UTTAMversusTHE STATE OF MAHARASHTRA

                         [2022] 5 S.C.R. 863                             863


                              UTTAM                                      A
                                  v.
                THE STATE OF MAHARASHTRA
                 (Criminal Appeal No. 485 of 2012)
                           JUNE 02, 2022                                 B
             [B. R. GAVAI AND HIMA KOHLI, JJ.]
       Evidence Act, 1872 – Multiple dying declarations –
Admissibility, evidentiary value of – Penal Code, 1860 – s.302 –
Appellant convicted u/s.302 for having murdered his wife by pouring
                                                                         C
kerosene on her and setting her on fire, by relying on two dying
declarations of the deceased recorded in writing by PW-9 (Special
Executive Magistrate) and PW-14 (IO) and the other two being oral
and communicated by the deceased to PW-2 (her father) and PW-
12 (mediator who had arranged the marriage of the parties) –
Appeal filed by appellant, dismissed by High Court discarding the        D
written dying declarations but giving credence to the testimony of
PW-2 & PW-12 – On appeal, held: In cases where the Court finds
that there exist more than one dying declarations, each one of them
must be examined with care and caution and only after satisfying
itself as to which of the dying declarations appears to be free from
                                                                         E
suspicious circumstances and has been made voluntarily, should it
be accepted – However, if a dying declaration suffers from some
infirmity, it cannot be the sole basis for convicting the accused – In
the present case, once the High Court discarded the two written
dying declarations of the deceased due to several glaring lacunae
in the procedure adopted by PW-9 & PW-14 in recording the said           F
statement, then the appellant could not have been indicted on the
oral testimony of PW-2 and PW-12, both of whom were interested
witnesses and whose evidence runs contrary to the versions of the
deceased recorded by PW-9 and PW-14 – Prosecution failed to
discharge the obligation of leading trustworthy corroborative
                                                                         G
evidence to back-up the testimonies of PW-2 and PW-12 – Impugned
judgment set aside – Appellant granted benefit of doubt, acquitted.
      Evidence Act, 1872 – ss.32, 60 – Dying declaration – s.32,
an exception to general rule contained in s.60 – Held: s.32 is an
exception to the general rule contained in s.60 that ‘hearsay
                                                                         H
                                 863
864            SUPREME COURT REPORTS                      [2022] 5 S.C.R.


A     evidence is inadmissible’ and only when such an evidence is direct
      and is validated through cross-examination, is it considered to be
      trustworthy.
           Evidence Act, 1872 – Dying declaration recorded by the
      Magistrate – Credibility of – Discussed.
B           Allowing the appeal, the Court
             HELD: 1.1 Dying declaration is the last statement that is
      made by a person as to the cause of his imminent death or the
      circumstances that had resulted in that situation, at a stage when
      the declarant is conscious of the fact that there are virtually nil
C     chances of his survival. On an assumption that at such a critical
      stage, a person would be expected to speak the truth, courts
      have attached great value to the veracity of such a statement.
      Section 32 of the Indian Evidence Act, 1872 states that when a
      statement is made by a person as to the cause of death, or as to
      any of the circumstances which resulted in his death, in cases in
D     which the cause of that person’s death comes into question, such
      a statement, oral or in writing made by the deceased victim to
      the witness, is a relevant fact and is admissible in evidence. It is
      noteworthy that the said provision is an exception to the general
      rule contained in Section 60 of the Evidence Act that ‘hearsay
E     evidence is inadmissible’ and only when such an evidence is direct
      and is validated through cross-examination, is it considered to
      be trustworthy. In cases involving multiple dying declarations
      made by the deceased, the question that arises for consideration
      is as to which of the said dying declarations ought to be believed
      by the Court and what would be the guiding factors for arriving at
F     a just and lawful conclusion. The problem becomes all the more
      knotty when the dying declarations made by the deceased are
      found to be contradictory. Faced with such a situation, the Court
      would be expected to carefully scrutinize the evidence to find
      out as to which of the dying declarations can be corroborated by
      other material evidence produced by the prosecution. Of equal
G     significance is the condition of the deceased at the relevant point
      in time, the medical evidence brought on record that would
      indicate the physical and mental fitness of the deceased, the scope
      of the close relatives/family members having influenced/tutored
      the deceased and all the other attendant circumstances that would
H
          UTTAM v. THE STATE OF MAHARASHTRA                             865


help the Court in exercise of its discretion. In cases where the        A
Court finds that there exist more than one dying declarations,
each one of them must be examined with care and caution and
only after satisfying itself as to which of the dying declarations
appears to be free from suspicious circumstances and has been
made voluntarily, should it be accepted. It is not necessary that
in every case, a dying declaration ought to be corroborated with        B
material evidence, ocular or otherwise. It is more a rule of
prudence that courts seek validation of the dying declaration from
attending facts and circumstances and other evidence brought
on record. For the very same reason, a certificate by the doctor
that the declarant was fit to make a statement is treated as a rule     C
of caution to establish the truthfulness of the statement made by
the deceased. However, if a dying declaration suffers from some
infirmity, it cannot be the sole basis for convicting the accused.
In those circumstances, the court must step back and consider
whether the cumulative factors in a case make it difficult to rely
upon the said dying declaration. The credibility of a dying             D
declaration recorded by the Magistrate has also come up for
consideration in several cases and it has been held that a
Magistrate being an uninterested witness and a respected officer
and there being no circumstances or material to suspect that he
would have any animus against the accused or would in any way
be interested for fabricating a dying declaration, such a declaration   E
recorded by the Magistrate, ought not be doubted. [Paras 11, 15,
19, 22 and 25][872-G; 873-A-C; 875-F-G; 876-A-C; 880-C-D;
882-D-F]
      Nallapati Sivaiah v. Sub-Divisional Officer, Guntur,
      Andhra Pradesh (2007) 15 SCC 465 : [2007] 10 SCR                  F
      347; Arvind Singh v. State of Bihar (2001) 6 SCC 407
      : [2001] 3 SCR 218; Kundula Bala Subrahmanyam and
      Another v. State of Andhra Pradesh, (1993) 2 SCC 684
      : [1993] 2 SCR 666; Shudhakar v. State of Madhya
      Pradesh (2012) 7 SCC 569 : [2012] 7 SCR 128;                      G
      Paniben (Smt.) v. State of Gujarat (1992) 2 SCC 474 :
      [1992] 2 SCR 197; Lakhan v. State of Madhya Pradesh
      (2010) 8 SCC 514 : [2010] 9 SCR 705; Amol Singh v.
      State of Madhya Pradesh (2008) 5 SCC 468 : [2008] 8
      SCR 956; Sher Singh and Another v. State of Punjab
      (2008) 4 SCC 265 : [2008] 2 SCR 959; State of Uttar               H
866            SUPREME COURT REPORTS                      [2022] 5 S.C.R.


