Holding

Dying declarations recorded by a competent magistrate and a PSI are admissible and can, on their own, sustain a conviction under Sections 302, 342 and 34 IPC.

Summary

The appellant Vikas and others were convicted for murder and conspiracy under Sections 302, 342 and 34 of the IPC based primarily on two dying declarations of the victim, Rekha, recorded by a Special Judicial Magistrate and a Police Sub‑Inspector. The victim's father and a Panch witness, who turned hostile, were disregarded. The appellants argued that the dying declarations could not form the sole basis of conviction and that the hostile witnesses should have been given weight. The Supreme Court examined the admissibility of dying declarations under Section 32 of the Evidence Act, emphasizing the higher reliability of statements recorded by a competent magistrate and the principle that a dying person is unlikely to lie. It held that the two dying declarations were trustworthy, corroborated by other evidence, and sufficient for conviction, and that the lower courts were correct in discarding the hostile witnesses. Consequently, the appeal was dismissed and the conviction upheld.

Issues considered

Adequacy of dying declarations recorded by a Special Judicial Magistrate and a PSI as sole basis for conviction under Sections 302, 342 IPC.
Whether hostile statements of the victim's father and Panch witness should be given evidentiary weight.
Whether Section 32 Evidence Act requires corroboration for a dying declaration to support a conviction.
Whether the appellate court erred in upholding the conviction despite the alleged lack of corroboration.

Legislation cited

Indian Evidence Act, 1872s. 32, s. 60
Indian Penal Code, 1860s. 302, s. 34, s. 342, s. 498A

Subjects

dying declarationSection 32 Evidence ActadmissibilitymurderSection 302 IPCSection 342 IPCSection 34 IPChostile witnesscorroborationSupreme Court

Judgment

[2008] 1 S.C.R. 933

A VIKAS & ORS.
v.
STATE OF MAHARASHTRA
(Criminal Appeal 321 of 2006)
JANUARY 21, 2008
B
[C.K. THAKKER AND MARKANDEY KAT JU, JJ.]

Evidence Act, 1872 - s. 32 - Dying declaration -
Evidentiary value of- Death by burning - Father of deceased
c and panch witness became hostile - Conviction of husband
and in-laws u/ss. 302, 342 rlw s. 34 IPC by courts below- Based
on two dying declarations recorded by Special Judicial
Magistrate and PSI - Justification of- Held: Justified - In both
the dying declarations, deceased clearly attributed burn
injuries caused to her, to the accused persons - More so, dying
0
declaration recorded by competent Magistrate stands on a
much higher footing - Courts below rightly discarded evidence
of father of deceased and Pan.ch witness since they for some
unknown reasons supported defence case - Thus, order of
conviction calls for no interference - Penal Code, 1860 - ss.
E 302, 342 rlw s. 34
Maxims - Nemo moriturus praesumitur mentire - Meaning
of
According to the prosecution case, deceased R was
F married to accused no. 1 about 3-4 years before the death
of R. The matrimonial home of R was at place 'K'. Accused
no. 3 and 4 were her in-laws and accused no. 2 was the
brother of accused no. 1 and brother-in-law of R. He was
serving at place 'P' and used to frequently come to place
G 'K' and stay with other accused. Few months after the
marriage all the accused started demanding money
towards dowry and harassing and beating R to meet such
demands. It is alleged that on the fateful day, accused 1, 3
and 4 quarreled with R and all of them poured kerosene
H 933
VIKAS & ORS. v. STATE OF MAHARASHTRA 934
..
) on her. Accused No. 2 set her on fire. Thereafter, all the A
accused closed the door from outside and ran away.
Having heard the cries of R, neighbours rescued R,
extinguished the fire and took her to the hospitaL The
Special Judicial Magistrate, PW-5 as also PSI, PW-7
recorded dying declarations. Fourteen days later R died. 8
Investigation was carried out and charge sheet was filed.
The prosecution witnesses were examined. PW-1, father
-1 of the deceased and PW-2 Panch witness to the spot
Panchanama did not support the prosecution case and
were declared hostile. Prosecution relied upon PW 5 and c
PW 7. Trial court relying on the prosecution evidence and
the two dying declarations convicted and sentenced
accused no. 1, 3 and 4 under sections 498A, 302 and 342
r/w s. 34 IPC. However, accused no. 2 was acquitted since
he was not present at the time of incident and was also
D
not staying at village 'K'. In appeal, High Court upheld
conviction and sentence u/s 302, 342, r/w s. 34 IPC, but
acquitted them of the offence punishable u/s 498A r/w s.
34 IPC. Hence the present appeal.
Appellant-accused contended that the courts below E
committed an error of fact and of law in convicting the
appellants for offences punishable under s. 302 and 342
read with s. 34 IPC; that both the courts were wrong in
not giving due importance to oral dying declarations made
one before PW1, father of deceased and the other made F
'!
before PW-2, Panch witness and in heavily relying upon
dying declarations made before PW 5-Special Judicial
Magistrate and PW 7 -PSI, and thus, the appellants were
entitled to benefit of doubt.
Respondent-State contended that the courts below G
considered the evidence of PW 1 and PW 2 and recorded
a specific finding that for some undisclosed reasons, they
did not support the case of the prosecution and
supported the defence; that there was no reason for PW
5 who recorded dying declaration of deceased R on H
935 SUPREME COURT REPORTS [2008] 1 S.C.R.

