Compliled by Adv Mir Nagman Ali

Bombay High Court Nagpur Bench 9028401027

SOME IMPORTANT JUDGMENTS OF DYING DECLARATION

Dying Declaration

(A) Indian Penal Code, 1860, Sec. 302 - Evidence Act, 1872, Sec. 32 - Murder - Conviction for, on basis of
dying declaration - Legality - Accused allegedly poured kerosene on his deceased wife and she died due
to burn injuries - Only evidence brought on record were three dying declarations and two oral dying
declarations - However, all three recorded dying declarations were found not reliable - Held, oral dying
declaration is weak piece of evidence, hence, accused cannot be convicted solely on basis of oral dying
declaration. Conviction was set aside. (Paras 8,9, 10, 11 & 12)

(B) Evidence Act, 1872, Sec. 32 - Dying declaration - Non-examination of scribe - Evidentiary value of -
Held, in absence of evidence of person who had scribed dying declaration, contents of said dying
declaration have remained to be proved in accordance with law. (Para 9)

1) State of Punjab Vs Gian Kaur 1998 AIR(SC) 2809 : 1998 AIR(SCW) 1407 : 1998 DGLS(SC) 301 :
1998 (2) JT 563 : 1998 (2) Scale 393 : 1998 (3) Supreme 179 :

BRIDE BURNING -- Reliability of dying declaration -- The trial court convicted the accused on the basis of
dying declaration which was recorded by A.S.I. But the High Court did not believe the dying declaration
since according to medical evidence the deceased suffered 100% burns but her thumb mark on the
dying declaration found to be clear with ridges and curves, well perfect. The evidence of doctor found
unreliable since he could not explain the appearance of thumb mark on the dying declaration inspite of
100% burning. In such circumstances the High Court rightly gave benefit of doubt to the respondents.
The High Court disbelieved the dying declaration on the ground even though according to the medical
evidence Rita had 100% burns, the thumb mark of Rita appearing on the dying declaration had clear
ridges and curves. The High Court found the evidence of Dr. Ajay Sahni -- P.W. 1 not reliable as he failed
to satisfactorily explain how such a thumb mark could appear on the dying declaration when Rita had
100% burns over her body, The High Court relied upon the deposition of Doctor Aneja, who had
performed the post-mortem and who has categorically stated that there were 100% burns over her
body and both the thumbs of Rita were burnt. In view of such inconsistent evidence, the High Court was
right in giving benefit of doubt to the respondents. It cannot be said in this case that the High Court has
taken an unreasonable view.
 2) State of Mah vs Hemant Chauriwal 2016 AIR(SC) 287 : 2016 (1) Bom.C.R.(Cri.) 370 : 2015
DGLS(SC) 1100 : 2015 (12) JT 384 : 2015 (13) Scale 830

Indian Penal Code, 1860, Secs. 304-B, 498-A & 34 – Evidence Act, 1872, Sec. 32 – Appeal against
acquittal – Prosecution case as accepted by trial Court was based on two important evidences – Firstly,
dying declaration made by deceased to Naib Tehsildar and secondly, letters allegedly written by
deceased to her father, which disclosed mental and physical cruelty imputed on deceased by her in-laws
– Held, evidence must be direct. Fitness certificate does not show that deceased was in a fit and stable
mental condition at time of making statement. Naib Tehsildar deposed that deceased was illiterate and
dying declaration was read and explained to her. These two facts are self-contradictory. Case was of
burn injuries, there ought to have effect of incident in house, place of occurrence was an important fact,
seizure of surrounding material was also important. However, no such efforts were made. Handwriting
of deceased was not investigated. Defence deposed before Court that deceased locked herself in
bathroom, poured kerosene and set herself on fire. Investigating Officer could have easily located place
of occurrence or even a broken door or lock. Probability, tilts in favour of accused. Possibility of suicide
being committed by deceased cannot be ruled out completely. Two pivotal evidence i.e. dying
declaration and alleged letters having not been proved. High Court rightly pointed out lacunae in shabby
investigation of case. No interference required. (Paras 8 to 13)