A           Pradesh v. Veerpal and Another (2022) 4 SCC 741 :
            2022 (2) JT 503; Khushal Rao v. State of Bombay (1974)
            4 SCC 264 – relied on.
             1.2 Noting the several loopholes in the procedure adopted
      while recording the dying declarations by the SEM (PW-9) and
B     the IO (PW-14), the High Court found it unsafe to rely on them
      and kept them aside. Since there is no challenge laid to the findings
      returned by the High Court for discarding the two written dying
      declarations finding them riddled with deficiencies, thus making
      them unreliable, their credit worthiness is not being delve into.
      Suffice it is to say that there was every reason for the High Court
C
      to have found them untrustworthy. Instead, it is considered
      appropriate to examine the worth of the oral dying declarations
      stated to have been made by the deceased in the presence of
      PW-2 and PW-12. A perusal of the testimonies of PW-2 and PW-
      12 show that they have offered varying versions of what had
D     allegedly been narrated to them by the deceased. Both of them
      stated that failure to satisfy the appellant’s constant dowry
      demands had led to the incident. There was no mention of the
      illicit relationship of the appellant with a widow in the
      neighbourhood which was a constant cause of quarrel between
      the deceased and her husband and had led to the incident.
E
      Pertinently, both the said witnesses stated that their statements
      were not recorded by the police during the investigation and that
      they had deposed for the first time only when they had entered
      the witness box during the trial. Once the High Court had
      disagreed with the Session Court and discarded the two written
F     dying declarations of the deceased due to several glaring lacunae
      in the procedure adopted by the PW-9 and the I.O. (PW-14) in
      recording the said statement, then the appellant could not have
      been indicted on the oral testimony of PW-2, father of the deceased
      and PW-12, family friend, both of who were interested witnesses
      and whose evidence runs contrary to the versions of the deceased
G     recorded by PW-9 and PW-14. It must be remembered that all
      the four dying declarations, two in writing and the other two oral,
      were based on the statements given by the deceased at different
      times on the very same day, i.e., 27th March, 1995, when she
      had suffered 93% burn injuries and there are serious doubt about
H     her being mentally and physically fit to give her statement. The
          UTTAM v. THE STATE OF MAHARASHTRA                             867


IO (PW-14) had recorded the first dying declaration at 3.20 p.m.        A
this was followed by the SEM (PW-9) having recorded the second
dying declaration between 4.30 p.m. and 5.00 p.m. It was on the
very same day that PW-2 and PW-12 had also met the deceased
at the hospital and claimed that she had informed them as to how
she had received the burn injuries and named the appellant as
                                                                        B
the culprit. Both, PW-2 and PW-12 have deposed that in her oral
dying declaration, the deceased had referred to the dowry
demands made on her by the appellant and the fact that he had
suspected her character, which led to the alleged incident.
Nowhere in their testimonies is there any reference made to the
prosecution version that the appellant was having an illicit relation   C
with a widow residing in the neighborhood, which was the main
cause of acrimony between the couple and had resulted in the
incident. The diametrically different version of the reasons that
led to the alleged incident casts a shadow on the entire testimony
of PW-2 and PW-12, making it unsafe to rely on them and indict
                                                                        D
the appellant for the charge framed against him. The prosecution
has failed to discharge the obligation cast on it of leading
trustworthy corroborative evidence to back-up the testimonies
of PW-2 and PW-12. It is difficult to endorse the conclusion arrived
at by the High Court. The evidence of PW-2 and PW-12 cannot
be treated as stellar enough to hold the appellant guilty for the       E
offence of murdering his wife. Hence, he is entitled to being
granted benefit of doubt. The appellant is acquitted. [Paras 27,
31, 34, 36-39][883-B; 884-E-G; 886-A-C; 888-A-C]
      Arun Bhandudas Pawar v. State of Maharashtra, (2008)
      11 SCC 232 : 2008 (1) JT 348; Poonam Bai v. State of              F
      Chhattisgarh (2019) 6 SCC 145 : 2019 (5) JT 403 –
      relied on.
      Rizan and Another v. State of Chhattisgarh (2003) 2
      SCC 661 : [2003] 1 SCR 457; Bhagwan Tukaram
      Dange v. State of Maharashtra (2014) 4 SCC 270 :                  G
      [2014] 3 SCR 753; Trimukh Maroti Kirkan v. State of
      Maharashtra (2006) 10 SCC 681 : [2006] 7 Suppl. SCR
      156 – referred to.

                                                                        H
868                 SUPREME COURT REPORTS                    [2022] 5 S.C.R.


A                               Case Law Reference
      [2007] 10 SCR 347                      relied on           Para 7
      [2001] 3 SCR 218                       relied on           Para 7
      [2003] 1 SCR 457                       referred to         Para 9
B     [2014] 3 SCR 753                       referred to         Para 9
      [2006] 7 Suppl. SCR 156                referred to         Para 9
      [1993] 2 SCR 666                       relied on           Para 12
      [2012] 7 SCR 128                       relied on           Para 13
C
      [1992] 2 SCR 197                       relied on           Para 14
      [2010] 9 SCR 705                       relied on           Para 16
      [2008] 8 SCR 956                       relied on           Para 17
      [2008] 2 SCR 959                       relied on           Para 18
D
            CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
      485 of 2012.
            From the Judgment and Order dated 26.07.2010 of the High Court
      of Judicature at Bombay, Nagpur Bench, Nagpur in Criminal Appeal
      No. 149 of 1997.
E
             Rohan Thanwani, Pratul Pratap Singh, Ms. Vandana Sehgal, Advs.
      for the Appellant.
           Sachin Patil, Rahul Chitnis, Aaditya A. Pande, Geo Joseph,
      Ms. Shwetal Shepal, Advs. for the Respondent.
F               The Judgment and order of the Court were delivered by
                HIMA KOHLI, J.
            1. The present appeal is directed against the judgment dated
           th
      26 July, 2010 passed by the Division Bench of the High Court of Bombay
G     at Nagpur Bench. The High Court has dismissed the appeal preferred
      by the appellant against the judgment and order dated 29th April, 1997
      passed by the 8th Additional Sessions Judge, Nagpur, convicting him for
      the offence under Section 302 of the Indian Penal Code, 1860 1 and
      sentencing him to suffer imprisonment for life with a fine of ` 1,000/-
      1
H         for short ‘IPC’
              UTTAM v. THE STATE OF MAHARASHTRA                                   869
                         [HIMA KOHLI, J.]

