Bombay High Court
Whether The Reporters Of Local ... vs The State Of Maharashtra on 25 November, 2011
Bench: A. H. Joshi, A.M. Thipsay
1 CR.A.670/2009
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.670 OF 2009
Date of decision:12/8/2011
For approval and signature
HON'BLE MR.JUSTICE D.B.BHOSALE
HON'BLE MR.JUSTICE S.B.DESHMUKH
HON'BLE MR.JUSTICE SHRIHARI P.DAVARE
1. Whether the Reporters of Local Papers Yes
may be allowed to see the Judgment ?
2. To be referred to the Reporter or not ? Yes
3. Whether Their Lordships wish to see No.
the fair copy of the Judgment ?
4. Whether this case involves a substantial? No.
question of law as to the interpretation
of the Constitution of India, 1950, or
any order made thereunder ?
5. Whether it is to be circulated to the Yes
Addl.Sessions & Sessions Judges?
6. Whether the case involves an important No
question of law and whether a copy of
the Order should be sent to Bombay,
Goa and Nagpur Office ?
Private Secretary
AGP/office/670-09cr.a
::: Downloaded on - 09/06/2013 17:57:13 :::
2 CR.A.670/2009
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.670 of 2009
Ramesh s/o Gyanoba Kamble,
Age. 38 yrs. Occu. Govt.Service,
R/o. Gandhinagar, Nanded,
District Nanded.
ig ...APPELLANT
VERSUS
The State of Maharashtra.
...RESPONDENTS
...
Smt. Sadhana S.Jadhav, Advocate for appellant.
Shri N.B.Khandare, Government Pleader, for
respondent State.
Shri P.R.Patil, Advocate, appointed as amicus
curiae.
...
CORAM: D.B.BHOSALE & S.B.DESHMUKH
AND SHRIHARI P.DAVARE, JJJ.
***
Date of reserving
the judgment:28/7/2011
Date of pronouncing
the judgment: 12/8/2011
***
::: Downloaded on - 09/06/2013 17:57:13 :::
3 CR.A.670/2009
JUDGMENT (PER D.B.BHOSALE, J.)
1. The Division Bench of this Court, in
their order of Reference in this appeal,
hereinafter referred to as "Ramesh Gyanoba
Kamble's case, doubted the correctness of the
judgment of another Division Bench of this Court
in Jivan Tulshiram Dhavali & another V. State of
Maharashtra, 2008(2) BCR (Cri.) 696, and so
also, other Division Bench in Laxmibai w/o Maruti
Satpute & others V. State of Maharashtra, 2010
ALL MR (Cri.) 182, with regard to the
evidence/deposition of the witness who records a
dying declaration. In the opinion of the Division
Bench since the issue/question framed by them
frequently arises and needs to be considered by
Larger Bench, vide order dated 29th April, 2011,
directed the office to place the papers before
the Chief Justice for constitution of the Larger
Bench. Accordingly, the Chief Justice
constituted this Bench for consideration of the
question/issue framed in the Reference order.
The question framed and referred by the Division
Bench in Ramesh Gyanoba Kamble's case reads thus:
"Whether for proving a dying declaration
recorded by a person, Magistrate, Executive
Magistrate, is it essential requirement of
law that the person who recorded the dying
declaration shall repeat while deposing
4 CR.A.670/2009
before Court the statement made by the maker
or the dying person or narrate in exact words
the statement of the maker ?"
2. The question formulated by the Division
Bench uses the expression "in exact words".
Learned Counsel for the parties are ad idem that
the expression "in exact words" means, to depose
before the Court, the contents of a dying
declaration/statement of the dying person, in the
words spoken by him, about the name/description,
and the act of the accused, which resulted in
his death. Thus, we will be considering whether
a person/Magistrate/Executive Magistrate, who
records a dying declaration, in order to prove
the same, needs depose before the Court contents
of the "statement" of a dying person as to the
cause of his death, or as to any of the
circumstances of the transaction which resulted
in his death. We would also like to consider
that merely because the presumption under Section
80 of the Indian Evidence Act, 1872 ( for short,
"the Evidence Act") in respect of the dying
declaration recorded by a Magistrate cannot be
drawn, is it necessary that the Magistrate, who
records the dying declaration, should depose
before the trial Court as to the cause of death
of the deceased or to the circumstances of the
transaction which resulted in his death and more
particularly in respect of the name/description,
5 CR.A.670/2009
and act of the accused, in committing the
offense.
3. The Division Bench (A.P.Lavande and
A.B.Chaudhari, JJ.) in Jivan Tulshiram Dhavali's
case, followed by another Division Bench
(P.V.Hardas & A.V.Nirgude, JJ.) in Laxmibai w/o
Maruti Satpute's case held that it is necessary
for the Magistrate, who records the dying
declaration, to depose before the Court about
the name and act of the accused which resulted
into murder, in the words spoken up by the
dying person. In the Reference Order the
Division Bench (Naresh H.Patil and T.V.Nalawade,
JJ.) doubted the correctness of the view in
Jivan Tulshiram Dhavali's case.
4. Before we proceed further, it would be
relevant to make reference, to the extent it is
necessary, to the judgment/order passed by both
the Division Benches in Jivan Tulshiram Dhavali
and Ramesh s/o Gyanoba Kamble cases to understand
the background facts against which divergent
views are taken.
5. In Jivan Tulshiram Dhavali's case
(supra), the accused had, allegedly, killed the
deceased by pouring kerosene and setting her
ablaze. Her statement was recorded by Executive
6 CR.A.670/2009
Magistrate (PW 5). This witness had visited the
hospital and asked the Medical Officer on duty to
examine the victim (deceased). The Doctor, after
examining the victim, gave a certificate that she
was conscious and fit to give statement.
Having satisfied with her condition, the
Executive Magistrate recorded her statement as
per her say. The statement was read over to the
victim, which she had admitted to be correct.
Thereafter, Doctor, again, examined the victim
and found her fit, throughout. In this backdrop,
it was argued on behalf of the accused that it
was necessary for the Executive Magistrate, who
recorded the dying declaration, to depose about
the name of the accused and the manner in which
he committed the offense and, since he did not
say so, the dying declaration relied upon by the
trial Court cannot be stated to be proved
according to law. The Division Bench, in the
light of the arguments advanced by learned
Counsel appearing for both the sides framed the
following questions for consideration:
"(i) Whether presumption under Section 80 of
Indian Evidence Act can be drawn in respect of a
dying declaration recorded by a Magistrate
without proof as to the cause of death of the
dying person or as to in all the circumstances
of the transaction which resulted in his death
and particularly in respect of the name or
description of/and act of the accused/offender
in committing the offence of murder?
7 CR.A.670/2009
(ii) Whether it is necessary for the Magistrate
who recorded the dying declaration to depose
before the trial Court about the name and act of
the accused which resulted into the murder, in
the words spoken up by the dying man?"
6. The Division Bench, after referring to
several judgments relied upon by both the sides
and, after considering the provisions contained
in Section 80 of the Indian Evidence Act, 1872
( for short, 'the Evidence Act') observed that
"the document made by the Magistrate does not
amount to a deposition or record of evidence so
as to attract the presumption under Section 80 of
the Evidence Act. Therefore, what is admissible
in evidence is the statement made by the dying
man as to who was responsible for causing his
death and not the paper on which the declaration
is recorded". It was further observed that, "by
merely accepting the document of dying
declaration, its contents and, in particular, the
names of the offender/s, and the role played by
them in committing the offense of murder is not
proved unless such witness or the Magistrate
vouchsafes before the trial Court as to whom did
the dying person named offenders".
7. The Division Bench in Jivan Tulshiram
Dhavali's case finally agreed with the Division
Bench judgments of the Bombay High Court in Reg.
Vs. Fata Adaji & two others ( 1874(11) Bom.H.C.R.
8 CR.A.670/2009
247 ), and of the Calcutta High Court in The
Empress Vs. Samiruddin ( 1882(8) Cal.211) and
King-Emperor Vs. Mathura Thakur & others ( 1902
(6) C.W.N.72). Accordingly, the first question
was answered in negative, and the second
question in affirmative.
8. Apart from the aforementioned judgments
of the High Courts, for recording its view on
the questions, reliance was also placed on the
judgments of the Supreme Court in Narbada Devi
Gupta Vs. Birendra Kumar ( A.I.R. 2004 SC 175)
and Dandu Lakshmi Reddy Vs. State of A.P.
( A.I.R. 1999 S.C. 3255). We would make
reference to all the judgments relied upon in
Jivan Tulsiram Dhavali's case, (supra) to find
out whether these judgments lend any support to
the view taken therein.
9. At this stage, we would like to make
brief reference to the judgments of the Bombay
High Court in Fata Adaji's case (supra) and of
the Calcutta High Court in Samiruddin's and
Mathura Thakur's cases (supra) and so also to the
judgments of the Supreme Court in Narbada Devi
Gupta's and Dandu Lakshmi Reddy's cases, (supra),
relied upon by the Division Bench in Jivan
Tulshiram Dhavali's case for answering the second
question in the affirmative.
9 CR.A.670/2009
9.1 In Fata Adaji's case, the deceased had
made, to a Second Class Magistrate, a
declaration before his death, denouncing the
accused as his assailants. The question that fell
for consideration of the learned Judges was, what
evidence is there in the case to show that the
statement recorded as No.6, as the dying
declaration of the deceased, was actually made by
him ? The Magistrate, who recorded the
statement, was not the committing Magistrate, and
the accused were not present, and had no
opportunity of cross-examining the dying man.
In this backdrop, it was further observed that,
"the law does not provide that mere signature of
a Magistrate shall be a sufficient authentication
of such a document, and it is obviously desirable
that the person who took the statement should be
subject to cross-examination as to the dying
man's state of mind when he made it, and as to
other circumstances". It is clear from the
judgment that the Magistrate, who recorded the
dying declaration, was not examined.
9.2 In Samiruddin's case, dying declaration
of the deceased had been recorded by the Deputy
Magistrate as a `deposition', in the absence of
the accused. This evidence was, however,
admitted at the trial before the Sessions Judge,
although the Deputy Magistrate had not been
10 CR.A.670/2009
called to prove the writing taken down by him.
Since the deceased was not examined in the
presence of the accused Samiruddin, it was
further observed, "Unless he was so examined by
the Deputy Magistrate exercising judicial
discretion, the writing made by such Magistrate
could not be admitted to prove the statement made
by the deceased. This statement must have been
proved in the ordinary way by a person who heard
it made. If the Deputy Magistrate who had been
called to prove it, he might have refreshed his
memory with the writing made by himself at the
time when the statement was made".
9.3 In Mathura Thakur's case, the Deputy
Magistrate, who recorded the statement, described
it as "the dying declaration of Soman Dhania",
had not been examined. Moreover, the statement
itself was not recorded in the language it was
made, but in English. In that case it was
argued on behalf of the appellant that the dying
declaration, not having been recorded in the
language in which it was made, and not having
been proved as required by law, could not be
admitted as evidence in the case. The trial
Court, in finding the accused guilty, relied in a
great measure upon the dying declaration.