3) Prempal Versus State of Haryana 2014 AIR(SC) 3785 : 2014 AIR(SCW) 5042 : 2014 (10) JT 89 :
2014 (10) Scale 68 : 2014 (10) SCC 336 : 2014 (7) Supreme 25 :

Indian Penal Code, 1860, Sec. 302 - Convicted under - When Anita-victim was all alone, appellant-
Prempal grappled with Anita and pushed her down and alleged to have set her on fire at about 3.00
p.m. along with Jai Singh, father of appellant - Deceased Anita had suffered 95% burn injuries; yet
her statement before PW-4, Tehsildar was clear and cogent - The trial court and High Court examined
reliability of dying declaration and recorded concurrent findings of fact that Ext. P11 dying
declaration is reliable and inspires confidence of the court - We find no perversity in such findings - A
perusal of various judgments of this Court, shows that if a dying declaration is found to be reliable,
then there is no need for corroboration by any witness and conviction can be sustained on that basis
alone - In present case evidence of Tehsildar, Doctor and other witnesses is cogent and consistent
that deceased was conscious and in a fit state of mind to give dying declaration and courts rightly
based conviction upon same - When trial court as well as High Court have appreciated entire
evidence in its right perspective, we see no reason to interfere and the appeal fails - In result,
appeal is dismissed.(Paras 13, 19 & 20)

4) State of Uttar Pradesh vs. Ram Sagar Yadav And Ors. AIR 1985 SC 416 = (1985) 1 SCC 552,

this Court held that if the Court is satisfied that the dying declaration is true and voluntary, it can base
conviction on it without corroboration. In this context, the observations made in para (13) of the
judgment are relevant to be noted:-
 "It is well settled that, as a matter of law, a dying declaration can be acted upon without
corroboration. (See Khushal Rao vs. State of Bombay, 1958 SCR 552; Harbans Singh vs. State of Punjab,
1962 Supp.1 SCR 104; Gopalsingh vs. State of M.P. (1972) 3 SCC 268). There is not even a 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 has to be 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 Gajanan Jiddewar Vs Mah 2016 (2) Bom.C.R.(Cri.) 496 :

5) Rasheed Beg v. State of M.P.(1974(4) SCC 264)

Where a dying declaration is suspicious, it should not be acted upon without corroborative evidence.

Corroboration--Dying declaration--Necessity of--Suspicious circumstances surrounding recording of

declaration--Deceased a young boy of 12 years making two dying declarations--Improvement in second
declaration by implicating more persons--Possibility of tutoring not ruled out--Reliance on declaration
without corroboration, not permissible.

6) State of U.P. v. Madan Mohan [(1989) 3 SCC 390])

Where the prosecution version differs from the version as given in the dying declaration , the said
declaration cannot be acted upon.

Constitution of India,1950 -- Article 136 -- Appeal against acquittal by the High Court -- No reason given
for interference -- Supreme Court refused to interfere the order of the High Court in acquitting the
accused. -Failure of the prosecution to explain cut injury on the thing of the accused who reached police
station with bleeding injury -- No inference could be drawn that the injury was self inflicted.

The doubtful circumstance as stated by the High Court is that the respondent had suffered a cut injury
on his thing and he has immediately gone to the police station with bleeding injury which was admited
by the Investigating Officer. It is also not disputed that the accused had lodged a complaint giving his
own version regarding the incident. It is, therefore, clear from the evidence that the respondent had
reached the police station promptly after the incident. No importance was attached to this fact. In this
circumstances the High Court was justified in taking the view that the inability of the witnesses to
explain the injury to the accused addes to the doubts regarding their claim who have seen the incidence.
Therefore, the view taken by the High Court is reasonable and upheld.

CRIMINAL PROCEDURE CODE 1973 -- Section 231 -- Non examination of witnesses of the locality by the
Prosecution however, statements of some of the residents was recorded -- No explanation for non
examination of such witnesses -- Held: Prosecution version was doubtful -- Benefit of doubt was given to
the accused.

