Holding

A dying declaration recorded by a police officer, supported by a medical certificate, is admissible even if not taken before a magistrate or in question‑answer form, and thus the conviction stands.

Summary

Dayal Singh was convicted under Sections 498A and 302 IPC for cruelty and murder of his wife, Tejinder Kaur, based primarily on her dying declaration recorded by a police head constable in the presence of a doctor. The appellant challenged the admissibility of the declaration, arguing it was not recorded by a magistrate, was in Marathi rather than Gurmukhi, was not in question‑answer form, and that the officers’ statements were not taken under Section 161 CrPC. The Supreme Court held that Section 32 of the Evidence Act does not require a dying declaration to be recorded before a magistrate nor in a specific format, and that a medical certificate confirming the victim’s consciousness suffices. The language of the declaration was deemed acceptable given the victim’s residence and education. The Court also ruled that the failure to record the officers’ statements under Section 161 does not render them inadmissible. Consequently, the conviction was upheld and the appeal dismissed.

Issues considered

Whether a dying declaration recorded by a police officer without a magistrate is admissible under Section 32 of the Evidence Act.
Whether a dying declaration must be recorded in question‑answer form to be admissible.
Whether the language (Marathi) of the dying declaration by a Sikh woman affects its authenticity.
Whether the non‑recording of statements of the constable and doctor under Section 161 CrPC impacts their evidentiary value.
Whether the appellate court erred in law or procedure warranting interference under Article 136 of the Constitution.

Legislation cited

Code of Criminal Procedure, 1973s. Section 161, s. Section 207
Constitution of Indias. Article 136
Indian Evidence Act, 1872s. Section 32
Indian Penal Code, 1860s. Section 302, s. Section 498A

Subjects

dying declarationSection 32 Evidence Actmagistratequestion‑answer formlanguage of statementSection 161 CrPCArticle 136corroborationconviction upheld

Judgment

/'
DAYAL SINGH A
v.
STATE OF MAHARASHTRA

MAY 3, 2007

[G.P. MATHUR AND A.K. MA THUR, JJ.] B

Constitution of India-Article I 36-Penal Code, I 860-Sections 498A
& · 302-Criminal Procedure Code, 1973-Section 161-Evidence Act,
I 872-Section 32-Accused charged for cruelty and murder of his wife on C
the basis of her dying declaration recorded by a Police Head Constable-
Trial Court holding the accused guilty and sentencing him to imprisonment-
High Court, in appeal, confirmed the conviction and sentence-Correctness
of-Authenticity of Dying declaration-Held, Section 32 of the Evidence Act
does not require that a dying declaration must be recorded by a Magistrate
before treating it as evidence-On evidence on record, there is no reason D
to discard the dying declaration-Hence, the charge against the accused is
fully established and thus conviction and sentence upheld.

Appellant was charged for offences under sections 498A and 302 IPC
for committing cruelty on his wife for not bringing money from her parents
and for murder by setting her abla7.e in his house. The appellant was charged E
for the offences on the basis of a dying declaration given by her to PW 10-
Head Constable. Trial Court, relying on the dying declaration, convicted the
appellant under sections 498A and 302 IPC and sentenced him to six months
RI. and life imprisonment respectively. High Court, in appea~ confirmed the
conviction and sentence awarded by the trial court. F
In appeal to this court, the appellant contended that the dying declaration
given by the deceased was a fabricated document to implicate him in the
murder; that the deceased was a Sikh lady and hence she could have given a
dying declaration in Marathi which was recorded by PW 10-Head constable;
that the dying declaration is not safe to rely upon since it has not been G
recorded by a Magistrate; that the dying declaration has been recorded in a
narrative form and not in a question-answer form; and that the Investigating
Officer did not record the statements of PW 9-Doctor and PW 10 under
section 161 Cr.P.C. during the course of investigation and, therefore, their

1173 H
1174 SUPREME COURT REPORTS [2007) 5 S.C.R.

A testimony should not be relied upon.

Dismissing the appeal, the Court

HELD: 1.1. In an appeal under Article 136 of the Constitution oflndia,
this Court will normally not enter into reappraisal or the review of evidence
B unless the trial court or the High Court is shown to have committed an error
of law or procedure and the conclusions arrived at are perverse. This Court
may interfere where on proved facts, wrong inference of law is shown to have
been drawn. !Para 4] [1177-E-F]

Ramanbhai Naranbhai Patel v. State of Gujarat, [2000) I SCC 358;
C and Chandra Bihari Gautam v. State ofBihar, [2002) 9 SCC 208, referred to.

