When Dying Declaration is true and voluntary, Court can base its conviction on it without Corroboration: Supreme Court

Supreme Court of India
Source: Supreme Court of India
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  • Post published:February 2, 2022
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In a judgment authored by Justice M. R Shah, it is observed that there is neither a rule of law nor of prudence to the effect that a dying declaration cannot be acted upon without a corroboration. If the Court is satisfied that the dying declaration is true and voluntary it can base its conviction on it, without corroboration.

While considering the issue of multiple dying declarations, the Court referred to the judgment in case of Jagbir Singh V. State (NCT of Delhi) (2019) 8 SCC 779 wherein it was observed and held that merely because there are two/multiple dying declarations, all the dying declarations are not to be rejected. It was observed and held that when there are multiple dying declarations the case must be decided on the facts of each case and the court will not be relieved of its duty to carefully examine the entirety of the material on record as also the circumstances surrounding the making of the different dying declarations.

The instant criminal appeal was filed by the State against the impugned judgment and order passed by the Division Bench of the High Court of Allahabad whereby the High Court had allowed the appeal preferred by the respondents herein – original accused and had acquitted the accused for the offences under Section 302 read with Section 34 of the IPC.

Submissions of the Appellant/State:

Ms. Garima Prashad, learned Senior Advocate appearing on behalf of the State submitted that in the facts and circumstances of the case, the High Court has committed a grave error in acquitting the accused for the serious offences under Section 302 read with Section 34 of the IPC. The High Court ought to have relied upon and considered the dying declaration recorded by the competent magistrate.

He further submitted that the finding recorded by the learned Trial Court was on appreciation of available evidence on record more particularly the medical evidence.

He also submitted that the High Court ought to have appreciated that the dying declaration recorded by a competent Magistrate would stand on a higher footing than the declaration made to IO under Section 161 of Cr.PC.

In support of his submissions he placed reliance upon the decisions of this Court in the cases of Ravi Chander & Ors. V. State of Punjab (1998) 9 SCC 303 (para 6); Harjit Kaur V. State of Punjab (1999) 6 SCC 545, (para 6); Koli Chunilal Savji & Anr. V. State of Gujarat (1999) 9 SCC 562 (para 8); Vikas & Ors. V. State of Maharashtra (2008) 2 SCC 516 (para 48); Laxman V. State of Maharashtra (2002) 6 SCC 710 and Jagbir Singh V. State (NCT of Delhi) (2019) 8 SCC 779 (para 21).

He therefore urged that the impugned judgment and order passed by the High Court is not sustainable and the impugned judgment and order deserves to be quashed and set aside and the judgment and order passed by the learned Trial Court convicting the accused under Section 302 read with Section 34 of the IPC deserves to be upheld/restored.

Submissions of the Respondents:

The appeal was opposed by Shri P.S. Khurana, learned counsel appearing on behalf of the respondents – original accused. He submitted that in the facts and circumstances of the case and in view of multiple dying declarations, the High Court has rightly acquitted the accused.

He further submitted that High Court has rightly observed that once the dying declaration was recorded by the police officer on 20.12.2011, thereafter there was no reason to record another dying declaration on 22.12.2011.

He also submitted that the High Court has observed that the deceased was mentally weak and therefore in such a state of mind and because of the fear of her father­ in­ law that she will be beaten when she refused to give the money, she committed suicide by pouring kerosene on herself; no case of murder has been made out and therefore, the High Court has rightly acquitted the accused for the offences punishable under Section 302 read with Section 34 of the IPC.

Observations of the Court:

At the outset, the Court noted that were two dying declarations, one recorded by the Police Officer on 20.12.2011 and another recorded by the Magistrate/SDM recorded on 22.12.201. The High Court has not believed the dying declaration recorded by the Magistrate/SDM on 22.12.2011 mainly on the ground that when the dying declaration was already recorded by the Police Officer on 20.12.2011, there was no reason to record the second dying declaration.

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However, it is required to be noted that what was recorded by the Police Officer on 20.12.2011 was the statement under Section 161 Cr.PC. Therefore, it was thought fit to record the dying declaration of the deceased by the Magistrate and that is why SDM was called to record the dying declaration of deceased on 22.12.2011. At the cost of repetition, it is observed that even the High Court has specifically observed that the first statement/dying declaration recorded by the Police on 20.12.2011 does not inspire any confidence. In that view of the matter, it is required to be considered whether the dying declaration recorded by the Magistrate on 22.12.2011 is to be believed or not and whether on the basis of such dying declaration recorded by the Magistrate/SDM, the accused can be convicted or not, the Court observed.