(Rupees one thousand) and in default thereof, to suffer simple                    A
imprisonment for a period of three months.
        2. The case set up by the prosecution is that the deceased,
Pushpabai and the appellant had got married on 19 th March, 1994. There
was no issue from the marriage. The appellant was a T.V. Mechanic. It
was alleged that the appellant was having an illicit relationship with a          B
widow residing near their house, namely, Kusum Gaikwad. On
26th March, 1995, the appellant and Kusum Gaikwad went to watch a
movie. When he returned home in the evening hours, he was confronted
by his wife for having gone to watch a movie with Kusum Gaikwad.
The appellant quarrelled with Pushpabai and told her that Kusum Gaikwad
was his paramour. He had also beaten Pushpabai. On the very next day,             C
i.e., on 27th March, 1995, between 11.00 a.m. and noon, the appellant
had again picked up a quarrel with Pushpabai and he told her that he
would not leave Kusum Gaikwad. On Pushpabai demanding a divorce,
the appellant lost his temper and assaulted her. Thereafter, he poured
kerosene on his wife and set her on fire by lighting a match stick. At this,      D
the appellant’s brother rushed to extinguish the fire by pouring water on
her. Pushpabai sustained severe burn injuries on her face, breast, stomach,
both hands and legs. She was taken for treatment to Mayo Hospital,
Nagpur where she succumbed to her injuries on 31 st March, 1995.
       3. The information about the aforesaid incident was communicated           E
by Mayo Police Booth, Nagpur to the Investigating Officer2 Sub-
Inspector Madhukar Gite (PW-14). The I.O. was informed that Pushpabai
had caught fire on account of the border, i.e., pallu of her saree falling
on the stove where she was preparing snacks. On receiving the above
information, the I.O. made an entry in the Station diary and proceeded
to the hospital, where he recorded the statement of Pushpabai at 3.20             F
p.m. in the presence of two panchas (Ex.47). This was the first dying
declaration of the deceased. In a gap of about one hour, the statement of
Pushpabai was recorded by the Special Executive Magistrate3 (PW-9)
between 4.30 and 5.00 PM (Ex.38). This was the second dying
declaration.                                                                      G
                               rd
        4. Vide order dated 3 February, 1997, charges were framed by
the trial court against the appellant under Section 302 IPC. As the appellant
pleaded not guilty, the matter was taken to trial. On its part, the prosecution
2
    for short ‘IO’
3
    for short ‘SEM’                                                               H
870             SUPREME COURT REPORTS                            [2022] 5 S.C.R.


A     examined 15 witnesses, including Ramkrishna Mahadeo Uchale
      (PW-2), father of the deceased; Raju Larokar;, SEM (PW-9); Samir
      Vijay Choudhary Junior Resident Doctor (PW-10); Dr. Naresh Chandra
      Sethia Medical Officer; (PW-11); Balaji Mohod (PW-12), the Mediator
      who had arranged the marriage of the parties; Prabhakar Bhaurao Patil
      PSI (PW-13); SI Madhukar Gite (PW-14), who was the I.O.; and Rushi
B
      Shionkar API (PW-15). Out of fifteen witnesses, seven witnesses had
      turned hostile. Vide judgment dated 29th April, 1997, the appellant was
      convicted by the trial Court for having murdered his wife by pouring
      kerosene on her and setting her on fire. He was handed down a sentence
      of life imprisonment with fine. For holding the appellant guilty of the
C     offence, the trial court relied on the two dying declarations of the deceased
      recorded in writing by PW-9 and PW-14 and the evidence of PW-2 and
      PW-12, who deposed that the deceased had stated to them how the
      incident had taken place.
            5. Aggrieved by the aforesaid judgment, the appellant preferred
D     an appeal before the High Court. Though the plea of the appellant who
      raised a question mark on the veracity of the two written dying
      declarations was upheld by the High Court, giving credence to the
      testimony of PW-2 and PW-12 coupled with the Chemical Analyser
      Report relating to the clothes of the deceased and the appellant that
      detected kerosene on them, the judgment of the trial Court was upheld
E     and the appeal filed by the appellant was dismissed. The said order has
      been challenged by the appellant in the present appeal.
             6. Mr. Rohan Thanwani, learned counsel for the appellant has
      assailed the impugned judgment on the ground that although the High
      Court has discarded the two written dying declarations of the deceased,
F     one recorded by the I.O. (Ex.-47) and the other recorded by the SEM
      (Ex.-38), it has still proceeded to uphold the judgment of the Session
      Court by erroneously placing reliance on the oral dying declarations stated
      to have been made by the deceased to her father, Ramkrishna Mahadeo
      Uchale (PW-2) and to the Mediator, Balaji Mohod (PW-12). Learned
G     counsel contended that there were glaring material contradictions
      between the statements made by the deceased before PW-9 and
      PW-14 as against the statements of PW-2 and PW-12 inasmuch as before
      PW-9, the deceased had claimed that the illicit relationship between the
      appellant and Kusum Gaikwad (PW-8) was the root cause of the quarrel
      between the couple, whereas the version of PW-2 and PW-12 was that
H
           UTTAM v. THE STATE OF MAHARASHTRA                                 871
                      [HIMA KOHLI, J.]

the entire incident was attributable to the dowry demands made by the        A
appellant on the deceased. It was further contended that the version of
the deceased as recorded in the first and the second written dying
declarations was entirely different from what was narrated by PW-2
and PW-12 before the Court. In fact, neither PW-2 nor PW-12 had
made any statement to the police under Section 161 of the Code of
                                                                             B
Criminal Procedure, 18984 and both the said witnesses had for the first
time made statements only when they entered the witness box during
the trial.
       7. It was canvassed by learned counsel for the appellant that
once the High Court had rejected the written dying declarations of the
deceased on the ground that there were several conspicuous loopholes         C
in recording of the said statements, there was no good reason for the
High Court to have relied on the oral statements allegedly made by the
deceased to PW-2 and PW-12, which were equally unreliable and
therefore, ought to have met the same fate as the written dying
declarations of the deceased. To buttress his submission that where there    D
are multiple dying declarations and each one is inconsistent with the
other, then all the said dying declarations ought to be discarded without
any hesitation, learned counsel has cited Nallapati Sivaiah v. Sub-
Divisional Officer, Guntur, Andhra Pradesh5. The unreliability of an
oral dying declaration made to a family member in the absence of the
doctor was sought to be questioned by citing Arvind Singh v. State of        E
Bihar 6, Arun Bhandudas Pawar v. State of Maharashtra7, and
Poonam Bai v. State of Chhattisgarh8.
        8. On the other hand, Mr. Sachin Patil, learned counsel appearing
for the respondent - State of Maharashtra has with his usual vehemence,
disputed the arguments advanced by the other side and stated that both       F
the written dying declarations, the first one recorded by the I.O. at 3.20
PM and the second one recorded by the SEM (PW-9) at 4.30 PM, on
the very same day, were consistent and the deceased had clearly stated
that it was the appellant who had set her on fire. He also alluded to the
two fitness certificates issued by the attending doctor (PW-10) in respect   G
of the deceased before her statements were recorded and contended
4
  for short ‘Cr.PC’
5
  (2007) 15 SCC 465
6
  (2001) 6 SCC 407
7
  (2008) 11 SCC 232
8
  (2019) 6 SCC 145                                                           H
872             SUPREME COURT REPORTS                            [2022] 5 S.C.R.