However, the High Court did not rely upon the
dying declaration in convicting the accused.
Taylor, J. while agreeing with the remarks in the
11 CR.A.670/2009
judgment delivered by Ghose, J. added that "the
inquiry appears to be incomplete and the evidence
does not carry to the mind a conviction of its
truth" and then proceeded to observe thus:
" The only way of proving the statement was
therefore by the oral evidence of some witnesses who
heard it made, the said witness being at liberty to
refresh his memory by referring to the note made by
him or read over by him at or about the time the
statement was made.
(Emphasis supplied)
9.4
From bare perusal of the judgments in
Fata Adaji, Samiruddin, and Mathura Thakur cases,
it is clear that, in all those cases, the
Magistrates, who had recorded the dying
declarations, were not examined and/or were not
subjected to cross examination as to the dying
declaration.
9.5 In Narbada Devi Gupta's case, the
Supreme Court was dealing with an appeal arising
from a Civil suit for recovery of possession of
the suit premises. The Supreme Court, after
considering Sections 17, 61 and 62 of the
Evidence Act; so also, the provisions of Section
101 thereof, observed that, "mere production and
marking of a document as exhibit by the Court
cannot be held, to be a due proof of its
contents. Its execution has to be proved by
admissible evidence that is by the evidence of
12 CR.A.670/2009
those persons who can vouchsafe for the truth of
the facts in issue". In our opinion, this
judgment would not lend any support to the view
taken by the Division Bench in Jivan Tulshiram
Dhavali's case.
9.6 In Dandu Lakshmi Reddy's case, two
inconsistent dying declarations were under
consideration before the Supreme Court and, while
dealing with them, it was observed that, "Dying
declaration is not a deposition in court. It is
neither made on oath nor in the presence of an
accused. Its credence cannot be tested by cross-
examination. Those inherent weaknesses attached
to a dying declaration would not justify any
initial presumption to be drawn that the dying
declaration contains only the truth".
9.7 In Dandu Laxmi Reddy's case, the
mother and son were convicted only on the
strength of the dying declarations given by the
deceased to the Sub Inspector of Police and to
the Judicial Magistrate. Except these two
witnesses all the other witness in the case
deposed that the deceased told them that her
clothes caught fire while cooking milk. It is
against this backdrop, the Supreme Court was
considering the question, whether the said
version of the deceased is credible and reliable,
or is there room for entertaining any doubt about
13 CR.A.670/2009
truthfulness of her version. The Supreme
Court, having noticed a noticeable discrepancy
between the two statements made by the same
person, ultimately, rejected the evidence in the
nature of dying declaration holding that, "As the
dying declaration is tested thus on the
touchstones available in evidence and permitted
by law, it does not stand scrutiny. It will be
unsafe to convict any person on the strength of
such a fragile and rickety dying declaration".
Accordingly, the conviction and sentence was set
aside by the Supreme Court.
9.8 It is, thus, clear from the judgments of
the Supreme Court in Narbada Devi Gupta and Dandu
Lakshmi Reddy's cases that the questions which
the Division Bench was considering in Jivan
Tulsiram Dhavali's case were not either raised,
considered and decided by the Supreme Court.
The observations made by the Supreme Court in
these judgments, relied upon in Jivan Tulsiram
Dhavali's case, in our opinion, do not lend any
support to the view taken therein.
10. In Ramesh s/o Gyanoba Kamble's case,
(supra), the Division Bench, after considering
the judgment in Jivan Tulshiram Dhavali's case,
(supra), and making reference to other judgments,
cited before them, in paragraph nos.6 and 7
observed thus:
14 CR.A.670/2009
"6 In our considered view, in case the
recorder of the dying declaration narrates the
contents of the dying declaration before the Court,
it may, in a given fact situation of the case, add to
more credibility of the dying declaration. But
whether the dying declaration could be said to be not
proved merely because the person who recorded the
dying declaration, fails to narrate the words spoken
before him/her by the maker or fails to repeat in
exact words, the statement made by the maker, before
Court, even if it was found in a given case that the
person recording a statement/dying declaration was
satisfied that deceased was in a fit state of mind,
the statement was read over and was admitted to be
correct and the maker and the recorder signed the
statement.
7. In our view, the dying declaration could
be still exhibited and proved even if the recorder of
the dying declaration fails to repeat the exact words
of the maker while deposing before the Court. As
the issue raised by us, has far reaching consequences
in respect of criminal justice system, it requires
closer scrutiny and analysis."
(Emphasis supplied)
10.1 Insofar as the observation in respect
of Section 80 of the Evidence Act are concerned,
the Division Bench expressed doubt whether the
application of provisions of Section 80 of the
Indian Evidence Act, in respect of proof of
contents of dying declaration, is appropriate.
Finally, in the reference order dated April 29th,
2011, the Division Bench recorded their
disagreement with the view expressed by the
Division Benches in Jivan Tulsiram Dhavali
(supra) and Laxmibai Maruti Satpute's cases
(supra), and requested the learned Chief Justice
to make reference of the question to the larger
Bench.
15 CR.A.670/2009
10.2 We would also like to make reference to
the relevant facts and circumstances of the
Ramesh Gyanoba Kamble's case. The dying
declaration in that case was recorded by the 4th
Joint Civil Judge, Junior Division and Judicial
Magistrate, First Class, Nanded (PW 7). She
deposed that she was requested to record
statement of the victim (deceased) in the case.
She, accordingly, went to the Hospital at Nanded.
She sought permission of the Medical Officer, who
was present at the relevant time. He granted her
such permission, informing her that the victim
was conscious and well oriented. She obtained
Medical Officer's endorsement to that effect on
the document on which she recorded the dying
declaration. Thereafter, she asked relatives of
the victim to go out. She then put few
questions to the victim, to ascertain whether she
was able to give statement. She recorded her
statement in question and answer form. The
recorded statement was read over to the victim,
who admitted the contents and put her signature
in approval thereof. She further stated that
victim was conscious throughout. Thereafter,
she obtained endorsement of the Medical Officer.
She also made endorsement on the declaration.
Then she stated that the statement that was given
by the deceased was voluntary. The dying declaration
16 CR.A.670/2009
was, thereafter, shown to her and, in the Court,
she admitted that it was in her handwriting and
contents thereof are correct.
10.3 Since the Magistrate (PW 7) did not
depose before the trial Court about the name and
act of the appellant/accused, which resulted in
the murder, in the words spoken by the deceased,
reliance was placed on the judgment in Jivan
Tulsiram Dhavali's (supra), to contend that the
dying declaration had not at all been proved
according to law and if the reliance is placed on
such dying declaration, it would result in
miscarriage of justice.
11. A careful scrutiny of the judgment in
Jivan Tulsiram Dhavali's case would show that no
independent reasons are recorded for answering
the second question in affirmative. It appears
that the second question was answered in
affirmative in view of the negative finding
recorded in respect of the first question. In
other words, after holding that the presumption
under Section 80 of the Indian Evidence Act
cannot be drawn in respect of the dying
declaration recorded by a Magistrate, the
Division Bench observed that the Magistrate who
recorded the dying declaration, needs to depose
before the trial Court about the name and act of
the accused which resulted in the murder, in the
17 CR.A.670/2009
words spoken by the declarant. In Laxmibai
Maruti Satpute Vs. State ( 2010 ALL MR (CRI)
182), Deorao Sonbaji Bhalerao Vs. State (2008
ALL MR (CRI) 1921), Saheblal s/o Jumassha Sayyad
Vs. State (2010 ALL MR (CRI) 766) and Dhanraj
Jairam Patil Vs. The State (Criminal Appeal No.
589/2009, decided on 23rd Feb.,2011 - Aurangabad
Bench) the other Division Benches of this Court
simply followed the judgment in Jivan Tulshiram
Dhavali's case. In these judgments the Division
Benches did not record independent reasons for
following the judgment in Jivan Dhavali's case.
Further, from perusal of these judgments it is
clear that the argument, as were advanced in
Ramesh Gyanoba Kamble's case, were not advanced
therein.
11.1 We have noticed that in Jivan Tulsiram
Dhavali's case, Section 32 of the Evidence Act
had not been referred to or considered at all.
In other words, the Division Bench, in that case
did not take into consideration the law relating
to the test of reliability of the dying
declaration as contemplated by Section 32(1). It
was not taken into consideration that the dying
declaration is an independent piece of evidence
like any other piece of evidence - neither extra
strong nor weak - and can be acted upon without
corroboration if it is found to be otherwise true
and reliable. Further, the statement of a dying
18 CR.A.670/2009
person is a substantive evidence and like any
other substantive evidence requires no
corroboration for forming basis of conviction of
an accused. We will be referring to the
judgments of the Supreme Court and High Courts
making such observations little later.
12. In this backdrop, we have heard learned
Counsel for the parties at great length and with
their assistance gone through several judgments
of the Supreme Court and High Courts, in support
of their submissions. Mrs. Jadhav, learned
Counsel for the appellant, submitted that a dying
declaration is a statement, which is heard by a
Magistrate and reduced into writing, and it is
relevant in respect of the transaction which
resulted in cause of death. She, therefore,
submitted, that the transaction needs to be
proved by oral evidence by the recorder of a
dying declaration. She then submitted that since
the statement is not made by the dying person
before the Court, it cannot be treated as
evidence, and therefore, if the Magistrate does
not depose the contents of the declaration as to
the cause of death, no reliance can be placed
upon it. She then submitted that a statement of
the deceased is not admissible to establish the
truth of facts stated by him as it is hit by
"hearsay Rule" and does not come within any of
the exceptions mentioned in Section 32 of the
19 CR.A.670/2009
Evidence Act but, such evidence is admissible
only to establish the fact that such a statement
was made.
12.1 Mrs. Jadhav, after inviting our
attention to the definition of "fact" in Section
3 of the Evidence Act, submitted that when a
Magistrate deposes before the Court, in support
of the dying declaration, he proves that he
recorded the statement, that he read it over to
the deceased, and that the deceased said certain
words to him and signed in his presence. His
evidence, if he does not repeat the contents of
the dying declaration as to the cause of death
and, more particularly, the name of the accused
and as to how he assaulted the victim, he cannot
be stated to have proved the contents of dying
declaration.
12.2 Mrs. Jadhav further submitted that
signature/thumb impression of the deceased; so
also, his own signature and the signature of the
Doctor on the dying declaration can only prove
the authenticity of the statement and not the
contents thereof. The statement of a deceased
is not on oath and, therefore, she submitted,
there is no guarantee about the truthfulness. She
submitted that the Magistrate when deposes about
the dying declaration, he, in fact, steps into
the shoes of the deceased and, therefore, it is
20 CR.A.670/2009
necessary for him to depose about the actual
incident, sustaining fatal injuries, and the name
of the accused. Unless he deposes to that
effect, the accused will not get an opportunity
to cross examine the witness, to test the
veracity of the dying declaration. She
submitted that this is necessary because the
maker of the dying declaration never makes a
statement in the Court on oath and that he cannot
be subjected to cross examination. In support of
this submission, she placed reliance upon the
judgment of the Supreme Court in Smt.Laxmi Vs.
