Holding

A dying declaration that is voluntary, truthful, and free from tutoring or imagination may be the sole basis for conviction even without corroboration.

Summary

The appellants were convicted for murder under IPC s.304(Part I) read with s.34 based primarily on the deceased's statements recorded in the FIR and under s.161 CrPC, which the trial and High Courts treated as dying declarations under s.32 of the Evidence Act. The Supreme Court examined the principles governing dying declarations, emphasizing that such statements need not be corroborated if they are voluntary, truthful, and not the product of tutoring or imagination. It found that the deceased was conscious when making the statements, that medical records and eyewitness testimony supported his fitness to testify, and that there was no evidence of coercion or infirmity. Consequently, the Court held the dying declarations trustworthy and sufficient for conviction. The appeal was dismissed, upholding the lower courts' judgments.

Issues considered

Whether the statements of the deceased recorded in the FIR and under s.161 CrPC qualify as dying declarations under s.32 Evidence Act.
Whether a dying declaration can form the sole basis of conviction without corroborative evidence.
Whether the deceased was in a fit state of mind and not subject to tutoring, prompting, or imagination when making the statements.

Legislation cited

Code of Criminal Procedure, 1973s. 161
Indian Evidence Act, 1872s. 32
Indian Penal Code, 1860s. 304(Part I), s. 34

Subjects

dying declarationsection 32 Evidence Actsection 161 CrPCcorroborationvoluntary statementmurder convictionIndian Penal Code 304section 34 IPChearsay rulemedical evidence

Judgment

A DASHRATH@ CHAMPA AND ORS.
v.
STATE OF MADHYA PRADESH

OCTOBER 24, 2007
B
[DR. ARIJIT PASAYAT AND D.K. JAIN, JJ.]

Evidence Act, 1872:
c S. 32-Dying declaration-Statement for recording FIR and also
u/s 161 Cr.P. C. by deceased-Based on it trial court convicting accused,
treating the statements as dying declaration-C.orrectness of-Held:
Conviction ofaccusedjustffied since dying declarations not result of
product ofimagination1 tutoring or prompting and was trustworthy-
D Penal Code, 1860-s. 304 (Part I) r/w s. 34.

s. 32-Dying declaration-Governing principles-Stated 'Y
According to the prosecution case, accused persons attacked
R with weapons and R sustained numerous injuries on his person.
E RK-PW 18 and B-PW 19 intervened. R was taken to the police
station where he lodged FIR which was recorded by the Head
Constable. Thereafter, R was admitted to hospital where on
examination doctor-PW 11 found 18 injuries on R's body. Same day
R was referred to another Hospital for further treatment where four
F days later he expired. Doctor-PW 16 carried out postmortem. The ..,,),.._
eye-witnesses-R's mother and maternal grandmother and others, did
not admit to having seen the incident. Trial Court treated the
statement made by deceased to the Head Constable for recording
FIR and the statement of the deceased under section 161 Cr.P.C. to
G be statements under section 32(1) of the Evidence Act. It relied on
both the statements and the medical evidence and convicted and
sentenced the appellants under section 304 (Part I) read with section /-1
34 IPC. High Court upheld the order. Hence the present appeal.
Dismissing the appeal, the Court
H 642
)
DASHRATH@CHAMPA v. STATE 643

HELD: 1.1 The principles governing dying declaration are as A
under:
(i) There is neither rule of law nor of prudence that dying
declaration cannot be acted upon without corroboration.
Munnu Raja and Anr. v. The Stale ofMadhya Pradesh, (1976] B
2 SCR 764, referred to.
r• (ii) If the Court is satisfied that the dying declaration is true
and voluntary it can base conviction on it, without
corroboration.
c
State of Uttar Pradesh v. Ram Sagar Yadav and Ors., AIR ~
(1985) SC 416; Ramavati Devi v. State of Bihar, AIR (19S3)
SC 164, referred to.
(iii) The Court has to scrutinize the dying declaration .D
carefully and must ensure that the declaration is not the
result of tutoring, prompting or imagination. The deceased
had an opportunity to observe and identify the assailants and
was in a fit state to make the declaration.
K Ramachandra Reddy and Anr. v. The Public Prosecutor, AIR E
(1976) SC 1994, referred to.

