CHAPTER 4

Dying Declaration

Q. What do you mean by term `dying declaration'?

A 'Dying declaration' means the statement of a person who has died explaining the circumstances of his
death. Such a statement can be proved when it 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. The statement will be relevant in

every case or proceeding in which the cause of that person's death comes into question.1 Clause (1) of
section 32 of the Evidence Act, provides for the 'dying declaration' which is incorporated from the English
Law principle, which relates to what are popularly known as dying declaration but marks a remarkable
departure from them, as in English Law this type of statement is relevant only when the charge is that of
murder or manslaughter. Section 32(1) reads as under:

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 as to any of the circumstances of the transaction which resulted in his
death, in cases in which 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.

__________________

1. See illustration (a) to section 32 of the Evidence Act

Illustrations

(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's widow.

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.

Therefore, this section provides exception to the general rule that, all oral evidence must be

direct.1
Principle.--

Dying declarations are statements oral or documentary made by the person as to the cause of his
death or as to the circumstances of the transactions resulting in his death. The grounds of
admission of a dying declaration are:

1. firstly, necessity, for the victim being generally the only principal eye-witness to the
crime, the exclusion of his statement might defeat the ends of justice; and

2. secondly, the sense of impending death which creates a sanction equal to the obligation
of an oath.

The 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 has
gone, when every motive to falsehood is silence and the mind is induced by the most powerful
consideration to speak the truth; a situation so solemn and so lawful is considered by law as
creating an obligation equal to that which is imposed by a positive oath administered in a Court of
Justice; R. v. Woodcock, (1789) I Leach 500.

The principle on which the Dying Declarations are admitted in evidence is indicated in legal maxim
"Nemo moriturus praesumitur mentiri" implies that a man who is on death bed would not tell a lie
to falsely implicate innocent person; Sharda v. State of Rajasthan, MANU/SC/1894/2009 : AIR
2010 SC 408.

English Law and the Indian Law - Difference.--

(1) Under English Law, a dying declaration is admissible only on a criminal charge of homicide or
manslaughter, whereas in India it is admissible in all proceedings, civil or criminal.

(2) Under the English Law, the declarations should have been made under the sense of impending
death, whereas under the Indian Law it is not necessary that the deceased, at the time of making
the dying declaration, should have been under expectation of death.

(3) Under the English Law, the declaration must have been competent as a witness, thus, imbecility
of tender age will exclude the declaration. It is, however, doubtful whether this rule is applicable in
India. The credit of such a declarant may be impeached in the same way as that of witness actually
examined in a court.

________________

1. Section 60 of the Evidence Act, provides that, all oral evidence must be direct.

Evidentiary value of a dying declaration.--

By enacting section 32 the Legislature in its wisdom has placed a dying declaration on par with
evidence on oath for the reason that at the time when a man is in danger of losing himself it is not
likely that he would speak a falsehood and involve an innocent person. There is no absolute rule of
law nor is there any rule of prudence which has ripened into a rule of law that a dying declaration
 cannot form the sole basis of a conviction unless it is corroborated by independent evidence. The
circumstances which lend strength and assurance to a dying declaration are as follows:

(1) That it was recorded by a competent Magistrate after taking all proper precautions.

(2) That it was taken down in the exact words in which it was spoken.

(3) That it was made shortly after the assault when there was no opportunity of its being
coloured by impressions received from others.

(4) That deceased had ample opportunity of observation.

(5) That the incident happened in a sufficiently lighted place.

(6) That the deceased had made more than one statement and all of them were consistent
as to the circumstances of the occurrence and the identity of the attackers.

Essential conditions for the applicability of dying declaration

Q. What are the essential conditions for the applicability of dying declaration?

(1) To whom the statement is to be made and its form:-

A statement of dying declaration could be made to any person - a doctor, a Magistrate, a

friend or near relative, a police officer. However, a statement recorded by a Magistrate or
doctor is considered more reliable, and that recorded by a police officer or close relative not
(require more scrutiny).

No particular form of recording a statement is prescribed. The statement could be written,

oral or even verbal (e.g., gestures). In Queen Empress v. Abdullah, (1885) ILR 7 All 385;
where the throat of the deceased girl was cut and she being unable to speak indicated the
name of the accused by the signs of her hand, this was held to be relevant as dying
declaration.

Two dying declarations giving contrary versions. Dying declaration duly recorded by the
doctor in presence of two other doctors stating that she was burnt by her mother-in-law
and husband for failure to bring dowry. Second declaration not proved by competent
witness, cannot be relied upon, accused convicted on the dying declaration recorded by
doctor; Harbans Lal v. State of Haryana, MANU/SC/0113/1993 : AIR 1993 SC 819: 1993 Cr
LJ 75: 1992 AIR SCW 3303: 1992 (3) Crimes 758: 1993 East Cr C 109: 1992 JT (Supp) 7:
1993 (1) Mah LR 90: 1992 (3) SCJ 362: 1994 SCC (Cri) 130: (1993) Supp 4 SCC 641.

