Parbin Ali v.

State of Assam, (2013) 2 SCC 81:

21. Coming to the case at hand, the wife, the father-in-law and the two other
relatives have clearly stated that the deceased had informed them about the
names of the assailants. Nothing worth has been elicited in the crossexamination. They have deposed in a categorical manner that by the time they
arrived at the place of occburrence, the deceased was in a fit state of health to
speak and make a statement and, in fact, he did make a statement as to who
assaulted him. Nothing has been suggested to these witnesses about the
condition of the deceased. As has been mentioned earlier, PW 4, the doctor,
who had performed the post-mortem, has not been cross-examined. In
this backdrop, it can safely be concluded that the deceased was in a
conscious state and in a position to speak. Thus, it is difficult to accept that
the wife, the father-in-law and other close relatives would implicate the
appellant-accused by attributing the oral dying declaration to the deceased.
That

apart,

in

the

absence

of

any

real

discrepancy

or

material

contradiction or omission and additionally non-cross-examination of the

doctor in this regard makes the dying declaration absolutely credible and
the conviction based on the same really cannot be faulted.

Madala Venkata Narsimha Rao v. State of A.P., (2012) 13 SCC 679:

21. The eyewitness account, moments after the discovery of the crime is so
overwhelming, coupled with the conduct of the appellant, that only one
conclusion is possible which is that the murder of Lalitha was committed by
the appellant.
22. In addition, it must be appreciated that even Lalitha gave virtually a dying
declaration in which she narrated the sequence of events including the fact
that the appellant had hit her with a chutney grinder on her head and other
parts of her body. There is no reason at all why Lalitha should falsely implicate
the appellant of such a heinous crime. Lalithas statement on this aspect may

be contrasted with her statement on the issue of rape, in which she did not say
a word to implicate the appellant. There is, therefore, more than a ring of truth
in the statement made by Lalitha moments before her death to Lakshmi
Narayana, Purnachandra Rao and Venkateswara Rao.

Arun Bhanudas Pawar v. State of Maharashtra, (2008) 11 SCC 232:

25. It is well-settled law that the oral dying declaration made by the
deceased ought to be treated with care and caution since the maker of the
statement cannot be subjected to any cross-examination. In the present
case, admittedly, the alleged dying declaration had not been made to any doctor
or to any independent witness, but only to the mother who, as stated above,
arrived at the hospital only on the following day at about 3.30 p.m. when Dr.
Nitin had already operated Raju for his injuries and thereafter he was lying on
the bed in unconscious condition with oxygen tubes having been inserted in
his nostrils. The prosecution has not brought on record any medical
certification to prove that after operation the deceased was in a fit
condition to make the declaration before his mother. The evidence of
alleged oral dying declaration by the deceased Raju to his mother PW
Sundarbai relied upon by the prosecution and accepted by the trial court and
the High Court, in our view, was not cogent, satisfactory and convincing to
hold that deceased Raju before his death was in a fit condition to make
oral declaration to his mother.

Darshana Devi v. State of Punjab, 1995 Supp (4) SCC 126:

10. There is variance in the statements of the two witnesses with regard to the
exact words allegedly used by the deceased. According to PW 2, the deceased
had stated that the appellant had sprinkled kerosene on him when he was lying
asleep and had burnt him, while Lachhmi Devi, PW 1 did not attribute any such
statement to the deceased. PW 1 reiterated in her cross-examination all that
Madan Lal told me was that he had been burnt by Darshana Devi by sprinkling

kerosene. Even though an oral dying declaration can form basis of

conviction in a given case, but such a dying declaration has to be
trustworthy and free from every blemish and inspire confidence. The
reproduction of the exact words of the oral declaration in such cases is
very important. The difference in the exact words of the declaration in this
case detract materially from the value of the oral dying declaration.