A 17.5.2001 and PW 7 on 18.5.2001 to falsely implicate the
accused and they were rightly relied upon and believed
by both the courts; that the deceased caught fire on
16.5.2001 and she died after about 15 days on 1.6.2001;
and that from the evidence on record and on the basis of
B surrounding circumstances, offences punishable under
s. 302 and 342 r/w s. 34 IPC were clearly established.
Dismissing the appeal, the Court
HELD: 1.1 Section 32 of the Evidence Act, 1872 deals
c with statement by persons who cannot be called as
witnesses either because they are dead, or they cannot
be found, or they have become incapable of giving
evidence, or their attendance cannot be procured without
an amount of delay or expense. Those statements
themselves are relevant facts in certain cases. Section 32
D
is an exception to the general rule reflected in Section 60
of the Act which enacts that oral evidence in all cases must
·be direct, viz., if it refers to a fact which could be seen, it
must be the evidence of a witness who says he saw it; if it
refers to a fact which could be heard, it must be the
E evidence of a witness who says he heard it; if it refers to a
fact which could be perceived by any other sense or in
any other manner, it must be the evidence of a witness
who says he perceived it by that sense or in that manner.
[Para 20] (948-A, B, C, D]
F ~
1.2 Clause (1) of Section 32 of the Act has been
enacted by the Legislature advisedly as a matter of
necessity as an exception to the general rule that 'hearsay
evidence' is 'no evidence' and the evidence which cannot
be tested by cross-examination of a witness is not
G
admissible in a Court of Law. But the purpose of cross-
exa"mination is to test the veracity of the statement made
by a witness. The requirement of administering oath and
cross-examination of a maker of a statem~nt can be
dispensed with considering the situation in which such
H
VIKAS & ORS. v. STATE OF MAHARASHTRA 936

statement is made, namely, at a time when the person A
making the statement is almost dying. A man on the death-
bed will nottell lies. It has been said that when a person is
facing imminent death, when even a shadow of
continuing in this world is practically over, every motive
of falsehood is vanished. The mind is changed by most B
powerful ethical and moral considerations to speak truth
and truth only. Great solemnity and sanctity, therefore, is
attached to the words of a dying man. A person on the·
verge of permanent departure from his earthly world is
not likely to indulge into falsehood or to concoct a case c .
against an innocent person, because he is answerable to
his Maker for his act. Moreover, if the dying-declaration is
excluded from admissibility of evidence, it may result in
miscarriage of justice inasmuch as in a given case, the
victim may be the only eye-witness of a serious crime. D
Exclusion of his statement will leave the Court with no
evidence whatsoever and a culprit may go unpunished
causing miscarriage of justice. [Para 26] [950-B-G]
1.3 The principle underlying admissibility of dying
declaration is reflected in the well-known legal maxim: E
Nemo moriturus praesumitur mentire, i.e., a man will not
meet his maker with a lie in his mouth. A dying man is face
to face with his maker without any motive for telling a lie.
[Para 22] [949-C]
2. Where a dying declaration is recorded by a F
competent Magistrate, it would stand on a 'much higher
. footing'. This is also based on ordinary course of human
conduct. A competent M;:igistrate has no axe to grind
against the person named in the dying declaration of the
victim and in absence of circumstances showing anything G
to t_he contrary, he should not be disbelieved by the Court.
[Para 37] [955-D, E]
Khushal Rao v. State of Bombay 1958 SCR 552 ; Smt.
Paniben v. State of Gujarat, 1992 (2) SCC 47 4; Ravi Chander H
937 SUPREME COURT REPORTS [2008] 1 S.CR.

A and Ors. v. State of Punjab 1998 (9) SCC 303 : JT 1998 (8)
SC 211; Harjit Kaur v. State of Punjab, 1999 (6) SCC 545: JT
1999 (5) SC 317; Kofi Chunilal Savji and Anr. v. State of
Gujarat, 1999 (9) SCC 562: JT 1999 (7) SC 568; Uka Ram v.
State of Rajasthan 2001 (5) SCC 254 : JT 2001 (4) SC 472;
B P V Radhakrishna v. State of Kamataka (2003) 6 SCC 443 :
JT 2003 (6) SC 84 - relied of.
R. V Woodcock 1789 (1) Leach 500: 168 ER 352 -
referred to.
c 3. In the instant case, in both the dying declarations,
i.e. dying declaration recorded by PW 5, Special Judicial
Magistrate and dying declaration recorded by PW 7 PSI,
R clearly and unequivocally attributed burn injuries
caused to her, to the appellants-accused. Both the courts
relying on the dying declarations convicted the appellants.
0
Both the courts were wholly right and fully justified in
relying upon two dying declarations recorded by PW 5
Special Judicial Magistrate on May 17, 2001 and PW 7 PSI
on May 18, 2001 and in discarding evidence of PW 1, father
E of victim R and PW 2, Panch witness and observing that
PW 1 and PW 2 were favouring the defence and
deliberately did not support the case of the prosecution,
in the Court. The Courts were also right in observing that
for some unknown reasons PW 1 and PW 2 were
supporting the defence. But in the light of other eviden~e
F on record - oral as well as documentary-PW 1 could not
be said to be trustworthy and reliable witness. At the time
of investigation, his case was that the accused were
responsible for causing death of her daughter R, bl,Jt
subsequently he took totally opposite stand and
G supported the defence. However, the prosecution was
successful in bringing b.efore the Court PW 5, Special
Judicial Magistrate and PW 7 PSI who recorded dying
declarations of deceased R. Both the courts were right in
convicting the appellants for offences punishable under
H s. 302 and 342 r/w s. 34 IPC. Therefore, there is no ground
VIKAS & ORS. v. STATE OF MAHARASHTRA 938
[C.K. THAKKER, J.]