(iv) Where dying declaration is suspicious, it should not be
acted upon without corroborative evidence.
...<.,.. Rasheed Beg v. State of Madhya Pradesh, '[1974] 4 SCC 264 F
referred, to.
(v) Where the deceased was unconscj&.us and could never
make any dying declaration the evidence with regard to it is
to be rejected.
G
Kaka Singh v. State of MP., AIR (1982) SC 1021, referred
to.

(vi) A dying declaration which suffers from infirmity cannot
form the basis of conviction.
H
.\
644 SUPREME COURT REPORTS [2007] 11 S.C.R.

A Ram Manorath and Ors. v. State of UP., (1981) 2 SCC 654,
referred to.
(vii) Merely because a dying declaration does not contain
the details as to the occurrence, it is not to be rejected.

B State ofMaharashtra v. Krishnamurthi Laxmipati Naidu, AIR
(1981) SC 617, referred to.
(viii) Merely because it is a brief statement, it is not to be
discarded. Ori the contrary, the shortness of the statement
itself guarantees truth.
c
Surajdeo Oza and Ors. v. State ofBihar, AIR (1979) SC 1505,
referred to.
(ix) Normally the Court in order to satisfy whether deceased
was in a fit mental condition to make the dying declaration
D look up to the medical opinion. But where the eye-witness
said that the deceased was in a fit and conscious state to
make the dying declaration, the medical opinion cannot
prevail.
E Nanahau Ram and Anr. v. State of Madhya Pradesh, AIR
(1988) SC 912, referred to.
(x) Where the prosecution version differs from the version
as given in the dying declaration, the said declaratiOn cannot
be acted upon.
F
State of UP. v. Madan Mohan and Ors., AIR (19S9fSC 1519,
referred to.
(xi) Where there are more than one statement in the nature
of dying declaration, one first in point of tim~ must be
G preferred. Of course, if the plurality of dying de,~laration
could be held to be trustworthy and reliable, it has to be
accepted. [Para 12] [652-A-B; 653-A-E]
Mohan/al Gangaram Gehani v. State of Maharashtra, AIR
H (1982) SC 839, referred to.
;
j
DASHRATH@CHAMPA v. STATE 645

Smt. Paniben v. State ofG~jarat, AIR (1992) SC 1817, relied A
on.

1.2 The dying declaration is only a piece of untested evidence
and must like any other evidence, satisfy the Court that what is stated
therein is the unalloyed truth and that it is absolutely safe to act upon B
it. If after careful scrutiny the Court is satisfied that it is true and
free from any effort to induce the deceased to make a false statemen~
and ifit is coherent and consistent, there shall be no legal impediment
to make it basis of conviction, even if there is no corroboration.
[Para 13] (653-E-G] C
Gangotri Singhv. State of UP., JT (1992)2 SC 417; Goverdhan
Raoji Ghyare v. State of Maharashtra, JT (1993) 5 SC 87; Meesala
Ramakrishan v. State ofAndhra Pradesh, JT (1994) 3 SC 232 and
State of Rajasthan v. Kishore, JT (1996) 2 SC 595, relied on.
D
2.1. In the instant case, the deceased was brought to District ·
hospital, Bina where he was admitted for observation and treatment.
Doctor-PW-11found18 injuries on his person. The doctor in cross .
examination stated that the deceased was examined by him at 1.00 ·
p.m. in the afternoon on 26.4.1987. At that time the patient had not
gone in shock. It was later that shocks started developing resulting , E
in fall of blood pressure and vomiting as was recorded in bed head
ticket. The observation was recorded at 5.00 p.m. on 26.4.1987. The
deceased was admitted in District Hospital, Sagar. The bed head ,
ticket shows that he was admitted in the hospital at 11.15 p.m. on
_,.. 27.4.1987 and in the bed head ticket the general condition was F
""" recorded to be satisfactory and also that he was conscious. The
deceased breathed his last three days later on 30.4.1987.
[Para 6] (648-H; 649-A-B]