The locality where the incidence occured was thickly populated and there were several residential
quarters and shops. At the time of occurrence there were several persons and several shops were open.
Statements of few residents was recorded but none was called to the witness box. The allegations that
the respondent complainant was first in the point of time but was registered later cannot be brushed
aside. Benefit of doubt was therefore rightly given to the accused.

EVIDENCE ACT, 1872 -- Section 3 and 32 -- Penal Code of India 1860, Section 300 -- Appreciation of
evidence -- No independent witness from locality examined -- No explanation given by the prosecution
regarding injury on the person of one of the accused -- Version of the prosecution differing from dying
declaration -- Similarly, the name of eye witness and some of the accused not mentioned in dying
declaration -- Acquittal upheld -- In the circumstances the High Court order was proper and justified.

PENAL CODE OF INDIA, 1860 -- Section 300, -- Evidence Act 1872, Section 3 and 32 -Appreciation of
Evidence -- Presnece of eye-witness at the place of occurrence found doubtful and there was no
independent witness from the locality -- No explanation given regarding injury on the person of the
accused -- Version of the prosecution different from the version in dying declaration -- Names of the
eye-witnesses and some of the accused not named in the dying declaration -- Held the accused was
entitled to acquittal

7) P. Mani v. State of Tamil Nadu, (2009) 3 SCC 161,

sought to be relied upon to canvass that uncorroborated dying-declaration must not be accepted

8) Panneerselvam v. State of Tamil Nadu, (2008) 17 SCC 190,

Three Judges Bench of Supreme Court reiterating various principles, mentioned in this case, held that, it
cannot be laid down as an absolute rule of law that dying declaration cannot form sole basis of
conviction unless it is corroborated and the rule requiring corroboration is merely a rule of prudence --
Herein the Court observed that, if, after careful scrutiny, Court is satisfied that it is free from any effort
to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no
legal impediment to make a basis of conviction, even if, there is no corroboration -- If dying declaration
is by a person who is conscious and same was made and recorded by certification of doctor, it cannot be
ignored. [Paras 6, 8, 11, 14 & 16]

9) State of Rajasthan vs Yusuf 2009 AIR(SC) 2674 : 2009 AIR(SCW) 4109 : 2009 (6) JT 100 : 2009 (6)
Scale 449 : 2009 (12) SCC 139 : 2009 (3) Supreme 832

Indian Penal Code, 1860 -- Under Section 302 -- Appeal against acquittal High Court -- Dying
declaration not accepted by High Court -- Benefit of doubt to be given to accused -- Acquittal
reaffirmed.

(B) Dying declaration -- Principle & guidelines discussed -- Corroboration not necessary -- Suspicious
statement should not be acted upon.

(C) Appeal against acquittal -- Appellant Court has full power to review, reappreciate and reconsider
order of acquittal -- Substantial and compelling reason formula not to be followed -- Guidelines laid
down on presumption of innocence of accused -- Presumption reaffirmed on acquittal -- View favouring
accused to be followed
 10) BAWA RAM VS CHANDIGARH 2009 DGLS(SC) 780 : 2009 (7) JT 675 : 2009 (6) Scale 791 : 2009
(13) SCC 270 : 2009 (3) Supreme 717 :

Indian Penal Code, 1860 -- Section 302 r/w Section 34 -- Criminal Law -- Murder with common intention
-- Death by setting-ablaze after pouring kerosene -- Order up-holding conviction -- Challenge -- All eye-
witnesses turning hostile -- Only, dying-declaration, of deceased stated to be of unsound of mind, relied
upon -- Even when eye-witnesses do not support, conviction can be imposed on the sole basis of dying-
declaration -- But, in a case of peculiar type, where father, mother and other relatives, and even a
person who claimed to have sustained injuries resiled from statement made during investigation and
deposed that deceased was unsound of mind and had suicidal tendency thereof cannot be lost sight of --
Statement of a person with unsound mind has to considered in that background -- In such peculiar back-
ground, conviction on the basis of dying declaration found, unsafe -- Appellants acquitted of charges --
Appeals disposed of. [Para from page 3]

