REPORTABLE  IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1094 OF 2006  

Jaishree Anant Khandekar ...Appellant(s)

- Versus -

State of Maharashtra   ..Respondent(s)

J U D G M E N T

GANGULY, J.

1. The tragic incident happened over spilled milk.

2. On 15.12.2000, Aruna, w/o Nagnath- accused No.4,

received severe burn injuries in an incident which

took place around 2.30 p.m. Aruna, the victim, was

staying  in  her  house  at  Dhangar,  Moha,  District

Parbhani  with  her  three  children  aged  about  6

years,  3  years  and  8  months  respectively.  The

appellant’s  husband  was  the  nephew  of  Aruna  and

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they were having the relations as cousin mother-in-

law and daughter-in-law.  Admittedly the relation

was far from cordial. Nagnath, husband of Aruna,

was  serving  in  SRP  and  not  at  the  place  of

occurrence at the time of the alleged incident. The

appellant and her husband, who was serving as a

teacher, were staying in another part of the same

house as a tenant and the house was owned by Aruna.

There was easy access from one house to the other.

The  incident  is  said  to  have  occurred  in  the

kitchen of Aruna. The appellant did not dispute her

presence in the place of occurrence.

3. The prosecution allegation as unfolded is that

on 15.12.2000, in the afternoon, Aruna kept a pot

of milk on an electric hot plate in the kitchen,

and at that time electricity supply was not there

but the switch was on.  Keeping the pot in that

position, Aruna went to the terrace but when she

got  the smell of burnt milk,  she rushed to the

kitchen to find that electric supply had resumed

and boiling milk had spilled over the pot.  Seeing

this, Aruna got annoyed and asked the appellant why

did  she  not  inform  Aruna  about  resumption  of 2

electric current and the spilling of milk. To that

question  of  Aruna,  appellant  became  annoyed  and

responded in words which were rather offensive.  

4. Further allegation is that the appellant did

not stop at her harsh reply but entered the kitchen

of Aruna, took the kerosene container and poured it

on her shoulder and, thereafter, ignited the flame

and ran to the terrace and declared that Aruna had

received burns from electric current.

5. The victim sustained severe burn injuries which

were estimated at 100% and was rushed to the Rural

Hospital at Gangakhed and, thereafter, shifted to

S.R.T.R Medical College Hospital at Ambajogai. In

the course of receiving treatment, she succumbed to

her burn injuries on 1.1.2001.  

6. She  was  thus  alive  for  15  days  after  the

incident. The statement of Aruna which was recorded

by API Sk. Abdul Rauf at Rural Hospital, Gangakhed

was  registered  as  F.I.R.  and  on  completion  of

investigation chargesheet was filed.

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7. In all seven witnesses were examined by the

prosecution and the Court also examined three more

witnesses. Several dying declarations were given by

the deceased-Aruna.

8. In  this  matter  six  persons  had  to  face  the

trial  for  charges  under  Section  498A  read  with

Section 34 of I.P.C.

9. The  present  appellant  was  charged  for  an

offence of murder under Section 302 and the other

five accused persons were tried for having abetted

commission of offence of murder by the appellant.

10. The learned Sessions Judge acquitted all the

accused persons of the charges under Section 498-A

read with Section 34 I.P.C. The accused Nos. 2 to 6

were also acquitted of the charges under Section

302 read with Section 109 I.P.C.

11. The appellant was held guilty of the offence of

murder  punishable  under  Section  302  I.P.C.  and

sentenced to suffer imprisonment for life and also

to pay a fine of Rs. 1000/-, in default, to suffer

further simple imprisonment for four months.

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12. It is an appeal by the sole appellant.

13. On  15.12.2000,  Aruna  made  five  dying

declarations  at  different  hours  and  the

prosecution relied on them and it appears that

both  the  Trial  Court  and  the  High  Court

sustained the prosecution case primarily on the

basis  of  those  dying  declarations.  Those

declarations are as follows:

(1) Exhibit 48 – Case history recorded by Dr. Sangram (P.W. 2) upon admission at Gangakhed Hospital.