Vishram v. State of M.P., 1993 Supp (2) SCC 274:

5. ..PW 1 who is the father of the deceased and PW 5 who is no other than
the wife of Kamal Kishore, one of the deceased persons, would be the last
persons, in such a situation, to implicate the appellants falsely leaving out the
real culprits. Both the courts below have discussed the evidence of PWs 1 and
5. We have also perused the same. PW 1 in the first information report itself
has mentioned about the earlier dying declaration and has also given the
necessary details. Nothing significant has been elicited in his crossexamination. Likewise, PW 5 deposed that she also reached the place of
occurrence and found Chandra Shekhar lying unconscious and that her
husband Kamal Kishore was conscious and on being asked, he told her that
the six appellants attacked him and beat him. Thereafter Kamal Kishore was
taken to the hospital. In the cross-examination she has affirmed the same
and her evidence does not suffer from any infirmities. The doctor who
examined Kamal Kishore, on being cross-examined, no doubt stated that
ordinarily injuries found on the head of Kamal Kishore could cause
unconsciousness but it could not positively be said that they would have
caused immediate unconsciousness. Relying on this admission, the learned
counsel submitted that it is not safe to rely on the oral dying declarations. It
must be noted that the doctor did not categorically state that Kamal Kishore
would have been unconscious immediately after receipt of the injuries and
could not have been in a position even to speak that much. We have carefully
examined the evidence of PWs 1 and 5 and also the reasons given by both the
courts below and we are satisfied that no interference is called for. The appeal
is accordingly dismissed.

Prakash v. State of M.P., (1992) 4 SCC 225:

11. The High Court has given very convincing reasons for accepting the
evidence of Ajay Singh as an eyewitness of the murderous act and we do not
find any infirmity in the finding made by the High Court. Insofar as the dying
declaration is concerned, we are inclined to accept the finding of the High
Court that the deceased was alive at least up to half an hour after the assault.
He had been taken to the hospital where he received some treatment for about
10-15 minutes. It is not borne out from the evidence of the doctor that the
injuries were so grave and the condition of the patient was so critical that it
was unlikely that he could make any dying declaration. In the ordinary course,
the members of the family including the father were expected to ask the victim
the names of the assailants at the first opportunity and if the victim was in a
position to communicate, it is reasonably expected that he would give the
names of the assailants if he had recognised the assailants. In the instance
case there is no occasion to hold that the deceased was not in a position to
identify the assailants because it is nobodys case that the deceased did not
know the accused persons. It is therefore quite likely that on being asked the
deceased would name the assailants. In the facts and circumstances of the
case the High Court has accepted the dying declaration and we do not think
that such a finding is perverse and requires to be interfered with. As a matter
of fact, on second thought, the learned Additional Sessions Judge has accepted
the dying declaration and has convicted Prakash on the basis of dying
declaration.

Ghanashyam Das v. State of Assam, (2005) 13 SCC 387:

4. The most incriminating evidence in this case is the dying declaration made
by the deceased to PW 4. After uttering the words that Ghanashyam cut him
the victim became unconscious. It may be recalled that PW 4 was with the
deceased till they parted company to go to their respective houses and within a

few minutes thereafter, the incident had happened. There is absolutely no

reason why PW 4 would come forward to give a false version to implicate the
accused. The oral dying declaration made to PW 4 was believed by the trial
court as well as by the High Court. In the FIR lodged without delay, the oral
dying declaration was specifically mentioned.
6. The contention of the learned counsel for the respondent that with the
magnitude of injuries the victim suffered, he would not have been in a position
to speak out, has been rejected by the High Court. The possibility of the
deceased saying a few words before he became unconscious cannot be ruled
out especially when there is no cross-examination of the medical officer on this
aspect.

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Cases.

Parbin Ali v. State of Assam, (2013) 2 SCC 81:

13. Before we proceed to scrutinise the legal acceptability of the oral dying
declaration, we think it seemly to refer to certain decisions in regard to the
admissibility and evidentiary value of a dying declaration. In Khushal Rao v.
State of Bombay, Kusa v. State of Orissa and in Meesala Ramakrishan v. State
of A.P. it has been held that the law is well settled that the conviction can be
founded solely on the basis of dying declaration if the same inspires full
confidence.
14. In Ranjit Singh v. State of Punjab, it has been held that:
13. conviction can be recorded on the basis of a dying declaration alone,
if the same is wholly reliable, but in the event there exists any suspicion as
regards the correctness or otherwise of the said dying declaration, the
courts in arriving at the judgment of conviction shall look for some
corroborating evidence.
In this context, we may also notice the judgment in Nanhau Ram v. State of M.P.
wherein it has been stated that normally, the court, in order to satisfy itself
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.
15. While dealing with the evidence of the declarants mind, the Constitution
Bench in Laxman v. State of Maharashtra, has laid down thus: (SCC pp. 71314, para 3)
3. The juristic theory regarding acceptability of a dying declaration is that
such declaration is 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 man is induced by the most powerful
consideration to speak only the truth. Notwithstanding the same, great
caution must be exercised in considering the weight to be given to this
species of evidence on account of the existence of many circumstances
which may affect their truth. The situation in which a man is on the
deathbed is so solemn and serene, is the reason in law to accept the veracity
of his statement. It is for this reason the requirements of oath and crossexamination are dispensed with. Since the accused has no power of crossexamination, the courts insist that the dying declaration should be of such
a nature as to inspire full confidence of the court in its truthfulness and
correctness. The court, however, has always to be on guard to see that the
statement of the deceased was not as a result of either tutoring or
prompting or a product of imagination. The court also must further decide
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 whether the deceased was in a fit mental condition to make the
dying declaration looks up to the medical opinion. But where the
eyewitnesses state that the deceased was in a fit and conscious state to
make the declaration, the medical opinion will not prevail, nor can it be said
that since there is no certification of the doctor as to the fitness of the mind
of the declarant, the dying declaration is not acceptable. A dying declaration
can be oral or in writing and any adequate method of communication
whether by words or by signs or otherwise will suffice provided the
indication is positive and definite.

