O. (PW-14) in recording the

said statement, then the appellant could not have been indicted on the oral testimony of PW-2,

father of the deceased and PW-12, family friend, both of who were interested witnesses and

whose evidence runs contrary to the versions of the deceased recorded by PW-9 and PW-14.

It must be remembered that all the four dying declarations, two in writing and the other two

oral, were based on the statements given by the deceased at different times on the very same

day, i.e., 27

th

March, 1995, when she had suffered 93% burn injuries and there are serious

doubt about her being mentally and physically fit to give her statement. The IO (PW-14) had

recorded the first dying declaration at 3.20 p.m. this was followed by the SEM (PW-9) having

recorded the second dying declaration between 4.30p.m. and 5.00 p.m. It was on the very

same day that PW-2 and PW-12 had also met the deceased at the hospital and claimed that

Page 23 of 25

Criminal Appeal No.485 of 2012

she had informed them as to how she had received the burn injuries and named the appellant

as the culprit.

37.Both, PW-2 and PW-12 have deposed that in her oral dying declaration, the deceased

had referred to the dowry demands made on her by the appellant and the fact that he had

suspected her character, which led to the alleged incident. As noted above, nowhere in their

testimonies is there any reference made to the prosecution version that the appellant was

having an illicit relation with a widow residing in the neighbourhood, which was the main cause

of acrimony between the couple and had resulted in the incident. The diametrically different

version of the reasons that led to the alleged incident casts a shadow on the entire testimony

of PW-2 and PW-12, making it unsafe to rely on them and indict the appellant for the charge

framed against him. We are therefore of the opinion that the prosecution has failed to

discharge the obligation cast on it of leading trustworthy corroborative evidence to back-up the

testimonies of PW-2 and PW-12.

38.In the light of the evidence discussed above and being mindful of the principles

governing appreciation of the evidence related to multiple dying declarations, we find it difficult

to endorse the conclusion arrived at by the High Court. The evidence of PW-2 and PW-12

cannot be treated as stellar enough to hold the appellant guilty for the offence of murdering his

wife. Hence, he is entitled to being granted benefit of doubt.

Page 24 of 25

Criminal Appeal No.485 of 2012

39.As a result of the aforesaid discussion, the impugned judgment is quashed and set

aside. Consequently, the appellant is acquitted of the charge framed against him and is

directed to be set at liberty forthwith, if not required in connection with any other case.

.................................J.

[B.R. GAVAI]

...................................J.

[HIMA KOHLI]

NEW DELHI,

JUNE 02, 2022

Page 25 of 25

   IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.485/2012

UTTAM .. APPELLANT(S)

VERSUS

THE STATE OF MAHARASHTRA .. RESPONDENT(S)

O R D E R

For the reasons to be recorded separately,

the appeal is allowed.

The judgment and order of the Additional

Sessions Court, Nagpur dated 29.04.1997 and that

of the High Court dated 26.07.2010 are quashed and

set aside.

The appellant is acquitted of all the

charges and directed to be set at liberty

forthwith, if not required in connection with any

other case.

....................J.

[ B.R. GAVAI]

.... ................J.

[ HIMA KOHLI]

NEW DELHI,

JUNE 02, 2022.