1.2. The evidence on recording the statements of PW 1 and PW 4, mother
and brother of the deceased respectively, conclusively establish the fact that
the appellant was ill-treating the deceased as his demand for bring money
D from her parental home had not been established. These witnesses have also
deposed that the deceased gave a statement when she was admitted in the
hospital that it was the appellant who had poured kerosene upon her and had
set her on fire. A formal dying declaration of the deceased was recorded by
PW J 0-Head Constable in the presence of PW 9-Doctor in the hospital. PW
9 deposed that he had examined the victim and had talked to her and she was
E conscious throughout when her statement was being recorded by PW 10.
There is absolutely no reason to cast any doubt on the testimony of PW 10
and PW 9. Both are government servants and they did not at all know the
appellant and had no reason to fabricate the dying declaration to falsely
implicate him in a murder case. [Para 8) [1180-B-E)

F 1.3. The evidence shows that the parents of the deceased were residing
in a place in Maharashtra and is a Marathi speaking area. After marriage,
she continued to live there. It has come in the statement of her brother PW
4 that the deceased had studied upto 10th class in a Marathi medium school.
Having lived in Maharashtra and having studied upto 10th class in a Marathi
G medium school, there is nothing abnormal in the deceased giving her
statement in Marathi language. The deceased gave a dying declaration has
not only been deposed to by PW 10-Head constable but also by PW 9-Doctor.
There is thus absolutely no reason to doubt the authenticity of the dying
declaration. [Para 9] (1180-F-H)

H 1.4. Section 32 of the Evidence Act, 1872 nowhere states that the dying
DAYAL SINGHv. STATE OF MAHARASHTRA (G.P. MATHUR,J.] 1175
declaration must be recorded in the presence of a Magistrate. In other words, A
any statement which has not been recorded before the Magistrate cannot be
treated to be dying declaration. There is no ground on which the dying
declaration recorded by PW 10 which contains a certificate by PW 9 which
adds to its authenticity should be discarded or should not be acted upon.

State of Karnataka v. Shariff. [2003) 2 SCC 473; Ku/want Singh v. State B
of Punjab, (2004) 9 SCC 257; and Vidhya Devi v. State of Haryana, (2004) 9
sec 476, referred to.
1.5. PW 9 and PW 10 are not witnesses of actual occurrence, namely,
the pouring of kerosene by the appellant on the deceased and setting her on
fire. They are witnesses of recording of dying declaration and the certificate C
given by the doctor regarding the mental condition of the victim. It is not the
case of the appellant that dying declaration was not immediately sent to the
court of the concerned Magistrate or that its copy was not given to him in
accordance with section 207 Cr.P.c;:. before the commitment of the case. In
such circumstances, the mere fact that the Investigating Officer did not record D

, the statement of the two witnesses under section 161 Cr.P.C. can hardly have
any bearing. (1184-B-D)

to.
Tilkeshwar Singh & Ors. v. State ofBihar, AIR (1956) SC 238, referred

E
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 244 of
2006.

From the Final Judgment and Order dated 28.01.2005 of the High Court
of Judicature of Bombay, Bench at Aurangabad in Criminal Appeal No. 91 of
~ F
M.N. Rao, Satyajit A. Desai, Anagha S. Desai, Anmol N. Suryawanshi
and Venkateswara Rao Anumolu for the Appellant.

Manish Pitale and V.N. Raghupathy for the Respondent.
G
The Judgment of the Court was delivered by

G.P. MATHUR, J. I. This appeal, by special leave, has been preferred
against the judgment and order dated 28.1.2005 of Bombay High Court
(Aurangabad Bench), by which the appeal filed by the appellant Dayal Singh
was dismissed and his conviction under Section 498-A and 302 !PC and H
1176 SUPREME COURT REPORTS (2007] 5 S.C.R.

A sentence of six months R.I. and imprisonment for life respectively, as recorded
by the learned Second Additional Sessions Judge, Nanded, by the judgment
and order dated 23 .3 .1990, were affinned.