2.2. Though PW 18 and PW 1 stated that the deceased was G
unconscious, PW-22 stated that he was in senses. It was also stated
by her that the deceased had lodged the report. She also stated that
the police had recorded the statement of the deceased. Though some
of the witnesses resiled from the statements made during
investigation, PW-19 stated that he and PW 1 carried him to the H
646 SUPREME COURT REPORTS [2007] 11 S.C.R.

A police station. [Para 7] [649-C-D]

2.3. Head Constable-PW-20 had testified that the deceased was
fully conscious when he was brought to the police chowki and it was
the deceased who had lodged the complaint which was recorded by
B him. Trial Court and High Court relying on the evidence of PW-iO
concluded that the statement given by the deceased was to be
treated as a dying declaration. The bed head ticket of District
Hospital, Sagar shows that when the deceased was brought he was
conscious and his general condition was satisfactory. These
c materials were sufficient to discard the stand of the accused persons
that the deceased was unconscious when he was brought to the
hospital. As the deceased died on the fourth day, the trial Court and
the High Court treated the first information report to be in the nature
of dying declaration; so was the statement of the deceased under
D section 161 Cr.P.C. In both these statements the three accused
persons have been named as the assailants. The trial Court and the
High Court analysed the evidence in great detail and found that the
prosecution established its stand because of the dying
declaration. [Para 8) [649-E-G]
E 2.4. There is no material to show that dying declarations were
result of product of imagination, tutoring or prompting. On the
contrary, they appear to have been made by the deceased
voluntarily. It is trustworthy and has credibility. In view of the factual
F scenario as analysed in the background and the principles set out,
the trial Court and the High Court were justified in finding the
accused persons guilty. [Paras 14 and 15] [653-H; 654-A-B]

CRIMINAL AP PELLATE JURIS DICTI ON : Crimmal Appeal No.
1166 of2001.
G
From the final Judgment and Order dated 28.8.2001 of the High
Court of Madhya Pradesh at Jabalpur in Crl. A. No. 205/1989.

Naveen Sharma, Swati B. Sharma and B.K. Satija for the
Appellants.
H
/
!-
DASHRATH@CHAMPA v. STATE [PASAYAT, J.] 647

Rajeev Shanna and C.D. Singh for the Respondents. A
The Judgment of the Court was delivered by
DR. ARIJIT PASAYAT, J. 1. Challenge in this appeal is to the
judgment of the Madhya Pradesh High Court at Jabalpur upholding the
conviction of the appellants for offence punishable under Section 304 Part B
I read with Section 34 of the Indian Penal Code, 1860 (in short the 'IPC')
and the award of sentence of7 years rigorous imprisonment as awarded
by the trial Court.
2. Prosecution version in a nutshell is as follows:
c
On the morning of 26th April, 1987 Ramesh (hereinafter ref<:1rred
to as the 'deceased') was returning from the house oflsmail Khan. He
was waylaid by the three accused persons who attacked him with knife,
lathi and rod. Ramesh sustained numerous injuries on his person. Rakesh
Kumar and Bittu alias Gurdeo Singh intervened. The incident was D
witnessed by his mother Khargi Bai (PW-I), maternal grandmother Tylasa
Bai (PW-22) and others. Ramesh was taken to the Police Station where
he lodged the first infonnation report (Ex.P.10) which was recorded by
Head Constable Santosh Kumar (PW-20). Ramesh was immediately
taken to the District Hospital at Bina where Dr. Rajnish Shrivastava (PW- E
11) examined him. He found as many as 18 injuries on his body as per
his report Ex.P .16. Ramesh was admitted in the hospital. On the follo~g
day he was referred to District Hospital, Sagar for X-ray and further
treatment. There he breathed last on 30.4.1987. Dr. M.C. Jain (PWr-16)
perfonned the autopsy on the next day. Postmortem report is Ex.P.28. F
During the course of investigation knife article 'B' was recovered
from the possession of accused Dashrath alias Champa on the basis of
the infonnation supplied by him. Accused Govind also made a disclosure
statement leading to recovery oflathi article 'D' and accused Satish made
a statement leading to the recovery of rod article 'C'. G
On completion of investigation, a challan was put up against the three
accused persons for commission of offence punishable under Section 302
read with Section 34 IPC.
3. The three accused persons were tried. Seven witnesses were H
648 SUPREME COURT REPORTS [2007] 11 S.C.R.