A     that the said certificates showed that she was in a sound state of mind
      and competent to depose. Similarly, the oral dying declarations
      subsequently made by the deceased in the presence of her father
      (PW-2) and the mediator (PW-12) were also stated to be consistent
      with the version of the victim and worthy of credence. The narration as
      to the manner in which the deceased was set on fire was stated to be
B
      consistent and it was contended that the cross-examination of the said
      prosecution witnesses did not elicit anything favourable to the appellant
      on the above aspect. Learned State counsel referred to the Chemical
      Analyser Report in respect of the clothes of the deceased and the appellant
      that were seized from the spot to urge that it lent credence to the version
C     of the prosecution that the appellant had poured kerosene on the deceased
      and had set her on fire.
             9. In support of his submission that where there are conflicting
      dying declarations, the Court can accept one and discard the other as
      long as it is satisfied that the basic statement of the deceased had remained
D     consistent, learned State counsel cited State of Uttar Pradesh v. Veerpal
      and Another9, Rizan and Another v. State of Chhattisgarh10 and
      Bhagwan Tukaram Dange v. State of Maharashtra11. The decision
      in Trimukh Maroti Kirkan v. State of Maharashtra12 was cited to
      state that the onus remains on the accused to explain how the death had
      taken place within the privacy of the home, away from public gaze.
E
             10. We have given our thoughtful consideration to the arguments
      advanced by learned counsel for the parties and carefully perused the
      record. The entire issue in the present case hinges on the admissibility
      and evidentiary value of the dying declarations made by the deceased,
      two of which were in writing and recorded by PW-9 and PW-14 and the
F     other two were oral and communicated by the deceased to PW-2 and
      PW-12.
             11. Dying declaration is the last statement that is made by a person
      as to the cause of his imminent death or the circumstances that had
      resulted in that situation, at a stage when the declarant is conscious of
G     the fact that there are virtually nil chances of his survival. On an
      assumption that at such a critical stage, a person would be expected to
      9
        (2022) 4 SCC 741
      10
         (2003) 2 SCC 661
      11
         (2014) 4 SCC 270
H     12
         (2006) 10 SCC 681
               UTTAM v. THE STATE OF MAHARASHTRA                                 873
                          [HIMA KOHLI, J.]

speak the truth, courts have attached great value to the veracity of such        A
a statement. Section 32 of the Indian Evidence Act, 187213 states that
when a statement is made by a person as to the cause of death, or as to
any of the circumstances which resulted in his death, in cases in which
the cause of that person’s death comes into question, such a statement,
oral or in writing made by the deceased victim to the witness, is a relevant
                                                                                 B
fact and is admissible in evidence. It is noteworthy that the said provision
is an exception to the general rule contained in Section 60 of the Evidence
Act that ‘hearsay evidence is inadmissible’ and only when such an
evidence is direct and is validated through cross-examination, is it
considered to be trustworthy.
      12. In Kundula Bala Subrahmanyam and Another v. State of                   C
Andhra Pradesh14, this Court had highlighted the significance of a dying
declaration in the following words :
          “18. Section 32(1) of the Evidence Act is an exception to the
          general rule that hearsay evidence is not admissible evidence and
          unless evidence is tested by cross-examination, it is not              D
          creditworthy. Under Section 32, when a statement is made by a
          person, as to the cause of death or as to any of the circumstances
          which result in his death, in cases in which the cause of that
          person’s death comes into question, such a statement, oral or in
          writing, made by the deceased to the witness is a relevant fact        E
          and is admissible in evidence. The statement made by the
          deceased, called the dying declaration, falls in that category
          provided it has been made by the deceased while in a fit mental
          condition. A dying declaration made by person on the verge of his
          death has a special sanctity as at that solemn moment, a person is
          most unlikely to make any untrue statement. The shadow of              F
          impending death is by itself the guarantee of the truth of the
          statement made by the deceased regarding the causes or
          circumstances leading to his death. A dying declaration, therefore,
          enjoys almost a sacrosanct status, as a piece of evidence, coming
          as it does from the mouth of the deceased victim. Once the             G
          statement of the dying person and the evidence of the witnesses
          testifying to the same passes the test of careful scrutiny of the
          courts, it becomes a very important and a reliable piece of evidence
13
     for short ‘Evidence Act’
14
     (1993) 2 SCC 684                                                            H
874             SUPREME COURT REPORTS                           [2022] 5 S.C.R.


A            and if the court is satisfied that the dying declaration is true and
             free from any embellishment such a dying declaration, by itself,
             can be sufficient for recording conviction even without looking
             for any corroboration…….”
            13. In Shudhakar v. State of Madhya Pradesh15, this Court
B     had opined that once a dying declaration is found to be reliable, it can
      form the basis of conviction and made the following observations :
             “20. The “dying declaration” is the last statement made by a person
             at a stage when he is in serious apprehension of his death and
             expects no chances of his survival. At such time, it is expected
C            that a person will speak the truth and only the truth. Normally in
             such situations the courts attach the intrinsic value of truthfulness
             to such statement. Once such statement has been made voluntarily,
             it is reliable and is not an attempt by the deceased to cover up the
             truth or falsely implicate a person, then the courts can safely rely
             on such dying declaration and it can form the basis of conviction.
D            More so, where the version given by the deceased as dying
             declaration is supported and corroborated by other prosecution
             evidence, there is no reason for the courts to doubt the truthfulness
             of such dying declaration.”
             14. In Paniben (Smt.) v. State of Gujarat16, on examining the
E     entire conspectus of the law on the principles governing dying declaration,
      this Court had concluded thus :
             “18. …….. (i) There is neither rule of law nor of prudence that
             dying declaration cannot be acted upon without corroboration.
             (Munnu Raja v. State of M.P.17 )
F
             (ii) If the Court is satisfied that the dying declaration is true and
             voluntary it can base conviction on it, without corroboration. (State
             of U.P. v. Ram Sagar Yadav 18 ; Ramawati Devi v. State of
             Bihar 19).
             (iii) This Court has to scrutinise the dying declaration carefully
G
             and must ensure that the declaration is not the result of tutoring,
      15
         (2012) 7 SCC 569
      16
         (1992) 2 SCC 474
      17
         (1976) 3 SCC 104
      18
         (1985) 1 SCC 552
      19
H        (1983) 1 SCC 211
           UTTAM v. THE STATE OF MAHARASHTRA                                     875
                      [HIMA KOHLI, J.]