16. In this context, it will be useful to refer to the decision in Puran Chand v.
State of Haryana wherein it has been stated that a mechanical approach in
relying upon a dying declaration just because it is there is extremely dangerous
and it is the duty of the court to examine a dying declaration scrupulously with
a microscopic eye to find out whether the dying declaration is voluntary,
truthful, made in a conscious state of mind and without being influenced by
the relatives present or by the investigating agency who may be interested in
the success of investigation or which may be negligent while recording the
dying declaration. The Court further opined that:
18. The law is now well settled that a dying declaration which has been
found to be voluntary and truthful and which is free from any doubts can be
the sole basis for convicting the accused.
17. Regard being had to the aforesaid principles, we shall presently advert how
to weigh the veracity of an oral dying declaration. As has been laid down in
Laxman by the Constitution Bench, a dying declaration can be oral. The said
principle has been reiterated by the Constitution Bench. Here we may refer to a
two-Judge Bench decision in Prakash v. State of M.P. wherein it has been held
as follows:
11. In the ordinary course, the members of the family including the
father were expected to ask the victim the names of the assailants at the
first opportunity and if the victim was in a position to communicate, it is
reasonably expected that he would give the names of the assailants if he
had recognised the assailants. In the instant case there is no occasion to
hold that the deceased was not in a position to identify the assailants
because it is nobodys case that the deceased did not know the accused
persons. It is therefore quite likely that on being asked the deceased would
name the assailants. In the facts and circumstances of the case the High
Court has accepted the dying declaration and we do not think that such a
finding is perverse and requires to be interfered with.
18. It is worthy to note that in the aforesaid case this Court had laid down that
when it is not borne out from the evidence of the doctor that the injuries were
so grave and the condition of the patient was so critical that it was unlikely

that he could make any dying declaration, there was no justification or warrant
to discard the credibility of such a dying declaration.
19. In Darshana Devi v. State of Punjab this Court referred to the evidence of
the doctor who had stated that the deceased was semi-conscious, his pulse
was not palpable and his blood pressure was not recordable and had certified
that he was not in a fit condition to make a statement after the police had
arrived at the hospital and expressed the view that the deceased could not have
made an oral statement that he had been burnt by his wife. Thus, emphasis
was laid on the physical and mental condition of the deceased and the veracity
of the testimony of the witnesses who depose as regards the oral dying
declaration.
20. In Pothakamuri Srinivasulu v. State of A.P., this Court, while dealing with
the issue whether reliance on the dying declaration made by the deceased to
PWs 1, 2 and 3 therein could be believed, observed thus:
7. We find no reason to disbelieve the dying declaration made by the
deceased to the witnesses PWs 1, 2 and 3. They are all residents of the same
village and are natural witnesses to the dying declaration made by the
deceased. No reason is assigned, nor even suggested to any of the three
witnesses, as to why at all any of them would tell a lie and attribute falsely a
dying declaration to the deceased implicating the appellant-accused.
Though each of the three witnesses has been cross-examined but there is
nothing brought out in their statements to shake their veracity.
We may also note with profit that the Court did not accept that the injured
could not have been in a conscious state on the ground that no such
suggestion had been made to any of the witnesses including the doctor who
conducted the post-mortem examination of the deceased.