Q. What is dying declaration? Can a conviction be based solely on the basis of a dying
declaration? Can a dying declaration be relied upon without corroboration?

(2) The person making the statement must have died:-

The death need not occur immediately after the making of the statement (as discussed
above). However, the death must occur. If the persons making the declaration chances to
live, his statement is inadmissible as a 'dying declaration', but it might be relied under
 section 157 to corroborate his testimony when examined. Such a statement can also be
used to contradict him under section 145. Further, it can be used to corroborate the
evidence in Court under sections 6 and 8. The fact that the person is dead must be proved
by the person proposing to give evidence of his statement.

(3) Statement must relate to the cause of his death or the circumstances of the transaction which
resulted in his death:-

If the statement made by the deceased does not relate to his death, but to the death of
another, it is not relevant; Ratan Gond v. State of Bihar, MANU/SC/0054/1958 : AIR 1959
SC 18: 1959 Cr LJ 108: 1959 BLJR 1: 1959 All LJ 35: 1959 MPC 46: 1959 SCJ 222: 1959
All Cr R 118: MANU/SC/0054/1958 : 1959 SCR 1336. For example, where the wife made a
statement that her husband is killed by Z and then she committed the suicide.

The circumstances of transaction resulting in death must bear proximate relation to the
cause of death or actual occurrence. The general expressions indicating fear or suspicion,
whether of a particular individual or otherwise and not directly related to the occasion of
death will not be admissible. But, statements made by the deceased that he was proceeding
to the spot where he was in fact killed, or as to his reasons for so proceeding, or that he
was going to meet a particular person, would to each of them be circumstances of the
transaction.

(4) The cause of death must be in question:-

The declaration under section 32(1) must relate to the death of the declarant. In Dannu
Singh v. Emperor, 25 Cr PC 574, A and five other persons were charged with having
committed a dacoity in a village. A, who was seriously wounded while being arrested, made
before his death a dying declaration as to how the dacoity was committed and who had
taken part in it. It was held that declaration was not admissible in evidence against other
persons, as it does not relate to his death, but relates to participation of his associates in
the dacoity.

(5) The statement must be complete and consistent:-

If the deceased fails to complete the main sentence (as for instance, the genesis or the
motive for the crime), a dying declaration would be unreliable. However, if the deceased has
narrated the full story, but fails to answer the last question as to what more he wanted to
say, the declaration can be relied upon; Kusa v. State of Orissa, MANU/SC/0150/1980 :
(1980) 2 SCC 207: AIR 1980 SC 559: 1980 Cr LJ 408: 1980 SCC (Cri) 389: 1980 Cr LR
(SC) 200: 1980 SC Cr R 315.

A dying declaration ought not to be rejected because it does not contain details or suffers
from minor inconsistencies. Merely because it is a brief statement, it is not to be
discharged. Shortness, in fact, guaranteed truth;

Surajdeo Oza v. State of Bihar, MANU/SC/0269/1979 : AIR 1979 SC 1505: 1979 SCC (Cri)
519: 1979 UJ (SC) 412: 1979 Cr LR (SC) 368: 1979 Cr LJ 1122: 1979 All Cri R 359: 1979
 Cr LR (SC) 570. Where the bride recorded two declarations, one to a police officer and other
to a Magistrate, they being similar in material factors, evidence accepted though minor
discrepancies were there; Raoji v. State of Maharashtra, (1994) SC LJ 1 (SC).

In Kamla v. State of Punjab, MANU/SC/0086/1993 : AIR 1993 SC 374: 1993 Cr LJ 68: 1992
AIR SCW 3420: 1992 (3) Crimes 1088: 1993 (1) DMC 4: JT 1992 (6) SC 707: 1993 (6)
OCR 92: (1993) 1 SCC 1: 1992 (3) SCJ 449: 1993 SCC (Cri) 1: 1993 (1) UJ (SC) 89, four
dying declarations were made by the deceased. One of them indicated the incident as an
accident. The accused (mother-in-law of the deceased) had been convicted on the basis of
another declaration implicating her. The court also found glaring inconsistencies as far as
naming the culprit was concerned. On facts it was held that the conviction cannot be based
upon such declarations.

(6) Declarant must be competent as a witness:-

It is necessary for the relevancy of a dying declaration that the declarant, if he had lived on,
would have been competent witness. Thus, in a prosecution for the murder of a child, aged
four years, it was proposed to put in evidence, as a dying declaration, what the child said
shortly before her death. The declaration was held to be inadmissible; R. v. Pike, (1829) 3
CLP 598.