A examined as eye-witnesses to further the prosecution version. They
included the mother (PW-I) and grand mother (PW-22) of the deceased.
The other five eye-witnesses produced were Laxmi Bai (PW-2), Asgari
Begam (PW-4) and neighbours of the deceased and Santosh Singh (PW-
17), Rakesh (PW-18) and Bittu (PW-19). But none of the witnesses
B admitted to having seen the incident. Therefore, the prosecution with the
permission of the Court cross examined them. The trial Court was of the
view that these witnesses were deliberately making false statements and
concealing the truth. But the First Information Report (Ex.PIO) was
recorded by the Head Constable Santosh Kumar (PW-20) on the
C information given by the deceased. The said Head Constable had also
recorded the statement of the deceased under Section 161 of the Code
of Criminal Procedure, 1973 (in short the 'Cr.P.C. '). His statement is
marked as Ex.P.32. Learned Additional Sessions Judge treated both the
statements to be statements under Section 32(1) of the Indian Evidence
D Act, 1872 (in short the 'Evidence Act'). Relying on those statements and
the medical evidence, the trial Court found that Ramesh had died as a
result of the injuries inflicted upon him by the accused persons. But since
none of the injuries was found on the vital organs of the deceased it was
held that the offence committed was covered under Section 304 Part I
IPC. The accused persons challenged correctness of the judgment before
E the High Court by filing an appeal which was dismissed by the. impugned
order.
!i-
4. Learned counsel for the appellants submitted that there was no
material evidence to connect appellants with the crime and, therefore, both
p the trial Court and the High Court were not justified in finding the accused
persons guilty. It is submitted that considering the nature of injuries
sustained, it would have been impossible for the deceased to make any
statement. ,
5. Learned counsel for the State on the other hand supported the
G judgments of the trial Court and the High Court. ·
6. The factual scenario as borne out from the records is that the
deceased was brought to District hospital, Bina where he was admitted
for observation and treatment. Dr. Rajnish Shrivastava (PW-11) found
H 18 injuries on his person. The doctor in cross examination stated that the
I
j
I

DASHRATH@CHAMPAv. STATE [PASAYAT,J.] 649

deceased was examined by him at 1.00 p.m. in the afternoon on A
26.4.1987. At that time the patient had not gone in shock. It was later
that shocks started developing resulting in fall of blood pressure1and
vomiting as was recorded in bed head ticket (Ex. P.17). The observation
was recorded at 5."00 p.m. on 26.4.1987. The deceased was admitted
in District Hospital, Sagar. The bed head ticket (Ex.P.27) shows th~t he B
was admitted in the hospital at 11.15 p.m. on 27.4.1987 and in the bed
head ticket the general condition was recorded to be satisfactory and also
that he was conscious. The deceased breathed his last three days l~ter
on 30.4.1987.
7. Though PWs. 18 and 1 stated that the deceased was
c
unconscious, PW-22 stated that he was in senses. It was also stated by
this witness that the deceased had lodged the report. She also stated that
the police had recorded the statement of the deceased. Though some of
the witnesses resiled from the statements made during investigation, Ji>W-
19 stated that he and Ramesh' s mother carried him to the police station. D
8. Santosh Kumar, Head Constable (PW-20) had testified tha~ the
deceased was fully conscious when he was brought to the police chowki
and it was the deceased who had lodged the complaint which was
recorded by him. The statement of the deceased was marked as Ex.P.32. E
The trial Court and the High Court relying on the evidence of PW-20
concluded that the statement given by the deceased was to be treated as
a dying declaration. The bed head ticket of District Hospital, Sagar,
(Ex.P.27) shows that when the deceased was brought he was conscious
and his general condition was satisfactory. These materials were sufficient F
to discard the stand of the accused persons that the deceased was
unconscious when he was brought to the hospital. As the deceased died
on 30.4.1987 the trial Court and the High Court treated the first
information report (Ex. P.10) to be in the nature of the dying declaration;
so was the statement of the deceased (Ex.P.32). In both these statem~nts G
the three accused persons have been named as the assailants. The trial
Court and the High Court analysed the evidence in great detail and found
that the prosecution established its stand because of the dying declaration.
9. At this juncture, it is relevant to take note of Section 32 of the
H
,
r J._'
650 SUPREME COURT REPORTS [2007] 11 S.C.R.