DYING DECLARATION

Paniben vs State of Gujarat, (1992) 2 SCC 474, para 18

(i) There is neither rule of law nor of prudence that dying declaration cannot be
acted upon without corroboration.
(ii) If the court is satisfied that the dying declaration is true and voluntary it
can base conviction on it, without 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 itself whether the deceased was in a
fit mental condition to make the dying declaration looks up to the medical
opinion. But where the eyewitness 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.

State of Rajasthan v. Shravan Ram, (2013) 12 SCC 255:

12. This Court in Arvind Singh v. State of Bihar while dealing with the case of
oral dying declaration stated as follows:
Dying declarations shall have to be dealt with care and caution.
Corroboration is not essential but it is expedient to have the same, in order
to strengthen the evidentiary value of declaration. Independent witnesses
may not be available but there should be proper care and caution in the
matter of acceptance of such a statement as trustworthy evidence.
13. This Court in Bhajju v. State of M.P. while dealing with admissibility of
dying declaration held as follows:
26. The law is well settled that a dying declaration is admissible in evidence
and the admissibility is founded on the principle of necessity. A dying
declaration, if found reliable, can form the basis of a conviction. A court of
facts is not excluded from acting upon an uncorroborated dying declaration
for finding conviction. The dying declaration, as a piece of evidence, stands
on the same footing as any other piece of evidence. It has to be judged and
appreciated in light of the surrounding circumstances and its weight
determined by reference to the principle governing the weighing of evidence.
If in a given case a particular dying declaration suffers from any infirmity,
either of its own or as disclosed by the other evidence adduced in the case
or the circumstances coming to its notice, the court may, as a rule of
prudence, look for corroboration and if the infirmities are such as would
render a dying declaration so infirm that it pricks the conscience of the
court, the same may be refused to be accepted as forming basis of the
conviction.

Govindaraju v. State, 2012 4 SCC 722

23. Now, we come to the second submission raised on behalf of the appellant
that the material witness has not been examined and the reliance cannot be
placed upon the sole testimony of the police witness (eyewitness).
24. It is a settled proposition of law of evidence that it is not the number of
witnesses that matters but it is the substance. It is also not necessary to

examine a large number of witnesses if the prosecution can bring home the
guilt of the accused even with a limited number of witnesses. In Lallu Manjhi v.
State of Jharkhand, this Court had classified the oral testimony of the
witnesses into three categories:
(a) wholly reliable;
(b) wholly unreliable; and
(c) neither wholly reliable nor wholly unreliable.
In the third category of witnesses, the court has to be cautious and see if the
statement of such witness is corroborated, either by the other witnesses or by
other documentary or expert evidence.
25. Equally well settled is the proposition of law that where there is a sole
witness to the incident, his evidence has to be accepted with caution and after
testing it on the touchstone of evidence tendered by other witnesses or evidence
otherwise recorded. The evidence of a sole witness should be cogent, reliable
and must essentially fit into the chain of events that have been stated by the
prosecution. When the prosecution relies upon the testimony of a sole
eyewitness, then such evidence has to be wholly reliable and trustworthy.
Presence of such witness at the occurrence should not be doubtful. If the
evidence of the sole witness is in conflict with the other witnesses, it may not
be safe to make such a statement as a foundation of the conviction of the
accused. These are the few principles which the court has stated consistently
and with certainty.
26. Reference in this regard can be made to Joseph v. State of Kerala and Tika
Ram v. State of M.P. Even in Jhapsa Kabari v. State of Bihar, this Court took the
view that if the presence of a witness is doubtful, it becomes a case of
conviction based on the testimony of a solitary witness. There is, however, no
bar in basing the conviction on the testimony of a solitary witness so long as
the said witness is reliable and trustworthy.
27. In Jhapsa Kabari this Court noted the fact that simply because one of the
witnesses (a fourteen-year-old boy) did not name the wife of the deceased in the
fardbeyan, it would not in any way affect the testimony of the eyewitness i.e.