(7) Other points:-

Where the injured person was unconscious, dying declaration should be rejected; Kake
Singh alias Surendra Singh v. State of Madhya Pradesh, MANU/SC/0160/1981 : AIR 1982
SC 1021: 1981 SCC (Cri) 645: 19981 Cr App R (SC) 319: 1982 Cr LR (SC) 8: 1982 Cr LJ
986: 1982 Chand Cr C 64 (SC): 1981 Supp SCC 25. Where for some unexplained reasons
the person who noted down (scribe) the statement was not produced, the declaration was
not accepted as an evidence; Govind Narain v. State of Rajasthan, MANU/SC/0374/1993 :
AIR 1993 SC 2457: 1993 Cr LJ 2598: 1993 AIR SCW 2179: 1994 (1) APLJ 52: 1994 APLJ
(Cri) 150: 1993 JT (Supp) 522: 1993 SCC (Cri) 1012: (1993) Supp 3 SCC 343.

Where there are more than one declaration, the one first in point of time should be
preferred; Mohanlal Gangaram Gehani v. State of Maharashtra, MANU/SC/0090/1982 : AIR
1982 SC 839: 1982 Cr LJ 630: (1982) 2 APLJ (SC) 15: 1982 Cr LR (SC) 77:
MANU/SC/0090/1982 : (1982) 1 SCC 700: 1982 SCC (Cri) 334: 1982 Mah LR (SC) 117:
1982 Mad LJ (Cri) 431: 1982 (1) SCJ 380. Where an injured person lodged the F.I.R. and
then died, it was held to be relevant as dying declaration; K. Ramachandra Reddy v. Public
Prosecutor, MANU/SC/0127/1976 : AIR 1976 SC 1994: 1976 Cr LR (SC) 286: 1976 Cr LJ
1548: MANU/SC/0127/1976 : (1976) 3 SCC 618: 1976 SCC (Cri) 473: 1976 SC Cr R 366:
(1976) 2 APLJ (SC) 39: 1977 (1) SCJ 36: 1976 Supp SCR 542.

(8) Compliance with section 164 of the Criminal Procedure Code:-

The admissibility of a dying declaration is not dependent upon the compliance with section
164, Criminal Procedure Code; Allah Baksh v. Crown, 1951 FCR 193.
 Statement made before a police officer: Whether admissible?

The Supreme Court in Ramprasad v. State of Maharashtra, MANU/SC/0365/1999 : AIR 1999 SC 1969:
1999 Cr LJ 2889: 1999 AIR SCW 1657: 1999 (3) Crimes 96: JT 1999 (4) SC 74: 1999 (17) OCR 181:
(1999) 5 SCC 30: 1999 (7) SRJ 39: (1999) 3 SCALE 623: 1999 SCC (Cri) 651: 1999 (5) Supreme 554,
observed that at the time when declarant gave the statement he would have been under expectation of
death but that is not sufficient to wiggle it into the cassette of section 32 of Evidence Act, 1872. As long as
the maker of the statement is alive it would remain only in the realm of a statement recorded during
investigation. It was held, that if a person making a dying declaration survives his statement cannot be
used as evidence under section 32 of the Act.

Dying declaration recorded by a police officer if found truthful may base conviction; Urgeu Sherpa v. State
of Sikkim, (1985) 1 SCC 278.

Need for corroboration.--

Where the dying declaration is believed to be true, consistent and coherent, it can be relied upon
for conviction, even if there was no corroboration; Khushal Rao v. State of Bombay,
MANU/SC/0107/1957 : AIR 1958 SC 22: 1958 Cr LJ 106: 1957 MPC 813: 1958 SCJ 198: 1958 All
LJ 91: 1958 Mad LJ (Cri) 100: 1958 Jab LJ 175: 1958 SCC 28: 1958 SCR 552: 1959 SCA 281; Ram
Nath Madhoprasad v. State of Madhya Pradesh, MANU/SC/0101/1953 : AIR 1953 SC 420: 1953 Cr
LJ 1772.

In Lallubhai Devchand Shah v. State of Gujarat, MANU/SC/0130/1971 : AIR 1972 SC 1776: 1972
Cr LJ 828; a married woman was burnt to death by her in-laws, her dying declaration was accepted
and conviction was based solely on the basis of the declaration. It was held that if the truthfulness
of a dying declaration is accepted, it can always form the basis of conviction of the accused. The
Court, in the present case, thus convicted the appellants on the basis of the dying declaration.