Credibility of Dying Declaration recorded by the Magistrate:

9.1 While considering the aforesaid question/issue a few decisions of this Court on the credibility of the dying declaration recorded by the Magistrate are required to be referred to.
In the case of Laxman (supra) after referring to and considering the earlier decisions on the credibility of the dying declaration recorded by the Magistrate, it was observed that the Magistrate being a disinterested witness and a responsible officer and there being no circumstances or material to suspect that the Magistrate had any animus against the accused or was in any way interested for fabricating a dying declaration, question of doubt on the declaration, recorded by the Magistrate does not arise.

In the case of Jagbir Singh (supra) this Court had an occasion to consider the law relating to the dying
declaration and the problem of multiple dying declarations in detail. It was observed and held that merely because there are two/multiple dying declarations, all the dying declarations are not to be rejected. It was observed and held that when there are multiple dying declarations the case must be decided on the facts of each case and the court will not be relieved of its duty to carefully examine the entirety of the material on record as also the circumstances surrounding the making of the different dying declarations. Ultimately, in paragraph 32, this Court concluded as under:


Our conclusion on multiple dying declarations “We would think that on a conspectus of the law as laid down by this Court, when there are more than one dying declaration, and in the earlier dying declaration, the accused is not sought to be roped in but in the later dying declaration, a somersault is made by the deceased, the case must be decided on the facts of each case. The court will not be relieved of its duty to carefully examine the entirety of materials as also the circumstances surrounding the making of the different dying declarations. If the court finds that the incriminatory dying declaration brings out the truthful position particularly in conjunction with the capacity of the deceased to make such declaration, the voluntariness with which it was made which involves, no doubt, ruling out tutoring and prompting and also the other evidence which support the contents of the incriminatory dying declaration, it can be acted upon. Equally, the circumstances which render the earlier dying declaration, worthy or unworthy of acceptance, can be considered.”

Similar views have been expressed by this Court in the case of Ravi Chander & Ors. (supra), Harjit Kaur (supra),
Koli Chunilal Savji & Anr. (supra) and Vikas & Ors. (supra).

Whether conviction can be based solely on dying declaration:

On the question whether in absence of any corroborative evidence, there can be a conviction relying upon the dying declaration only, the Court relied upon the decision of its own Court in case of Munnu Raja & Anr. and the subsequent decision in the case of Paniben (Smt) V. State of Gujarat, (1992) 2 SCC 474 wherein it is specifically observed and held that there is neither a rule of law nor of prudence to the effect that a dying declaration cannot be acted upon without a corroboration. It is observed and held that if the Court is satisfied that the dying declaration is true and voluntary it can base its conviction on it, without corroboration. Similar view has also been expressed in the cases of State of Uttar Pradesh V. Ram Sagar Yadav & Ors. (1985) 1 SCC 552 and Ramawati Devi V. State of Bihar, (1983) 1 SCC 211. Therefore, there can be a conviction solely based upon the dying declaration without corroboration.

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Evidentiary Value of the Dying Declaration:

The Court also referred to the judgment in case of Kushal Rao V. State of Bombay, AIR 1958 SC 22:1958 SCR 552 covering the law on the evidentiary value of dying declarations. Wherein the Court laid down the following principles as to the circumstances under which a dying declaration may be accepted, without corroboration: ­

“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 Bench 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.”

The Court after considering the facts of the case and analyzing the law governing the field observed that, The trial Court has rightly observed as to the weight and reliance that must be placed on the dying declaration of the deceased. There was no reason for the High Court to disregard the dying declaration of the deceased.

In view of the above, the Court allowed the present appeal and set aside the judgment acquitting the accused for the offences punishable under Section 302 read with Section 34 of the IPC.

The Court also restored the judgment and order passed by the learned Trial Court convicting the accused for the offences punishable under Section 302 read with Section 34 of the IPC and held Respondent Nos. 1 & 2 – original accused guilty for the offences punishable under Section 302 read with Section 34 of the IPC and sentenced them to undergo imprisonment for life and a fine of Rs.10,000/­ each as awarded by the learned Trial Court.

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Case Details:
CRIMINAL APPEAL NO. 34 OF 2022
State of U.P. vs Veerpal & Anr.
Coram: Justice M. R Shah and Justice
B. V. Nagarathna
Date of Judgment: 01-02-2022