· to interfere with the order of conviction and sentence A
recorded by the trial Court and confirmed by the High
Court. [Paras 16, 19 and 44] [946-C; 947-F, G, H; 948-A;
958-A, 8, C, D, E]
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal B.
No. 321 of 2006.
From the Judgment and final Order dated 20.12.2005 of
the High Court of Judicature at Bombay, Bench atAurangabad
in Crl. A. No. 321/2005.
Sudhanshu Chaudhari, Rajshri Dubey and Naresh Kumar C
for the Appellants.
Sushi! Karanjkar and Ravindra Keshavrao Adsure for the
Respondent.
The Judgment of the Court was delivered by. D
C.K. THAKKER, J. 1. The present appeal is filed by the
appellants-accused against judgment and order passed by the
High Court of Judicature at Bombay (Aurangabad Bench) on
December 20, 2005 in Criminal Appeal No. 321 of 2005
convicting them for offences punishable under Sedions 302 and E
342 read with Section 34 of the Indian Penal Code (IPC). The
High Court, by the impugned judgment, partly confirmed the
order passed by the Third Ad-hoc Additional Sessions Judge,
Ahmednagar on April 16, 2005 in Sessions Case No. 92 of
2001. F
2. The case of the prosecution was that deceased Rekha
was given in marriage by PW 1 Laxmn Pingale to accused No.
1 Vikas Vayse. Accused No. 2 was brother ofVikas and brother-
in-law of deceased Rekha. The marriage was solemnized in or
about 1997-98 before 3 to 4 years of the incident in question. G
According to the prosecution, the accused demanded dowry
and there was some dispute even at the time of betrothal
ceremony which was locally knbwn as 'Sakharpuda'. After the
marriage, Rekha went to her matrimonial home at Khandvi. For
few months, the marriage relations went on well. Thereafter, H
939 SUPREME COURT REPORTS [2008) 1 S.C.R.

A however, all the accused started demanding money towards
dowry. They used to harass and beat Rekha. Rekha could not
satisfy the demand of the accused due to poverty of her parents.
She complained to her parents about ill-treatment shown by the
accused whenever she had visited to parental home. Though
B accused No. 2 Prakash was serving at Pune, frequently he was
coming to Khandvi and staying with other accused. He used to
abuse deceased Rekha and instigate accused persons to give
ill-treatment to Rekha. Meanwhile accused came to know that
father of Rekha had sold his land for Rs. one lakh. They, therefore,
c repeated demand of dowry and continued giving more trouble
to her. Rekha also gave birth to two children; (i) Varsha-daughter,
and (ii) Yogesh-son.
3. On the fateful day, i.e. on May 16, 2001, at about 11.00
a.m., accused No.1, husband of Rekha started quarrelling with
D the deceased. Accused Nos. 3 and 4, parents of accused No.
1 also participated in the quarrel. All of them, according to the
prosecution, poured kerosene on the person of Rekha; accused
Vikas ignited match-stick and set Rekha on fire. All the accused
then closed the door from outside and ran away. Rekha cried
E for help. On hearing the shouts, neighbours reached the place,
opened the door, poured water on her, extinguished the fire and
took her to the hospital. Dying declarations were recorded by
. Ramchandra Ganpat Dimale, Special Judicial Magistrate as
also by PSI Bapu Yashwant Kale on May 17 and 18, 2001
F respectively. Rekha died on June 1, 2001. After registration of
offence being Crime No. 80 of 2001, investigation was carried
out by PSI Kale. On completion of investigation, charge-sheet
was filed in the Court of Judicial Magistrate, First Class, Karjat
and the case was committed to the Court of Session.
G 4. Defence of the accused was of total denial. According
to them, there was no ill-treatment towards Rekha. Regarding
· fire, it was the case of the accused that on the day of incident,
sari of Rekha caught fire by accident while she was working
near a fire place and it was accused No. 1 who extinguished
H fire. She was taken in a tractor and then in a jeep to Civil Hospital,
VIKAS & ORS. v. STATE OF MAHARASHTRA 940
[C.K. THAKKER, J.]

Ahmednagar. But a false case was filed against them at the A
instigation of Smt. Bondre, maternal aunt of Rekha.
5. In order to establish offence against the accused,
prosecution examined seven witnesses. So far as PW 1
Laxman Pingale, father of the victim is concerned, he did not
support the case of the prosecution and was declared 'hostile'. B
Similarly, Manohar Sahebrao Vayse, PW 2, Panch witness to
the Spot Panchnama (Ex. 47) also did not support the case
·1 and he was also declared 'hostile'. The prosecution, in the
circumstances, mainly relied upon two witnesses, PW 5
Ramchandra Ganpat Dimale, Special Judicial Magistrate who c
recorded dying declaration of deceased Rekha between 11 :30
and 11 :52 a.m. on May 17, 2001, i.e. next day of the incident
and P.W. 7, Bapu Yashwant Kale, PSI who also recorded dying
declaration between 12:30 to 13:00 hrs. on May 18, 2001.
D
6. The trial Court after considering the evidence on record,
held that from the prosecution e.vidence and particularly from
two dying declarations said to have been recorded by PW 5
Ramchandra, Special Judicial Magistrate, and PW 7, PSI Kale,
it was clearly established by prosecution beyond reasonable
doubt that accused Nos. 1, 3 and 4 caused death of deceased E
Rekha. So far as Accused No. 2 is concerned, the trial Court
acquitted him presumablY. on the ground that he was not present
at the time of incident and was also not staying at village Khandvi.
He was serving at Pune. The remaining three accused were
-\ held responsible for demand of dowry and for kiling deceased F
Rekha and thereafter closing the door from outside so that she
may not be able to come out and save herself. All the three
accused thus were convicted for offences punishable under
Sections 498A, 302 and 342 read with Section 34, IPC. For an
offence punishable under Section 302 read with Section 34, G
\
the accused were ordered to suffer imprisonment for life and
pay a fine of Rs. 5,000/- each. In default of payment offine, they
were ordered to suffer further rigorous imprisonment for six
months each. For an offence punishable under Section 498A
read with Section 34, IPC, they were ordered to undergo H
941 SUPREME COURT REPORTS (2008) 1 S.C.R.