In the recent decision, the Supreme Court observed that, dying declaration though an exception to
the hearsay rule, but like any other evidence, it has to pass the test of credibility. If found reliable,
it can be the basis of conviction. It can be acted upon in reference to one accused though not in
reference to others; Narain Singh v. State of Haryana, MANU/SC/0095/2004 : AIR 2004 SC 1616:
2004 Cr LJ 1409: 2004 AIR SCW 902: 2004 (1) Crimes 398: 2004 (2) JCJR 126: JT 2004 (2) SC
327: 2004 (27) OCR 680: 2004 (2) SLT 171: 2004 (3) SRJ 411: (2004) 2 SCALE 251: 2005 SCC
(Cri) 185: 2004 (1) Supreme 909. However, it is well-settled that if the truthfulness of dying
declaration cannot be doubted, the same alone can form the basis of conviction without any
corroboration; Ravi v. State of Tamil Nadu, (2004) 10 SCC 776.

Evidentiary value of dying declaration.--

The general principle on which dying declaration is admitted is that, no one would wish to die with
a lie on his lips. Being the victim, dying man might have been the only eye-witness to such time,
his statement would be a piece of direct evidence. Exclusion of his statement would tend to defeat
the ends of justice. If the truthfulness of a dying declaration is beyond doubt, the conviction can be
held solely upon it; State of Assam v. Mafizuddin Ahmed, AIR 1983 SC 274: 1983 Cr LJ 426: 1983
 All Cri C 60: MANU/SC/0153/1983 : (1983) 2 SCC 14: 1983 Cr LR (SC) 163: 1983 (1) Crimes 380:
1983 SCC (Cri) 325: (1983) 1 Cr LC 394: 1983 UP Cr R 148.

Circumstances when a dying declaration is meaningless

Following are the circumstances when a dying declaration held meaningless:

(i) When the relatives of the declarant arrange with him as to what he has to say; Varand v.
Emperor, AIR 1944 Sind 137.

(ii) When the maker of a dying declaration is proved to have been unconscious or semi-conscious
at the spot and died a few minutes after the making of the declaration; Bhagwan Dass v. State,
MANU/SC/0037/1957 : AIR 1957 SC 589: 1957 Cr LJ 889: 1957 SCJ 515: 1957 MPC 564: 1957
SCC 308: 1957 SCA 836: 1957 BLJR 678: 1957 All LJ 722.

(iii) Where there is clear discrepancy between the facts mentioned in the dying declaration and
those in the statements of the witness; Bapu Rao v. State of Maharashtra, AIR 1968 SC 855.

(iv) When a dying declaration contradicts itself in its various parts; Jaya Ram v. State of Tamil
Nadu, AIR 1976 SC 791.

(v) Where the identity of accused could not be established through the dying declaration; Shabir
Mohmad Syed v. State of Maharashtra, MANU/SC/0948/1997 : (1997) 11 SCC 499: AIR 1997 SC
3808: 1997 Cr LJ 4416: 1997 AIR SCW 3724: JT 1997 (8) SC 1: 1997 (3) SCJ 157: 1998 Sc Cr R
33: 1997 SCC (Cri) 1226.

Q. There is no absolute rule of law that dying declaration cannot form the sole basis for
conviction? Comment and elaborate what are the tests laid down by the Supreme Court in
Khushal Rao case for judging the veracity of dying declaration. 82

Case Laws

Khushal Rao Case

In Khushal Rao v. State of Bombay, MANU/SC/0107/1957 : AIR 1958 SC 22: 1958 Cr LJ 106: 1957
MPC 813: 1958 SCJ 198: 1958 All LJ 91: 1958 Mad LJ (Cri) 100: 1958 Jab LJ 175: 1958 SCC 28:
1958 SCR 552: 1959 SCA 281; the deceased made four separate and identical declarations before
the doctor, police inspector, Magistrate, and to other person, stating that he has been assaulted by
Kaushal and one other person. The question was whether the accused could be convicted only on
the basis of this declaration or the declaration needed corroboration. There are divergent views of
different High Courts in this regard. According to Bombay High Court, dying declaration is a weaker
type of evidence and require corroboration. According to Calcutta High Court, it is not permissible
to accept a declaration in one part and reject the other part. According to Madras High Court, a
declaration can be relied without corroboration, if the court is convinced of its truth, i.e., there is no
suspicion of its credibility.

The Supreme Court, agreeing with Madras High Court, laid down the following principles:
 (1) There is no absolute rule of law that a dying declaration cannot be the sole basis of
conviction unless corroborated.

(2) Each case must be determined on its own facts keeping in view the circumstance in
which the dying declaration was made.

(3) A dying declaration is not a weaker kind of evidence than any other piece of evidence. It
stands on the same footing as any other piece of evidence.

(4) A dying declaration cannot be equated with a confession or evidence of approver, as it

may not come from a tainted source. If it is made by the person whose antecedents are as
doubtful as in the other cases that may be a ground for looking upon it with suspicion.

