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CASE NO.: Appeal (crl.)  321 of 2006

PETITIONER: VIKAS & ORS.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT: 21/01/2008

BENCH: C.K. THAKKER & MARKANDEY KATJU

JUDGMENT: J U D G M E N T

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 Sections 302  and 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. 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 of Vikas 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.  According  to the prosecution, the accused demanded dowry  and there was some dispute even at the time of  betrothal ceremony which was locally known as  \021Sakharpuda\022.  After the marriage, Rekha went  to her matrimonial home at Khandvi.  For few  months, the marriage relations went on well.   Thereafter, 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 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, 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 the deceased.  

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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 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 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.    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 fire.  She  was taken in a tractor and then in a jeep to  Civil Hospital, Ahmednagar. But a false case  was filed against them at the 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 \021hostile\022. Similarly, Manohar Sahebrao  Vayse, PW 2, Panch witness to the Spot  Panchnama (Ex. 47) also did not support the  case and he was also declared \021hostile\022.  The  prosecution, in the circumstances, mainly  relied upon two witnesses, PW 5 Ramchandra  Ganpat Dimale, Special Judicial Magistrate who  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.   6.              The trial Court after considering the  evidence on record, held that from the  prosecution evidence 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 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

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deceased 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, the accused were ordered to suffer  imprisonment for life and pay a fine of Rs.  5,000/- each.  In default of payment of fine,  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  rigorous imprisonment for one year and to pay  fine of Rs.500/- each, in default to payment of  fine, 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, 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 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 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,  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 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  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 were responsible for death of Rekha.   On the contrary, from the evidence of two

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witnesses, it was clear that accused No. 1  Vikas 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 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  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  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 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 defence.  But  there was no reason for PW 5 Ramchandra,  Special Judicial Magistrate who 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.  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, both 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 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 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 342 read with Section 34, IPC.   It is no doubt true that PW 1, Laxman Pingale,

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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  wanted to oblige the accused. The High Court  also noted that from the intrinsic evidence on  record, it was proved that he was a \021liar\022. 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  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.  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 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 in the hospital register  from which it was proved that it was not  accused NO. 1 who brought the injured to the  hospital. Ex.41, which is an intimation  received by Topkhana Police Station on  telephone from Civil Hospital, Ahmednagar,  dated June 01, 2001 reads as under; \023Rekha\005 As she was injured due to  burns, she was admitted by Bebi  Shantilal Vaise on 16.05.2001 at 15/00  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\024.

13.             The High Court, in the circumstances,  stated;      \023It 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.  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

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some light upon the relationship  of victim with her husband and in- laws 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.  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 have not recorded his  statement.  These are the days  when we are required to attend 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 not give  any statement to the Police can,  therefore, be seen to be a patent  lie.\024          14.             The Court proceeded to state;      \023In spite of this hostility,  the father has admitted that  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 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:

\023It is true that she was  also telling Police that  her one 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.\024

Thereafter, he switched over to

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correct himself that this was told  by Rekha and not by Vikas.  This  concluding part 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:                  \023When I was talking  with Rekha, accused Vikas  went to bring medicine.   Accused brought Rekha in  the Civil Hospital,  Ahmednagar.\024

Probably, father felt necessity of  absence of Vikas to be of  importance when he learnt about  accused Vikas having 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.\024

15.             The High Court, therefore, rightly  concluded;      \023We 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.\024

16.             The High Court also dealt with the  evidence of PW 2 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 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  because of weakness or infirmity in defence  version.  But in our view, the Court was right  in 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 Gazetted Officer of  Armed Forces aged about 76 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

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victim from the police, took them down on a  piece of paper upon which he proposed to record  dying declaration and 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 and fit to give  statement. The doctor expressed that 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 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 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 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 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  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, 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 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

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discarding them observing that PW 1 and PW 2  were favouring the defence and deliberately did  not support the case of the prosecution in  Court. 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 \021the 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  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 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  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 \021dying declaration\022.  The said  clause reads thus; When it relates to cause of  death.\027(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 that  person\022s 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.

Illustration

(a) The question is, whether A was  murdered by B; or

A dies of injuries received in a  transaction in the course 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\022s widow.