2. The case of the prosecution, in brief, is that the deceased Tejinder
Kaur, daughter of the complainant PW. I Chamanbai, was married to the
B appellant five or six years prior to the incident and she had two daughters,
Pritpal and Sharanpal. The appellant started ill-treating Tejinder Kaur right
from the beginning and used to pressurize her to bring money from her
parents. About four months prior to the incident, which took place on 22.3.1989,
the appellant took Tejinder Kaur to her mother's house, who also resided in
C Nanded, and after making a demand ofRs.5,000/- he came back alone leaving
his wife there. On the next day, he went to the house of his mother-in-law
Chamanbai with a naked sword in his hand and asked Tejinder Kuar to
accompany him and also bring Rs.5,000/-. The money could not be paid by
the mother of the deceased. It is alleged that after Tejinder Kaur came back
to her husband's house, she sent some letters to her mother through a milk
D vendor complaining about ill-treatment being meted out to her. At about 3.00
p.m. on 22.3.1989, Chamanbai received infonnation that Tejinder Kaur had
received burn injuries and she was admitted in the Civil Hospital. She
immediately rushed to the hospital and on enquiry Tejinder Kaur disclosed
that she was set ablaze by the accused by pouring kerosene on her person.
E Chamanbai along with her son Sher Singh went to Police Station Wazirabad,
where an FIR of the incident was lodged at 6.30 p.m. P.S.I. Murkute visited
the house of the appellant at 7.00 p.m. on 22.3.1989 which consisted of only
one room and seized half burnt sari, petticoat, woolen blanket, mattresses,
quilt, pillow, etc. He found two sunmics cots partially burnt, a stove, a
kerosene tin and an empty gas cylinder. He then visited the hospital and
F instructed Head Constable PW. I0 Dattatray Vinkar to record the statement of
Tejinder Kaur when she regained consciousness. Tejinder Kaur regained
consciousness at about 10.30 p.m., infonnation regarding which was given by
her brother PW.4 Sher Singh to Head Constable Dattatray Vinkar. The Head
Constable immediately summoned PW.9 Dr. Mohammad Khursheed Ahmad,
G Duty Medical Officer, who examined the injured and found her conscious.
Thereafter, the statement of Tejinder Kaur was recorded by PW. I0 where she
gave details of the occurrence, namely, demand of dowry by the appellant and
how the appellant had set her on fire by pouring kerosene. The statement
Ex.31 was recorded by PW. I0 and Dr. Khursheed Ahmad made an endorsement
thereon that the patient was conscious throughout her statement. At about
H 00.45 hours on 23.3.1989 Tejinder Kaur succumbed to her injuries. After
DAYALSINGHv. STATE OF MAHARASHTRA [G.P. MATHUR,J.] 1177

inquest had been held, the body was sent for post mortem examination, which A
was carried out by two doctors who found 83% burns thereon. According to
the opinion of the doctors, the death was due to the extensive burns which
caused hypovolenic and neurogenic shock leading to cardio- respiratory
failure. The seized clothes were sent for medical examination and the report
thereof indicated presence of kerosene.
B
3. After completion of the investigation, charge-sheet was submitted
against the appellant under Section 498-A and 302 IPC. The appellant pleaded
not guilty and claimed to be tried. His main defence was that he had never
made any demand for money and in fact he had deposited some money in the
account ofTejinder Kaur and had also purchased land in her name. He further C
stated in his statement which was given in writing that Tejinder Kaur caught
fire when she was cooking food on stove and at that time he was not present
in the house. He also stated that after coming to know about the fire, he
rushed inside the house and tried to extinguish the fire, in which process he
also received burn injuries and he remained admitted in the hospital for
treatment till 8.4.1989. The learned Sessions Judge believed the case of the D
prosecution which primarily rested on the dying declaration recorded by
PW.I 0 and convicted and sentenced the appellant, as stated above. The High
Court affirmed the findings recorded by the learned Sessions Judge and
dismissed the appeal.