A rigorous imprisonment for one year and to pay fine of Rs.500/- 1

each, in default to payment offine, to undergo imprisonment for
six months and for offence under Section 342 read with Section
34, they were ordered to undergo imprisonment for six months.
7. Being aggrieved by the order of conviction and sentence,
8 the appellants preferred an appeal in the High Court. The High
Court again appreciated the evidence and by a well-reasoned
judgment, came to the conclusion that though PW 1 Laxman
Pingale, father of the deceased and PW 2 Panch Manohar
Vayse did not support the case of the prosecution, from two
c dying declarations, it was clearly established that the accused
had committed offences punishable under Section 302 and 342
read with Section 34, IPC. Accordingly, order of conviction and
sentence recorded by the trial Court was held proper and the
said order was confirmed by the High Court. As to an offence
D punishable under Section 498A read with Section 34, IPC,
however, the High Court held that since it was not the case of
the prosecution that Rekha was driven to death by committing
suicide due to demand of dowry, it could not be said that the
offence was established. All the accused persons were,
E therefore, acquitted of offence punishable under Section 498A
read with Section 34, IPC. The above decision is challenged in
the present appeal.
8. Leave was granted on March 10, 2007, but the prayer
for bail was rejected. The matter was then ordered to be placed
F for final hearing and that is how the matter is before us.
9. We have heard the learned counsel for the parties.
10. The learned counsel for the appellant strenuously urged
that both the courts committed an error of fact and of law in
G convicting the appellants for offences punishable under Sections
302 and 342 read with Section 34, IPC. It was submitted that
the genesis of the prosecution story became doubtful when PW
1 Laxman did not support the case. Similarly, from the evidence
of PW 2 Manohar, it was not established that the appellants
H were responsible for death of Rekha. On the contrary, from the
VIKAS & ORS. v. STATE QF MAHARASHTRA 942
[C.K. THAKKER, J.]

... evidence of two witnesses, it was clear that accused No. 1 Vikas A
attempted to save Rekha and he also sustained burn injuries. It
was further submitted that in all there were four dying
declarations. Two dying declarations were initial in point of time
and they were oral. The first dying declaration was before PW 1
Laxman, father of the deceased by the deceased wherein she B
stated that fire was accidental and accused were not responsible
for burn injuries sustained by ·her. This was clearly proved from
the evidence of PW 1 Laxman. The second dying declaration
was also oral and it was made before PW 2 Manohar, Panch
witness. In that dying declaration also, she stated that nobody c
was responsible for the inCident and the fire was accidental.
·Both the courts were wrong in not giving due importance to oral
dying declarations and in heavily relying upon dying declarations
of May 17, 2001 before PW 5 Ramchandra, Special Judicial
Magistrate and of May 18, 2001 before PW 7 PSI Kale. On all
D
these grounds, it was submitted that the appellants are entitled
., to benefit of doubt and the orders passed by both the courts
deserve to be set aside.
11. The learned counsel for the State, on the other hand,
supported the order of conviction and sentence. He submitted E
that both the courts considered the evidence of PW 1, Laxman
and PW 2 Manohar and recorded a specific finding that for some
undisclosed reasons, they did not support the case of the
prosecution and supported the defenc:;e. But there was no reason
for PW 5 Ramchandra, Special Judicial Magistrate who F
~ recorded dying declaration of deceased Rekha on May 17, 2001
to falsely implicate the accused and he was rightly relied upon
and believed by both the courts. Similarly, there was no reason
for PW 7 PSI Kale who also recorded the dying declaration of
the deceased Rekha on May 18, 2001 to involve the accused.
G
Deceased caught fire on May 16, 2001 and she died after about
15 days on June 1, 2001. If, in the light of these circumstances,
botA the courts recorded a finding of guilt against accused, it
... cannot be said that the orders deserve interference by this Court .
Moreover, the trial court acquitted Accused No.2 Prakash by
. H
943 SUPREME COURT REPORTS [2008] 1 S.C.R.

A giving benefit of doubt. Again, the High Court extended benefit
of doubt to the remaining accused (appellants) so far as offence
punishable under Section 498A read with Section 34, IPC is
concerned. But from the evidence on record and on the basis
of surrounding circumstances, offences punishable under
B Sections 302 and 342 read with Section 34, IPC were clearly
established and the appeal deserves to be dismissed.
12. Having heard the learned counsel for the parties, in
our considered opinion, both the courts were right in convicting
the appellants for offences punishable under Sections 302 and
C 342 read with Section 34, IPC. It is no doubt true that PW 1,
Laxman Pingale, father of deceased Rekha did not support the
prosecution. But it is equally true and the High Court has
considered the evidence of the said witness in detail and has
come to the conclusion that for some unknown reasons, he
o wanted to oblige the accused. The High Court also noted that
from the intrinsic evidence on record, it was proved that he was
a 'liar'. For coming to that finding, the High Court relied upon
several circumstances, such as, it observed that though it was
the case of the Investigating Officer, PW 7 PSI Kale that
E statement of PW 1 Laxman was recorded and a supplementary
statement was also recorded, PW 1 Laxman had audacity to
depose before the Court on oath that his statement was never
recorded by the police. The High Court, in our opinion, is right
in observing that in such cases, police would normally record
statements of all persons who are near relatives of the deceased.
F Father of the deceased was one such person and police would '-
not fail to record his statement. Again, PW 1, Laxman had stated
on oath that it was accused No. 1 who brought injured Rekha to
the hospital. That was clearly false and it was proved from
documentary evidence of the hospital. According to the
G prosecution, all the appellants poured kerosene on Rekha,.set
her on fire, closed the door from outside and ran away from the
spot. Having heard the cries of Rekha, neighbours reached at
the place, opened the house of the accused and took her to the ....
hospital. This is also clearly proved from the entry which is found
H in the hospital register from which it was proved that it was not
VIKAS & ORS. v. STATE OF MAHARASHTRA 944
[C.K. THAKKER, J.]
., accused NO. 1 who brought the injured to the hospital. Ex.41, A
which is an intimation received by Topkhana Police Station on
telephone from Civil Hospital, Ahmednagar, dated June 01,
2001 reads as under;
"Rekha ... As she was injured due to burns, she was
admitted by Bebi Shantilal Vaise on 16.05.2001 at 15/00 B
hrs. for treatment and white she was under treatment she
expired on 01.06.2001 at 05.45 hrs. i.e. Rekha, who was
admitted as a burn patient by Baby Shantilal Vayse on
16.05.2001 15.00 hours for treatment, has expired on
01.06.2001 at 5:45 hours". c
13. The High Court, in the circumstances, stated;
"It can be seen that these two statements, which have
come in the chief examination at the cost of prosecution,
are improvements over and above the Police statement. D
The falsehood of the father is obvious when he denies that
his statement was recorded by Police. When it is unnatural
death by burning, Police are bound to record the statement
of every possible person, who can throw some light upon
the relationship of victim with her husband and in-laws E
and the enquiry is bound to continue till the Police can
reach a logical conclusion as to the nature of death i.e.
whether accidental, suicidal or homicidal. The father, when
he denies that Police have recorded his statement, it ought
~
to be read in between the lines that he is telling patent lies. F
Father of the victim would be the closest person and Police
would not be in a position to close the investigation without
recording the statement of father of the victim. It is difficult
to swallow this version of the father that although dead
body was handed over to him after post mortem, Police
G
have not recorded his statement. These are the days when
~ we are required to ~ttend to writ petitions even on the
criminal side filed by aggrieved complainant or relatives
of victim when Police show laxity or keep any lacunae in
their investigation. The deposition of the father that he did
H
945 SUPREME COURf REPORTS [2008] 1 S.C.R.