(2) Exhibit 58 – Dying declaration recorded by  ASI  Sk.  Abdul  Rauf  and  treated  as FIR.

(3) Exhibit 52 – Dying declaration recorded by Executive Magistrate Shivaji (P.W.3).

(4) Exhibit 87 – Dying declaration recorded by Executive Magistrate Smt. Bilkis at Ambajogai at 7 p.m.

(5) Exhibit 79 – Dying declaration recorded by CW1 Head Constable Lamture at 10:25 p.m. at Ambajogai.

14. The High Court found that though there is some

deviation in the narration of facts in these

five dying declarations but they are consistent

in  material  particulars  in  the  sense  that 5

certain facts are common in all of them.  They

are that after a brief exchange of hot words,

the appellant poured kerosene over the shoulder

of Aruna and ignited her. It is also clear that

nobody came to help the victim to extinguish

the flames and the victim was trying to do that

with water. The appellant came to the terrace

and  declared  that  the  victim  has  got  burnt

through electric current.  

15. The  defence  version  is  that  Aruna  is  hot

tempered and did not approve the stay of the

appellant  in  her  house  even  though  the

appellant  and  her  husband  were  staying  by

paying rent. Aruna used to pick up quarrels

with the appellant on flimsy pretexts and she

was keen to ensure that the appellant does not

stay in the house at Gangakhed.

16. Further, defence version is that the appellant

tried  to  extinguish  the  fire  of  Aruna  and

during the process, she suffered burn injuries.

The appellant’s stand in her statement under

Section 313 of the Cr.P.C., 1973 is that Aruna

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herself set her on fire and appellant tried to

extinguish  the  flames  and  in  the  process

sustained  certain  burn  injuries  and  she  has

been  falsely  implicated  out  of  the  victim’s

grudge towards her.

17. It appears that the injuries on the appellant

are very insignificant. She sustained only 4-5%

burn injuries that too not on her palm but near

her elbow.

18. Neither  the  Trial  Court  nor  the  High  Court

accepted  the  defence  plea  and  it  is  also

difficult for us to accept the same.

19. We find that the High Court has made a detailed

analysis of all the dying declarations which

are marked as Exhibit Nos. 48, 52, 58, 79 and

87 and out of these dying declarations, the

High Court found that Exhibit Nos. 48, 52, 79

and 87 are not without defects.  The High Court

found, Exhibit 58, which is treated as F.I.R.,

had  an  endorsement  to  the  effect  that  the

patient  was  fully  conscious  at  the  time  of

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making the statement.  In it an endorsement was

made  by  the  Medical  Officer  that  the  dying

declaration   (Exhibit  58)  was  read  over  to

Aruna and she had admitted that the same has

been correctly recorded.

20. Learned Judges of the High Court found that

Exhibit 58 was recorded within 15-20 minutes

prior to 3:45 p.m. and on the basis of the

same, F.I.R. was registered at 4 p.m.

21. Learned Counsel for the appellant assailed the

dying declarations pointing out certain defects

in their recording, but the learned Judges of

the Trial Court and the High Court rightly did

not attach much importance to that inasmuch as

they  are consistent  in material  particulars.

Learned Judges of the High Court found that the

two dying declarations (Exhibits 58 and 87) are

acceptable  and reliable.  Learned Judges  also

found that the dying declaration (Exhibit 48),

which  records  the  history  by  the  Medical

Officer, is also reliable.

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22. We  also  find  that  the  evidence  of  P.W.4

(Bhaskar) in substantial part corroborates the

facts  stated  in  the  dying  declaration.

Therefore, the statement in dying declaration

is not uncorroborated.

23. The law relating to dying declaration is an

exception to the hearsay rule.   