the wife of the deceased, who had given a graphic account of the attack on her
husband and her brother-in-law by the accused persons. Where the statement
of an eyewitness is found to be reliable, trustworthy and consistent with the
course of events, the conviction can be based on her sole testimony. There is no
bar in basing the conviction of an accused on the testimony of a solitary
witness as long as the said witness is reliable and trustworthy.
28. In the present case, the sole eyewitness is stated to be a police officer i.e.
PW 1. The entire case hinges upon the trustworthiness, reliability or otherwise
of the testimony of this witness. The contention raised on behalf of the
appellant is that the police officer, being the sole eyewitness, would be an
interested witness, and in that situation, the possibility of a police officer
falsely implicating innocent persons cannot be ruled out.
29. Therefore, the first question that arises for consideration is whether a police
officer can be a sole witness. If so, then with particular reference to the facts of
the present case, where he alone had witnessed the occurrence as per the case
of the prosecution.
30. It cannot be stated as a rule that a police officer can or cannot be a sole
eyewitness in a criminal case. It will always depend upon the facts of a given
case. If the testimony of such a witness is reliable, trustworthy, cogent and
duly corroborated by other witnesses or admissible evidence, then the
statement of such witness cannot be discarded only on the ground that he is a
police officer and may have some interest in success of the case. It is only when
his interest in the success of the case is motivated by overzealousness to an
extent of his involving innocent people; in that event, no credibility can be
attached to the statement of such witness.
31. This Court in Girja Prasad while particularly referring to the evidence of a
police officer said that it is not the law that police witnesses should not be
relied upon and their evidence cannot be accepted unless it is corroborated in
material particulars by other independent evidence. The presumption applies
as much in favour of a police officer as any other person. There is also no rule
of law which lays down that no conviction can be recorded on the testimony of
a police officer even if such evidence is otherwise reliable and trustworthy. The
rule of prudence may require more careful scrutiny of their evidence. If such a

presumption is raised against the police officers without exception, it will be an

attitude which could neither do credit to the magistracy nor good to the public,
it can only bring down the prestige of the police administration.

Darshana Devi v. State of Punjab, 1995 Supp (4) SCC 126 :

10. There is variance in the statements of the two witnesses with regard to the
exact words allegedly used by the deceased. According to PW 2, the deceased
had stated that the appellant had sprinkled kerosene on him when he was lying
asleep and had burnt him, while Lachhmi Devi, PW 1 did not attribute any such
statement to the deceased. PW 1 reiterated in her cross-examination all that
Madan Lal told me was that he had been burnt by Darshana Devi by sprinkling
kerosene. Even though an oral dying declaration can form basis of conviction
in a given case, but such a dying declaration has to be trustworthy and free
from every blemish and inspire confidence. The reproduction of the exact words
of the oral declaration in such cases is very important. The difference in the
exact words of the declaration in this case detract materially from the value of
the oral dying declaration.

Prakash v. State of M.P., (1992) 4 SCC 225:

11. After giving our anxious consideration to the facts and circumstances of
the case and the arguments advanced by the counsel for the parties and
judgment delivered both by the Additional Sessions Judge and the High Court
of Madhya Pradesh, it appears to us that the fatal injuries had been inflicted by
Prakash with the gupti. The gupti was recovered at the instance of the accused
and such recovery was not otherwise possible if the accused himself had not
assisted for such recovery of the gupti. The said gupti was stained with human
blood and no reasonable explanation has been given by accused for such blood
stain. The injuries found on the person of the deceased could be inflicted by a
gupti and complicity of Prakash in inflicting the fatal injuries by gupti has been
corroborated by the eyewitness. There may be some minor discrepancies in the
evidence of the eyewitness but so far as the complicity of Prakash is concerned,

the depositions of the eyewitnesses were consistent. In discarding the evidence

of the brother of the deceased namely Ajay Singh the learned Additional
Sessions Judge was influenced by the tender age of Ajay (about 14 years) and
was of the view that he was likely to be tutored. We do not think that a boy of
about 14 years of age cannot give a proper account of the murder of his brother
if he has an occasion to witness the same and simply because the witness was
a boy of 14 years it will not be proper to assume that he is likely to be tutored.
The High Court has given very convincing reasons for accepting the evidence of
Ajay Singh as an eyewitness of the murderous act and we do not find any
infirmity in the finding made by the High Court. Insofar as the dying
declaration is concerned, we are inclined to accept the finding of the High
Court that the deceased was alive at least up to half an hour after the
assault. He had been taken to the hospital where he received some
treatment for about 10-15 minutes. It is not borne out from the evidence
of the doctor that the injuries were so grave and the condition of the
patient was so critical that it was unlikely that he could make any dying
declaration. In the ordinary course, the members of the family including
the father were expected to ask the victim the names of the assailants at
the first opportunity and if the victim was in a position to communicate,
it is reasonably expected that he would give the names of the assailants if
he had recognised the assailants. In the instance case there is no
occasion to hold that the deceased was not in a position to identify the
assailants because it is nobodys case that the deceased did not know the
accused persons. It is therefore quite likely that on being asked the
deceased would name the assailants. In the facts and circumstances of
the case the High Court has accepted the dying declaration and we do not
think that such a finding is perverse and requires to be interfered with. As
a matter of fact, on second thought, the learned Additional Sessions Judge has
accepted the dying declaration and has convicted Prakash on the basis of dying
declaration. The injuries inflicted by Prakash were very serious on vital parts of
the body causing death of the deceased within a very short time. In such
circumstances, conviction under Section 302 IPC and sentence of life
imprisonment of the accused Prakash is justified and no interference is called