Omprakash ( 2001 AIR SCW 2481).
12.3 After inviting our attention to the
judgment of the Supreme Court in Laxman Vs. State
of Maharashtra ((2002) 6 SCC 710), she submitted
that there is no specified statutory form for
recording a dying declaration and, therefore, it
would not be sufficient for the Magistrate to
state that he has recorded the statement by
following due procedure. She further submitted
that a certification by the Doctor is essentially
a rule of caution and, therefore, the voluntary
and truthful nature of the declaration can be
established otherwise. That, in these
circumstances, no evidence is available in
respect of an identity of the accused as well as
mental condition of the deceased when the
statement was recorded. Therefore, she submitted
21 CR.A.670/2009
that truthfulness will have to be judged by a
statement on oath and that would be evidence
before the Court in relation of the fact under
inquiry. She submitted that the Magistrate, by
no means, can depose that he has followed the
procedure because no procedure, neither format,
is contemplated by Section 32(1) of the Evidence
Act for recording the dying declaration and it is
a subject of appreciation of evidence.
12.4
Next, Mrs. Jadhav submitted that a
recorded dying declaration is a statement of the
dying person which is heard by its recorder and
the deponent is unavailable and, therefore, the
recorder ought to state before the Court the
substance which he has heard as if to say that he
is speaking for the deceased. In support of this
contention, she placed reliance upon the judgment
of Ram Nath Madhoprasad Vs. State of Madhya
Pradesh ( AIR 1953 SC 420). At this stage only,
we record that this judgment of the Supreme Court
has been overruled in Kusa and others v. State of
Orissa ( [1980] 2 SCC 207).
12.5 Mrs. Jadhav further submitted that
voluntariness and truthfulness of the dying
declaration are the main ingredients, and if
proved, would inspire confidence of the Court.
Hence, voluntariness and truthfulness cannot be
established by merely exhibiting the document and
22 CR.A.670/2009
it would be essential requirement of law that the
person who records the dying declaration should
repeat the words spoken by the deceased. In
support of this proposition she placed reliance
upon the judgment in Smt.Maria Tecla Goes Fereira
vs. Shri Denzyl Lobo and another ( 1993 (1)
Bom.C.R. 679).
12.6 Lastly, Mrs. Jadhav submitted that a
dying declaration is not a document but a
statement because, in the eventuality of the
deponent surviving it, after the statement is
made, would be a previous statement under Section
161 of Criminal Procedure Code and, therefore, it
always remains a statement. She then submitted
that the statement of a dead person ought to be
proved through substantive evidence and same can
be done only by proving the contents of a dying
declaration in relation to Section 61 of the
Evidence Act. Thus, Mrs. Jadhav submitted that
the view taken in Jivan Tulshiram Dhavali's
case, followed by other Division Benchs, in
Laxmibai w/o Maruti Satpute and other cases is
the correct view in the eyes of law. In support
of her contentions, Mrs. Jadhav placed reliance
upon the following judgments: 1) 2011 ALL M.R.
(CRI) 2048 Waikhom Yaima Singh Vs. State of
Manipur, 2) 2011 (1) SCC (Cri.) 1173 Brundaban
Moharana & Anr vs. The State of Orissa, 3) 2010
ALL MR (Cri) 766 Saheblal s/o Jumassha Sayyad
23 CR.A.670/2009
Vs. State of Maharashtra, 4). 2011 ALL MR (Cri)
2105 Ashok Pandurang Jadhav v. State of
Maharashtra. 5) Sukanti Moharana Vs. State of
Orissa ( AIR 2009 SCW 6161).
13. On the other hand, Mr.Khandare, learned
Public Prosecutor, submitted that the statement
of a dying person, if reduced in writing, the
piece of paper on which it is written, is also a
"document" as defined under Section 3 of the
Evidence Act, apart from it being a statement as
contemplated by Section 32(1) of the Evidence
Act. He submitted that the written statement on
the paper being "document", it can be proved,
including its contents, as provided for under the
provisions of the Evidence Act and, more
particularly, the provisions contained in Chapter
V and VI thereof. He submitted that if it is
proved by the prosecution through its recorder
that it was recorded by him in the presence of
Doctor, after seeking his opinion in respect of
state of mind of the declarant in the beginning
and on conclusion of recording of the statement,
and further, if it is recorded in the form of
questions and answers and in the language spoken
by the declarant, the contents of the document
will have to be held to be proved. Whether the
contents of the document are trustworthy and
voluntary is a question of appreciation of
evidence. In short, he submitted that after
24 CR.A.670/2009
admission of the statement in writing, the
contents thereof will have to be proved by the
person who records the statement by stepping into
witness box stating that he recorded the
statement of the dying person in the words
spoken by him as to the cause of death. He
submitted that if the recorder of dying
declaration, further deposes that he recorded it
as it was narrated by the deceased and after
recording he read it over to the deceased and
obtained his signature/thumb impression in
approval thereof will be sufficient to hold that
the contents of the dying declaration are proved.
Mr. Khandare then submitted that even if a piece
of paper on which the dying declaration is
reduced into writing by a Magistrate, is not held
to be a document as defined in Section 3 of the
Evidence Act, still, on the basis of Section
32(1) of the Evidence Act, such statement is
admissible and it would stand proved the moment
Magistrate says so and/or vouchsafes before the
trial Court as to genuineness of the contents
thereof. Insofar as the judgment of Division
Bench in Jivan Tulsiram Dhavali's case is
concerned, he submitted that merely because
presumption under Section 80 of the Evidence Act
cannot be drawn to prove the dying declaration,
does not mean that the Magistrate who recorded
the dying declaration needs to repeat the
contents thereof as to the cause of death. He
25 CR.A.670/2009
submitted that the Division Bench, in that case,
completely overlooked the provisions contained in
Section 32(1) of the Evidence Act, which is an
exception to the Rule of hearsay and that the
statement in writing is admissible under this
provision. The view, as taken by the Division
Bench in that case, is hyper technical, and if
that is upheld, it will be disastrous since, very
rarely, we find repetition of the contents of the
written statement by its recorder. He submitted
that if repetition is held to be essential
requirement of law, that would amount to giving
fate of the case in the hands of a witness, who
records the statement. Mr.Khandare invited our
attention to the judgment of the Supreme Court in
Sunil Kumar Vs.State of M.P. ( AIR 1997 SUPREME
COURT 940) and submitted that under any
circumstances the statement recorded by a
Magistrate of the victim cannot be treated as a
previous statement under Section 161 of Cr.P.C.,
in the eventuality of declarant surviving it. He
submitted that it has to be treated only as a
statement under Section 164 of the Cr.P.C. and
can be used for corroboration or contradiction,
unlike under Section 161, which can be used only
for contradicting the witness. Lastly, he
submitted that the contents of the statement
should disclose the cause of death or the
circumstances resulting in death of its maker
and, therefore, its repetition by the Magistrate
26 CR.A.670/2009
is not necessary in his deposition as it is
necessary in case of oral dying declaration. In
case of oral dying declaration, he submitted, it
is necessary for the witness to repeat the words
spoken by the deceased to bring the oral dying
declaration on record. Mr.Khandare, in support
of his submissions, placed reliance upon Jai
Karan Vs. State of Delhi (NCT) ([1999] 8 SCC
161 ).
14. Mr.P.R.Patil, learned Counsel and
amicus curiae, after inviting our attention to
the judgments relied upon by the Division Bench
in Jivan Tulshiram Dhavali's case, submitted that
in none of those cases recorder of the dying
declaration was examined and, in view thereof,
those judgments did not lend any support for
answering the second question framed in the said
judgment in affirmative. He also invited our
attention to the old judgments referred to in the
Reference order of different High Courts and
submitted that there is no need to repeat the
words of the deceased by the Magistrate as to the
cause of death or to the circumstances of the
transaction resulting in his death. He invited
our attention to Section 3 of the Indian Evidence
Act to contend that written dying declaration or
27 CR.A.670/2009
the statement recorded by Magistrate, as
contemplated under Section 32(1) of the Evidence
Act, is a document and such document, containing
the statement/dying declaration of the deceased
as to the cause of his death or to the
circumstances in the transaction resulting in his
death, can be proved taking recourse to the other
provisions in the Indian Evidence Act. In
support of this contention, he placed reliance
upon the judgment of this Court in Bhima Thima
Dhotre v, Pioneer Chemical Co.,( [1968] 70 Bom LR
683).
14.1 After inviting our attention to Section
32(1) of the Evidence Act, Mr.Patil further
submitted that the statement referred to in the
said provision is the statement of deceased and
not the witness who records dying declaration.
He, therefore, submitted that the statement made
by a person who is dead as to cause of his death
or as to any of the circumstances of the
transaction which resulted in his death, in cases
in which cause of his death comes into question,
is relevant under Section 32 of the Evidence Act
and is also admissible in evidence. Therefore,
it is not necessary for the witness, who records
dying declaration, to repeat the words spoken by
the deceased. He then, after inviting our
attention to Section 313, submitted that it is
28 CR.A.670/2009
necessary for the Court to put questions to the
accused, to personally explain the circumstances
reflected in the dying declaration. Failure to
do so would not vitiate the trial. Even at
appellate stage the Courts are empowered and can
call for explanation from the accused, if the
remaining evidence is sufficient to bring home
the guilt of the accused. In support of this
contention, he placed reliance upon judgment of
the Supreme Court in State of Punjab vs.Naib Din,
(2001) 8 SCC 578.
14.2 Learned Counsel for the parties, in
addition to the judgments referred to here-in-
above, also placed reliance upon the following
judgments:
1. State of H.P. vs. Lekh Raj
(2000) 1 SCC 247
2 Zahira Habibulla H.Sheikh V. State of Gujarat
(2004) 4 SCC 158,
3) Khushal Rao Vs. State of Bombay
( AIR 1958 SC 22)
4) Padmaben Shamalbhai Patel V. State of
Gujarat ( [1991] 1 SCC 744)
5) Paniben (Smt) vs State Of Gujarat
(1992) 2 SCC 474
6) Meesala Ramkrishan v. State of A.P.
( [1994] 4 SCC 182)
7) Ramilaben Hasmukhbhai Khristi Vs. State of
29 CR.A.670/2009
Gujrat ( (2002) 7 SCC 56),
8. Bhabanand Kakoti Vs. State of Meghalaya,
2008 CRI.L.J.194,
9. Bakshish Singh V. State of Punjab, AIR 1957
S.C.904 (C.134 Dec.),
10. Tehal Singh V. State of Punjab,
1980 Supp (1) SCC 400
11. Srinivasa and others Vs. State,
(2005) 9 SCC 327,
12. (Ram Bihari Yadav V. State of Bihar
1998 CRI.L.J. 2515).
13. Bhogilal Chunilal Pandya V/s State of Bombay
AIR 1959 SC 356 (V 46 C 47).
