Dying Declaration cannot be Rejected merely because the same is not read over to the Declarant

Evidence Act, 1872 - S. 32(1) - A dying declaration cannot be rejected merely because the same is not read over to the declarant and the declarant admitting the same to have been correctly recorded. We hold and clarify that this can be one of the factors, if it assumes significance in the facts and circumstances of any case.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR

CORAM : R.K. DESHPANDE, S.B. SHUKRE & M.G. GIRATKAR, JJ.

DATE OF PRONOUNCING THE JUDGMENT : 9TH MARCH, 2018 

CRIMINAL APPEAL NO.186 OF 2013

Ganpat Bakaramji Lad, Aged about 35 years, Occupation – Labourer, Residing at Warud, Behind Post Office, Taluka – Warud, District – Amravati. … Appellant Versus The State of Maharashtra, through Police Station Officer, Warud, Taluka _ Warud, District – Amravati. … Respondent S/Shri Rahul Dhande, Sumit Joshi and P.R. Agrawal, Advocates for Appellant.

Shri A.M. Deshpande, Additional Public Prosecutor, supported by Shri Amit Kinkhede, Advocate.

J U D G M E N T

(Per : R.K. DESHPANDE, J.) : 

1. In the case of Shivaji s/o Tukaram Patdukhe v. State of Maharashtra, reported in 2004 ALL MR (Cri) 3220, the Division Bench of this Court [M/s. P.V. Hardas & M.G. Gaikwad, JJ.] considered the dying declaration recorded by Special Executive Magistrate on the basis of which the conviction was recorded by the Sessions Court for the offence punishable under Section 302 of the Indian Penal Code and was heavily relied upon by the prosecution, to maintain it. This Court set aside the conviction and granted acquittal holding that there is no convincing evidence. In para 13, the reason was given to reject the dying declaration as under : 

“13. The dying declaration at Exh.24, according to us, can not be relied upon as the statement was never read over to deceased Durgabai and there is no endorsement to that effect. When the declaration was not read over to Durgabai and she had not admitted the contents thereof to be correct, according to us, the dying declaration can not be made foundation for sustaining the conviction.” 

2. Similar view was taken by the another Division Bench [M/s. P.V. Hardas and Sadhana S. Jadhav, JJ.] in the case of Abdul Riyaz Abdul Bashir v. State of Maharashtra, reported in 2012(3) BCR (Cri) 329, setting aside the conviction for the offence punishable under Section 302 of the Indian Penal Code recorded by the Sessions Court on the basis of the dying declaration. The dying declaration was recorded by the Executive Magistrate. It was held that to rule out any remote infirmity, it is necessary that there has to be an endorsement that the contents were read over and admitted to be true and correct, and in the absence of it, the dying declaration cannot inspire confidence of the Court. Reliance was placed upon the decision of the Apex Court in the case of Shaikh Bakshu and others v. State of Maharashtra, reported in (2007) 11 SCC 269, and the decision of the Division Bench of this Court in Shivaji's case, cited supra.

3. The another Division Bench of this Court [M/s. A.B. Chaudhari and P.N. Deshmukh, JJ.] considered this aspect in the case of Ganpat Bakaramji Lad v. The State of Maharashtra, reported in 2015(4) BCR (Cri) 534. The Division Bench expressed its disagreement with the aforesaid two decisions of the Division Benches holding that it is neither the ratio nor the obiter dicta of the decision of the Apex Court in Shaikh Bakshu's case that the dying declaration has to be rejected only because the contents of it were not read over and admitted to be correct by the declarant. The Division Bench took the view that it would be unjust to reject the entire dying declaration duly proved and believed, only for the reason that it was not read over and admitted to be correct by the declarant. It confirmed the conviction under Section 302 of the Indian Penal Code recorded on the basis of the dying declaration.

4. After expressing its disagreement, the Division Bench in Ganpat Lad's case framed the question for reference to the Larger Bench as under : 

“Whether a Dying Declaration can be rejected merely because the same is not read over to the declarant and the declarant admitting the same to have been correctly recorded?” 