for. In our view, the High Court has taken a very reasonable view in convicting
the other accused namely Shiv Narayan under Section 326 read with Section
34 IPC and has considered his case with such sympathy as the said accused
deserved by sentencing him to imprisonment for the period already undergone
by him, for an offence under Section 326 read with Section 34 IPC. We,
therefore find no reason to interfere with the conviction or the sentence passed
against the accused Shiv Narayan. The appeals therefore fail and are
dismissed. The bail bond of the accused Prakash is discharged and he would
surrender and serve out the sentence.

Waikhom Yaima Singh v. State of Manipur, (2011) 13 SCC 125 :

19. It is also to be seen that the deceased was very seriously injured, so much
so that according to the witnesses, he died immediately after allegedly making
the said dying declaration, the time of which is not fixed by the prosecution.
The most important circumstance about this dying declaration is that, firstly, it
is oral and secondly, there is no medical evidence suggesting that the deceased
was in a fit medical condition to make such a dying declaration.
20. There can be no dispute that the dying declaration can be the sole basis for
conviction, however, such a dying declaration has to be proved to be wholly
reliable, voluntary and truthful and further that the maker thereof must be in
a fit medical condition to make it. The oral dying declaration is a weak kind of
evidence, where the exact words uttered by the deceased are not available,
particularly because of the failure of memory of the witnesses who are said to
have heard it. In the present case also, the exact words are not available. They
differ from witness to witness. Some witnesses say about the name of the
village of the appellant having been uttered by the deceased and some others
do not. Further, Dr. Ningombam Shyamjai Singh (PW 12) was also not crossexamined by the Public Prosecutor in this case about the medical condition of
the deceased and further fact as to whether he was in a fit condition to make
any statement.

Arun Bhanudas Pawar v. State of Maharashtra, (2008) 11 SCC 232 :

25. It is well-settled law that the oral dying declaration made by the deceased
ought to be treated with care and caution since the maker of the statement
cannot be subjected to any cross-examination. In the present case, admittedly,
the alleged dying declaration had not been made to any doctor or to any
independent witness, but only to the mother who, as stated above, arrived at
the hospital only on the following day at about 3.30 p.m. when Dr. Nitin had
already operated Raju for his injuries and thereafter he was lying on the bed in
unconscious condition with oxygen tubes having been inserted in his nostrils.
The prosecution has not brought on record any medical certification to prove
that after operation the deceased was in a fit condition to make the declaration
before his mother. The evidence of alleged oral dying declaration by the
deceased Raju to his mother PW Sundarbai relied upon by the prosecution and
accepted by the trial court and the High Court, in our view, was not cogent,
satisfactory and convincing to hold that deceased Raju before his death was in
a fit condition to make oral declaration to his mother.

State (Delhi Admn.) v. Laxman Kumar, (1985) 4 SCC 476

47. Mr Garg appearing for the appellants in Criminal Appeal 94 of 1984, had
emphatically relied upon the observations of the Judicial Committee in the
case of Barendra Kumar Ghosh v. King-Emperor6, and contended that in view of
the fact that Subhash stood and waited exhibiting a conduct of indifference
when positive action for help to Sudha was warranted, he must be imputed
with sufficient motive and be ranked at par with the accused persons. We are,
however, prepared to give him the benefit of doubt treating his case to be on the
border-line. His acquittal by the High Court, therefore, shall not be interfered
with. As far as the mother-in-law is concerned, the position is very different.
Sudha in her dying declarations made contemporaneously as deposed to by the
witnesses had stated that kerosene had been poured by the mother-in-law and
fire had also been lit by her. This has been repeated by her more than once
before she reached the hospital except that she assigned the lighting of fire to
her husband. We have already dealt with this aspect of the matter and

have come to the conclusion that though we would not have been
prepared to base the conviction on the oral dying declarations alone, such
dying declarations, in our opinion, were not to be totally rejected and the
same can be used as corroborative material.