A Evidence Act, which deals with cases in which statement ofrelevant 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
B 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. lbese aspects
are elaborated in Section 60. The eight clauses of Section 32 are
exceptions to the general mle against hearsay just stated. Clause (1) of
c 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
D principal eye-witness to 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 ate
declarations made in extremity, when the party is at the point of death
E 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. These
F aspects have been eloquently stated by Lyre LCR in R. v. Wood Cock
(1789) I Leach 500. Shakespeare makes the wounded Melun, finding
himself disbelieved while ~ouncing the intended treachery of the Dauphin
Lewis explain:
"Have I met hideous death within my
G VIew,
Retaining but a quantity of life,
Which bleeds away even as a form of wax,
H Resolveth from his figure 'gainst the fire?
/
;
j
DASHRATH@CHAMPAv. STATE [PASAYAT,J.] 651

'r-
What is the world should make me now deceive, A
Since I must lose the use of all deceit?
Why should I then be false since it is true
That I must die here and live hence by truth?"
B
(See King John, Act 5, Sect.4)
). .

..,. ' 10. The principle on which dying declaration is admitted in evidence
is indicated in legal maxim "nemo moriturus proesumitur mentiri - a ipan
will not meet his maker with a lie in his mouth." c
11. This is a case where the basis of conviction of the accused is
the dying declaration. The situation in which a person is on deathbed is
so solemn and serene when he is dying that the grave position in wlµch
he is placed, is the reason in law to accept veracity of his statement. It is
for this reason the requirements of oath and cross-examination are D 1

y dispensed with. Besides, should the dying declaration be excluded it will
' result in miscarriage ofjustice because the victim being generally the only
eye-witness in a serious crime, the exclusion of the statement would tekve
the Court without a scrap of evidence.
E
12. Though a dying declaration is entitled to great weight, it is
worthwhile to note that the accused has no scope of cross-examinatipn.
Such a scope is essential for eliciting the truth as an obligation of o~th
could be. This is the reason the Court also insists that the dying declaratjon
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 f'
was not as a result of either tutoring, or prompting or a product of 1

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
assailant. Once the Court is satisfied that the declaration was true and
voluntary, undoubtedly, it can base its conviction without any furtlii.er G
~- ,..._
corroboration. It cannot be laid down as an absolute rule oflaw that the
dying declaration cannot form the sole basis of conviction unless it is
corroborated. The rule requiring corroboration is merely a rule of
prudence. This Court has laid down in several judgments the principles
H
'~,
652 SUPREME COURT REPORTS [2007] 11 S.C.R.