A not give any statement to the Police can, therefore, be
seen to be a patent lie."
..
14. The Court proceeded to state;
"In spite of this hostility, the father has admitted that
B Executing Magistrate removed him outside room where
Rekha was admitted when he recorded statement of
deceased Rekha. Thus, further deposition confirms
recording of the statement of Rekha by the Magistrate.
During the cross examination by defence, father claims
c that he reached Civil Hospital, Ahmednagar, on
16.05.2001 after telephonic message of Rekha having
suffered burn injuries. Here he repeated the exonerating
dying declaration by saying:
"It is true that she was also telling Police that her one
D · end of saree fell on fire and she was burnt. Accused
Vikas told me that he poured water from the mud pot
to extinguish the fire of Rekha." ~

.
Thereafter, he switched over to correct himself that this
was told by Rekha and not by Vikas. This concluding part
E of the cross examination clearly indicates that father is
making exonerating statements in a calculated manner.
This is evident from the next statement after this correction.
The father says:

F "When I was talking with Rekha, accused Vikas went
to bring medicine. Accused brought Rekha in the
Civil Hospital, Ahmednagar."
Probably, father felt necessity of absence of Vikas to be
of importance when he learnt about accused Vikas having
G tried to extinguish the victim and, therefore, he corrected
himself by saying that he learnt about the action of accused ~
trying to extinguish Rekha, from Rekha, and for the
purpose, he also claimed that Vikas had gone to fetch
medicines."
H
VIKAS & ORS. v. STATE OF MAHARASHTRA 946
[C.K. THAKKER, J.]

ct· 15. The High Court, therefore, rightly concluded; A
"We must say that for the reasons unknown to this Court,
father is a witness having scant respect for the truth and
we are, therefore, not inclined to accept any of his
admissions favourable to defence, either to challenge the
inculpatory material or to dilute the effect of the same." B

~
16. The High Court also dealt with the evidence of PW 2
i
Manohar, Panch witness and observed that for some reason,
he wanted to oblige the accused. He stated that the accused
brought Rekha to the hospital, which was obviously incorrect c
since as per the hospital record, she was taken to the hospital
by Baby Shantilal.
17. The Court, however, in our opinion, rightly observed
that the prosecution had to stand on its own legs and the case
against the accused could not be said to be established D
because of weakness or infirmity in defence version. But in our
view, the Court was right i,n relying upon evidence of PW 5,
Ramchandra, Special Judicial Magistrate and in the dying
declaration of deceased Rekha. According to the Court, PW 5
was a retired Gaietted Officer of Armed Forces aged about 76 E
years. He stated on oath that on May 17, 2001, he received
requisition from police at about 11.00 a.m. (Ex.55) requesting
him to record a dying declaration. He obtained the details of
the victim from the police, took them down on a piece of paper
... ).
upon which he proposed to record dying declaration and r
proceeded to Out Patient Department (OPD). He contacted the
Medical Officer on duty, requested him to accompany to examine
the patient and give his opinion whether she was in a position
to make statement. The doctor certified that the patient was .
conscious i;ind fit to give statement. The doctor expressed that
G
....
opinion after putting certain questions to the patient and certified
) that she was in a position to give a statement. PW5 thereafter
recorded the dying declaration of Rekha at 11-25 a.m. which
was read over to her. She admitted it to be correct and put her
thumb impression on it. The recording of dying declaration was
H
947 SUPREME COURT REPORTS [2008] 1 S.C.R.

A over at 11.52 a.m. The witness put his signature as .Special
Judicial Magistrate in margin along with the seal. According to
PW 5 Ramchandra, the doctor was present by his side all
throughout when he was recording the statement of Rekha. After
the statement was recorded, the Doctor again certified the
B fitness of the patient and put his signature, date and time. The
said dying declaration was exhibited as Ex. 56.
18. It was strenuously urged by the learned counsel for the
appellants before the High Court as well as before us that after
the dying declaration was recorded, an endorsement was made
C by the Doctor and he put his signature by putting time as 11.55
p.m. It was, therefore, contended that either the dying declaration
was not recorded by PW 5 Ramchandra, Special Judicial
Magistrate between 11.30 to 11.52 a.m. as asserted by him or
the Doctor was not there when the dying declaration was
D recorded and his endorsement was not taken at 11.55 a.m.,
but it was subsequently placed before him for his signature at
11.55 p.m. In our opinion, however, the High Court was right in
relying upon substantive evidence of PW 5 Ramchandra and in
relying upon the dying declaration observing that the typist in
E putting the time at 11.55 p.m., had committed mistake, really it
-
was 11.55 a.m.
19. The High Court was also right in relying upon another
dying declaration recorded by PW 7 PSI Kale. During the course
of investigation, the Investigating Officer on May 18, 2001,
F between 12.30 to 13.00 hrs. recorded the dying declaration of ; ,
Rekha after taking opinion of the doctor that she was in a position
and in a fit condition to give statement. In both the dying
declarations, i.e. dying declaration recorded by PW. 5
Ramchandra, Special Judicial Magistrate and dying declaration
G recorded by PW 7 PSI Kale, Rekha clearly and unequivocally
attributed burn injuries caused to her to the appellants herein.
Both the courts, relying on the dying declarations, convicted the
appellants. So far as oral dying declarations are concerned, as
observed by us, the High Court was right in discarding them
H observing that PW 1 and PW 2 were favouring the defence and
VIKAS & ORS. v. STATE OF MAHARASHTRA 948.
[C.K. THAKKER, J.]