(5) Necessity of corroboration arises not from any inherent weakness of a dying declaration
as a piece of evidence, but from the fact the Court in a particular case came to the
conclusion that a particular declaration is not free from infirmities.

(6) To test the reliability of a dying declaration, the Court has to keep in view the
circumstances like the opportunity of the dying man's observation, e.g., whether there was
sufficient light if the crime was committed at night; whether the capacity of the declarant
was not impaired at the time of the statement; that the statement has been consistent
throughout if he had several opportunities for making a dying declaration; and that the
statement was at the earliest opportunity and was not the result of tutoring by the
interested parties.

(7) A dying declaration recorded by a competent Magistrate in a proper manner in the form
of questions and answers, and in the words of the maker as far as practicable stands on
much higher footing than a dying declaration which depends upon oral testimony which may
suffer from all the infirmities of human memory and character.

(8) If the Court, after taking every thing into consideration, is convinced that the statement
is true, it is its duty to convict, notwithstanding that there is no corroboration in the true
sense. The Court must, of course, be fully convinced of the truth of the statement, and
naturally, it could not be fully convinced if there was anything in the surrounding
circumstances to raise suspicion as to its credibility. Thus, a true and voluntary declaration
needs no corroboration.

The statement of the deceased in this case satisfied all these conditions (the declaration was true
in all respects e.g., consistent in so far as naming of the two accused) and therefore the appellants
should be convicted.

Kusa Case.--

In Kusa v. State of Orissa, MANU/SC/0150/1980 : (1980) 2 SCC 207: AIR 1980 SC 559: 1980 Cr
LJ 408: 1980 SCC (Cri) 389: 1980 Cr LR (SC) 200: 1980 SC Cr R 315; the deceased made dying
declaration before a doctor. It was clear in all respects. However, the appellants challenged it on
the following grounds: (1) it did not contain all those names which were include in F.I.R. (2) the
account of the eye-witnesses also different (3) the deceased was in a state of shock, thus his
 statement could not be relied (4) the declaration was incomplete as the deceased did not answer
the last question put to him (to wind up the statement the doctor asked the injured if he had
anything else to say, he lapsed into unconsciousness without answering the question).

The Court observed that only certain names were included in F.I.R. but were not mentioned in
dying declaration does not detract from the value of dying declaration and would not by itself prove
the falsity of the declaration. In Surat Singh's case, the first declaration did not mention the name
of the eye-witness, but the second declaration (which was more detailed) contained it. The Court
observed that first declaration was a short version of the entire incident and contained true facts
when the deceased was under great pain.

The Apex Court further observed: The statement of doctor was that deceased became semi-
conscious when the last question was put to him. Logically it means that prior to that he was fully
conscious. The last question was in the nature of a mere formality "What more you want to say",
and all the necessary questions were asked before that formal question. The statement was not
incomplete.

Kishanlal Case.--

In Kishanlal v. State of Rajasthan, MANU/SC/0481/1999 : AIR 1999 SC 3062: 1999 Cr LJ 4070:

1999 AIR SCW 2998: 1999 (4) Crimes 103: JT 1999 (6) SC 41: 1999 (17) OCR 457: (2000) 1 SCC
310: 1999 (9) SRJ 90: (1999) 5 SCALE 31: 2000 SCC (Cri) 182: 1999 (7) Supreme 386: 1999 (2)
UJ (SC) 1284; Smt. Sulochana, was sleeping on the intervening night between 11th and 12th
September, 1976 with the mother of the appellant on a separate cot when she was burnt by
sprinkling kerosene oil on her chest. She was shifted to the hospital at Pilibanga at 2.00 a.m.
Doctor of the hospital sent information to SHO Police Station Lekhuwali on which investigation
started. At 4.30 a.m. police recorded the statement of the deceased. The statement recorded by
the police was not brought on the records by the prosecution.

On the 15th of November, 1976, all of sudden the condition of Smt. Sulochana deteriorated and she
died in the evening. On basis of the above complaint dated 11th November, 1976, a case was
registered against the accused and investigation was started. The police after investigation could
not find any sustainable evidence against the appellant and other family member mentioned in the
complaint hence submitted final report.

Dealing with the oral dying declaration, the Trial Court acquitted both the appellant and his mother.
The High Court convicted both the appellant and his mother. The case went to the Supreme Court.