4. The present appeal has been filed under Article 136 of the Constitution. E
It is well settled that in an appeal under Article 136 of the Constitution, the
Court will normally not enter into reappraisal or the review of evidence unless
the trial Court or the High Court is shown to have committed an error of law
or procedure and the conclusions arrived at are perverse. The Court may
interfere where on proved facts, wrong inference of law are shown to have F
been drawn. (See Ramanbhai Naranbhai Patel v. State of Gujarat, [2000] I
SCC 358 and Chandra Bihari Gautam v. State of Bihar, [2002] 9 SCC 208).
We will, therefore, briefly refer to the evidence in order to examine whether
the case comes within the parameters of Article 136 of the Constitution which
may warrant interference by this Court.
G
- 5. PW. I Chamanbai (mother of the deceased) has deposed that the
marriage ofTejinder Kaur was performed with the appellant Dayal Singh about
six years prior to the incident. After her marriage, she started living with the
appellant at Gurdwara Gate No.2, Nanded. Initially, the parents, brothers and
sisters of the appellant were all residing together but some time thereafter, the H
1178 SUPREME COURT REPORTS [2007] 5 S.C.R.

A appellant started living separately. The appellant used to ill-treat Tejinder
Kaur and used to ask her to bring money from her parents. Whenever Tejinder
Kaur visited her parental home, she used to complain about the ill-treatment
being meted out to her. About 4 months prior to the incident, the appellant
came along with Tejinder Kaur to her parental house and demanded Rs.5,000/
B - from his mother-in-law. He held out a threat that Tej inder Kaur should not
return until she brought Rs.5,000/-. Next day at about 8.00 p.m. he came anned
with a sword and threatened Tejinder Kaur that he would kill her ifthe amount
was not given. She has further deposed that she begged the accused not to
behave in that manner as she had no money. Thereafter the appellant took
Tejinder Kaur along with him and went away on his motor cycle. She also
C produced two letters which were allegedly sent by the deceased to her
through a milk vendor. Regarding the main incident, she deposed that at
about 3.00 p.m. on 22.3.1989 one Biru Singh came and infonned that Tejinder
Kaur had received burn injuries and was in the hospital. She immediately
rushed to the Civil Hospital and saw Tejinder Kaur admitted in the ward. On
enquiry she infonned her mother that her husband Dayal Singh had set her
D on fire by pouring kerosene on her body. After learning about the incident,
the witness along with her son Sher Singh went to the Police Station Wazirabad
and lodged an FIR of the incident. She has further deposed that some time
after she had returned, Tejinder Kaur regained consciousness. Head Constable
Dattatray Vinkar then asked the family members to leave the ward and thereafter
E statement of Tejinder Kaur was recorded. Though she was subjected to a
lengthy cross-examination, but she stuck to her statement that the appellant
used to make demand of money and used to threaten Tejinder Kaur and she
was afraid of him. PW.4 Sher Singh is brother of Tejinder Kaur. He has
corroborated the statement of his mother Chamanbai regarding the ill-treatment
being meted out by the appellant to his si_ster and the demand of money and
F the earlier incident when the appellant had come anned with a sword and had
given threats when the money was not paid to him. He has further deposed
that at about 10.00-10.30 p.m. Tejinder Kaur regained consciousness and
disclosed to him and his mother that the accused had sprinkled kerosene on
her and had set her on fire. He has also deposed that when the Head
G Constable had called the doctor for recording the statement of the victim, he
and other relations were asked to leave the ward.

6. PW.2 Dr. Sanjay has deposed that he is M.S. in General Surgery and
was posted in Civil Hospital, Nanded, as a Duty Medical Officer on 22.3.1989.
-
He had admitted Tejinder Kaur in the hospital in Ward No.4 and at that time
H she was conscious. PW.IO Head Constable Dattatray Vinkar has deposed that
DAYALSINGHv. STATE OF MAHARASHTRA [G.P.MATHUR,J.] 1179

he was posted on duty in the hospital from 8.00 p.m. on 22.3.1989 till 8.00 a.m. A
on the next day. At about 10.30 p.m. he received orders from P.S.I. Murkute
to record statement ofTejinder Kaur. He, therefore, went to Ward No.4 where
Tejinder Kaur was admitted and after finding her in a conscious state, he went
to Dr. Khursheed Ahmad, Duty Medical Officer, and requested him to come
and examine the victim as her statement had to be recorded. Dr. Khursheed
Ahmad then examined the victim and informed him that she was conscious B
and he could record her statement. The witness has further deposed that he
put questions to Tejinder Kaur to which she gave replies in Marathi, which