deliberately did not support the case of the prosecution in Court. A
20. The question thus is confined to evidentiary value of
dying declarations of, Rekha. Section. 32 of the Evidence Act,
1872 (hereinafter referred to as 'the Act) deals with statement
by persons who cannot be called as witnesses either because
they are dead, or they cannot be found, or they have become
8
incapable of giving evidence, or their attendance cannot be
procured without an amount of delay or expense. Those
statements themselves are relevant facts in certain cases.
Section 32 is an exception to the general rule reflected in Section
60 of the Act which enacts that oral evidence in all cases must C
be direct, viz., if it refers to a fact which could be seen, it must
be the evidence of a witness who says he saw it; if it refers to a .
fact which could be heard, it must be the evidence of a witness
who says he heard it; if it refers to a fact which could be perceived
by any other sense or in any other manner, it must be the D
~·- evidence of a witness who says he perceived it by that sense or
in that manner. ·

21. Section 32 contains several clauses. Clause (1) relates
to cause of death and is usually known as 'dying declaration'. E
The said clause reads thus;
When _it relates to cause of death.-(1) When the·
statement is made by a person as to the cause of his
death, or as to any of the circumstances of the transaction
which resulted in his death, in cases in which the cause of F
that person's death comes into question.
Such statements are relevant whether the person who
made them was or was not, at the time when they were
made, under expectation of death, and whatever may be
111111 the nature of the proceeding in which the cause of his G
death comes into question.
Illustration
(a) The question is, whether A was murdered by B; or
H
949 SUPREME COURT REPORTS [2008] 1 S.C.R.

A A dies of injuries received in a transaction in the course
i: -
of which she was ravished. The question is, whether she
was ravished by B; or
The question is whether A was killed by B under such
circumstances that a suit would lie against B by A's widow.
B
Statements made by A as to the cause of his or her death
referring respectively to the murder, the rape and the
actionable wrong under consideration are relevant facts.
22. The principle underlying admissibility of dying
C declaration is reflected in the well-known legal maxim: Nemo
moriturus praesumitur mentire; i.e. a man will not meet his
Maker with a lie in his mouth. A dying man is face to face with
his Maker without any motive for telling a lie.
23. "Truth" said Mathew Arnold, "sits upon the lips of a dying
D man".
24. Shakespeare, great writer of the sixteenth century,
through one of his characters explained the basic philosophy
thus;
E "Have I met hideous
death within my view,
Retaining but a quantity of life,
Which bleeds away,
Even as a form of wax,
F
Resolveth from his figure,
Against the Fire?
What is the world should
Make me now deceive,
G Since I must lose the use of all deceit?
Whyshould I then be false,
Since it is true
That I must die here,
Live hence by truths?"
H (King John, Act V, Sect. IV)
VIKAS & ORS. v. STATE OF MAHARASHTRA 950
[C.K. THAKKER, J.]

25. The Great poet also said at another place; A
, '¥

"Where words are scarce,
They are seldom spent in vain;
They breathe the truth,
That breathe their words in pain". B
(Richard II)
26. Clause (1) of Section 32 of the Act has been enacted
"f by the Legislature advisedly as a matter of necessity as an
exception to the general rule that 'hearsay evidence' is 'no
evidence' and the evidence which cannot be tested by cross- c
examination of a witness is not admissible in a Court of Law.
But the purpose of cross-examination is to test the veracity of
the statement made by a witness. The requirement of
administering oath and cross-examination of a maker of a
statement can be dispensed with considering the situation in D
... which such statement is made, namely, at a time when the
" person making the statement is almost dying. A man on the
death-bed will not tell lies. It has been said that when a person
is facing imminent death, when even a shadow of continuing in
this world is practically over, every motive of falsehood is E
vanished. The mind is changed by most powerful ethical and
moral considerations to speak truth and truth only. Great
solemnity and sanctity, therefore, is attached to the words of a
dying man. A person on the verge of permanent departure from
. '\,
his earthly world is not likely to indulge into falsehood or to F
concoct a case against an innocent person, because he is
answerable to his Maker for his act. Moreover, if the dying-
declaration is excluded from admissibility of evidence, it may
result in miscarriage of justice inasmuch as in agiven case, the
victim may be the only eye-witness of a serious crime. Exclusion G
of his statement will leave the Court with no evidence
"' whatsoever and a culprit may go unpunished causing
" miscarriage of justice.
27. The question as to admissibility of dying declaration
came up for consideration before Indian as well as foreign H
951 SUPREME COURT REPORTS [2008] 1 S.C.R.

A courts.
28. Before more than two centuries, in R. V. Woodcock,
(1789) 1 Leach 500: 168 ER 352, Eyre, CV proclaimed;
"The general principle on which this species of evidence
B is admitted is that they are declarations made in extremity,
when the party is at the point of death, and when every
hope of this world is gone, when every motive to falsehood
is silenced and the mind induced by the most powerful
consideration to speak the truth; situation so solemn and
c so awful is considered by the law as creating an obligation
equal to that which is imposed by a positive oath
administered in a Court of Justice".
29. Khushal Rao v. State of Bombay, 1958 SCR 552 was
probably the first leading case decided by this Court on
D admissibility of dying declaration. In that case, the accused was
convicted by the Court relying on three dying declarations
recorded by the attending Doctor, Sub-Inspector of Police and •
First Class Magistrate. It was contended before this Court on
behalf of the accused relying on conflicting views expressed by
E varjous High Courts that no conviction can be recorded solely
on the basis of dying declaration. Reference was made to an
earlier decision of this Court in Ram Nath Madhoprasad v. State
of Madhya Pradesh, AIR 1953 SC 420, in which the following
observations were made by this Court;
F "It is settled law that it is not safe to convict an accused l ..

person merely on the evidence furnished by a dying
declaration without further corroboration because such
a statement is not made on oath and is not subject to
cross-examination and because the maker of it might
G be mentally and physically in a state of confusion and
might well be drawing his imagination while he was
making the declaration".
(emphasis supplied)
30. In Khushal Rao, this Court stated;
H
VIKAS & ORS. v. STATE OF MAHARASHTRA 952
[C.K. THAKKER, J.]