14. (P.V.Radhakrishna Vs. State of Karnataka
( AIR 2003 SUPREME COURT 2859).
15. State of Uttar Pradesh Vs. Ramsagar Yadav
( AIR 1985 SC 416)
16. Uka Ram Vs. State of Rajasthan
(2001) 5 SCC 254
17. Jayaraj Vs. State of T.N. (1976 SC 1519)
18. Panchdeo Singh V. State of Bihar ( [2002] 1
SCC 577)
19. Tarachand Damu Sutar Vs. State of
Maharashtra ( AIR 1962 SC 130),
20. Kusa Vs. State of Orissa ( (1980) 2 SCC 207,
21. Govardhan Raoji Ghaire Vs. State of
Maharashtra ( (1993) (Suppl.) SCC 316
30 CR.A.670/2009
22. Gangotri Sing Vs. State of U.P. ( (1993)
Suppl.) (1) SCC 327.)
23. Arvind Sing Vs. State of Bihar (2001) 6 SCC
407).
24. (Manohar Dadarao Landage Vs. State of
Maharashtra, 2000 (2) Mh.L.J. 3).
25. Sunder Singh Vs. State of Uttaranchal
( (2010) 10 SCC 611),
26. Malekha V. State of A.P.
( 2005-ALT(Cri)-3-30, 2005 ALD (Cri.)-1-962)
27. (Shivaji Sahebrao Bobade Vs. State of
Maharashtra, (1973) 2 SCC 793)
28. Basavraj R.Patil v. State of Karnataka,
(2000) 8 SCC 740,
29. State of Delhi V. Shri Ram Lohia,
AIR 1960 SUPREME COURT 490
15. Before we proceed to consider the
question referred to this Bench we would like to
refer to two more judgments of the Supreme Court,
laying down the principles, which, in our
opinion, need to be borne in mind. The Supreme
Court in State of H.P. vs. Lekh Raj (2000) 1 SCC
247 observed that, The legal trial is conducted
to ascertain the guilt or innocence of the
accused arraigned. In arriving at a conclusion
about the truth, the Courts are required to adopt
rational approach and judge the evidence by its
intrinsic worth and the animus of the witnesses.
31 CR.A.670/2009
The hyper technicalities or figment of
imagination should not be allowed to divest the
court of its responsibility of sifting and
weighing the evidence to arrive at the conclusion
regarding the existence or otherwise of a
particular circumstances keeping in view the
peculiar facts of each case, the social position
of the victim and the accused, the larger
interests of the society particularly the law and
order problem and degrading values of life
inherent in the prevalent system. The realities
of life have to be kept in mind while
appreciating the evidence for arriving at the
truth. The courts are not obliged to make efforts
either to give latitude to the prosecution or
loosely construe the law in favour of the
accused. The traditional dogmatic hyper technical
approach has to be replaced by rational,
realistic and genuine approach for administering
justice in a criminal trial. Criminal
Jurisprudence cannot be considered to be a
Utopian thought but has to be considered as part
and parcel of the human civilization and the
realities of life. The courts cannot ignore the
erosion in values of life which are a common
feature of the present system. Such erosions
cannot be given a bonus in favour of those who
are guilty of polluting society and the mankind."
32 CR.A.670/2009
15.1 In Zahira Habibulla H.Sheikh V. State of
Gujarat (2004) 4 SCC 158, the Supreme Court
observed that, though justice is depicted to be
blind-folded, as popularly said, it is only a
veil not to see who the party before it is while
pronouncing judgment on the cause brought before
it by enforcing law and administering justice,
and not to ignore or turn the mind/attention of
the Court away from the truth of the cause or lis
before it, in disregard of its duty to prevent
miscarriage of justice. Courts have always been
considered to have an over-riding duty to
maintain public confidence in the administration
of justice - often referred to as the duty to
vindicate and uphold the "majesty of the law".
Due administration of justice has always been
viewed as a continuous process, not confined to
determination of the particular case, protecting
its ability to function as a Court of law in the
future as in the case before it.
15.2 Thus, the Courts while dealing with
criminal trials or appeals have to keep the
realities of life in mind while appreciating the
evidence for arriving at the truth. The Courts
are not obliged to make efforts either to give
latitude to the prosecution or loosely construe
the law in favour of the accused. A traditional,
dogmatic, hyper-technical approach needs to be
replaced by a rational, realistic and genuine
33 CR.A.670/2009
approach while dealing with the questions such as
the one under consideration before us. Criminal
jurisprudence have to be considered as a part and
parcel of the human civilization and realities of
law. The Courts cannot ignore or turn its
mind/attention away from the truth of the cause,
in disregard of its duty to prevent miscarriage
of justice.
16. In the course of hearing learned Counsel
for the parties referred to several judgments of
the Supreme Court in support of their
submissions. Before we deal with the question
referred, we would like to make reference to some
of the judgments wherein the Supreme Court has
laid down propositions of law relating to the
test of reliability of dying declaration and/or
the principles governing dying declaration. In
our opinion, it would be advantageous to make
reference to those propositions and the
principles in order to address the question
referred for consideration.
16.1 At the outset we would like to make
reference to the landmark judgment of the Supreme
Court in Khushal Rao Vs. State of Bombay ( AIR
1958 SC 22) wherein the Supreme Court has laid
down propositions of law relating to the test of
reliability of dying declaration. The relevant
paragraph thereof reads thus:
34 CR.A.670/2009
"16. On a review of the relevant provisions of the
Evidence Act and of the decided cases in the
different High Courts in India and in this Court, we
have come to the conclusion, in agreement with the
opinion of the Full Bench of the Madras High Court,
aforesaid, (1) that it cannot be laid down as an
absolute rule of law that a dying declaration cannot
form the sole basis of conviction unless it is
corroborated; (2) that each case must be determined
on its own facts keeping in view the circumstances in
which the dying declaration was made; (3) that it
cannot be laid down as a general proposition that a
dying declaration is a weaker kind of evidence than
other pieces of evidence; (4) that a dying
declaration stands on the same footing as another
piece of evidence and has to be judged in the light
of surrounding circumstances and with reference to
the principles governing the weighing of evidence;
(5) that a dying declaration which has been recorded
by a competent magistrate in the proper manner, that
is to say, in the form of questions and answers, and,
as far as practicable, in the words of the maker of
the declaration, stands on a much higher footing than
a dying declaration which depends upon oral testimony
which may suffer from all the infirmities of human,
memory and human character, and (6) that in order to
test the reliability of a dying declaration, the
Court has to keep in view the. circumstances like the
opportunity of the dying man for observation, for
example, whether there was sufficient light if the
crime was committed at night; whether the capacity of
the man to remember the facts stated had not been
impaired at the time he was making the statement, by
circumstances beyond his control; that the statement
has been consistent throughout if he had several
opportunities of making a dying declaration apart
from the official record of it; and that the
statement had been made at the earliest opportunity
and was not the result of tutoring by interested
parties."
(Emphasis supplied)
16.2 The Supreme Court in Padmaben Shamalbhai
Patel V. State of Gujarat ( [1991] 1 SCC 744) has
observed thus:
35 CR.A.670/2009
" If, in the facts and circumstances of the case,
it is found that the maker of the statement was in a
fit state of mind and had voluntarily made the
statement on the basis of personal knowledge without
being influenced by others and the court on strict
scrutiny finds it to be reliable there is no rule of
law or even of prudence that such a reliable piece of
evidence cannot be acted upon unless it is
corroborated. A dying declaration is an independent
piece of evidence like any other piece of evidence -
neither extra strong nor weak - and can be acted upon
without corroboration if it is found to be otherwise
true and reliable."
(Emphasis supplied)
16.3
The observations made by the Supreme
Court in paragraph No. 18 in Paniben (Smt) vs
State Of Gujarat (1992) 2 SCC 474 would be
relevant which reads thus:
18. Though a dying declaration is entitled to great
weight, it is worthwhile to note that the accused has
no power of cross-examination. Such a power is
essential for eliciting the truth as an obligation of
oath could be. This is the reason the Court also
insists that the dying declaration should be of such
a nature as to inspire full confidence of the Court
in its correctness. The Court has to be on guard that
the statement of deceased was not as a result of
either tutoring, prompting or a product of
imagination. The Court must be further satisfied that
the deceased was in a fit state of mind after a clear
opportunity to observe and identify the assailants.
Once the Court is satisfied that the declaration was
true and voluntary, undoubtedly, it can base its
conviction without any further corroboration. It
cannot be laid down as an absolute rule of law that
the dying declaration cannot form the sole basis of
conviction unless it is coroborated. The rule
requiring corroboration is merely a rule of prudence.
This Court has laid down in several judgments the
principles governing dying declaration, which could
be summed up as under:
(i) There is neither rule of law nor of prudence that
dying declaration cannot be acted upon without
36 CR.A.670/2009
corroboration. Mannu Raja v. State of M.P., [1976] 2
SCR 764.
(ii) If the Court is satisfied that the dying
declaration is true and voluntary it can base
conviction on it, without corroboration. State of M.
P. v. Ram Sagar Yadav, AIR 1985 Sc 416; Ramavati Devi
v. State of Bihar, AIR 1983 SC 164.
(iii) This Court has to scrutinise the dying
declaration carefully and must ensure that the
declaration is not the result of tutoring, prompting
or imagination. The deceased had opportunity to
observe and identify the assailants and was in a fit
state to make the declaration. Ram Chandra Reddy v.
Public Prosecutor, AIR 1976 S.C. 1994.
(iv) Where dying declaration is suspicious it should
not be acted upon without corroborative evidence.
Rasheed Beg v. Sate of Madhya Pradesh, [1974] 4
S.C.C. 264.
(v) Where the deceased was unconscious and could
never make any dying declaration the evidence with
regard to it is to be rejected. Kake Singh v. State
of M. P.., AIR 1982 S.C. 1021.
(vi) A dying declaration which suffers from infirmity
cannot form the basis of conviction. Ram Manorath v.
State of U.P. 1981 SCC (Crl.) 531.
(vii) Merely because a dying declaration does not
contain the details as to the occurrence, it is not
to be rejected. State of Maharashtra v. Krishnamurthi
Laxmipati Naidu, AIR 1981 SC 617.
(viii) Equally, merely because it is a brief
statement, it is not be discarded. On the contrary,
the shortness of the statement itself guarantees
truth. Surajdeo Oza v. State of Bihar, AIR 1979 SC
1505.
(ix) Normally the court in order to satisfy whether
deceased was in a fit mental condition to make the
dying declaration look up to the medical opinion. But
where the eye witness has said that the deceased was
in a fit and conscious state to make this dying
declaration, the medical opinion cannot prevail.
Nanahau Ram and another v. State of M.P., AIR 1988 SC
912.
(x) Where the prosecution version differs from the
version as given in the dying declaration, the said
declaration cannot be acted upon. State of U.P. v.
Madan Mohan 1989 S.C. 1519.