       prompting or imagination. The deceased had opportunity to observe         A
       and identify the assailants and was in a fit state to make the
       declaration. (K. Ramachandra Reddy v. Public Prosecutor20) .
       (iv) Where dying declaration is suspicious it should not be acted
       upon without corroborative evidence. (Rasheed Beg v. State of
       M.P.21)                                                                   B
       (v) Where the deceased was unconscious and could never make
       any dying declaration the evidence with regard to it is to be rejected.
       (Kake Singh v. State of M. P.22)
       (vi) A dying declaration which suffers from infirmity cannot form
       the basis of conviction. (Ram Manorath v. State of U.P.23)                C

       (vii) Merely because a dying declaration does not contain the
       details as to the occurrence, it is not to be rejected. (State of
       Maharashtra v. Krishnamurti Laxmipati Naidu24)
       (viii) Equally, merely because it is a brief statement, it is not be      D
       discarded. On the contrary, the shortness of the statement itself
       guarantees truth. (Surajdeo Oza v. State of Bihar25).
       (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
                                                                                 E
       deceased was in a fit and conscious state to make this dying
       declaration, the medical opinion cannot prevail. (Nanahau Ram
       v. State of M.P.26).
       (x) Where the prosecution version differs from the version as
       given in the dying declaration, the said declaration cannot be acted
                                                                                 F
       upon. (State of U.P. v. Madan Mohan27).
       15. In cases involving multiple dying declarations made by the
deceased, the question that arises for consideration is as to which of the
said dying declarations ought to be believed by the Court and what would
20
   (1976) 3 SCC 618
21
                                                                                 G
   (1974) 4 SCC 264
22
   1981 Suppl. SCC 25
23
   (1981) 2 SCC 654
24
   1980 Suppl. SCC 455
25
   1980 Suppl. SCC 769
26
   1988 Suppl. SCC 152
27
   (1989) 3 SCC 390                                                              H
876                SUPREME COURT REPORTS                           [2022] 5 S.C.R.


A     be the guiding factors for arriving at a just and lawful conclusion. The
      problem becomes all the more knotty when the dying declarations made
      by the deceased are found to be contradictory. Faced with such a
      situation, the Court would be expected to carefully scrutinize the evidence
      to find out as to which of the dying declarations can be corroborated by
      other material evidence produced by the prosecution. Of equal
B
      significance is the condition of the deceased at the relevant point in time,
      the medical evidence brought on record that would indicate the physical
      and mental fitness of the deceased, the scope of the close relatives/
      family members having influenced/tutored the deceased and all the other
      attendant circumstances that would help the Court in exercise of its
C     discretion.
             16. In Lakhan v. State of Madhya Pradesh 28, where the
      deceased was burnt by pouring kerosene oil on her and was brought to
      the hospital by the accused and his family members, the Court noticed
      that she had made two varying dying declarations and held thus :
D               “9. The doctrine of dying declaration is enshrined in the legal
                maxim nemo moriturus praesumitur mentire, which means “a
                man will not meet his Maker with a lie in his mouth”. The doctrine
                of dying declaration is enshrined in Section 32 of the Evidence
                Act, 1872 (hereinafter called as “the Evidence Act”) as an
E               exception to the general rule contained in Section 60 of the
                Evidence Act, which provides that oral evidence in all cases must
                be direct i.e. it must be the evidence of a witness, who says he
                saw it. The dying declaration is, in fact, the statement of a person,
                who cannot be called as witness and, therefore, cannot be cross-
                examined. Such statements themselves are relevant facts in certain
F               cases.
                10. This Court has considered time and again the relevance/
                probative value of dying declarations recorded under different
                situations and also in cases where more than one dying declaration
                has been recorded. The law is that if the court is satisfied that the
G               dying declaration is true and made voluntarily by the deceased,
                conviction can be based solely on it, without any further
                corroboration. It is neither a rule of law nor of prudence that a
                dying declaration cannot be relied upon without corroboration.

      28
H          (2010) 8 SCC 514
           UTTAM v. THE STATE OF MAHARASHTRA                                   877
                      [HIMA KOHLI, J.]

      When a dying declaration is suspicious, it should not be relied          A
      upon without having corroborative evidence. The court has to
      scrutinise the dying declaration carefully and must ensure that the
      declaration is not the result of tutoring, prompting or imagination.
      The deceased must be in a fit state of mind to make the declaration
      and must identify the assailants. Merely because a dying declaration
                                                                               B
      does not contain the details of the occurrence, it cannot be rejected
      and in case there is merely a brief statement, it is more reliable
      for the reason that the shortness of the statement is itself a
      guarantee of its veracity. If the dying declaration suffers from
      some infirmity, it cannot alone form the basis of conviction. Where
      the prosecution version differs from the version given in the dying      C
      declaration, the said declaration cannot be acted upon.
      (Vide Khushal Rao v. State of Bombay29, Rasheed Beg v. State
      of M.P. 30, K. Ramachandra Reddy v. Public Prosecutor 31,
      State of Maharashtra v. Krishnamurti Laxmipati Naidu32, Uka
      Ram v. State of Rajasthan33, Babulal v. State of M.P.34, Muthu
                                                                               D
      Kutty v. State. 35 , State of Rajasthan v. Wakteng 3 6
      and Sharda v. State of Rajasthan 37".
      17. In Amol Singh v. State of Madhya Pradesh38, when faced
with two dying declarations containing inconsistencies, the approach to
be adopted by the Court was summarized as under:
                                                                               E
      “13. Law relating to appreciation of evidence in the form of more
      than one dying declaration is well settled. Accordingly, it is not the
      plurality of the dying declarations but the reliability thereof that
      adds weight to the prosecution case. If a dying declaration is found
      to be voluntary, reliable and made in fit mental condition, it can be
      relied upon without any corroboration. The statement should be           F
      consistent throughout. If the deceased had several opportunities
      of making such dying declarations, that is to say, if there are more
29
   AIR 1958 SC 22
30
   (1974) 4 SCC 264
31
   (1976) 3 SCC 618                                                            G
32
   1980 Supp SCC 455
33
   (2001) 5 SCC 254
34
   (2003) 12 SCC 490
35
   (2005) 9 SCC 113
36
   (2007) 14 SCC 550
37
   (2010) 2 SCC 85
38
   (2008) 5 SCC 468                                                            H
878                SUPREME COURT REPORTS                            [2022] 5 S.C.R.