- he recorded in his own hand. In her statement (Ex.31) Tejinder Kaur stated
that her marriage with the appellant had taken place 5 years back. At 2.00 p.m.
on that day i.e. 22.3.1989 there was a quarrel between her and her husband C
on account of domestic reasons, namely, about visiting her mother's house
and she was asked to bring money from her mother. The appellant then tore
her blouse and sari and tried to drag her out of the house. She protested and
said that she will not leave the house. At that stage, the appellant poured
kerosene upon her and set her on fire by lighting a match stick. When she
caught fire, she cried for help, on which her mother-in-law and neighbours D
came there and extinguished the fire by pouring water. Her daughter Sharanpal,
who was sitting near her, had also sustained some bums and was taken
outside by the appellant. She further stated that as she was wearing a
polyester sari, she immediately caught fire and sustained bums in her chest,
abdomen, legs and private parts. Her father-in-law brought her to the hospital E
for treatment. The statement was thumb marked by the victim. Thereafter, Dr.
Khursheed Ahmad made an endorsement on the same and put his signatures
thereon. The witness has categorically deposed that whatever was stated by
Tejinder Kaur was recorded in her own words. In his cross-examination, he
stated that the information had earlier been sent to Special Judicial Magistrate
for recording statement of the victim. The recording of the statement F
commenced at 22.50 hours on 22.3.1989 and it took about 15-20 minutes.

7. PW.9 Dr. Mohammad Khursheed Ahmad has deposed that he is
MBBS & MD and was posted as Medical Officer in SGGM Hospital, Nanded
for the past four years. He was on duty on 22.3 .1989 when he was called to G
Ward No.4. He examined Tejinder Kaur at about 1I .00 p.m. and found that she
was conscious and was in a position to give her statement. The Head Constable
then recorded her statement and he was throughout present by her side. After
the statement had been recorded, he put an endorsement on the same to the
effect "Patient is conscious throughout statement". He had put his signature
below that.endorsement. In his cross-examination he has reiterated that he H
1180 SUPREME COURT REPORTS (2007] 5 S.C.R.

A had examined Tejinder Kaur and had a talk with her and after being satisfied
that she was conscious, he asked the Head Constable to record her statement.
He was subjected to a fairly lengthy cross-examination but nothing has come
out which may discredit his testimony.

8. The statements of PW. I Chamanbai who is the mother and PW.4 Sher
B Singh who is the brother of the deceased, conclusively establish the fact that
the appellant was ill-treating the deceased Tejinder Kaur as his demand for
bringing money from her parental home had not been fulfilled. These witnesses
have a:so deposed that Tejinder Kaur gave a statement when she was admitted
in the hospital that it was the appellant who had poured kerosene upon her
C and had set her on fire. A formal dying declaration of Tejinder Kaur was
recorded by PW.IO Dattatray Vinkar, Head Constable in the presence of PW.9
Dr. Khursheed Ahmad who was the Duty Medical Officer in the hospital. Dr.
Khursheed Ahmad is a highly qualified person being MBBS and MD and was
posted in the Civil Hospital, Nanded, and his duty hours were from 8.00 p.m.
on 22.3.1989 to 8.00 a.m. on the following day. He has clearly deposed that
D he had examined the victim and had talked to her and she was conscious
throughout when her statement was being recorded by PW.IO. There is
absolutely no reason to cast any doubt on the testimony of PW.IO Dattatray
Vinkar and PW.9 Dr. Md. Khursheed Ahmad. Both are government servants
and they did not at all know the appellant Dayal Singh and had absolutely
E no reason to fabricate a document, viz., the dying declaration to falsely
implicate him in a murder case.

9. Shri M.N. Rao, learned senior counsel for the appellant, has submitted
that the original dying declaration is in Marathi language and Tejinder Kaur
being a sikh lady, she could not have made a statement in the said language
p as in normal course of events, she would have spoken in Gurmukhi. The
evidence shows that even the parents of Tejinder Kaur were residing in
Nanded which is in Maharashtra and is a Marathi speaking area. After marriage
she continued to live in the said place, viz., Nanded. It has come in the
statement of her brother PW.4 Sher Singh that Tejinder Kaur had studied upto
10th class in a Marathi medium school. Having lived in Nanded and having
G studied upto I0th class in a Marathi medium school, there is nothing abnormal
in Tejinder Kaur giving her statement in Marathi language. That apart, the fact
that she gave a statement Ex.31 has not only been deposed to by PW. I0
Dattatray Vinkar, Head Constable, but also by PW.9 Dr. Khursheed Ahmad
who is highly qualified and responsible government servant. There is thus
H absolutely no reason to doubt the authenticity of the dying declaration.
DAYALSINGHv. STATE OF MAHARASHTRA [G.P.MATHUR,J.] 1181

10. Shri Rao, learned senior counsel, has next submitted that the dying A
declaration has not been recorded by a Magistrate but by a Head Constable
and, therefore, it will not be safe to rely upon the same. He has also challenged
the dying declaration on the ground that the same was not recorded in a
question-answer form but has been recorded in the form of a narrative.