(Emphasis supplied)
37 CR.A.670/2009
16.4 In Meesala Ramkrishan v. State of A.P. (
[1994] 4 SCC 182) the Supreme Court observed that
the dying declaration on the basis of gestures
not only as admissible but also possessing
evidentiary value. The statement was recorded
by the Magistrate and the certificate of the
mental condition was appended by the Doctor who
had stated that the nods given by the deceased
were effective and meaningful. The dying
declaration formed basis for conviction in that
case. In such case the question of a Magistrate
repeating the statement of a dying person in the
words spoken by him as to the cause of death does
not arise, but still there is no legal impediment
to form such dying declaration the basis of
conviction.
16.5 In Ramilaben Hasmukhbhai Khristi Vs.
State of Gujrat ( (2002) 7 SCC 56), the Supreme
Court observed thus:
"28. Under the law, dying declaration, can form sole
basis of conviction, if it is free from any kind of
doubt and it has been recorded in the manner as
provided under the law. It may not be necessary to
look for corroboration of the dying declaration. As
envisaged, a dying declaration is generally to be
recorded by an Executive Magistrate with certificate
of a medical doctor about the mental fitness of the
declarant to make the statement. It may be in the
form of question and answer and the answers be
written in the words of the person making the
declaration. But Court cannot be too technical and in
substance if feels convinced about the
trustworthiness of the statement which may inspire
38 CR.A.670/2009
confidence such a dying declaration can be acted
upon, without any corroboration.
(Emphasis supplied)
16.6 In Laxman vs State Of Maharashtra
((2002) 6 SCC 710, the Supreme Court has laid
down the following propositions of law relating
to the test of reliability of the dying
declaration:
"3. igThe juristic theory regarding
acceptability of a dying declaration is that such
declaration is made in extremity, when the party is
at the point of death and when every hope of this
world is gone, when every motive to falsehood is
silenced, and the man is induced by the most powerful
consideration to speak only the truth.
Notwithstanding the same, great caution must be
exercised in considering the weight to be given to
this species of evidence on account of the existence
of many circumstances which may affect their truth.
The situation in which a man is on death bed is so
solemn and serene, is the reason in law to accept the
veracity of his statement. It is for this reason the
requirements of oath and cross-examination are
dispensed with. Since the accused has no power of
cross-examination, the court insist that the dying
declaration should be of such a nature as to inspire
full confidence of the court in its truthfulness and
correctness. The court, however has to always be on
guard to see that the statement of the deceased was
not as a result of either tutoring or prompting or a
product of imagination. The court also must further
decide that the deceased was in a fit state of mind
and had the opportunity to observe and identify the
assailant. Normally, therefore, the court in order to
satisfy whether the deceased was in a fit mental
condition to make the dying declaration look up to
the medical opinion. But where the eyewitnesses state
that the deceased was in a fit and conscious state to
make the declaration, the medical opinion will not
prevail, nor can it be said that since there is no
certification of the doctor as to the fitness of the
mind of the declarant, the dying declaration is not
acceptable. A dying declaration can be oral or in
39 CR.A.670/2009
writing and in any adequate method of communication
whether by words or by signs or otherwise will
suffice provided the indication is positive and
definite. In most cases, however, such statements are
made orally before death ensues and is reduced to
writing by someone like a magistrate or a doctor or a
police officer. When it is recorded, no oath is
necessary nor is the presence of a magistrate is
absolutely necessary, although to assure authenticity
it is usual to call a magistrate, if available for
recording the statement of a man about to die. There
is no requirement of law that a dying declaration
must necessarily be made to a magistrate and when
such statement is recorded by a magistrate there is
no specified statutory form for such recording.
Consequently, what evidential value or weight has to
be attached to such statement necessarily depends on
the facts and circumstances of each particular case.
What is essentially required is that the person who
records a dying declaration must be satisfied that
the deceased was in a fit state of mind. Where it is
proved by the testimony of the magistrate that the
declarant was fit to make the statement even without
examination by the doctor the declaration can be
acted upon provided the court ultimately holds the
same to be voluntary and truthful. A certification by
the doctor is essentially a rule of caution and
therefore the voluntary and truthful nature of the
declaration can be established otherwise."
(Emphasis supplied)
16.7 It would be relevant to reproduce the
observations made by the the High Court of Assam,
in Bhabanand Kakoti Vs. State of Meghalaya, 2008
CRI.L.J.194, after considering the judgments of
the Supreme Court in Bakshish Singh V. State of
Punjab, AIR 1957 S.C.904 (C.134 Dec.), Tehal
Singh V. State of Punjab, 1980 Supp (1) SCC 400
and Srinivasa and others Vs. State, (2005) 9 SCC
327, in paragraph No.21 observed thus:
40 CR.A.670/2009
"21. There is no doubt that if the dying declaration is
recorded in the words of the injured, it would be the
best dying declaration. It however appears that exact
words of the injured cannot be always insisted upon. It
has been held by the Apex Court in Baksish Singh v.
State or Punjab that simply because the very words
uttered by the injured are not reproduced, it is no
reason to reject the dying declaration if the Court is
otherwise satisfied that the dying declaration, as
recorded, correctly reproduces what was stated by the
injured. The Supreme Court in Tehal Singh V. State of
Punjab has held that the substance of the dying
declaration written in the words of the writer attaches
no infirmity. Relying on the law laid down in this
case, the H.P. High Court in State of H.P. v. Gopi 1985
Cri LJ 984 (sic) has held that statement made in one
language and recorded in another language is legal. In
Srinivasa and ors. v. State (2005) 9 SCC 327, the
declarant and recorder of dying declaration were not
speaking the same language. The dying declaration was
therefore recorded with the help of a translator. The
correctness of the translation was confirmed by the
Doctor who knew both languages. In the circumstances,
it was held by the Apex Court that the veracity of the
dying declaration stands established.
21.1 It would be clear from the above that it is not
the law that the exact words uttered by the injured
need always be reproduced.
16.8 It is pertinent to note that the Supreme
Court in Bakshish Singh also indicated that the
dying declaration recorded in the language other
than known to the maker or spoken by him would
not be an infirmity in accepting the dying
declaration.
17. We would not like to burden this
judgment with other precedents at this stage and
it is now necessary to deal with the question
referred to for our consideration. Section 60 of
the Evidence Act rests on the cardinal rule that
the best evidence available must always be given.
It provides that oral evidence must always be
41 CR.A.670/2009
direct or positive. The statements or
declarations, oral or written, of persons not
called as witnesses but repeated by third persons
are excluded as hearsay, but there are important
exceptions to the rule which we find in Sections
17 to 39 and more particularly Section 32(1) of
the Evidence Act, with which we are concerned in
this appeal.
17.1 Though we do not find the term "hearsay"
or definition of the term "hearsay" in the
Evidence Act, it means that the evidence which
a witness does not give of his own knowledge, but
says that another person has said or signified to
him. The correct rule as to "hearsay" therefore,
is the statements, oral or written, reported to
have been made by persons, not called as
witnesses, are not admissible in evidence,
subject to certain exceptions. Section 32(1) is
one such exception, under which the statement of
a dying person is made admissible in evidence.
17.2 A dying declaration is indirect evidence,
being a specie of "hearsay" yet, it is an
exception to the rule against admissibility of
hearsay evidence. It is substantive evidence
and like any other substantive evidence requires
no corroboration for forming basis of conviction
of an accused. How much weight can be attached
to a dying declaration, however, is a question of
42 CR.A.670/2009
fact and has to be determined on the facts and
circumstances of each case (Ram Bihari Yadav V.
State of Bihar 1998 CRI.L.J. 2515).
18. Section 32(1) of the Evidence Act was
not referred or considered in Jivan Tulshiram
Dhavali's case. We would, therefore, like to
consider the said provision in depth and its
effect on the view taken in that case.
18.1
To understand the purport of Section
32(1) of the Evidence Act it would be relevant to
have a glance at it. Section 32(1) reads thus:
"32. Cases in which statement of relevant fact by
person who is dead or cannot be found, etc., is
relevant -
Statements, written or verbal, of relevant facts
made by a person who is dead, or who cannot be found,
or who has become incapable of giving evidence, or
whose attendance cannot be procured without an amount
of delay or expense which, under the circumstances of
the case, appears to the Court unreasonable, are
themselves relevant facts in the following cases:
(1) When it relates to cause of death.
When the statement is made by a person as
to the cause of his death, or as to any of the
circumstances of the transaction which resulted in
his death, in cases in which the cause of that
person's death comes into question.
Such statements are relevant whether the
person who made them was or was not, at the time when
they were made, under expectation of death, and
whatever may be the nature of the proceedings in
which the cause of his death comes into question."
(Emphasis supplied)
43 CR.A.670/2009
18.2 Before we proceed further, it would be
relevant to see what the Supreme Court has
observed while dealing with Section 32 in
P.V.Radhakrishna which reads thus:
"10. At this juncture, it is relevant to take note of
Section 32 of the Indian Evidence Act, 1872 (in short
'Evidence Act') which deals with cases in which
statement of relevant fact by person who is dead or
cannot be found, etc. is relevant. The general rule
is that all oral evidence must be direct viz., if it
refers to a fact which could be seen it must be the
evidence of the witness who says he saw it, if it
refers to a fact which could be heard, it must be the
evidence of the witness who says he heard it, if it
refers to a fact which could be perceived by any
other sense, it must be the evidence of the witness
who says he perceived it by that sense. Similar is
the case with opinion. These aspects are elaborated
in Section 60. The eight clauses of Section 32 are
exceptions to the general rule against hearsay just
stated. Clause (1) of Section 32 makes relevant what
is generally described as dying declaration, though
such an expression has not been used in any Statute.
It essentially means statements made by a person as
to the cause of his death or as to the circumstances
of the transaction resulting in his death. The
grounds of admission are; firstly, necessity for the
victim being generally the only principal eye-witness
the crime, the exclusion of the statement might
deflect the ends of justice; and secondly, the sense
of impending death, which creates a sanction equal to
the obligation of an oath. The general principle on
which this species of evidence is admitted is that
they are declarations made in extremity, when the
party is at the point of death and when every hope of
this world is gone, when every motive to falsehood is
silenced, and the mind is induced by the most
powerful considerations to speak the truth; a
situation so solemn and so lawful is considered by
the law as creating an obligation equal to that which
is imposed by a positive oath administered in a Court
of justice."
(Emphasis supplied)
44 CR.A.670/2009
18.3 In Sukanti Moharna Vs. State of Orissa
(2009 AIR SCW 6161), while dealing with Section
32 of the Evidence Act, the Supreme Court
observed thus:
"22. Section 32 of the Indian Evidence Act, 1872
deals with the statement of persons who cannot be
called as witnesses as because they are dead or they
cannot be found or they have become incapable of
giving evidence or their evidence cannot be procured
without an amount of delay or expense. Such
statements themselves are relevant facts in certain
cases. The aforesaid Section 32 was enacted as an
exception to the general rule as reflected in Section
60 of the said Act which mandates that oral evidence
in all cases must be direct i.e. if it refers to a
fact which could be seen, it should be the evidence
of a witness who says he saw it, whereas if it refers
to a fact which could be heard, it must be the
evidence of a witness who says he heard it or if it
refers to a fact which could be perceived by any
other sense or in any other manner, it must be the
evidence of a witness who says he perceived it by
that sense or in that manner."