11) Sasikumar Vs Tamilnadu

(B) Indian Penal Code, 1860 - Section 302 - Dying declaration - Acceptability of - Situation in which a
person is on his death bed, being exceedingly, solemn, serene and grave, is reason in law to accept
veracity of his statement - It is for this reason that requirements of oath and cross-examination are
dispensed with - Besides, should dying declaration be excluded, it will result in miscarriage of Justice
because victim being generally only eye-witness in a serious crime, exclusion of statement would leave
the Court without a scrap of evidence. [Para 8]

(C) Indian Penal Code, 1860 - Section 302 - Power of Court - Dying-declaration - Right of accused cross-
examination - Though a dying-declaration is entitled to great weight but accused has no power of cross-
examination - Such power is essential for electing truth as an obligation of oath could be and this is
reason the Court also insists that dying declaration should be of such nature as to inspire full confidence
of Court in its correctness - Court has to guard that statement of deceased was not as a result of either
tutoring or prompting or a product of imagination - Court must be further satisfied that deceased was in
a fit State of mind after a clear opportunity to observe and identify assailant - Once Court is satisfied
that declaration was true and voluntary, it can base its conviction without any further corroboration - It
cannot be laid down as an absolute rule of law that dying declaration cannot form sole basis of
conviction unless it is corroborated - Rule requiring corroboration is merely a rule of prudence.

12) Sharda Vs Rajasthan 2010 AIR(SC) 408 : 2010 AIR(SCW) 1 : 2009 DGLS(SC) 1523 : 2009 (15) JT 164 :
2009 (14) Scale 562 : 2010 (2) SCC 85 : 2009 (8) Supreme 201 :

Legal Maxim qua admissibility of Dying Declaration - 'Nemo moriturus proesuitur mentiri', i.e. a man will
not meet his Maker with a lie in his mouth - It indicates that a man who is on a death bed would not tell
a lie to falsely implicate an innocent person - Though, in law, a Dying Declaration is entitled and is still
recognized to be given greater weightage yet, it has also to be kept in mind that accused had no chance
of cross-examination - Such a right of cross-examination is essential for eliciting the truth as an
obligation of oath - For this it is generally insisted that Dying Declaration should be such which inspires
confidence. [Paras 31 to 34]
13) Gopal Vs Karnataka 2011 AIR(SCW) 2684 : 2011 DGLS(SC) 368 : 2011 (5) JT 654 : 2011 (5) Scale 119 :
2011 (14) SCC 396 :

(A) Indian Penal Code, 1860 -- Section 302 -- Criminal Law -- Murder Trial -- Burning of wife -- Dying
Declaration -- Conviction on sole basis of Dying Declaration -- Conviction on the sole basis of dying
declaration -- Appellant-accused, allegedly, set-ablaze his wife after pouring kerosene on her -- Victim
was immediately rushed to hospital -- Dying Declaration was recoded by PSI -- Deceased alleged that
accused was used to drink and quarrel with her -- He also used to assault her in drunken state -- Fateful
incident occurred as deceased was unable to return Rs. 100/- with which she purchased ration -- In fact,
accused himself gave her Rs. 200/- for ration but took back Rs. 100/- -- After return to the house, he
asked remaining Rs. 100/- and she showed her inability, accused-appellant persisted on return of ration
-- With anger he tide-up her hands, followed by unfortunate incident -- Supreme Court itself examined
the dying declaration -- There is no explanation on the part of accused-appellant as to how presence of
kerosene was found on inner garments, viz. brassier and petti-coat as also on out-garment, i.e. saree of
the victim, as depicted in FSL Report -- No defence that the death was suicidal or accidental -- Nor any
doubt can be entertained in this regard -- All this provides strong corroboration to Dying Declaration --
No fault found with findings of courts below that such a dying declaration may form the sole basis for
conviction -- In totality, appeal dismissed. [Paras 1, 3 & 4]

(B) Murder Trial -- Burn death -- Appreciation of evidence -- Hostile witness vis-a-vis Circumstantial
Evidence -- Witnesses who carried deceased to hospital turned hostile -- Man may lie, circumstances do
not -- Circumstances in the case clichéd the proof that it was accused and accused alone who committed
the offence of killing his wife. [Para 3]