·"We have, therefore, to examine the legal position whether A
:i
it is settled law that a dying declaration by itself can, in no ·
circumstances, be the basis of a conviction".

31. The Court then observed that in Ram Nath, considering
factual situation and other evidence on record, this Court ruled
B
that the dying declaration was not true and could not be solely
relied upon to base the conviction .
• 32. The Court then said;
.f
"It is, thus, clear that the observations quoted above,
of this Court, are in the nature of obiter dicta. But as c
it was insisted that those observations were binding upon
the courts in India and upon us, we have to examine
them with the care and caution· they rightly deserve".
(emphasis supplied)
D
,, 33. Considering Clause (1) of Section 32 of the Act, this
., Court held that the provision has been made by the Legislature
advisedly as a matter of sheer necessity by way of an exception
to the general rule that hearsay is no evidence and that evidence
which has not been tested by cross examination is not E
admissible. But it observed that when a person making the
statement is in danger of losing his life, at such serious and
solemn moment, he will not tell lies. Since he cannot be cross-
examined, necessity of administering oath has been dispensed
with. The Legislature, in the circumstances, has accorded a F
.\
)
special sanctity which should, on first principles, be respected
unless there are clear circumstances brought out in the evidence
to show that the person making the statement was not in
expectation of death. It was further observed that the sai.d
circumstance would not affect the admissibility of the statement
G
but.only its weight.
't '.
34. Considering the views expressed by different High
Courts and also leading commentaries, the Court summarized
the principles thus:
H
953 SUPREME COURT REPORTS [2008) 1 S.C.R.

A (1) that it cannot be laid down as an absolute rule of law •
i:
that a dying declaration cannot form the sole basis
of conviction unless it is corroborated;
(2) that each case must be determined on its own facts
keeping in view the circumstances in which the dying
B declaration was made;
(3) that it cannot be laid down as a general proposition
1
that a dying declaration is a weaker kind of evidence
than other piece of evidence; •
c (4) that a dying declaration stands on the same footing
as another piece of evidence and has to be judged
in the light of surrounding circumstances and with
reference to the principles governing the weighing of
evidence;
D
(5) that a dying declaration which has been recorded by
a competent magistrate in the proper manner, that is
to say, in the form of questions and answers, and, as '
far as practicable, in the words of the maker of the
declaration, stands on a much higher footing than a
E
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
F declaration, the Court has to keep in view the
( I
circumstances like the opportunity of the dying man
for observation, for example, whether there was
sufficient light if the crime was committed at night;
whether the capacity of the man to remember the
G facts stated had not been impaired at the time he
was making the statement, by circumstances beyond
his control; that the statement has been consistent .,,•
throughout if he had several opportunities of making
a dying declaration apart from the official record of
it; and that the statement had been made at the
H
VIKAS & ORS. v. STATE OF MAHARASHTRA 954
[C.K. THAKKER, J.]

earliest opportunity and was not the result of tutoring A
. ')'•
by interested parties .
35. In Smt. Paniben v. State of Gujarat, (1992) 2 SCC
474, this Court again considered the law relating to dying
declaration and as to when such declaration can form sole basis
of conviction. Referring to earlier cases, the Court held that a B
dying declaration is entitled to great weight. Once the Court is
t satisfied that the declaration is true and voluntary, it could base
,, conviction without corroboration. It cannot be laid down as an
absolute rule of law that the dying declaration cannot form the
sole basis of conviction unless it is corroborated. The rule c
requiring corroboration is merely a rule of prudence and not a
rule of law.
36. The Court, referring to earlier case law, summed up
principles governing dying declaration as under:
D
~
(i) There is neither rule of law nor of prudence that dying
" declaration cannot be acted upon without
corroboration.
(ii) If the Court is satisfied that the dying declaration is
true and voluntary it can base conviction on it, without E
corroboration.
(iii) This Court has to scrutinise the dying declaration
carefully and must ensure that the declaration is not
the result of tutoring, prompting or imagination. The F
~) deceased had opportunity to observe and identify
the assailants and was in a fit state to make the
declaration.
(iv) Where dying declaration is suspicious it should not
be acted upon without corroborative evidence. G
.....
~
(v) Where the deceased was unconscious and could
never make any dying declaration the evidence with
regard to it is to be rejected.
(vi) A dying declaration which suffers from infirmity cannot H
955 SUPREME COURT REPORTS (2008) 1 S.C.R.

A form the basis of conviction.
(vii) Merely because a dying declaration does not contain
the details as to the occurrence, it is not to be rejected.
(viii) Equally, merely because it is a brief statement, it is
B not to be discarded. On the contrary, the shortness
of the statement itself guarantees truth.
(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
c where the eye witness has said that the deceased
was in a fit and conscious state to make this dying
declaration, the medical opinion cannot prevail.
(x) Where the prosecution version differs from the
version as given in the dying declaration, the said
D
declaration cannot be acted upon.
37. One of the principles formulated by this Court in
Khushal Rao was that where a dying declaration is recorded
by a competent Magistrate, it would stand on a 'much higher
E footing'. We are in respectful agreement with the above view. In
our judgment, this is also based on ordinary course of human
conduct. A competent Magistrate has no axe to grind against
the person named in the dying declaration of the victim and in
absence of circumstances showing anything _to the contrary, he
F should not be disbelieved by the Court.
38. In Ravi Chander & Ors. v. State of Punjab, (1998) 9
SCC 303: JT 1998 (8) SC 211, accused were prosecuted for
offences punishable under Sections 498A, 302, 3048 read with
Section 34, IPC. Dying declaration of the bride was recorded.
G Veracity of the said declaration was questioned by the accused.
Placing reliance mainly on the dying declaration recorded by
the Executive Magistrate, the trial Court convicted the accused
and the High Court confirmed the conviction. The aggrieved
accused approached this Court.
H
VIKAS & ORS. v. STATE OF MAHARASHTRA 956
[C.K. THAKKER, J.]