(Emphasis supplied)
18.4 Section 32(1) of the Evidence Act
renders a statement relevant which was made by a
person who is dead in cases in which cause of his
death comes into question. Therefore, before
the "statement" under Section 32(1), which is
generally described as "dying declaration", is
admitted, it must be proved that the person who
made it is dead. Its admissibility depends upon
one of the two conditions embodied in the
Section. Firstly, either such statement should
relate to the cause of his death or, secondly, it
should relate to any of the circumstances of the
45 CR.A.670/2009
transaction which resulted in his death. Thus, a
statement of relevant facts by person who is dead
is relevant under Section 32(1) of the Evidence
Act.
18.5 A plain reading of Section 32(1), shows
that statements, oral or verbal, of relevant fact
made by a person who is dead, are themselves
relevant fact when it is made by a person as to
the cause of his death, or as to any of the
circumstances of the transaction which resulted
in his death, in cases in which the cause of that
person's death comes into question. Such
statements are relevant where the person who made
them was or was not, at the time when they were
made, under expectation of death, and whatever
may be the nature of the proceeding in which the
cause of his death comes into question.
18.6 Section 32(1) uses the expression
"written or verbal". If both these words are
deleted and the Section is read, still it conveys
the same meaning. It does not make any
distinction between "written" and "verbal"
statement of relevant facts made by a person who
is dead. However, by using the words "written or
verbal" the Legislature has made its intention
clear so as to say that there could be either
written or verbal statement of relevant fact made
by a person who is dead. In other words though
46 CR.A.670/2009
Section on the face of it does not make any
distinction, the language employed would show
that there could be either "verbal" or "written"
statement by a person who is dead, as to the
cause of his death or the circumstances resulting
in his death in cases in which cause of his death
comes into question.
18.7 When statement of a dying person is
recorded by a person/Magistrate/Executive
Magistrate in writing it would be a "written
statement" or "statement in writing" within the
meaning of Section 32(1) of the Evidence Act. A
recorder of such statement is supposed to be an
independent person, having no concern with the
incident in which a maker of the statement
sustained fatal injuries or is not acquainted
with the facts and circumstances of the case.
In other words, he is not a witness to the
incident and/or supposed to have any knowledge
about the name and act of the accused which
caused fatal injuries to the deceased.
18.8 On the other hand, oral statement as to
the cause of death or to the circumstances
resulting in death, made by the deceased to a
witness, who may or may not have any connection
with the accused/deceased/alleged incident, would
be a "verbal statement" within the meaning of
Section 32(1) of the Evidence Act. A verbal
47 CR.A.670/2009
statement of the deceased to the witnesses, is a
weak kind of evidence, since the exact words
uttered by the deceased are not available,
particularly because of the failure of memory of
the witnesses, who are said to have heard it.
However, the verbal statements against interest
are equally receivable as written, although the
weight of the latter (written) may be much
greater than the former (verbal). Oral dying
declaration can also be a basis for conviction of
the accused. In short, where the statement,
written or verbal, of relevant facts made by a
person who is dead, is relevant when it relates
to the cause of death, they both are equally
receivable, though the reliability thereof
always depends upon facts and circumstances of
each case.
18.9 A verbal statement made by a person who
is dead as to the cause of death, or as to any of
the circumstances of the transaction which
resulted in death, under any circumstances,
cannot be admitted in evidence or held to be
proved unless the person who heard it made,
repeats the words spoken by the deceased or
deposes as to what was stated by the deceased.
In other words, a oral statement of the deceased
could be treated as "verbal statement" of the
relevant facts, within the meaning of Section
32(1), only if the words spoken by the deceased
48 CR.A.670/2009
or the gist of what the deceased told to any
"witness" as to the cause of his death or as to
the circumstances which resulted in his death
are repeated/stated in the deposition before
Court by the witness who heard it made. Thus,
deposing the gist or the "words spoken" by the
deceased as to the cause of death, or to the
circumstances of the transaction which resulted
in death, by the "witness" who heard it made, is
an essential requirement of law to bring it on
record. If the witness examined in order to
prove the oral dying declaration, does not
depose/state what the deceased told him as to the
cause of death or the circumstances resulted in
his death, it cannot be treated as relevant facts
as contemplated by Section 32(1) of the said Act.
18.10 The word "statement" in Section 32(1) of
the Evidence Act is not defined in the Act,
though it has been used in number of Sections.
We have, therefore, to go to its primary meaning
that "something that is stated". (Bhogilal
Chunilal Pandya V/s State of Bombay AIR 1959 SC
356 (V 46 C 47)). In short, statement could be
written or verbal as contemplated by Section
32(1). A "Verbal statement" as contemplated by
Section 32(1) means repetition/reproduction of
the words spoken by or of the statement of the
deceased by the witness who heard him made. A
49 CR.A.670/2009
"written statement", contemplated by Section
32(1) means a statement that is taken down in
writing as made by the deceased, as to the cause
of his death or as to any of the circumstances of
the transaction which resulted in his death.
18.11 Thus, the statements contemplated by
Section 32(1), are the statements, written or
verbal, made by a person who is dead, are
themselves relevant facts, when it relates to the
cause of his death. There is a requirement of law
that the "statement" as contemplated by Section
32(1) should contain the cause of death, or any
of the circumstances of the transaction which
resulted in death of its maker, and in the
absence thereof it cannot be treated as "relevant
facts in issue" and admitted in evidence under
this provision. Section 32(1) does not provide
that a recorder of the dying declaration should
repeat the contents of such "statement" of the
deceased. Even in case of "verbal statement",
the witness who heard it made, requires to repeat
its contents/gist in order to bring it on record,
being a relevant fact in issue, and though it is
hearsay, repetition thereof is made an exception
to the hearsay rule.
18.12 If it is held to be essential
requirement of law that statement / dying
50 CR.A.670/2009
declaration in writing needs to be repeated /
reproduced in the words spoken by the deceased
as to the cause of his death, then there would
be no difference between "oral dying declaration"
and "written dying declaration" and in that
eventuality it would not be necessary to reduce
the dying declaration in writing. Such anomaly
would frustrate the purport of statute. A
Magistrate who records the statement is not
supposed to be acquainted with the facts and
circumstances of the case. He records dying
declaration at the request of Police. Sometimes,
Doctor records the cause of death as stated by
the victim in the medical papers, and in some
cases, Police officer records it. They are all
independent witnesses,having no concern with the
alleged incident, or with the accused / victim.
They are not supposed to be acquainted with the
facts and circumstances of the case. That is the
reason why statements of such witnesses are never
recorded under Section 161 of the Cr.P.C. by any
Police officer in the course of investigation.
18.13 Under Section 161, any Police officer
making an investigation is empowered to examine
orally any person supposed to be acquainted with
the facts and circumstances of the case. No
question, as submitted by learned P.P., can be
put to such witness as to the cause of death; in
the sense, the Magistrate cannot be questioned in
51 CR.A.670/2009
respect of an identity of the accused who,
allegedly, caused fatal injuries, how the
declarant was assaulted, what was the reason,
etc. Therefore, even if the Magistrate does not
repeat the words spoken by the deceased or the
contents of his statement, as to the cause of his
death, in our opinion, that would not cause any
prejudice to the accused. It was further
submitted that one can put questions/case in the
cross examination to such witness challenging
the procedure that was followed for recording a
dying declaration, mental fitness/condition of a
dying person, or his physical condition so as to
prove that no statement could have been made
and/or the statement so recorded suffers from
infirmities, and so also that it was not
voluntary and result of prompting/tutoring,
vindictive and product of imagination. However,
in our opinion, the Courts cannot place any
embargo on the prerogative of the accused to
cross examine the witness unless the question/s
is/are irrelevant in facts of the case.
18.14 In our opinion, the recorder of "a
statement/dying declaration" does not offer
himself for cross examination as if he is the
deceased. He is only supposed to bring the
statement of the deceased on record and prove the
contents thereof. As a matter of fact, the dying
declaration can be proved even if its recorder
is not available, being dead or who cannot be
52 CR.A.670/2009
found or, for any reason whose attendance cannot
be procured. Any other person such as a Doctor /
Nurse, if states, that he/she was present when
the deceased made such statement, in our opinion,
may be sufficient to admit the dying declaration.
In that eventuality, if such witness deposes
before the Court that he was present when the
statement was recorded by a Magistrate, he
heard the deceased making such statement, saw the
Magistrate recording it, taking the signature /
thumb impression of its maker, and also putting
his signature thereon etc. may be sufficient to
prove the contents of such statement. Whether
to form conviction on the basis thereof, however,
would be a matter of appreciation of evidence.
18.15 It is common knowledge that Magistrates
/Executive Magistrates who are always willing and
make themselves available to record dying
declarations are often called by Police. In some
cases, we find that a particular Magistrate
records 10/15 dying declarations in a week or
20/25 in a month. In such a situation, it
would be humanly impossible for any Magistrate to
remember contents of the statements recorded by
him and to reproduce while deposing before the
Court. It is true that Magistrate while under
examination can refresh his memory as provided
for under Section 159 of the Evidence Act.
That being so, in our opinion,
53 CR.A.670/2009
expecting the Magistrate, after referring to the
statement recorded by him, to repeat and/or
reproduce contents thereof, would be too
technical and would create violence to logic. In
criminal trials, while dealing with such evidence
Courts have to be rational and realistic and need
not take dogmatic and hyper technical approach.
The Courts cannot ignore or turn its
mind/attention away from the truth of the cause,
in disregard to its duty to prevent miscarriage
of justice.
18.16 In Paniben (Supra), the Supreme Court
observed that the situation in which a person is
on death bed is so solemn and serene when he is
dying, the grave position in which he is placed,
is the reason in law to accept veracity of his
statement. It is for this reason that the
requirements of oath and cross examination are
dispensed with. Besides, should the dying
declaration be excluded, it will result in
miscarriage of justice because the victim being
generally the only eye witness in a serious
crime, and that it would leave the Court without
a scrap of evidence. (P.V.Radhakrishna Vs.
State of Karnataka (AIR 2003 SUPREME COURT 2859).
19. Having considered the provisions
contained in Section 32(1) of the Evidence Act,
we would now like to consider as to when the
54 CR.A.670/2009
"statement" of a deceased recorded in writing by
a Magistrate could be said to be proved and Court
can base its conviction with or without further
corroboration. To prove a dying declaration, so
as to form the sole basis of conviction, in our
opinion, it has to pass through three stages in
the course of trial, and if the dying declaration
passes through all the stages successfully, the
accused could be convicted solely on the basis
thereof without corroboration. The first stage
is to admit and exhibit the statement/dying
declaration, the second is to prove the contents
thereof, and lastly, it should be proved that
the statement was voluntary and trustworthy,
apart from the fact it is equally necessary to
prove that such statement was made by the
deceased in a fit state of mind. Unless the
dying declaration passes through all the stages
and stands to all the tests successfully, it
cannot form the sole basis of conviction without
corroboration. Each case, therefore, must be
determined on its own facts keeping in view the
circumstances in which dying declaration is made.