24. The rationale behind admissibility of a dying

declaration  was  best  expressed,  not  in  any

judgment,  but  in  one  of  the  soliloquies  in

Shakespeare’s King John, when fatally wounded

Melun wails: ‘Have I met hideous  death within my view,

Retaining but a quantity of life,  Which bleeds away  

even as a form of wax,  Resolveth from his figure  

’gainst the fire?  What in the world should  

make me now deceive,  Since I must lose the use of all deceit?  Why should I then be false  

since it is true  That I must die here  

and live hence by truth?’ (See King John, Act V, Scene iv.)

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25. Both Taylor and Wigmore in their treatise on

Evidence took refuge to the magic of Shakespeare to

illustrate the principles behind admissibility of

dying declaration by quoting the above passage.  

26. Among  the  judicial  fraternity  this  has  been

best  expressed,  possibly  by  Lord  Chief  Justice

Baron Eyre (See.  R. Vs.  Woodcock, (1789) 1 Lea. 502, and which I quote: -

“...That such declarations are 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  is

induced  by  the  most  powerful

considerations  to  speak  the  truth;  a

situation  so  solemn  and  so  awful  is

considered  by  the  law  as  creating  an

obligation, equal to that which is imposed

by  a  positive  oath  in  a  court  of

justice...”

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27. The test of admissibility of dying declaration

is stricter in English Law than in Indian Law.

28. Sir James Fitzjames Stephen in 1876 brought out

a  ‘Digest  of  the  Law  of  Evidence’  and  its

introduction  is  of  considerable  interest  even

today.   The  author  wrote  that  English  Code  of

Evidence is modelled on the Indian Evidence Act of

1872.   29. In the words of the author:

“In  the  autumn  of  1872  Lord Coleridge  (then  Attorney  General) employed me to draw a similar code for England.  I did so in the course of the  winter,  and  we  settled  it  in frequent consultations.  It was ready to be introduced early in the Session of 1873.  Lord Coleridge made various attempts to bring it forward, but he could not succeed till the very last day of the Session.  He said a few words on the subject on the 5th August, 1873,  just  before  Parliament  was prorogued.   The Bill was thus never made public, though I believe it was ordered to be printed.  

It was drawn on the model of the Indian  Evidence  Act  and  contained  a complete  system  of  law  upon  the subject of evidence.”

30. In that book, Article 26 sums up the English

law relating to dying declaration as under:-

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“Article 26.  Dying Declaration as to Cause of Death  

A declaration made by the declarant as to the cause of his death, or as to any of the circumstances of the transaction which resulted  in  his  death,  is  deemed  to  be relevant only in trials for the murder or manslaughter  of  the  declarant;  and  only when  the  declarant  is  shown,  to  the satisfaction of the judge, to have been in actual danger of death, and to have given up all hope of recovery at the time when his declaration was made.

Such a declaration is not irrelevant merely because it was intended to be made as a deposition before a magistrate, but is irregular.”  

 (emphasis supplied)

31. In Section 32(1) of the Indian Evidence Act the

underlined portion is not there. Instead Section 32

(1) is worded differently and which is set out: “32. Cases in which statement of relevant fact by person who is dead or cannot be found,  etc.,  is  relevant –  Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found,  or  who  has  become  incapable  of giving evidence, or whose attendance cannot be procured, without an amount of delay or expense  which  under  the  circumstances  of the case appears to the Court unreasonable, are  themselves  relevant  facts  in  the following cases:-

(1) when it relates to cause of death – When the statement is made by a person as to the cause of his death, or to any of the circumstances  of  the  transaction  which resulted in his death, in cases in which

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the cause of 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 the nature of the proceeding in which the cause of his death comes into question.”  