The Supreme Court held that, in the present case, as aforesaid the dying declaration was after two
months of the alleged incident. It was not at a time when the deceased was expecting imminent
death. Neither the post-mortem nor deposition of doctor carry any definite inference that the cause
of death was on account of burning. There is a conflict between two dying declarations, in one
there is inter se inconsistency as revealed in the depositions of witnesses, in the other no naming
of any accused, when made before a Magistrate. On such an evidence Trial Court rightly declined to
base a conviction. The High Court committed manifest error in placing reliance on it.
 The Supreme Court further held that, so far as the extra judicial confession is concerned it is said
that the same was made by the accused at panchayat on two occasions. First panchayat is alleged
to have taken place at Chak 22 P.S. and the other in the school at Raisinghnagar. The father's
testimony in cross-examination, when confronted with his statement wherein he did not name any
of the accused persons, he made the usual answer that the name might not have been recorded by
mistake. But in the alleged second panchayat, the names of large number of persons were referred
to as to have confessed their guilt, including the appellant. It includes even the names of those
who are not even accused. It is alleged that they sought for the pardon of the local leaders for this
guilt. We find even in this alleged confession, there is no mention that the accused had burnt the
deceased Smt. Sulochana. The alleged confession by large number of persons is more in a general
and vague term. Before a confession is relied on, it must be clear and unequivocal, whether it is in
a judicial or in an extra judicial confession.

On the fact discussed above there is no hesitation to hold that reliance should not have been
placed on the so called confession, the Trial Court rightly rejected it but unfortunately the High
Court very casually accepted it which cannot be sustained and accordingly, the present appeal is
allowed.

Shariff Case.--

In State of Karnataka v. Shariff, MANU/SC/0049/2003 : AIR 2003 SC 1074: 2003 Cr LJ 1254: 2003
AIR SCW 600: 2003 (2) Crimes 144: JT 2003 (2) SC 15: 2003 (25) OCR 72: (2003) 2 SCC 473:
(2003) 1 SCR 572: (2003) 1 SCALE 469: 2003 SCC (Cri) 561: 2003 (2) Supreme 16: 2003 (1) UC
679; the accused respondent was charged under section 302, IPC for having committed murder of
his wife Muneera Begum by pouring kerosene on her body and setting her on fire in his house at
about 4.00 a.m. on July 24, 1986.

The learned Sessions Judge believed the case of the prosecution and convicted the accused
respondent under section 302, IPC and sentenced him to imprisonment for life. The appeal
preferred by the accused was allowed by the High Court and his conviction and sentence was set
aside.

The Supreme Court held that, the Court rules that it cannot be laid down as an absolute rule of law
that a dying declaration cannot form that sole basis of conviction unless it is corroborated. Each
case must be determined on its own facts keeping in view the circumstances in which the dying
declaration was made; it cannot be laid down as a general proposition that dying declaration stands
on the same footing as another piece of evidence and has to be judged in the light of surrounding
circumstance and with reference to the principle governing the weighing of evidence. It has been
further held that in order to pass the test of reliability a dying declaration has to be subjected to a
very close scrutiny keeping in view the fact that the statement has been made in the absence of
the accused who has not opportunity of testimony the veracity of the statement by cross-
examination. But once the Court has come to the conclusion that the dying declaration was the
truthful version as to the circumstance of the death and the assailants of the victim, there is no
question of further corroboration (Vide Khushal Rao v. State of Bombay, MANU/SC/0107/1957 :
 AIR 1958 SC 22: 1958 Cr LJ 106: 1958 SCJ 198: 1958 Jab LJ 175: 1958 SCC 28: 1958 SCR 552:
1959 SCA 281).

The Court further held that, "there is not even a rule of prudence which has hardened into a rule of
law that a dying declaration cannot be acted upon unless it is corroborated. The primary effort of
the Court has to be to find out whether the dying declaration is true. If it is, no question of
corroboration arises. It is only if the circumstances surrounding the dying declaration are not clear
of convincing, then the Court may, for its assurance, look for corroboration to the dying
declaration......".

In the present case, the reason given by the High Court is that the dying declaration was not in
question-answer form. Very often the deceased is merely asked as to how the incident took place
and the statement is recorded in a narrative form. In fact such a statement is more natural and
gives the version of the incident as it has been perceived by the victim. The question whether a
dying declaration which has not been recorded in question-answer form can be accepted in
evidence or not has been considered by this Court on several occasions.

Thus, the Supreme Court allowed the appeal and set aside the impugned judgment of the High
Court and restored that of the Session Court.

Rattan Singh Case.--

In Rattan Singh v. State of Himachal Pradesh, MANU/SC/0177/1997 : AIR 1997 SC 768: 1997 Cr
LJ 833: 1997 AIR SCW 587: 1996 (4) Crimes 282: 1997 (13) OCR 57: MANU/SC/0177/1997 :
(1997) 4 SCC 161: 1996 (4) SCJ 628: 1997 SCC (Cri) 525. A young house wife enceinte by four
months, was shot at with a double barrel gun by an assailant who gate crashed into her courtyard
during the odd hours of the night when she was sleeping. The Sessions Court acquitted him but a
Division Bench of the High Court of Himachal Pradesh on appeal filed by the State convicted him
under section 302, IPC and sentenced him to imprisonment for life.