5. In order to consider the said question, the matter is placed before this Full Bench.

6. We have heard S/Shri Rahul Dhande, Sumit Joshi and P.R. Agrawal, the learned counsels, who assailed the dissenting view expressed by the Division Bench in the order of reference in Ganpat Lad's case, cited supra. According to them, the requirement of reading over the declaration and explaining the contents of it to the declarant and the declarant admitting the same to be true, is mandatory and the view taken by the two Division Benches of this Court in the cases of Shivaji s/o Tukaram Patdukhe v. State of Maharashtra, reported in 2004 ALL MR (Cri) 3220, and Abdul Riyaz Abdul Bashir v. State of Maharashtra, reported in 2012 ALL MR (Cri) 2188, is supported by the decision of the Apex Court in the case of Shaikh Bakshu, cited supra, and the subsequent decision of the Apex Court in the case of Kanti Lal v. State of Rajasthan, reported in (2009) 12 SCC 498. According to them, in another decision, which is unreported, in Criminal Appeal No.13 of 2008 [Raju s/o Rambhau Patile and another v. State of Maharashtra] decided on 1892012, the Division Bench of this Court [M/s. P.V. Hardas & A.B. Chaudhari, JJ.] has followed the view taken in Shivaji Patdukhe and Abdul Riyaz Abdul Bashir's cases.

7. The learned counsels have further relied upon the decision of another Division Bench of this Court in the case of Vilas @ Bandu Punjabrao Misal v. State of Maharashtra [M/s. B.R. Gavai & Prasanna B. Varale, JJ.], reported in 2016 ALL MR (Cri) 3838, which has expressed that the Division Bench in Ganpat Lad's case was bound by the ratio of the decision in Shaikh Bakshu and Kanti Lal's cases. The Division Bench in Abdul Riyaz Abdul Bashir's case has considered the two decisions of the Apex Court in Shaikh Bakshu and Kanti Lal's cases to hold that if the dying declaration is not read over and explained and the maker thereof has not admitted the contents thereof to be true, such a dying declaration cannot be made foundation for sustaining the conviction, is the ratio.

8. Shri Anand Deshpande, the learned Additional Public Prosecutor, and Shri Amit Kinkhede, Advocate, have relied upon the decisions of the Apex Court in the cases of Khushal Rao v. State of Bombay, reported in AIR 1958 SC 22; State of Rajasthan v. Kishore, reported in (1996) 8 SCC 217; Laxman v. State of Maharashtra, reported in (2002) 6 SCC 710; and Narender Kumar v. State (NCT of Delhi), reported in (2015) 17 SCC 451, to urge that the Apex Court has laid down the rule of caution, and merely because there is no endorsement that the declaration is not read over to the declarant and the declarant admitting the same to have been correctly recorded, that by itself would not be enough to reject the dying declaration, if on the basis of other evidence on record it is found to be trustworthy. According to them, this can at the most be one of the relevant factors to be considered depending upon the facts and circumstances of each case and validity of declaration cannot be judged on this sole factor.

9. Before proceeding to deal with the question involved here, we shall recapitulate the position of law enunciated by the several decisions of the Apex Court and of this Court.

10. The sanctity attached to the dying declaration has been considered very aptly in the two decisions of the Apex Court, one in Khushal Rao's case and another in Laxman's case, cited supra, and both these cases were from the decision of this Court. The Court considered the provision of Section 32(1) of the Indian Evidence Act, reproduced above. In Khushal Rao's case, the Apex Court holds that the statement made by a person who is in danger of losing his life, as to the cause of his death or as to the transaction which resulted in his death, becomes a relevant fact upon his death. It holds that such a person is not expected to tell lies at such serious and solemn moment. In para 3 of Laxman's case, the Apex Court holds that 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. 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.