 (emphasis supplied)

32. The Privy Council in the case of Nembhard Vs. The Queen, 1982 (1) The All England Law Reports 183 (Privy Council), while hearing an appeal from the

Court of Appeal of Jamaica, made a comparison of

the English Law and Indian Law by referring to the

underlined portions of Section 32(1) of the Indian

Evidence Act at page 187 of the report. Sir Owen

Woodhouse, speaking for the Privy Council, pointed

out the different statutory dispensation in Indian

Law prescribing a test of admissibility of dying

declaration  which  is  distinct  from  a  common  law

test in English Law.   

33. Apart from an implicit faith in the intrinsic

truthfulness  of  human  character  at  the  dying

moments  of  one’s  life,  admissibility  of  dying

declaration  is  also  based  on  the  doctrine  of 13

necessity.  In many cases victim is the only eye

witness  to  a  crime  on  him/her  and  in  such

situations exclusion of the dying declaration, on

hearsay principle, would tend to defeat the ends of

justice.  American Law on dying declaration also

proceeds  on  the  twin  postulates  of  certainty  of

death leading to an intrinsic faith in truthfulness

of human character and the necessity principle.   

34. On certainty of death, the same strict test of

English  Law  has  been  applied  in  American

Jurisprudence.  The  test  has  been  variously

expressed  as  ‘no  hope  of  recovery’,  ‘a  settled

expectation of death’.  The core concept is that

the expectation of death must be absolute and not

susceptible to doubts and there should be no chance

of operation of worldly motives. (See Wigmore on

Evidence page 233-234).    35. This  Court  in  Kishan  Lal Vs.  State  of Rajasthan,  AIR  1999  SC  3062,  held  that  under English Law the credence and the relevance of the

dying  declaration  is  admissible  only  when  the

person  making  such  statement  is  in  hopeless

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condition and expecting imminent death.  Justice

Willes coined it as a “settled hopeless expectation

of death” (R Vs. Peel, (1860) 2 F. & F. 21, which was approved by the Court of Criminal Appeal in R Vs.  Perry, (1909) 2 KB 697). Under our Law, the declaration is relevant even if it is made by a

person, who may or may not be under expectation of

death, at the time of declaration. (See para 18,

page 3066). However, the declaration must relate to

any of the circumstances of the transaction which

resulted in his death. 36. Again  in  Sudhakar  and  Another Vs.  State  of Maharashtra, AIR 2000 SC 2602, a three-Judge Bench of  this Court noted that Indian  Law has made a

departure  from  English  Law  relating  to

admissibility of dying declaration.  This Court has

held in para 7 as follows:- “(1) Section 32 is an exception of the rule

of hearsay and makes admissible the statement of a person who dies, whether the death is a homicide or a suicide, provided the statement relates  to  the  cause  of  death,  or  exhibits circumstances  leading  to  the  death.  In  this respect,  as  indicated  above,  the  Indian Evidence  Act,  in  view  of  the  peculiar conditions  of  our  society  and  the  diverse nature and character of our people, has thought it necessary to widen the sphere of Section 32 to avoid injustice.”  

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37. Going by the wider test and considering the

facts of this case, we have no hesitation that the

dying declarations on which High Court has placed

reliance are admissible.  

38. Certain cases have been cited at the Bar by the

learned counsel for the parties which lay down the

same principles and are discussed below.

39. Reliance was placed by the learned counsel for

the  appellant  on  the  decision  of  this  Court  in

Sanjay Vs. State of Maharashtra, (2007) 9 SCC 148. In that case, this Court held that the husband is

entitled to the benefit of doubt in view of the

fact  that  the  first  dying  declaration  and  the

subsequent  one  substantially  vary  in  essential

particulars.  

40. In the instant case the factual position is not

the same, so the decision in Sanjay (supra) has no application.  

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41. Reliance was also placed by the learned counsel

on the decision in Mohan Lal and Ors Vs. State of Haryana, (2007) 9 SCC 151, wherein the Court found that before the dying declaration was recorded, the

relatives  of  the  deceased  including  father  and

mother of the deceased were present with her and

were subsequently asked to leave the room. In the

facts of that case, learned Judges opined that the

dying  declaration  was  clearly  the  result  of

tutoring and was not a free and voluntary one.  The

same is not the factual position in this case.  

