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 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 PW12 (mediator who had arranged the marriage of the parties) – Appeal filed by appellant, dismissed by High Court discarding the 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 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 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 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 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.
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 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 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 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 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 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 discretion. 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 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 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 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 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 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 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;
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 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 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 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 PW12 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 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. 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 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 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 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 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. 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 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 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 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 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 : [2014] 3 SCR 753; Trimukh Maroti Kirkan v. State of Maharashtra (2006) 10 SCC 681 : [2006] 7 Suppl. SCR
156 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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