11. The law regarding the dying declaration and the value which is to B
be attached to it has been examined in considerable detail in State ofKarnataka
v. Shariff, [2003] 2 SCC 473, by a Bench of which one of us was a member
and paragraphs 18, 19, 20, 22 and 23 of the decision are being reproduced
below:-

18. The earliest case in which the law on the point of dying declaration C
was considered in detail by this Court is Khushal Rao v. State of
Bombay, AIR (1958) SC 22. The Court ruled 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; each case must
be determined on its own facts keeping in view the circumstances in D
which the dying declaration was made; it cannot be laid down as a
general proposition that a dying declaration is a weaker kind of evidence
than other pieces of evidence; 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. It has been further held that in E
order to pass the test of reliability, a dying declaration has to be
subjected to a very close scrutiny, keeping in view the fact that the
statement has been made in the absence of the accused who had no
,
opportunity of testing the veracity of the statement by cross-
examination. But once the Court has come to the conclusion that the F
dying declaration was the truthful version as to the circumstances of
the death and the assailants of the victim, there is no question of
further corroboration.

19. In State of Uttar Pradesh v. Ram Sagar Yadav, [1985] 1 SCC 552
the Court speaking through Chandrachud, C.J. held as under: G
"It is well settled that, as a matter of law, a dying declaration can
be acted upon without corroboration. See Khushal Rao v. State
of Bombay, AIR (1958) SC 22; Harbans Singh v. State of Punjab,
AIR (I 962) SC 439; Gopalsingh v. State ofMP., [1972] 3 SCC 268.
There is not even a rule of prudence which has hardened into a H
1182 SUPREME COURT REPORTS [2007] 5 S.C.R.

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
B declaration ....."
20. In K. Ramachandra Reddy and Anr. v. The Public Prosecutor,
[ 1976] 3 sec 618 it was held that a great solemnity and sanctity is
attached to the words of a dying man because a person on the verge
of death is not likely to tell lies or to concoct a case so as to implicate
c an innocent person yet the Court has to be on guard against the
statement of the deceased being a result of either tutoring, prompting
or a product of his imagination. It was further held that the Court must
be satisfied that the deceased was in a fit state of mind to make the
statement after the deceased had a clear opportunity to observe and
D identify his assailants and that he was making the statement without
any influence or rancour. Once the Court is satisfied that the dying
declaration is true and voluntary it can be sufficient to found the
conviction even without any further corroboration. In Pothakamuri
Srinivasulu v. State of AP, [2002] 6 SCC 399 it has been held that if
the deceased made statement to the witnesses and their testimony is
E found to be reliable the same is enough to sustain the conviction of
the accused. In Mafabhai Nagarbhai Raval v. State ofGujarat, [1992]
4 SCC 69 it was held that the Doctor who has examined the victim was
the most competent witness to speak about her condition.

22. The other reason given by the High Court is that the dying
F declaration was not in question-answer form. Very often the deceased
is merely asked as to how the incident took place and the statement
is recorded in a narrative form. In fact. such a statement is more natural
and gives the version of the incident as it has been perceived by the
victim. The question whether a dying declaration which has not been
G recorded in question-answer form can be accepted in evidence or not
has been considered by this Court on several occasions. In Ram
Bihari Yadav v. State of Bihar and Ors., [ 1998] 4 SCC 517, it was held
as follows:
"It cannot be said that unless the dying declaration is in question
H answer form, it could not be accepted. Having regard to the
DAYAL SINGHv. STATE OF MAHARASHTRA (G.P. MATHUR,J.] 1183

sanctity attached to a dying declaration as it comes from the A
mouth of a dying person though, unlike the principle of English
law he need not be under apprehension of death, it should be in
the actual words of the maker of the declaration. Generally, the
•• dying declaration ought to be recorded in the form of questions
and answers but if a dying declaration is not elaborate but
consists of only a few sentences and is in the actual words of B
the maker the mere fact that it is not in question-answer form
cannot be a ground against its acceptability or reliability. The
mental condition of the maker of the declaration, alertness of
mind, memory and understanding of what he is saying, are matters
which can be observed by any person. But to lend assurance to C
those factors having regard to the importance of the dying
declaration, the certificate of a medically trained person is insisted
upon ...."