42. Reliance  was  also  placed  on  Maniben  w/o Danabhai  Tulshibai  Maheria Vs.  State  of  Gujarat, (2007) 10 SCC 362, where S.B. Sinha, J. delivering

the judgment held that minor discrepancies in dying

declaration  would  not  be  material.  The  learned

Judge also held that a dying declaration does not

cease to be one just because death took place 25

days after the incident. This view of His Lordship

is,  if  I  may  so  with  respect,  consistent  with

Section 32 of the Indian Evidence Act. In support

of this, the learned Judge relied on a decision of

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this Court in Ravikumar alias Kutti Ravi Vs. State of Tamil Nadu, (2006) 9 SCC 240, in which case this Court gave certain guidelines on the basis of which

dying declaration has to be appreciated. Relevant

excerpts from the judgment in Ravikumar alias Kutti Ravi (supra) would show that the principles laid down  therein  are  applicable  in  the  facts  of  the

present  case.   Those  excerpts  are  extracted

hereunder: “5. Section  32  of  the  Evidence  Act,

1872 is an exception to the general rule against  hearsay.  Sub-section  (1)  of Section  32  makes  the  statement  of  the deceased  admissible  which  is  generally described  as  “dying  declaration”.  The dying  declaration  essentially  means statements made by the person as to the cause  of  his  death  or  as  to  the circumstances  of  the  transaction resulting in his death. The admissibility of the dying declaration is based upon the principle that the sense of impending death  produces  in  man’s  mind  the  same feeling as that of a conscientious and virtuous  man  under  oath.  The  dying declaration  is  admissible  upon consideration that the declarant has made it in extremity, when the maker is at the point  of  death  and  when  every  hope  of this world is gone, when every motive to the falsehood is silenced and the mind is induced  by  the  most  powerful consideration  to  speak  the  truth. Notwithstanding  the  same,  care  and caution must be exercised in considering the weight to be given to these species of evidence on account of the existence of  many  circumstances  which  may  affect their truth. The court has always to be on guard to see that the statement of the deceased  was  not  the  result  of  either tutoring  or  prompting  or  a  product  of imagination. The court has also to see

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and ensure that the deceased was in a fit state of mind and had the opportunity to observe  and  identify  the  assailant. Normally, therefore, the court in order to satisfy itself that the deceased was in fit mental condition to make the dying declaration, has to look for the medical opinion. Once the court is satisfied that the declaration was true and voluntary, it undoubtedly, can base its conviction on  the  dying  declaration  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  the  rule  of prudence.....”

43. Applying  the  aforesaid  principle,  this  Court

finds that in the facts and circumstances of the

present  case,  the  dying  declaration  has  to  be

accepted.

44. Reliance  was  also  placed  on  Sham  Shankar Kankaria Vs.  State of Maharashtra, (2006) 13 SCC 165, where the learned Judge referred to the issue

of admissibility of the evidence recorded in dying

declaration,  on  the  maxim  of  “nemo  moriturus

paesumitur mentire – which means “a man will not

meet his Maker with a lie in his mouth.”  

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45. Therefore,  if  the  aforesaid  principles  are

applied in the instant case, the Court finds that

the dying declarations in this case can be relied

upon.

46. In the case of Shaikh Bakshu & Ors Vs. State of Maharashtra, (2007) 11 SCC 269, the Court held that if  there  are  serious  infirmities  in  the  dying

declaration, namely, discrepancy as to the place of

occurrence,  as  to  the  burn  marks  and  also

discrepancy as to how the deceased was brought to

the  hospital,  conviction  on  the  basis  of  such  a

dying declaration is not sustainable.