This extract is taken from State of Rajasthan v. Santosh Savita, (2013) 12 SCC 663, at page 671 :

18. Section 32(1) of the Evidence Act, 1872 makes it clear that when a
statement, written or verbal, 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 persons death comes into
question, such statement is relevant. Hence, Exts. P-4 and P-10 are relevant
for deciding as to what was the exact cause of the death of the deceased in
this case. In this case, Exts. P-4 and P-10 were also corroborated by both
circumstantial evidence regarding the recovery of plastic can with some
kerosene oil, burnt pieces of saree, blouse and bangles and broken
matchsticks from the place of occurrence as well as the direct evidence of
PW 2, PW 3, PW 4 and PW 8, who had seen the respondent coming out of
the room where the incident took place. In our view, therefore, the High
Court could not have acquitted the respondent by the impugned judgment.
This extract is taken from Shudhakar v. State of M.P., (2012) 7 SCC 569, at page 578 :

16. We may, now, refer to some of the judgments of this Court in regard
to the admissibility and evidentiary value of a dying declaration. In Bhajju v.
State of M.P.5 this Court clearly stated that Section 32 of the Evidence Act
was an exception to the general rule against admissibility of hearsay
evidence. Clause (1) of Section 32 makes the statement of the deceased
admissible, which has been generally described as dying declaration. The
Court, in no uncertain terms, held that: (SCC p. 336, para 24)
24. 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 by other evidence.
The dying declaration, if found reliable, could form the basis of conviction.
This principle has also earlier been stated by this Court in Surinder Kumar v.
State of Haryana6 wherein the Court, while stating the above principle, on
facts and because of the fact that the dying declaration in the said case was
found to be shrouded by suspicious circumstances and no witness in support
thereof had been examined, acquitted the accused. However, the Court
observed that when a dying declaration is true and voluntary, there is no
impediment in basing the conviction on such a declaration, without
corroboration.
17. In Chirra Shivraj v. State of A.P.7 the Court expressed a caution that
a mechanical approach in relying upon the dying declaration just because it
is there, is extremely dangerous. The court has to examine a dying
declaration scrupulously with a microscopic eye to find out whether the dying
declaration is voluntary, truthful, made in a conscious state of mind and
without being influenced by other persons and where these ingredients are
satisfied, the Court expressed the view that it cannot be said that on the
sole basis of a dying declaration, the order of conviction could not be passed.
18. In Laxman2, the Court while dealing with the argument that the
dying declaration must be recorded by a Magistrate and the certificate of

fitness was an essential feature, made the following observations. The Court
answered both these questions as follows: (SCC pp. 713-14, para 3)
3. The juristic theory regarding acceptability of a dying declaration is
that such declaration is 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 man is induced by the most powerful
consideration to speak only the truth. Notwithstanding the same, great
caution must be exercised in considering the weight to be given to this
species of evidence on account of the existence of many circumstances
which may affect their truth. The situation in which a man is on the
deathbed is so solemn and serene, is the reason in law to accept the
veracity of his statement. It is for this reason the requirements of oath
and cross-examination are dispensed with. Since the accused has no
power of cross-examination, the courts insist that the dying declaration
should be of such a nature as to inspire full confidence of the court in its
truthfulness and correctness. The court, however, has always to be on
guard to see that the statement of the deceased was not as a result of
either tutoring or prompting or a product of imagination. The court also
must further decide 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 whether the deceased was in a fit mental
condition to make the dying declaration looks up to the medical opinion.
But where the eyewitnesses state that the deceased was in a fit and
conscious state to make the declaration, the medical opinion will not
prevail, nor can it be said that since there is no certification of the doctor
as to the fitness of the mind of the declarant, the dying declaration is not
acceptable. A dying declaration can be oral or in writing and any adequate
method of communication whether by words or by signs or otherwise will
suffice provided the indication is positive and definite. In most cases,
however, such statements are made orally before death ensues and is
reduced to writing by someone like a Magistrate or a doctor or a police
officer. When it is recorded, no oath is necessary nor is the presence of a
Magistrate absolutely necessary, although to assure authenticity it is
usual to call a Magistrate, if available for recording the statement of a
man about to die. 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 evidential 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.
20. The dying declaration is the last statement made by a person at a
stage when he is in serious apprehension of his death and expects no
chances of his survival. At such time, it is expected that a person will speak
the truth and only the truth. Normally in such situations the courts attach
the intrinsic value of truthfulness to such statement. Once such statement
has been made voluntarily, it is reliable and is not an attempt by the
deceased to cover up the truth or falsely implicate a person, then the courts
can safely rely on such dying declaration and it can form the basis of
conviction. More so, where the version given by the deceased as dying
declaration is supported and corroborated by other prosecution evidence,
there is no reason for the courts to doubt the truthfulness of such dying
declaration.
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This extract is taken from Rafique v. State of U.P., (2013) 12 SCC 121, at page 131 :