A               than one dying declaration they should be consistent. (See Kundula
                Bala Subrahmanyam v. State of A.P. 39) However, if some
                inconsistencies are noticed between one dying declaration and
                the other, the court has to examine the nature of the inconsistencies,
                namely, whether they are material or not. While scrutinising the
                contents of various dying declarations, in such a situation, the court
B
                has to examine the same in the light of the various surrounding
                facts and circumstances.”
            18. In Sher Singh and Another v. State of Punjab40, this Court
      has held thus :
C               “16. Acceptability of a dying declaration is greater because the
                declaration is made in extremity. When the party is at the verge
                of death, one rarely finds any motive to tell falsehood and it is for
                this reason that the requirements of oath and cross-examination
                are dispensed with in case of a dying declaration. Since the accused
                has no power of cross-examination, the court would insist that the
D               dying declaration should be of such a nature as to inspire full
                confidence of the court in its truthfulness and correctness. The
                court should ensure that the statement was not as a result of
                tutoring or prompting or a product of imagination. It is for the
                court to ascertain from the evidence placed on record that the
E               deceased was in a fit state of mind and had ample opportunity to
                observe and identify the culprit. Normally, the court places reliance
                on the medical evidence for reaching the conclusion whether the
                person making a dying declaration was in a fit state of mind, but
                where the person recording the statement states that the deceased
                was in a fit and conscious state, the medical opinion will not prevail,
F               nor can it be said that since there is no certification of the doctor
                as to the fitness of mind of the declarant, the dying declaration is
                not acceptable. What is essential is that the person recording the
                dying declaration must be satisfied that the deceased was in a fit
                state of mind. Where it is proved by the testimony of the Magistrate
G               that the declarant was fit to make the statement without there
                being the doctor’s opinion to that effect, it can be acted upon
                provided the court ultimately holds the same to be voluntary and


      39
           (1993) 2 SCC 684
H     40
           (2008) 4 SCC 265
              UTTAM v. THE STATE OF MAHARASHTRA                                    879
                         [HIMA KOHLI, J.]

          truthful. A certificate by the doctor is essentially a rule of caution   A
          and, therefore, the voluntary and truthful nature of a statement
          can be established otherwise.”
        19. It is thus clear that in cases where the Court finds that there
exist more than one dying declarations, each one of them must be
examined with care and caution and only after satisfying itself as to              B
which of the dying declarations appears to be free from suspicious
circumstances and has been made voluntarily, should it be accepted. As
observed in the judgments quoted above, it is not necessary that in every
case, a dying declaration ought to be corroborated with material evidence,
ocular or otherwise. It is more a rule of prudence that courts seek
validation of the dying declaration from attending facts and circumstances         C
and other evidence brought on record. For the very same reason, a
certificate by the doctor that the declarant was fit to make a statement,
is treated as a rule of caution to establish the truthfulness of the statement
made by the deceased.
       20. In Kundula Bala Subrahmanyam (supra), this Court had                    D
observed that if there are more than one dying declarations, then the
Court must scrutinize each one of them to find out whether the different
dying declarations are consistent with each other in material particulars
before accepting and relying on the same. At the end of the day, each
case must be decided on its own peculiar facts. There can be no hard               E
and fast rule on evaluation of the evidence brought before the Court,
including the surrounding circumstances at the time when the deceased
had made the dying declaration. The focus of the Court is of ensuring
the voluntariness of the process, of being satisfied that there was no
tutoring or prompting, of being convinced that the deceased was in a fit
state of mind before making the dying declaration, of ascertaining that            F
ample opportunity was available to the declarant to identify the accused.
      21. In Veerpal (supra), this Court has clarified that a dying
declaration can be acted upon without any other corroboration and
observed as below :
                                                                                   G
          “16. Now, on the aspect, whether in the absence of any
          corroborative evidence, there can be a conviction relying upon
          the dying declaration only is concerned, the decision of this Court
          in Munnu Raja41, and the subsequent decision in Paniben v. State
41
     (1976) 3 SCC 104                                                              H
880             SUPREME COURT REPORTS                            [2022] 5 S.C.R.


A            of Gujarat42, are required to be referred to. In the aforesaid
             decisions, it is specifically observed and held that there is neither
             a rule of law nor of prudence to the effect that a dying declaration
             cannot be acted upon without a corroboration. It is observed and
             held that if the Court is satisfied that the dying declaration is true
             and voluntary it can base its conviction on it, without corroboration.
B
             Similar view has also been expressed in State of U.P. v. Ram
             Sagar Yadav 43 and Ramawati Devi v. State of Bihar 44 .
             Therefore, there can be a conviction solely based upon the dying
             declaration without corroboration.”
            22. However, if a dying declaration suffers from some infirmity, it
C     cannot be the sole basis for convicting the accused. In those
      circumstances, the court must step back and consider whether the
      cumulative factors in a case make it difficult to rely upon the said dying
      declaration. In this context, it would be profitable to refer to Nallapati
      Sivaiah (supra), wherein this Court held as under :
D            “46. It is the duty of the prosecution to establish the charge against
             the accused beyond reasonable doubt. The benefit of doubt must
             always go in favour of the accused. It is true that dying declaration
             is a substantive piece of evidence to be relied on provided it is
             proved that the same was voluntary and truthful and the victim
E            was in a fit state of mind. The evidence of the Professor of Forensic
             Medicine casts considerable doubt as regards the condition of the
             deceased to make a voluntary and truthful statement. It is for that
             reason non-examination of Dr. T. Narasimharao, Casualty Medical
             Officer, who was said to have been present at the time of recording
             of both the dying declarations attains some significance. It is not
F            because it is the requirement in law that the doctor who certified
             about the condition of the victim to make a dying declaration is
             required to be examined in every case. But it was the obligation
             of the prosecution to lead corroborative evidence available in the
             peculiar circumstances of the case.
G            xxxx                        xxxx                       xxxx


      42
         (1992) 2 SCC 474
      43
         (1985) 1 SCC 552
      44
H        (1983) 1 SCC 211
          UTTAM v. THE STATE OF MAHARASHTRA                                     881
                     [HIMA KOHLI, J.]

      52. The dying declaration must inspire confidence so as to make           A
      it safe to act upon. Whether it is safe to act upon a dying declaration
      depends upon not only the testimony of the person recording the
      dying declaration—be it even a Magistrate but also all the material
      available on record and the circumstances including the medical
      evidence. The evidence and the material available on record must
                                                                                B
      be properly weighed in each case to arrive at a proper conclusion.
      The court must satisfy itself that the person making the dying
      declaration was conscious and fit to make statement for which
      purposes not only the evidence of persons recording the dying
      declaration but also cumulative effect of the other evidence
      including the medical evidence and the circumstances must be              C
      taken into consideration.”
      23. In Arvind Singh (supra), this Court has held that dying
declaration should be dealt with care and caution and corroboration
thereof, though not essential, is expedient in order to strengthen the
evidentiary value of the declaration. Even where independent witnesses          D
may not be available, all the precautions should be taken when it comes
to acceptance of such a statement as trustworthy evidence. In other
words, even though direct evidence may not be available, circumstantial
evident without a break in the chain of events, would add weight to the
evidentiary value of the dying declaration.
                                                                                E
      24. The principles governing the circumstances where the courts
can accept a dying declaration without corroboration, have been dealt
with extensively in Khushal Rao (supra) and for ready reference,
reproduced as under :
      “16. On a review of the relevant provisions of the Evidence Act           F
      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          G
      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            H
882            SUPREME COURT REPORTS                          [2022] 5 S.C.R.