23. In Padmaben Shamalbhai Patel v. State a/Gujarat, [1991] I SCC
744 it was held that the failure on the part of the medical men to record D
the statement of the deceased in question-and-answer form cannot in
any manner affect the probative value to be attached to their evidence.
This view was reiterated in State of Rajasthan v. Bhup Ram, [1997]
10 SCC 675 and Jai Prakash and Ors. v. State of Haryana, [1998] 7
SCC284.
E
12. In Ku/want Singh v. State of Punjab, [2004] 9 SCC 257 it has been
held that it is not essential that a dying declaration should be made only
before a Magistrate. Section 32 of the Evidence Act nowhere states that the
dying declaration must be recorded in the presence of a Magistrate or in other
words any statement which has not been recorded before the Magistrate
cannot be treated to b~'dying declaration. In Vidhya Devi v. State of Haryana, F
[2004] 9 sec 476 challenge to a dying declaration recorded by a police officer
in the presence of doctor, who had given an opinion that the deceased was
in a fit state of mind to make the statement, was held to be credible and
reliable and sufficient to establish the guilt of the accused.
G
13. PW. I0 Head Constable Dattatray Vinkar has deposed that information
was sent to the Magistrate. The date of incident viz. 22.3.1989 was "Holi" and
being an occasion of festivity it is possible that the Magistrate may not have
been present at his residence or the information may not have been conveyed
to him personally. We do not find any ground on which the dying declaration
recorded by PW.IO which contains a certificate by PW.9 Dr. Khursheed H
ll84 SUPREME COURT REPORTS [2007] 5 S.C.R.

A Ahmad which adds to its authenticity should be discarded or should not be
acted upon.

14. Mr. Rao has next submitted that Investigating Officer did not record
the statements of PW-9 Dr. Mohammad Khursheed Ahmad and PW-10
Dattatray Vinkar under section 161 Cr.P.C. during the course of investigation
B and, therefore, their testimony should not be relied upon. In support of his
submission he has relied upon certain observations made in Ram Lakhan
Singh and Ors v. State of Uttar Pradesh, (1977] 3 SCC 268. It may be noticed
that PW-9 and PW-I 0 are not witnesses of actual occurrence, namely, the
pouring of kerosene by the appellant on Tejinder Kaur and setting her on fire.
C They are witnesses of recording of dying declaration and the certificate given
•
by the doctor regarding the mental condition of the victim. It is not the case
of the appellant that dying declaration was not immediately sent to the court
of concerned magistrate or that its copy was not given to him in accordance '
with section 207 Cr.P.C. before the commitment of the case. In such
circum~tances the mere fact that the Investigating Officer did not record the
D statement of the aforesaid two witnesses under section 161 Cr.P.C. can hardly
have any bearing. In Tilkeshwar Singh and Ors. v. The State of Bihar, AIR
(1956) SC 238 statements of three witnesses were jointly recorded by the
Investigating Officer in violation of section 161 (3) Cr.P.C. It was contended
that the evidence of the said three witnesses in court was inadmissible as
E there was no record of their statement under section 161 Cr.P.C. The contention
was repelled and it was held that while the failure to comply with the
requirements of section 161(3) Cr.P.C. might affect the weight to be attached
to the evidence of the witnesses, it does not render it inadmissible. In the
facts and circumstances of the present case we are of the opinion that the
testimony of PW-9 and PW-10 cannot be discarded on the ground urged by
F the learned counsel for the appellant and the trial court and the High Court
rightly relied upon their statement which was given in court.

15. We have given out careful consideration to the material on record.
We are fully satisfied that the charge against the appellant is fully established
from the evidence on record and there is absolutely no ground to take a
G different view from what has been taken by the learned Sessions Judge and
also by the High Court.

16. In the result, the appeal fails and is hereby dismissed.

B.S. Appeal dismissed.
H