19.1 To prove the dying declaration the
prosecution needs to bring it on record through a
competent witness or it should come on record
from proper custody and, once it is placed on
record, the Court can admit and exhibit the same.
However, mere production and marking of the dying
55 CR.A.670/2009
declaration as exhibit cannot be held to be a
proof of its contents. Therefore, the next
stage is to prove the contents of the statement.
The best person/witness to prove the contents of
the statement, within the meaning of Section
32(1), is its recorder. If the recorder of the
statement appears before the Court as a witness
and deposes that he recorded the said statement
by following the proper procedure, that is to
say, in the form of questions and answers and, as
far as practicable, in the words of the maker of
the statement/declaration, and that the maker was
well oriented/in a fit state of mind to make the
declaration and if the declaration is signed by
or thumb impression is put by the declarant in
approval thereof, and was also signed by the
Magistrate, in our opinion, the contents thereof
would stand proved provided nothing is elicited
in the cross examination so as to create doubt
about its contents. In similar manner, as
observed earlier, the contents can also be proved
by any other witness, if the recorder is not
available, who was present when the statement was
recorded by the Magistrate.
19.2 The third stage is to prove that the
dying declaration is trustworthy and voluntary.
In criminal cases mere proving the contents of
the dying declaration would not be sufficient and
the Courts require to further examine whether
56 CR.A.670/2009
the statement was voluntary; whether it is
truthful/trustworthy. In short, merely because
the proper procedure was followed by the recorder
of a dying declaration/statement, and he proves
the contents thereof would not mean that the
contents of the dying declaration are
truthful/trustworthy, and voluntary to form the
basis for conviction without corroboration.
Whether to accept the dying declaration as a
truthful evidence, and to convict the accused on
the basis thereof is a matter of appreciation of
evidence and the Court, where prosecution is
relying solely on the dying declaration, has to
be on guard that the statement of the deceased
was not as a result of tutoring, prompting,
vindictive or a product of imagination, apart
from the satisfaction of the Court that the
deceased was in a fit state of mind and that he
had clear opportunity to observe and identify the
accused.
19.3 In order to test the reliability of a
dying declaration, the Court has to keep in view
the circumstances like the opportunity of the
dying man for observation, for example, whether
there was sufficient light if the crime was
committed at night; whether the capacity of the
man to remember the facts stated had not been
impaired at the time he was making the statement,
by circumstances beyond his control; that the
57 CR.A.670/2009
statement has been consistent throughout if he
had several opportunities of making a dying
declaration apart from the official record of it;
and that the statement had been made at the
earliest opportunity and was not the result of
tutoring by interested parties. ( Khushal Rao Vs.
State of Bombay, AIR 1958 SC 22.
19.4 In State of Uttar Pradesh Vs. Ramsagar
Yadav ( AIR 1985 SC 416) the Supreme Court
observed that it is well settled, as a matter of
law, that a dying declaration can be acted upon
without corroboration. There is not even Rule
of prudence which has hardened into a Rule of Law
that a dying declaration cannot be acted upon
unless it is corroborated. The primary effort
of the Court is to find out whether the dying
declaration is true, if it is, no question of
corroboration arises. It is only if the
circumstances surrounding the dying declaration
are not clear or convincing that the Court may,
for its assurance, look for corroboration to the
dying declaration.
19.5 In Uka Ram Vs. State of Rajasthan
(2001) 5 SCC 254 the Supreme Court, after
considering the principle on which the dying
declarations are admitted in evidence, which is
based upon the legal maxim Nemo Moriturus
Praesumitur Mentire i.e. a man will not meet his
58 CR.A.670/2009
maker with a lie in his mouth, observed that it
has always to be kept in mind that though a dying
declaration is entitled to great weight, yet it
is worthwhile to note that as the maker of the
statement is not subjected to cross- examination,
it is essential for the court to insist that
dying declaration should be of such nature as to
inspire full confidence of the court in its
correctness. The court is obliged to rule out the
possibility of the statement being the result of
either tutoring, prompting or vindictive or
product of imagination. Before relying upon a
dying declaration, the court should be satisfied
that the deceased was in a fit state of mind to
make the statement. Once the court is satisfied
that the dying declaration was true, voluntary
and not influenced by any extraneous
consideration, it can base its conviction without
any further corroboration as rule requiring
corroboration is not a rule of law but only a
rule of prudence.
19.6 The observations made by the Supreme
Court in Jayaraj Vs. State of T.N. (1976 SC 1519)
are also relevant, which read thus:
" When the deponent ( while making his dying
declaration) was in severe bodily pain ( because
of stabbing injuries in abdomen), and words were
scarce, his natural impulse would be to tell the
Magistrate, without wasting his breath on
details, as to who had stabbed him. The very
brevity of dying declaration, in the
59 CR.A.670/2009
circumstances of the case, far from being a
suspicious circumstance, was an index of its
being true and free from the taint of tutoring,
more so when the substratum of the dying
declaration was fully consistent with the ocular
account given by the eyewitnesses."
19.7 In Meesala Ramkrishan Vs. State of A.P.
(1994) 4 SCC 182, the Supreme Court accepted the
dying declaration on the basis of gestures not
only as admissible but also possessing
evidentiary value. The certificate of the
mental condition was approved by the Doctor who
had stated that the nods given by the deceased
were effective and meaningful.
19.8 In Panchdeo Singh V. State of Bihar
( [2002] 1 SCC 577), the Supreme Court, after
referring to the decision of Arvind Singh v.
State of Bihar ( [2001] 6 SCC 407) and after
noticing care and caution factors observed Thus:
"That apart from the care and caution factors
as noticed earlier the dying declaration ought
otherwise to be treated as trustworthy. The issue
thus becomes as to whether the dying declaration has
been able to bring about a confidence thereon or not
- is it trustworthy or is it a mere attempt to
cover up the latches of investigation: it must allure
to the satisfaction of the court that reliance ought
to be placed thereon rather than a distrust: The
confidence of the court is the summum bonum and in
the event of there being any affirmation thereto in
the judicial mind, question of any disbelief or
distrust would not arise.In the event however of
there being some infirmity, howsoever negligible it
60 CR.A.670/2009
be, the Court unless otherwise satisfied about the
credibility thereof, ought to look for some
corroboration, if however it is otherwise, question
of requirement of a corroboration would not arise:
dying declaration alluring confidence of the court
would be a sufficient piece of evidence to sustain
conviction."
(Emphasis supplied)
19.9 In Laxmi V. Om Prakash ( 2001 AIR SCW
2481), the Supreme Court held thus:
"
A dying declaration, if found reliable, can form
the basis of conviction. A court of facts is not
excluded from acting upon an uncorroborated dying
declaration for finding conviction. A dying
declaration, as a piece of evidence, stands on the
same footing as any other piece of evidence. It has
to be judged and appreciated in the light of the
surrounding circumstances and its weight determined
by reference to the principles governing the weighing
of evidence. It is, as if the maker of the dying
declaration was present in the court, making a
statement, stating the facts contained in the
declaration, with the difference that the declaration
is not a statement on oath and the maker thereof
cannot be subjected to cross-examination."
19.10 Thus, it is well settled that the dying
declaration, after its careful scrutiny, if the
Court is satisfied that it is true and free from
any effort to induce the deceased to make a false
statement and if it is coherent and consistent,
there is no legal impediment to form such dying
declaration the basis of conviction, even if
there is no corroboration. ( See Tarachand Damu
Sutar Vs. State of Maharashtra ( AIR 1962 SC
130), Kusa Vs. State of Orissa ( (1980) 2 SCC
61 CR.A.670/2009
207, Misala Ramkrishnan Vs. State of A.P. (1994 4
SCC 182), Govardhan Raoji Ghaire Vs. State of
Maharashtra ( (1993) (Suppl.) 4 SCC 316 and
Gangotri Sing Vs. State of U.P. ( (1993) Suppl.)
(1) SCC 327.)
20. Over the years, by judicial
pronouncements, it is now settled as to what
procedure needs to be followed while recording a
dying declaration. Though no statutory form is
prescribed for recording a statement by a
Magistrate under Section 32(1) of the Evidence
Act, how it should be recorded, what
precautions, before, during and after recording
of the statement, one should take, is almost
settled by judicial pronouncements to which we
have already made reference in the earlier part
of the judgment. We would further like to browse
the law settled in that regard.
20.1 There is no requirement of law that a
dying declaration must necessarily be made to a
Magistrate. What is essentially required is
that the person who records a dying declaration
must be satisfied that the deceased was in a fit
state of mind. A dying declaration which has
been recorded by a competent Magistrate in the
proper manner, i.e. to say, in the form of
questions and answers, and as far as practicable,
in the words of the maker of the declaration,
62 CR.A.670/2009
stands on a much higher footing than a dying
declaration which depends on oral testimony which
may suffer from all infirmities of human memory
and human character. ( Khushal Rao Vs. State of
Bombay (AIR 1958 SC 22).
20.2 It is true that a dying declaration is
generally to be recorded by a competent
Magistrate. But the Court cannot be too
technical and in substance, if feels convinced
about the trustworthiness of the statement which
may inspire confidence, such a dying declaration
can be acted upon, even if it is not recorded by
Magistrate. The Supreme Court, in Laxmi Vs.
Omprakash and others, (Supra), however,
deprecated the practice of Police officers
recording dying declaration except where
condition of the deceased was so precarious that
no other alternative was left. In other words,
merely because the statement of a deceased, as
contemplated by Section 32(1) of the Evidence
Act, is recorded by a Police Officer, cannot be a
ground for rejecting the same outright. If the
Court is satisfied that the investigating agency
was left with no alternative, and if the
statement recorded by Police Officer, otherwise
satisfies all the tests governing dying
declarations, it can form the basis for
conviction with or without corroboration, as the
case may be.
63 CR.A.670/2009
20.3 Generally, the dying declaration ought
to be recorded in the form of questions-answers
but, if the dying declaration is not elaborate
but consists of only a few sentences and is in
the actual words of the maker, the mere fact that
it is not in question and answer form cannot be a
ground against its acceptability or reliability.
But, to lend assurance to those factors, having
regard to the importance of the dying
declaration, the certificate of a medically
trained person is insisted upon. In the absence
of availability of a Doctor to certify the above
mentioned factors, if there is other evidence to
show that the recorder of the statement
satisfied himself about those requirements before
recording the dying declaration, there is no
reason as to why it should not be accepted. (
Ram Bihari Yadav (supra). If it is proved by the
testimony of the Magistrate that the declarant
was fit to make the statement, even without
examination by the Doctor, the declaration can be
accepted provided the Court ultimately holds the
same to be voluntary and truthful. Thus, a
certification by the Doctor is essentially a Rule
of caution and, therefore, the voluntary and
truthful nature of the declaration can be
established otherwise. (Laxman Vs. State of
Maharashtra (supra)).