A           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
B
            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,
C           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;
D
            and that the statement had been made at the earliest opportunity
            and was not the result of tutoring by interested parties.”
             25. The credibility of a dying declaration recorded by the
      Magistrate has also come up for consideration in several cases and it
      has been held that a Magistrate being an uninterested witness and a
E     respected officer and there being no circumstances or material to suspect
      that he would have any animus against the accused or would in any way
      be interested for fabricating a dying declaration, such a declaration
      recorded by the Magistrate, ought not be doubted. Absence of
      corroborative evidence for convicting an accused based on a dying
F     declaration has been a matter of discussion in several cases [Ref.:
      Munnu Raja (supra), Paniben (Smt.) (supra), Ram Sagar Yadav
      (supra), Ramawati Devi (supra) and Veerpal (supra)].
             26. Coming back to the case at hand, there is no dispute about the
      fact that the deceased did receive severe burn injuries on 27th March,
G     1995 at her house. Dr. Nareshchandra Sethia (PW-11), who had
      conducted the postmortem, stated that she had received burn injuries on
      both arms and legs, chest, abdomen, back, head, neck and face to the
      extent of 93%. He also deposed that the probable cause of her death
      was due to the said burn injuries.

H
            UTTAM v. THE STATE OF MAHARASHTRA                                   883
                       [HIMA KOHLI, J.]

       27. For convicting the appellant, the trial Court had primarily relied   A
upon the two written dying declarations of the deceased, one recorded
by the SEM (PW-9) and the other by the IO (PW-14) and the oral dying
declarations stated to have been made by the deceased to her father
(PW-2) and Balaji (PW-12), the Mediator who had settled the marriage
of the parties. However, noting the several loopholes in the procedure
                                                                                B
adopted while recording the dying declarations by the SEM (PW-9) and
the IO (PW-14), the High Court found it unsafe to rely on them and kept
them aside. The reasons are not far to see.
       28. Coming to the first dying declaration recorded by the IO, Sub-
Inspector Madhukar Gite (PW-14), the High Court found it difficult to
rely on the same for the following reasons:                                     C

      (a)    the requisition letter that PW-14 had stated he had received
             at the police station mentioning inter alia that the deceased
             had caught fire due to the border of her saree (Pallu) falling
             on the burning stove at the time of preparing snacks on the
             stove at her house at about 12.30 p.m., on the fateful day,        D
             did not mention the name of the hospital where the deceased
             was admitted. Pertinently, it was on the basis of the said
             requisition letter that PW-14 had proceeded to the Hospital
             to meet the deceased and record her statement;
      (b)    there was an ambiguity regarding the source from which             E
             PW-14 had received the aforesaid information and no effort
             was made to clarify the said ambiguity during the course of
             trial;
      (c)    PW-14 did not obtain any certificate from the attending
             doctor so as to establish the physical and mental condition        F
             of the deceased before recording her statement;
      (d)    the doctor was not even present when the statement of the
             deceased was recorded;
      (e)    the dying declaration was not recorded by PW-14 in
                                                                                G
             seclusion. Due to the presence of the relatives of the
             deceased at the time of recording her statement, the
             probability of the deceased being prompted/tutored could
             not be ruled out.

                                                                                H
884               SUPREME COURT REPORTS                        [2022] 5 S.C.R.


A           29. Following were the reasons that collectively weighed with the
      High Court for disregarding the second written dying declaration recorded
      by the SEM (PW-9):
            (a)     the attending doctor did not examine the deceased in the
                    presence of PW-9 before her statement was recorded;
B           (b)     the statement of the deceased was recorded by PW-9 in
                    the absence of the doctor;
            (c)     the doctor did not make any endorsement on the requisition
                    letter in thepresence of PW-9;

C           (d)     PW-9 did not record the statement of the deceased himself.
                    Instead, he delegated the task to the police constable who
                    reduced the statement of the deceased into writing;
            (e)     after reducing the statement into writing, the same was not
                    read over to the deceased before her signatures were
D                   obtained;
            (f)     the statement of the deceased was not recorded in a
                    question-answer format.
            30. The above infirmities were considered more than adequate
      for the High Court to have wholly discarded the two written dying
E     declarations of the deceased.
             31. Since there is no challenge laid to the findings returned by the
      High Court for discarding the two written dying declarations finding them
      riddled with deficiencies, thus making them unreliable, we do not propose
      to delve into their credit worthiness. Suffice it is to say that there was
F     every reason for the High Court to have found them untrustworthy.
      Instead, it is considered appropriate to examine the worth of the oral
      dying declarations stated to have been made by the deceased in the
      presence of PW-2 and PW-12.
             32. Ramkrishna Mahadeo Uchale (PW-2), father of the deceased
G     deposed that he had received a message regarding his daughter getting
      burnt and had rushed to Mayo Hospital where she was admitted. He
      noticed that the deceased had sustained burn injuries and was in a serious
      condition. He enquired from her as to how did the incident take place to
      which she stated that when she was cleaning wheat grain, on the fateful
      day, the appellant had come to the house, beaten her, poured kerosene
H
           UTTAM v. THE STATE OF MAHARASHTRA                                   885
                      [HIMA KOHLI, J.]

oil on her body and had set her on fire, while tying her hands. PW-2           A
deposed that after her marriage to the appellant in the year 1994, his
daughter used to complain that the appellant used to illtreat her on account
of demanding money and used to suspect her character. He stated that
he had lodged a report with the Pardi Village Police Station regarding
the same. During his cross-examination, PW-2 had denied that his
                                                                               B
statement was recorded by the police during the investigation. Although
the Assistant Public Prosecutor was permitted to re-examine PW-2 on
the above aspect, but nothing material emerged from the said
re-examination except that he stated that an inquiry was made by
Lakadganj police relating to the burning of his daughter. Significantly,
during the extensive cross-examination of the I.O. Sub-Inspector               C
Madhukar Gite (PW-14), he had categorically stated that he had recorded
the statement of PW-2, but during his cross-examination, PW-14 was
not confronted with any of the claims made by PW-2 pertaining to the
appellant having assaulted the deceased for money or of suspecting her
character, etc. In fact, at his turn, PW-14 had denied the fact that he had
                                                                               D
not recorded the statement of PW-2.
       33. The second oral dying declaration was made by the deceased
to Balaji (PW-12), the Mediator who was instrumental in solemnizing
the marriage of the appellant and the deceased. Though he deposed that
the appellant had made several demands on the deceased after the
marriage, including cash and a gold chain and that he used to threaten         E
her that if she did not bring money from her parents, he would beat her,
during his cross-examination, he admitted that he did not state so before
the police. PW-12 further stated that he along with PW-2 had gone to
visit the deceased at her house in the absence of the appellant and at
that time, she had complained that the appellant used to beat her and          F
requested that she be taken back to her parental home. Thereafter, PW-
12 and PW-2 had lodged a report against the appellant at the Lakadganj
Police Station. He further stated that the deceased was brought back to
her parent’s home for fifteen days. After she had returned to her
matrimonial house, fifteen days down the line, PW-12 claimed to have
received a chit stating that the deceased had caught fire and was admitted     G
in Mayo Hospital. When he visited the hospital, the deceased told him
that when she was cleaning wheat, the appellant had come home, tied
her hands with a ribbon and had taken her inside. Thereafter, the appellant
had poured kerosene on the body of the deceased and lighted a match
stick setting her on fire.                                                     H
886            SUPREME COURT REPORTS                           [2022] 5 S.C.R.