-~
A governing dying declaration, which could be summed up as under as
indicated in Smt. Paniben v. State of Gujarat, AIR (1992) SC 1817:
(i) There is neither rule of law nor of prudence that dying
declaration cannot be acted upon without corroboration. [See
Munnu Raja & Anr. v. The State of Madhya Pradesh, [1976]
B 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. [See ·~
State of Uttar Pradesh v. Ram Sagar Yadav and Ors., AIR
c (1985) SC 416 and Ramavati Devi v. State ofBihar, AIR (1983)
SC 164]
(iii) The Court has to scrutinize the dying declaration carefully
and must ensure that the declaration is not the result of tutoring,
prompting or imagination. The deceased had an opportunity to
D observe and identify the assailants and was in a fit state to make
the declaration. [See K. Ramachandra Reddy and Anr. v. The
Public Prosecutor, AIR (1976) SC 1994]
y
(iv) Where dying declaration is suspicious, it should not be acted
E upon without corroborative evidence. [See Rasheed Beg v. State
of Madhya Pradesh [1974] 4 SCC 264]
(v) Where the deceased was unconscious and could never
make any dying declaration the evidence with regard to it is.to be
rejected. [See Kaka Singh v State ofMP .. AIR (1982) SC 1021]
F
(vi) A dying declaration which suffers from infirmity cannot form .J-
the basis of conviction. [See Ram Manorath and Ors. v. State
of UP., [1981] 2 SCC 654)
(vii) Merely because a dying declaration does not contain the
G details as to the occurrence, it is not to be rejected. [See State of
Maharashtra v. Krishnamurthi Laxmipati Naidu, AIR (1981)
SC 617] ;I

(viii) Equally, merely because it is a brief statement, it is not to
be discarded. On the contrary, the shortness of the statement itself
H
J
I
DASHRATH@CHAMPAv.STATE [PASAYAT,J.] 653
\~

guarantees truth. [See Surajdeo Oza and Ors. v. State ofBihar, A
AIR (1979) SC 1505).
(ix) Nonnally 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 said that
B
the deceased was in a fit and conscious state to make the dying
_).,
declaration, the medical opinion cannot prevail. [See Nanahau
y
Ram and Anr. v. State of Madhya Pradesh, AIR (1988) SC
912].
(x) Where the prosecution version differs from the version as c
given in the dying declaration, the said declaration cannot be acted
upon. [See State of UP. v. Madan Mohan and Ors., AIR (1989>
SC 1519)].
(xi) Where there are more than one statement in the nature of
dying declaration, one first in point oftime must be preferred. Of D
course, if the plurality of dying declaration could be held to be
trustworthy and reliable, it has to be accepted. [See Mohan/al
Gangaram Gehani v. State of Maharashtra, AIR (1982) SC
839]
E
13. In the light of the above principles, the acceptability of alleged
dying declaration in the instant case has to be considered. The dying
declaration is only a piece of untested evidence and must like any otheJ1
evidence, satisfy the Court that what is stated therein is the unalloyed truth
--<,_,, and that it is absolutely safe to act upon it. If after careful scrutiny the F
Court is satisfied that it is true and free from any effort to induce the 1

deceased to make a false statement and if it is coherent and consistent,
there shall be no legal impediment to make it basis of conviction, even if I

there is no corroboration. [See Gangotri Singh v. State of UP., JT
( 1992) 2 SC 417, Goverdhan Raqji Ghyare v. State of Maharashtra, G
~
JT (1993) 5 SC 87, Meesala Ramakrishan v. State of Andhra
...., Pradesh, JT (1994) 3 SC 232 and State ofRlrjasthan v. Kishore, JT
(1996) 2 SC 595].
14. 111ere is no material to show that dying declarations were result
H
654 SUPREME COURT REPORTS [2007) 11 S.C.R.

A of product of imagination, tutoring or prompting. On the contrary, they
appear to have been made by the deceased voluntarily. It is trustworthy
and has credibility.
15. In view of the factual scenario as analysed in the background
B and the principles set out above the inevitable conclusion is that the trial
Court and the High Court were justified in finding the accused persons
guilty. There is no merit in this appeal which is dismissed accordingly. The
appellants who are on bail shall surrender to custody forthwith to serve
remainder of sentence, if any.
C N.J. Appeal dismissed.