64 CR.A.670/2009
20.4 There is no format as such of the dying
declaration; neither the declaration need to be
of longish nature and neatly structured. As a
matter of fact, perfect wording and neatly
structured dying declaration may bring about an
adverse impression and create a suspicion in the
mind of the Court since dying declaration need
not be drawn with mathematical precision - that
the declarant should be able to recollect the
circumstances resulting in the available state of
affairs. ( Panchdeo Singh Vs. State of Bihar
(2002) 1 SCC 577 and Arvind Sing Vs. State of
Bihar (2001) 6 SCC 407).
20.5 If the dying declaration is recorded by
a person/Magistrate/Executive Magistrate it is
the duty of the prosecution to specifically bring
on record that the deceased had heard the
statement so recorded and he/she admitted to be
correct and true and puts his/her thumb
impression in approval thereof. This is not
mere formality but an essential part while
recording a dying declaration, because the person
who cannot be examined afterwards must, at least
that time, should confirm correctness of the
statement. (Manohar Dadarao Landage Vs. State of
Maharashtra, 2000 (2) Mh.L.J. 3).
65 CR.A.670/2009
20.6 Thus, in our opinion, if a competent
Magistrate and, in his absence, Police Officer,
if by and large follows the procedure recognized
by judicial pronouncements and/or observes the
principles laid down by the Supreme Court in
various judgments, including the judgments
referred to in this judgment, the statement in
writing, as contemplated by Section 32(1) of the
Evidence Act, can be said to be recorded properly.
20.7
Thus, in our opinion, if a dying
declaration is recorded properly, that is to say,
by following due procedure as reflected in the
judgments referred to in the foregoing paragraphs,
if its contents are held to be proved, and if it
stands to all tests to hold it trustworthy /
truthful and voluntary, and if the Court is
satisfied that the deceased was in fit state of
mind when he made the declaration, it can form
the basis for conviction without corroboration,
irrespective of the fact whether the recorder
repeats the contents thereof in his deposition
before the Court. The essential requirement of
law, as observed earlier, is that the statement,
verbal or written, of the deceased should contain
the cause of his death or the circumstances of
the transaction which resulted in his death, in
cases in which the cause of that person's death
comes into question and not its repetition by the
66 CR.A.670/2009
recorder before the Court.
21. Next, we would like to deal with the
contentions advanced on the basis of Section 313
of the Code of Criminal Procedure (for short,
"Cr.P.C."). Our attention was invited to Section
313 by Mrs.Jadhav, learned Counsel for the
appellant to contend that under this provision it
is mandatory for the Court, in the course of
trial, to put to the accused, to personally
explain all circumstances appearing in the
evidence against him, without administering oath.
She further submitted the "circumstances
appearing in the evidence" against the accused
under this provision mean only the circumstances
reflected in the oral evidence or stated by the
witnesses before the Court. In short, she
submitted that unless the contents of the
statement are repeated by its recorder, they
cannot be put to the accused and those
circumstances will have to be excluded from the
evidence. She further submitted that if every
incriminating circumstance appearing in the oral
evidence is not put to the accused personally to
explain, he will be entitled for acquittal.
Ms.Jadhav raised this contention, since,
according to her, in the present case contents of
the dying declaration were not put to the
accused.
67 CR.A.670/2009
21.1 Section 313 of Cr.P.C. uses the
expression "to explain any circumstances
appearing in the evidence". The word "evidence",
employed in this Section is not defined in the
Code of Criminal Procedure. However, it is
defined in Section 3 of the Evidence Act which
means and includes all "statements" which the
Court permits or require to be made before it by
witness, in relation to matters of fact under
inquiry; such statements are called "oral
evidence", and all documents, including
electronic records produced for inspection of the
Court. A plain reading of this definition means
and includes all statements which the Court
permits in relation to matters of fact under
inquiry. Section 32 also uses the expression
"statement, oral or verbal". The word statement,
as observed earlier, is not defined in the
Evidence Act though it has been used in number of
Sections. We have, therefore, to go to its
primary meaning - "that something that is
stated". Written dying declaration as
contemplated by Section 32(1) produced on record
in a criminal trial is a "statement of relevant
fact" when it relates to the cause of death, made
by person who is dead or cannot be found, is
relevant. It can form basis to convict the
accused if such statement is recorded by
following the due procedure and found to be
voluntary and truthful. It is, thus, clear that
68 CR.A.670/2009
the word "evidence" used in Section 313 of the
Code of Criminal Procedure would also include
"statement" of a deceased reduced in writing as
contemplated by Section 32(1) of the Evidence
Act. It is, therefore, necessary for the Court
to put such question to the accused to personally
explain the circumstances appearing in the
written "statement" (dying declaration) of the
facts relating to the cause of death of its
maker.
21.2
The Supreme Court in Sunder Singh Vs.
State of Uttaranchal ( (2010) 10 SCC 611), while
dealing with Section 313 of the Code of Criminal
Procedure, observed that record must show that
meticulous care is taken to put all
"incriminating circumstances" to the accused.
If facts and circumstances appearing in the
statement of a deceased, relating to the cause of
his death, are incriminating, the Court under
Section 313 has to put questions to the accused
personally to explain, failing which it could be
treated as illegality/irregularity, as the case
may be. In the judgment of the Andhra Pradesh
High Court in Malekha V. State of A.P. ( 2005-
ALT(Cri)-3-30, 2005 ALD (Cri.)-1-962) Justice
Bilal Nazki, the Acting Chief Justice, speaking
for the Bench, while dealing with the submission
that the contents of the declaration were not put
to the accused when they were examined under
69 CR.A.670/2009
Section 313, observed that "the contents of the
dying declaration" ought to have been put to the
accused when the accused was examined under
Section 313. While making such observation, the
Division Bench of the Andhra Pradesh High Court
made reference to several judgments of the
Supreme Court. In our opinion, what is necessary
to put to the accused, to personally explain,
when examined under Section 313 of Cr.P.C., all
incriminating circumstance appearing in the
statements of a dying person, written or verbal,
as to the cause of his death or the circumstances
resulting in his death. We have also gone through
the judgment of the Supreme Court in Satyavir
Singh Rathi V State, 2011 (5) SCALE 339, relating
to the interpretation of Section 313 of Cr.P.C
which in general supports the view expressed
herein above. In our opinion, therefore, the
submission advanced on the basis of Section 313
that recorder of the dying declaration should
repeat the words spoken by the deceased as to the
cause of his death or circumstances resulting in
his death is without any merits and deserves to
be rejected outright.
21.3 Further, we observe that insofar as the
statement of an accused under Section 313 of the
Cr.P.C. is concerned, if the evidence brought on
record is sufficient to bring home guilt of the
70 CR.A.670/2009
accused, the omission to put any particular
circumstances to the accused under Section 313,
does not, ipso facto, vitiate the proceedings
unless any prejudice caused to the accused is
established by him. If the accused succeeds in
showing prejudice caused to him, the appellate
Court can afford an opportunity to the
prosecution to make up the lapse and avoid
miscarriage of justice. (Shivaji Sahebrao Bobade
Vs. State of Maharashtra, (1973) 2 SCC 793) It
is relevant to note the observations made by the
Supreme Court in State of Punjab Vs. Naib Din,
(2001) 8 SCC 578, while dealing with Section 313
of Cr.P.C., which read thus:
"12. That apart, respondent failed to show that
there was any failure of justice on account of the
omission to put a question concerning such formal
evidence when he was examined under Section 313 of
the code. No objection was raised in the trial court
on the ground of such omission. No ground was taken
up in the appellate court on such ground. If any
appellate court or revisional court comes across that
the trial court had not put any question to an
accused even if it is of a vital nature, such
omission alone should not result in setting aside the
conviction and sentence as an inevitable consequence.
Effort should be made to undo or correct the lapse.
If it is not possible to correct it by any means the
court should then consider the impact of the lapse on
the overall aspect of the case. After keeping that
particular item of evidence aside, if the remaining
evidence is sufficient to bring home the guilt of the
accused, the lapse does not matter much, and can be
sidelined justifiably. But if the lapse is so vital
as would affect the entire case, the appellate or
revisional court can endeavour to see whether it
could be rectified."
(Emphasis supplied)
71 CR.A.670/2009
21.4 In Basavraj R.Patil v. State of
Karnataka, (2000) 8 SCC 740, the Supreme Court
observed that the explanation offered by the
Counsel of the accused at the appellate stage in
respect of a vital circumstance which was not put
to the accused, was held to be a sufficient
substitute for the answers given by the accused
himself.
22. Lastly, we would like to consider the
contention urged on behalf of the appellant that
the dying declaration, in the eventuality of
declarant surviving it, would be a previous
statement under Section 161 of the Criminal
Procedure Code. Though, this submission is not
relevant for our purpose, in our opinion,
deserves to be rejected outright, in view of the
law settled by the Supreme Court in Sunil Kumar
and others Vs. State of M.P. ( AIR 1997 SC 940).
In this case the Supreme Court, while dealing
with the statement of injured witness, which was
then recorded as a dying declaration by the
Magistrate, observed that the statement of
injured which was recorded as a dying declaration
which, consequent upon his survival, is to be
treated as a statement under Section 164 of the
Criminal Procedure and can be used for
"corroboration or contradiction", unlike the
statement under Section 161, which can be used
only for "contradiction". Such statement
72 CR.A.670/2009
recorded by the Magistrate, at the earliest
available opportunity, would clearly disclose the
substratum of the prosecution case, including the
names of the persons as assailants, particularly
when it is found to be not an upshot of his
tutoring. In State of Delhi V. Shri Ram Lohia,
AIR 1960 SUPREME COURT 490, the Supreme Court
observed that the statement of a witness recorded
under Section 164 of the Cr.P.C. can be used for
both, corroboration and contradiction of the
statement of a witness in Court.
23. In the result, we are of the opinion that for
proving a dying declaration recorded by a
person/Magistrate/Executive Magistrate it is not
essential requirement of law that the recorder
should repeat, while deposing before the Court,
the contents of the declaration in the words
spoken by the deceased as to the cause of his
death or as to any of the circumstances of the
transaction which resulted in his death. In
other words, the recorder of a dying declaration
need not depose before the Court, in the words
spoken by the deceased, about the
name/description, and the act of the accused,
which resulted in his death. Accordingly, the
question referred to this Full Bench is answered
in negative.
73 CR.A.670/2009
Having answered the referred question as
afore-stated, we now direct the Registry to place
the appeal before the appropriate Bench for its
disposal in accordance with law.
This Court records its appreciation for the
valuable assistance rendered by Advocate
Mr.P.R.Patil as amicus curiae.
(D.B.BHOSALE,J.)
(S.B.DESHMUKH, J.)
(SHRIHARI P.DAVARE, J.)
...
AGP/670-09cr.a