A            34. A perusal of the testimonies of PW-2 and PW-12 show that
      they have offered varying versions of what had allegedly been narrated
      to them by the deceased. Both of them stated that failure to satisfy the
      appellant’s constant dowry demands had led to the incident. There was
      no mention of the illicit relationship of the appellant with a widow in the
      neighbourhood which was a constant cause of quarrel between the
B
      deceased and her husband and had led to the incident. Pertinently, both
      the said witnesses stated that their statements were not recorded by the
      police during the investigation and that they had deposed for the first
      time only when they had entered the witness box during the trial.
             35. In Arun Bhanudas Pawar (supra), cited by learned counsel
C     for the appellant, this Court had declined to accept the testimony of an
      interested witness who happened to be the mother of the victim, in the
      absence of any corroboration from an independent witness including the
      Medical Officer who was attending to the victim, to prove that the victim
      had regained consciousness when the mother had met him in the hospital
D     and had named the accused as the assailant along with two other
      associates. An additional factor that weighed with the court for rejecting
      the testimony of the mother was that she had not stated so in her statement
      recorded by the Police under Section 161 Cr.P.C. and it was for the first
      time before the Court that she had made such a statement. Holding that
      the oral dying declaration made by the deceased ought to be treated
E     with care and caution, since the maker of the statement cannot be
      subjected to any cross-examination, the Court found fault with the High
      Court and trial Court for having accepted the said oral dying declaration
      allegedly made by the deceased to her mother, an interested witness,
      when there was nothing to show that the deceased was in a fit condition
F     to make an oral declaration to his mother. In Poonam Bai (supra), a
      similar view was taken by this Court and it was held thus:
            “16. As far as the oral dying declaration is concerned, the evidence
            on record is very shaky, apart from the fact that evidence relating
            to oral dying declaration is a weak type of evidence in and of
G           itself. As per the case of the prosecution, the deceased had made
            an oral dying declaration before Lalita Sahu (PW 2), Pilaram Sahu
            (PW 3), Parvati Bai (PW 4), and others. Though PWs 2, 3 and 4
            have deposed that the deceased did make an oral dying declaration
            before them implicating the appellant, this version is clearly only
            an afterthought, inasmuch as the same was brought up before the
H
           UTTAM v. THE STATE OF MAHARASHTRA                                   887
                      [HIMA KOHLI, J.]

      trial court for the first time. In their statements recorded by the      A
      police under Section 161 of the Code of Criminal Procedure, these
      witnesses had not made any statement relating to the alleged oral
      dying declaration of the deceased. These factors have been noted
      by the trial court in its detailed judgment. Thus, the evidence of
      PWs 2, 3 and 4 relating to the oral dying declaration is clearly an
                                                                               B
      improved version, and this has been proved by the defence in
      accordance with law.”
       36. We are of the opinion that once the High Court had disagreed
with the Session Court and discarded the two written dying declarations
of the deceased due to several glaring lacunae in the procedure adopted
by the SEM (PW-9) and the I.O. (PW-14) in recording the said statement,        C
then the appellant could not have been indicted on the oral testimony of
PW-2, father of the deceased and PW-12, family friend, both of who
were interested witnesses and whose evidence runs contrary to the
versions of the deceased recorded by PW-9 and PW-14. It must be
remembered that all the four dying declarations, two in writing and the        D
other two oral, were based on the statements given by the deceased at
different times on the very same day, i.e., 27th March, 1995, when she
had suffered 93% burn injuries and there are serious doubt about her
being mentally and physically fit to give her statement. The IO (PW-14)
had recorded the first dying declaration at 3.20 p.m. this was followed
by the SEM (PW-9) having recorded the second dying declaration                 E
between 4.30 p.m. and 5.00 p.m. It was on the very same day that
PW-2 and PW-12 had also met the deceased at the hospital and claimed
that she had informed them as to how she had received the burn injuries
and named the appellant as the culprit.
       37. Both, PW-2 and PW-12 have deposed that in her oral dying            F
declaration, the deceased had referred to the dowry demands made on
her by the appellant and the fact that he had suspected her character,
which led to the alleged incident. As noted above, nowhere in their
testimonies is there any reference made to the prosecution version that
the appellant was having an illicit relation with a widow residing in the      G
neighbourhood, which was the main cause of acrimony between the
couple and had resulted in the incident. The diametrically different version
of the reasons that led to the alleged incident casts a shadow on the
entire testimony of PW-2 and PW-12, making it unsafe to rely on them
and indict the appellant for the charge framed against him. We are
                                                                               H
888              SUPREME COURT REPORTS                          [2022] 5 S.C.R.


A     therefore of the opinion that the prosecution has failed to discharge the
      obligation cast on it of leading trustworthy corroborative evidence to
      back-up the testimonies of PW-2 and PW-12.
             38. In the light of the evidence discussed above and being mindful
      of the principles governing appreciation of the evidence related to multiple
B     dying declarations, we find it difficult to endorse the conclusion arrived
      at by the High Court. The evidence of PW-2 and PW-12 cannot be
      treated as stellar enough to hold the appellant guilty for the offence of
      murdering his wife. Hence, he is entitled to being granted benefit of
      doubt.
C             39. As a result of the aforesaid discussion, the impugned judgment
      is quashed and set aside. Consequently, the appellant is acquitted of the
      charge framed against him and is directed to be set at liberty forthwith,
      if not required in connection with any other case.
                                        ORDER
D                  For the reasons to be recorded separately, the appeal is
             allowed.
                   The judgment and order of the Additional Sessions Court,
             Nagpur dated 29.04.1997 and that of the High Court dated
             26.07.2010 are quashed and set aside.
E
                    The appellant is acquitted of all the charges and directed to
             be set at liberty forthwith, if not required in connection with any
             other case.

      Divya Pandey                                                  Appeal allowed.
F     (Assisted by : Roopanshi Virang, LCRA)




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