He then filed this appeal under section 2 of the Supreme Court (Enlargement of Criminal Appellate
Jurisdiction) Act, 1970 and also under section 379 of the Cr. P.C.

Section 32(1) of the Evidence Act, renders a statement relevant which was made by a person who
is dead in cases in which cause of his death comes into question, but its admissibility depends upon
one of the two conditions; either such statement should relate to the cause of his death or it should
relate to any of the circumstances of transaction which resulted in his death.

Three aspects have to be considered pertaining to the above intent of evidence. First is whether
the said statement of the deceased would fall within section 32(1) of the Evidence Act, so as to
become admissible in evidence. Second is whether what the witnesses have testified in court
regarding the utterance of the deceased can be believed to be true. If the above two aspects are
found in the affirmative, the third aspect to be considered is whether the deceased would correctly
identify the assailant?

When Kanta Devi (deceased) made the statement that appellant was standing with a gun she
might or might not have been under the expectation of death, but that does not matter. The fact
 spoken by the deceased has subsequently turned out to be a circumstances which intimately
related to the transaction which resulted in her death. The collection of the words in section 32(1)
"circumstances of the transaction which resulted in his death" is apparently of wider amplitude than
saying "circumstances which caused his death" there need not be direct necessary nexus between
"circumstances" and death. It is enough if the words spoken by the deceased have reference to any
circumstances, which has connection with any of the transaction which ended up in the death of
the deceased. Such statement would also fall within the purview of section 32(1) of the Evidence
Act. In other words, it is not necessary that such circumstances can also become admissible under
the sub-section, provided it has nexus with the transaction which resulted in the death.

In the present case, the act of assailant intruding into the courtyard during the night, victim's
invention of the assailant here the pronouncement that appellant was standing with a gun and his
firing the gun at her, all circumstances so intermingled with each other by proximity of time and
space that the statement of the deceased became part of the same transaction. Hence, it is
admissible under section 6 of the Evidence Act.

In either case, whether it is admissible under section 32(1) or under section 6 of the Evidence Act,
it is substantive evidence, which can be acted upon with or without corroboration in finding guilt of
the accused.

Thus, the Supreme Court come to the conclusion that the deceased had correctly identified that
appellant who was standing with a gun. Therefore, the Supreme Court confirmed the conviction
and sentence passed on the appellant and dismissed the appeals.

P.V. Radhakrishna Case.--

In P.V. Radhakrishna v. State of Karnataka, AIR 2003 SC 2859: 2003 Cr LJ 3717: 2003 AIR SCW
3587: 2003 (3) Crimes 180: JT 2003 (6) SC 84: (2003) 6 SCC 443: 2003 (4) SLT 603: (2003) 5
SCALE 438: 2003 SCC (Cri) 1679: 2003 (2) UC 1269. Accused-appellant allegedly committed
suicide was found guilty of offence punishable under section 302, Indian Penal Code, 1860 ('IPC');
and sentenced to undergo imprisonment for life and a fine of Rs. 1,000 with default stipulation of
one month imprisonment by Sessions Judge, Bangalore. The appeal before the High Court of
Karnataka having yielded no success this appeal has been filed.

The Supreme Court observed that:

"This is a case where the basis of conviction of the accused is the dying declaration. The
situation in which a person is on death bed is so solemn and serene when he is dying that
the grave position in which he is placed, is the reason in law to accept veracity of his
statement, it is for this reason the requirements of oath and cross-examination are
dispensed with. Besides, should the dying declaration be excluded it will result in
miscarriage of justice because the victim being generally the only eye-witness in a serious
crime, the exclusion of the statement would leave the Court without a scrap of evidence.
Though 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.

The Court further held that, the residuary question whether the percentage of burns suffered is
determinative factor to affect the credibility of the dying declaration and the improbability of its
recording. There is no hard and fast rule of universal application in this regard. Much would depend
upon the nature of the burns, part of the body affected by the burns, impact of the burns on the
faculties to think and convey the idea or facts coming to mind and other relevant factors.
Percentage of burns alone would not determine the probability or otherwise of making dying
declaration.

Thus, it was held that the trial court and the High Court were justified in placing reliance on the
dying declaration for the purpose of convicting the accused-appellant. Hence, the appeal is
dismissed.