..
39. The Court noted that though the dying declaration A
.l'
recorded by the Executive Magistrate was sent to the
Investigating Officer after a fortnight, the genuineness of the dying
declaration could not be doubted. It was observed that in the
first dying declaration said to have been recorded by the
Investigating Officer, death was shown to be accidental. But it B
was held that the second dying declaration before the Executive
Magistrate was reliable. It was further observed that in absence
.;.
of any circumstance or material on record to establish that the
Executive Magistrate had any animus against the person or in
any way interested in fabricating the dying declaration, it ought c
to be accepted. The conviction was accordingly upheld.

40. Harjit Kaur v. State of Punjab, (1999) 6 SCC 545 : JT
1999 (5) SC 317, was another case of bride burning. There
dying declaration was recorded by Sub-Divisional Magistrate,
the genuineness of which was challenged interalia on the ground D
that there was an agitation by the relatives of the deceased and
" the declaration was recorded by the Sub-Divisional Magistrate
under pressure. The Court, however, held that Sub-Divisional
Magistrate being independent witness holding high position,
had no reason to do anything which was not proper. It was E
therefore, held that genuineness of dying declaration could not
be doubted and conviction recorded on that basis could not be
faulted.

41. In Kofi Chunila/ Savji & Anr. v. State of Gujarat, (1999)
1) 9 sec 562 : JT 1999 (7) SC 568, there was no specific F
endorsement of doctor as to mental fitness of the deceased to
make the dying declaration. However, it had come in evidence
that the deceas~d was certified to be in a position to make
·dying declaration and accordingly, ,the dying declaration was
recorded. This Court held that requirement as to doctor's G
endorsement as to mental fitness of the deceased was 'only a
~
rule of prudence' and the ultimate test was whether the dying
declaration was truthful and voluntary. The Magistrate who
recorded the dying declaration was examined as a witness and
he categorically deposed that at the hospital, on being asked, H
957 SUPREME COURT REPORTS [2008] 1 S.C.R.

A the doctor told her that the deceased was conscious and in a fit
mental condition. It was held that it was sufficient to come to the
conclusion that dying declaration was proper and could be relied
upon.

42. In Uka R?m v. State of Rajasthan, (2001) 5 SCC 254
8
: JT 2001 (4) SC 472, it was indicated that the Court must be
satisfied about the trustworthiness and voluntary nature of the
dying declaration and fitness of the. mind of the deceased. If
despite knowing that deceased was a mental patient, Investing ,.
Agency fails to take precaution to ensure that whether the death
C was suicidal or homicidal, conviction cannot be based solely
on dying declaration of the deceased.

43. In P V Radhakrishna v. State of Karnataka, (2003) 6
SCC 443 : JT 2003 (6) SC 84, this Court considered doctrine
of dying declaration indicated in legal maxim "nemo moriturus
0
praesumitur mentire" (a man will not meet his Maker with a lie
in his mouth), and stated;

"Though a dying declaration is entitled to great weight, it
is worthwhile to note that the accused has no power of
E cross-examination. Such a power is essential for eliciting
the truth as an obligation of oath could be. This is the
reason the Court also insists that the dying declaration
should be of such a nature as to inspire full confidence of
the Court in its correctness. The Court has to be on guard
F that the statement of deceased was not as a result of
either tutoring, or prompting or a product of imagination.
/ ,
The Court must be further satisfied that the deceased was
in a fit state of mind after a clear opportunity to observe
and identify the assailant. Once the Court is satisfied that
the declaration was true and voluntary, undoubtedly, it can
G
base its conviction without any further corroboration. It
cannot be laid down as an absolute rule of law that the
dying declaration cannot form the sole basis of conviction
unless it is corroborated. The rule requiring corroboration
is merely a rule of prudence.
H
VIKAS & ORS. v. STATE OF MAHARASHTRA 958
[C.K. THAKKER, J.]
[see also Babu Lal v. State of M.P, (2003) 12 SCC 490; A
Muthu Kutty v. State, (2005) 9 SCC 113]
44. Applying the above principles to the facts of the case,
in our judgment, both the courts were wholly right and fully
justified in relying upon two dying declarations recorded by (i) B
PW 5 Ramchandra, Special Judicial Magistrate on May 17,
2001 (Ex. 56) and (ii) PW 7 PSI Kale on May 18, 2001 (Ex. 62)
and in discarding evidence of PW 1 Laxman, father of victim
Rekha and PW2 Manohar, Panch. The Courts were also right
in observing that for some unknown reasons PW 1 Laxman,
father of victim Rekha was supporting the defence. But in the C
light of other evidence on record - oral as well as documentary
- PW 1 Laxman could not be said to be trustworthy and reliable
witness. At the time of investigation, his case was that the
accused were responsible for causing death of her daughter
Rekha, but subsequently he took totally opposite stand and D
supported the defence. The prosecution, however, was
successful in bringing before the Court PW 5 Ramchandra,
Special Judicial Magistrate and PW 7 PSI Kale who recorded
dying declarations of deceased Rekha. Both the witnesses were
rightly believed by the courts below. We, therefore, see no E
ground to interfere with the order of conviction and sentence
recorded by the trial Court and confirmed by the High Court.
The appeal, therefore, deserves to be dismissed.
45. For the foregoing reasons, the appeal is dismissed.
Order of conviction and sentence recorded against the r
appelhrnts is upheld.
N.J. Appeal dismissed.