47. In  the  instant  case,  there  are  no  such

discrepancies.  Facts  in  all  the  five  dying

declarations match in their essential particulars.

Therefore,  the  case  of  Shaikh  Bakshu (supra)  is distinguishable from the present case.

48. In the case of  State of Rajasthan  Vs.  Parthu, (2007) 12 754, where the State came up in appeal

against the order of acquittal granted by the High

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Court, this Court while reversing the High Court

judgment  of  acquittal  held  that  non  issuance  of

certificate in the dying declaration to the effect

that  the  statement  of  the  deceased  was  recorded

correctly before the Investigating Officer will not

vitiate the same.  Learned Judge held by referring

to  several  judgments   that   the   hypertechnical

view   should   not   be   taken.    The   Bench

also  held  that  the  view  of  this  Court  in

Paparambaka Rosamma and others Vs.   State of A.P.  , (1999) 7 SCC 695, has not been correctly decided

and is not the correct enunciation of law.  On this

judgment reliance was also placed by the learned

counsel for the State and we are of the view that

the ratio of this judgment delivered by S.B. Sinha,

J. supports the State in the present case also.

49. In the decision in the case of Vithal Vs. State of  Maharashtra,  (2006)  13  SCC  54  the  same principles  have  been  reiterated.  In  a  case  of

multiple  dying  declarations,  if  there  is  no

inconsistency, the same are reliable. Learned Judge

also held that the mere fact that the accused who

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is alleged to have poured kerosene on the deceased

was inimically disposed towards the deceased cannot

by  itself  be  a  fact  to  disbelieve  the  dying

declaration or to throw out the prosecution case.  

50. In  Ranjit Singh & Ors Vs.   State of Punjab, (2006) 13 SCC 130 , S.B. Sinha, J. speaking for the

Bench  laid  down,  if  there  is  an  inconsistency

between  the  two  dying  declarations,  the  Court

should apply caution but the consistent part can be

taken  note  of.  His  Lordship  has  also  held  that

corroboration is required in the event of suspicion

as regards correctness or otherwise of the dying

declaration.  

51. In  Sham Shankar Kankaria (supra), a Two-Judge Bench of this Court pointed out the rationale for

relying on dying declaration on the principles laid

down in Paniben (Smt) Vs. State of Gujarat, (1992) 2 SCC 474. Learned Judge further held that the rule

of  corroboration  on  the  facts  stated  in  the

declaration  is  only  one  of  prudence  and  nothing

else.

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52. Various  other  judgments  have  been  cited  but

they have discussed almost identical principles.

53. The  judicially  evolved  rules  of  caution  for

acceptance of dying declaration have been stated by

this Court in  Paniben (Smt) (supra), and in para Nos. 18 and 19 of the said report, this Court has

formulated several principles for accepting dying

declaration, which have been laid down in various

judgments of this Court in the last few decades.

The principles stated in Paniben (Smt) (supra) have been  again  repeated  by  this  Court  in  Shakuntala (Smt) Vs. State of Haryana, (2007) 10 SCC 168. The said  principles  are  so  salutary  and  cardinal  in

nature that they deserve to be reiterated and this

Court does so herein below: “(i) There is neither rule of law nor of

prudence that dying declaration cannot be acted  upon  without  corroboration.  (See Munnu Raja v. State of M.P.)

(ii) If the court is satisfied that the dying declaration is true and voluntary it can  base  conviction  on  it,  without corroboration. (See  State of U.P. v.  Ram Sagar Yadav and Ramawati Devi v. State of Bihar.)

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(iii)  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  had  an opportunity  to  observe  and  identify  the assailants and was in a fit state to make the declaration. (See K. Ramachandra Reddy v. Public Prosecutor.)

(iv)  Where  a  dying  declaration  is suspicious,  it  should  not  be  acted  upon without  corroborative  evidence.  (See Rasheed Beg v. State of M.P.)