Patel Hiralal Case.--

In Patel Hiralal Joitaram v. State of Gujarat, MANU/SC/0669/2001 : (2002) 1 SCC 22: AIR 2001 SC
2944: 2001 AIR SCW 4411: 2002 (1) Crimes 94: JT 2001 (9) SC 282: 2002 Mad LJ (Cri) 184:
2001 (5) SCJ 342: 2001 (10) SRJ 501: (2001) 7 SCALE 440: 2002 SCC (Cri) 1: 2001 (8) Supreme
23: 2002 (1) UJ (SC) 237; a business of Patan (Gujarat) was arraigned for scorching a young
hapless woman (mother of two infant children) to death. The felony was perpetrated in broad
daylight on a public road. The man against whom the accusation was made had no relationship
with the victim, maritally or otherwise. The trial court exonerated him, but a Division Bench of the
High Court of Gujarat found him to be the killer of that lady and convicted him and sentenced him
to imprisonment for life. Hence this appeal by him as of right.

The Supreme Court held that, section 32(1) of the Evidence Act, relates to the statement made by
a person before his death. Two categories of statements are made admissible in evidence and
further made them as substantive evidence. They are: (1) his statement as to the cause of his
death; (2) his statement as to any of the circumstances of the transaction which resulted in his
death. The second category can envelop a far wider amplitude than the first category. The words
"statement as to any of the circumstances" are by themselves capable of expanding the width and
contours of the scope of admissibility. When the word "circumstances" is linked to "transaction
which resulted in his death" the sub-section casts the net in a very wide dimension. Anything which
has a nexus with his death, proximate or distant, direct or indirect, can also fall within the purview
of the sub-section. As the possibility of getting the maker of the statements in flesh and blood has
been closed once and for all the endeavour should be how to include the statement of a dead
 person within the sweep of the sub-section and not how to exclude it therefrom. Admissibility is the
first step and once it is admitted the Court has to consider how far it is reliable.

Once that test of reliability is found positive the Court has to consider the utility of that statement
in the particular case.

In the instant case, the appellant did not even make an effort to bring the case within any of the
four exceptions enumerated in section 300. Hence, the only question to be answered is whether he
did the act with the intention of causing such bodily injury as he knew "to be likely to cause death
of the deceased". It is inconceivable that the appellant would not have known that setting a human
being ablaze after soaking her clothes with inflammable liquid would cause her death as the type of
burns resulting therefrom would at least be "likely" to cause her death (if not, they are sufficient in
the ordinary course of nature to cause her death. The fact that she died only after a fortnight of
sustaining those burn injuries cannot evacuate the act out of the contours of the secondly clause of
section 300, IPC. There was a little abatement of the ferocity of the flames which engulfed her as
she, in the instinctive human thirst of getting extricated from the gobbling tentacles of the fire,
succeeded in tracing out a water flow. Such a reflex action performed by her had mitigated the
conflagration of the flames but did not save her from the fatality of the calamity. Hence, the
interval of fourteen days between the attack and her death is not a cause for mitigation of the
offence perpetuated by the offender. We are, therefore, not impressed by the alternative argument
advanced by the learned Senior Counsel for the appellant. In the result, the Supreme Court dismiss
this appeal.

Laxman Case.--

In Laxman v. State of Maharashtra, MANU/SC/0707/2002 : AIR 2002 SC 2973: 2002 Cr LJ 4095:

2002 AIR SCW 3479: 2002 (4) Crimes 42: MANU/SC/0707/2002 : (2002) 6 SCC 710: 2002 (4) SCJ
52: 2002 (5) SLT 49: (2002) 6 SCALE 135: JT 2002 (6) SC 313: 2002 (5) Supreme 557: 2002 (2)
UJ (SC) 1363. In this criminal appeal, the conviction of the accused-appellant is based upon the
dying declaration of the deceased which was recorded by the Judicial Magistrate. The learned
Sessions Judge as well as the High Court held the dying declaration made by the deceased to be
truthful, voluntary and trustworthy. The Magistrate in his evidence had stated that he had
contacted the patient through the Medical Officer on duty and after putting some questions to the
patient to find out whether she was able to make the statement; whether she was set on fire;
whether she was conscious and able to make the statement and on being satisfied he recorded the
statement of the deceased. There was a certificate of the doctor which indicates that the patient
was conscious. The High Court on consideration of the evidence of the Magistrate as well as on the
certificate of the doctor on the dying declaration recorded by the Magistrate together with other
circumstances on record came to the conclusion that the deceased Chandrakala was physically and
mentally fit and as such the dying declaration can be relied upon.

The Supreme Court held that, there is no requirement of law that a dying declaration must
necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is
no specified statutory form for such recording. Consequently, what evidentiary value or weight has
to be attached to such statement necessarily depends on the facts and circumstances of each
particular case. What is essentially required is that the person who records a dying declaration
must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony
of the Magistrate that the declarant was fit to make the statement even without examination by the
doctor the declaration can be acted upon, provided the Court ultimately holds the same to be
voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the
voluntary and truthful nature of the declaration can be established otherwise.
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