(C) Law of evidence -- Murder Trial -- Dying Declaration -- Omission to get second dying declaration by
Magistrate -- Although, it was desirous of IO to get the dying declaration recorded by Magistrate, but
considering the fact that the dying declaration recorded by IO was supported by the Doctor, who had
also appended endorsement regarding fitness of injured (since deceased) to make her statement --
Thus, dying declaration was a good one, deserving acceptance -- Plea rejected. [Para 6]

14) Kashi Vishwanath Vs Karnataka 2013 (4) Bom.C.R.(Cri.) 68 : 2013 DGLS(SC) 497 :

Indian Penal Code, 1860, Secs. 498-A, 302 & 34 - Evidence Act, 1872, Sec. 32 - Dying declarations -
Conviction - Tenability - Cri.A. against conviction - Deceased got married 13 yrs. prior to incident they
had two sons out of wedlock - Appellant has intimacy with one Lakshmi-accused 3 and second appellant
before High Court resulted disruptions - Affair of intimacy continued inspite of persistent resistance
from wife-deceased - Accused 2 never tried to pacify matter - Deceased set her ablaze while accused 2
was watching outside - She was shifted to hospital - Executive Magistrate recorded her statement in
presence of doctor (P.W. 2) - Deceased succumbed to burn injuries after 4 days of incidence - Accused 1
& 3 held guilty and convicted under sections 302, 498-A & 34 of I.P.C. - Accused 2-mother acquitted of
all charges - Hence this appeal - Contending prosecution failed to establish any charge - Four dying
declarations brought on record are contrary to each other - APP per contra submitted Ex. P. 18 was not
a dying declarations but entries in M.I.C. Register Ex. P. 12 is more reliable after treatment was in
physically and mentally fit same came to be recorded - Learned Counsel further objected Ex.P. 12, 22 &
29 have been recorded in Kannada language deceased had no knowledge of Kannada language - Held,
prosecution has failed to state as to why three dying declarations were recorded. In bottom of all three
dying declarations it was not mentioned that they were read over in Kannada and explained in Telgu and
that deceased understood same. Truthfullness of dying declarations is not established. Deceased being
influenced by somebody cannot be ruled out. None of independent witness has supported case. There is
no eye-witness for reasons stated above. (Paras 13, 18, 20, 22, 25 & 27)

15) Umakant Vs Chattisgarh 2014 AIR(SC) 2943 : 2014 AIR(SCW) 4379 : 2014 DGLS(SC) 562 : 2014 (7) JT
543 : 2014 (8) Scale 141 : 2014 (7) SCC 405 : 2014 (6) Supreme 655 :

Indian Penal Code, 1860, Secs. 498-A, 304-B & 302 r/w 34 – Dowry Prohibition Act, 1961, Secs. 3 & 4 -
Appellant poured kerosene on deceased and set her ablaze - High Court convicted and sentenced
accused, basing on dying declaration that deceased was not having cordial relationship with accused - As
dying declaration inspires confidence, it is trustworthy and drew inference that appellants Umakanth
and Yashoda poured kerosene oil upon deceased, set her afire and caused her death - However, High
Court felt that there is no cogent evidence to convict accused under Section 498-A and 304-B IPC and
Sections 3 and 4 of Dowry Prohibition Act - Whether High Court was right in convicting and sentencing
accused under Section 302 IPC basing on dying declaration of deceased? – Held, burden of proof in
criminal law is beyond all reasonable doubt - Prosecution has to prove guilt of accused beyond all
reasonable doubt and it is also rule of justice in criminal law that if two views are possible on evidence
adduced in case, one pointing to guilt of accused and other towards his innocence, view which is
favourable to accused should be adopted - After considering evidence and judgments of Courts below,
we are of considered opinion that evidence available on record and dying declaration does not inspire
confidence in mind of this Court to make it basis for conviction of appellants - Apart from this, High
Court basing on same dying declaration, ought not to have convicted appellants under Section 302 IPC,
when they were acquitted under Section 304-B and 498-B IPC and Sections 3 and 4 of Dowry Prohibition
Act by High Court - Accordingly, this Criminal Appeal is allowed.