23. After considering the above legal principles, this Court has set down
the following six tests to be applied for relying upon a material statement as
a dying declaration: (Kushal Rao case2, AIR pp. 28-29, para 16)
16. On a review of the relevant provisions of the Evidence Act and of
the decided cases in the different High Courts in India and in this Court,
we have come to the conclusion, in agreement with the opinion of the Full
Bench3 of the Madras High Court, aforesaid, (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 pieces of evidence; (4) that a dying declaration
stands on the same footing as another piece of evidence and has to be
judged in the light of surrounding circumstances and with reference to
the principles governing the weighing of evidence; (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.
(emphasis supplied)
24. We also wish to add that as on date, there is no statutory prescription
as to in what manner or the procedure to be followed for recording a dying
declaration to fall within the four corners of Section 32(1) of the Evidence
Act. The presence of the Magistrate; certification of the doctor as to the
mental or the physical status of the person making the declaration, were all
developed by judicial pronouncements. As has been repeatedly stated in
various decisions, it will have to be found out whether in the facts and
circumstances of any case the reliance placed upon by the prosecution on a
statement alleged to have been made by the deceased prior to his death can
be accepted as a dying declaration, will depend upon the facts and
circumstances that existed at the time of making the statement. In that case
it would mainly depend upon the date and time vis--vis the occurrence
when the statement was alleged to have been made, the place at which it
was made, the person to whom the said statement was made, the sequence
of events, which led the person concerned to make the statement, the
physical and mental condition of the person who made the statement, the
cogency with which any such statement was made, the attending
circumstances, whether throw any suspicion as to the factum of the
statement said to have been made or any other factor existing in order to
contradict the statement said to have been made as claimed by the
prosecution, the nexus of the person who made the statement to the alleged
crime and the parties involved in the crime, the circumstance which made
the person to come forward with the statement and last but not the least,
whether the said statement fully supports the case of the prosecution.
25. In this context, we can also make a reference to a decision of this
Court in Cherlopalli Cheliminabi Saheb v. State of A.P.8, where it was held
that it was not absolutely mandatory that in every case a dying declaration

should be recorded only by a Magistrate. The said position was reiterated in

Dhan Singh v. State of Haryana9 wherein it was held that neither Section 32
of the Evidence Act nor Section 162(2) CrPC, mandate that the dying
declaration has to be recorded by a designated or particular person and that
it was only by virtue of the development of law and the guidelines settled by
the judicial pronouncements that it is normally accepted that such
declaration would be recorded by a Magistrate or by a doctor to eliminate
the chances of any doubt or false implication by the prosecution in the
course of investigation.
26. In a recent decision of this Court in Sri Bhagwan v. State of U.P.10, to
which one of us was a party, the Court dealt with more or less an identical
situation and held as under in paras 21 and 22:
21. As far as the implication of Section 162(2) CrPC is concerned, as
a proposition of law, unlike the excepted circumstances under which
Section 161 statement could be relied upon, as rightly contended by the
learned Senior Counsel for the respondent, once the said statement
though recorded under Section 161 CrPC assumes the character of dying
declaration falling within the four corners of Section 32(1) of Evidence
Act, then whatever credence that would apply to a declaration governed
by Section 32(1) should automatically deem to apply in all force to such a
statement though was once recorded under Section 161 CrPC. The above
statement of law would result in a position that a purported recorded
statement under Section 161 of a victim having regard to the subsequent
event of the death of the person making the statement who was a victim
would enable the prosecuting authority to rely upon the said statement
having regard to the nature and content of the said statement as one of
dying declaration as deeming it and falling under Section 32(1) of the
Evidence Act and thereby commend all the credence that would be
applicable to a dying declaration recorded and claimed as such.

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