(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected.  (See  Kake  Singh v.  State  of M.P.)

(vi) A dying declaration which suffers from  infirmity  cannot  form  the  basis  of conviction. (See Ram Manorath v. State of U.P.)

(vii)  Merely  because  a  dying declaration does not contain the details as  to  the  occurrence,  it  is  not  to  be rejected.  (See  State  of  Maharashtra v. Krishnamurti Laxmipati Naidu.)

(viii) Equally, merely because it is a brief  statement,  it  is  not  to  be discarded. On the contrary, the shortness of the statement itself guarantees truth. (See Surajdeo Ojha v. State of Bihar.)

(ix)  Normally,  the  court  in  order  to satisfy whether the deceased was in a fit mental  condition  to  make  the  dying declaration  looks  up  to  the  medical opinion.  But  where  the  eyewitness  said that  the  deceased  was  in  a  fit  and conscious  state  to  make  the  dying declaration,  the  medical  opinion  cannot prevail. (See Nanhau Ram v. State of M.P.)

(x)  Where  the  prosecution  version differs from the version as given in the dying  declaration,  the  said  declaration

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cannot be acted upon. (See  State of U.P. v. Madan Mohan.)

(xi)  Where  there  are  more  than  one statements  in  the  nature  of  dying declaration,  the  one  first  in  point  of time must be preferred. Of course, if the plurality of the dying declaration could be held to be trustworthy and reliable, it has to be accepted. (See Mohanlal Gangaram Gehani v. State of Maharashtra.)

13. In the light of the above principles, the  acceptability  of  the  alleged  dying declaration in the instant case has to be considered. The dying declaration is only a  piece  of  untested  evidence  and  must, like any other evidence, satisfy the court that  what  is  stated  therein  is  the unalloyed truth and that it is absolutely safe  to  act  upon  it.  If  after  careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if  it  is  coherent  and  consistent,  there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration. (See  Gangotri Singh v. State of U.P.,  Goverdhan Raoji Ghyare v. State of Maharashtra,  Meesala Ramakrishan v. State of A.P. and State of Rajasthan v. Kishore.)

14. There is no material to show that the dying  declaration  was  the  result  or product  of  imagination,  tutoring  or prompting.  On  the  contrary,  the  same appears to have been made by the deceased voluntarily.  It  is  trustworthy  and  has credibility.”

54. Just one more may be added to the aforesaid

principles. This  Court in  Paramjit  Singh & Ors. Vs.  State of Punjab and Ors., AIR 1997 SC 1614,

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held that if all the details are given in the dying

declaration, the same may not inspire confidence of

the  Court  inasmuch  as  a  neatly  structured  dying

declaration may bring an adverse effect in the mind

of the court. The Court has to appreciate the dying

declaration as a whole to see whether a ring of

truth emerges from the same.

55. In the facts of this case, it has already been

noted that the evidence in the dying declaration

has  been  corroborated  and  in  the  various  dying

declarations which have been given by the victim,

in some of them, the required rule of caution has

been followed specially in Exhibits 58, 87 and 48

and the statement given in the dying declaration is

fairly consistent. There is also endorsement that

the same has been read over and explained to the

declarant.

56. It is also not in dispute that the declarant

lived  for  more  than  fifteen  days  after  the

aforesaid  incident.  Therefore,  the  victim  was

physically in a position to give the declaration.

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Doctors  have  also  opined  that  the  declarant  was

conscious enough to make the declaration and all

the  judicially  evolved  rules  of  caution  were

observed  in  the  instant  case.  That  being  the

position, this Court finds no error on the part of

the  trial  Court  and  High  Court  in  finding  the

appellant guilty and convicting her under Section

302.

57. We  find  no  merit  in  this  appeal.  It  is

dismissed accordingly.

.......................J. (S.B. SINHA)

.......................J. New Delhi (ASOK KUMAR GANGULY) March 23, 2009

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