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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 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.             \023Truth\024 said Mathew Arnold, \023sits upon  the lips of a dying man\024. 24.             Shakespeare, great writer of the  sixteenth century, through one of his  characters explained the basic philosophy thus; \023Have 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, Against the Fire? What is 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, Live hence by truths?\024 (King John, Act V, Sect. IV) 25.             The Great poet also said at another  place; \023Where    words    are     scarce,  They are  seldom  spent in  vain;  They    breathe    the     truth,  That breathe their words in pain\024. (Richard II)

26.             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 \021hearsay evidence\022 is \021no  evidence\022 and the evidence which cannot be  tested by cross-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  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 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

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on the verge of permanent departure from his  earthly world is not likely to indulge into  falsehood or to 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 a given case, the victim  may be the only eye-witness of a serious crime.  Exclusion 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 courts. 28.             Before more than two centuries, in  R.V. Woodcock, (1789) 1 Leach 500 : 168 ER 352,  Eyre, C.V. proclaimed; \023The general principle on which this  species of evidence 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 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\024.

29.             Khushal Rao v. State of Bombay, 1958  SCR 552 was probably the first leading case  decided by this Court on 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 various 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; "It is settled law that it is not safe  to convict an accused 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 be mentally and  physically in a state of confusion and  might well be drawing his imagination  while he was making the declaration\024.                                    (emphasis supplied)       30.             In Khushal Rao, this Court stated;  \023We have, therefore, to examine the  legal position whether it is settled

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law that a dying declaration by itself  can, in no circumstances, be the basis  of a conviction\024.

31.             The Court then observed that in Ram  Nath, considering factual situation and other  evidence on record, this Court ruled that the  dying declaration was not true and could not be  solely relied upon to base the conviction. 32.             The Court then said; \023It is, thus, clear that the  observations quoted above, of this  Court, are in the nature of obiter  dicta. But as 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\024.                                         (emphasis supplied)       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  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 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 said  circumstance would not affect the admissibility  of the statement but only its weight. 34.             Considering the views expressed by  different High Courts and also leading  commentaries, the Court summarized the  principles thus: (1) that it cannot be laid down as an  absolute rule of law that a dying  declaration cannot form the sole  basis of conviction unless it is  corroborated;

(2) that each case must be determined  on its own facts keeping in view  the circumstances in which the  dying declaration was made;

(3) that it cannot be laid down as a  general proposition that a dying  declaration is a weaker kind of  evidence than other piece of  evidence;

(4) that a dying declaration stands on  the same footing as another piece  of evidence and has to be judged

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in the light of surrounding  circumstances and with reference  to the principles governing the  weighing of evidence;

(5) that a dying declaration which has  been recorded by a competent  magistrate in the proper manner,  that is to say, in the form of  questions and answers, and, as far  as practicable, in the words of  the maker of the declaration,  stands on a much higher footing  than a dying declaration which  depends upon oral testimony which  may suffer from all the  infirmities of human memory and  human character, and

(6) that in order to test the  reliability of a dying  declaration, the Court has to keep  in view the circumstances like the  opportunity of the dying man for  observation, for example, whether  there was sufficient light if the  crime was committed at night;  whether the capacity of the man to  remember the facts stated had not  been impaired at the time he was  making the statement, by  circumstances beyond his control;  that the statement has been  consistent throughout if he had  several opportunities of making a  dying declaration apart from the  official record of it; and that  the statement had been made at the  earliest opportunity and was not  the result of tutoring 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 dying declaration is entitled  to great weight. Once the Court is 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 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: (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

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and voluntary it can base  conviction on it, without  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  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. (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  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 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 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 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 \021much higher  footing\022. 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 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, 304B read with  Section 34, IPC.  Dying declaration of the

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bride was recorded.  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. 39.             The Court noted that though the dying  declaration 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 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 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 inter alia  on the ground 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 therefore, held that genuineness of  dying declaration could not be doubted and  conviction recorded on that basis could not be  faulted. 41.             In Koli Chunilal Savji & Anr. v. State  of Gujarat, (1999) 9 SCC 562 : JT 1999 (7) SC  568, there was no specific endorsement of  doctor as to mental fitness of the deceased to  make the dying declaration.  However, it had  come in evidence that the deceased 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\022s endorsement as to  mental fitness of the deceased was \021only a rule  of prudence\022 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, 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 Ram v. State of Rajasthan,  (2001) 5 SCC 254 : JT 2001 (4) SC 472, it was

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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 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 \023nemo  moriturus praesumitur mentire\024 (a man will not  meet his Maker with a lie in his mouth), and  stated; \023Though a dying declaration is  entitled to great weight, it is  worthwhile to note that the  accused has no power of 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 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 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.

[see also Babu Lal v. State of  M.P., (2003) 12 SCC 490; 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) 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

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Rekha was supporting the defence. But in the  light of other evidence on record \026 oral as  well as documentary \026 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 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 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 appellants is upheld.