11. In both the decisions cited supra, the general propositions of law are laid down. In Khushal Rao's case, the Apex Court holds that a dying declaration stands on the same footing as another piece of evidence. It cannot be laid down as a general proposition of law that a dying declaration is a weaker kind of evidence than that other pieces of evidence. There is no absolute rule of law that a dying declaration cannot form the sole basis of conviction unless corroborated by other independent evidence. In Laxman's case, it is held that the Court also must decide that the deceased was in a fit state of mind and had the opportunity to observe and identity of 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 or a Magistrate recording the statement 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 certification by the doctor is essentially a rule of caution.

12. In both the decisions, as the general propositions of law, the Apex Court has held that 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. When the statement is recorded in writing, 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 a statement is recorded by a Magistrate, there is no specified statutory form for such recording. What evidentiary value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case.

13. While maintaining the conviction and the death sentence in Khushal Rao's case, the Apex Court considered the following factors to hold the three dying declarations as trustworthy : 

(a) All the three dying declarations were recorded in quick succession immediately within twoandhalf hours of the occurrence and shortly thereafter the declarant died.

(b) The incident occurred on 1221956 and the accused could not be traced till 1621956.

The conduct of the accused concealing himself and evading police for number of days was held to be consistent with the case of the prosecution that he was concerned in the crime.

(c) The injuries found on the person of the deceased were consistent with the statement that he was attacked by a number of persons with the cutting and piercing weapons.

(d) No part of dying declaration was found to be false.

(e) There was no opportunity on time to tutor the dying man to tell lie.

(f) At all material times, the declarant was in a proper state of mind in spite of multiple injuries to remember the names of the assailants.

14. In the decision of the Apex Court in Paparambaka Rosamma and others v. State of A.P., reported in (1999) 7 SCC 695, the accused was convicted by the Sessions Court and the High Court set aside the conviction acquitting the accused persons. The conviction recorded by the Sessions Court was based upon the sole dying declaration recorded by the Judicial Magistrate, who entered the witnessbox and deposed that the injured was conscious, but has not deposed that the injured was in a fit state of mind to make a statement. The Apex Court considered the question as to whether the Magistrate could have come to a definite conclusion that the injured was in a fit state of mind to make a declaration in the absence of a certificate by the doctor certifying the state of mind that existed before recording the dying declaration. It was held that in the absence of medical certification that the injured was in a fit state of mind at the relevant time of making declaration, it would be very much risky to accept the subjective satisfaction of a Magistrate, who opined that the injured was in a fit state of mind at the time of making a declaration.

15. The correctness of the view taken in the aforesaid decision fell for consideration of the Constitution Bench of the Apex Court in Laxman's case, cited supra, only to resolve the conflict between the said decision and the another decision of the Apex Court in the case of Koli Chunilal Savji and another v. State of Gujarat, reported in (1999) 9 SCC 562. It was held in Laxman's case that the ultimate test is whether the dying declaration can be held to be truthful one and voluntarily given. It was held that before recording the declaration, the officer concerned must find that the declarant was in a fit condition to make the statement in question and had an opportunity to observe and identify the assailant. It was held that where the eyewitnesses or Magistrate recording the statement states that the deceased was in a fit and conscious state, the medical opinion will not prevail nor can it be said that since there is no certification of the doctor as to fitness of the mind of the declarant, the dying declaration is not acceptable.

16. The Constitution Bench ruled that the view taken in Paparambaka Rosamma's case is not the correct enunciation of law and indeed a hypertechnical view that the certification of the doctor was to the effect that the patient is conscious and there was no certification that the patient was in a fit state of mind, especially when the Magistrate categorically stated in his evidence, indicating the questions he had put to the patient, and from the answers elicited was satisfied that the patient was in a fit state of mind whereafter he recorded the dying declaration. The Constitution Bench confirmed the view taken in Koli Chunilal Savji's case.

17. In the case of Kishore, cited by Shri Amit Kinkhede, the Apex Court was considering the dying declaration recorded by the Judicial Magistrate, on the basis of which the Sessions Court recorded the conviction under Section 302 of the Indian Penal Code. The High Court in appeal discarded the dying declaration on the admitted position that the Magistrate did not read the dying declaration after it was recorded and that there was no identification of the deceased when the declaration was recorded. The Apex Court allowed the appeal and set aside the decision of the High Court and restored the conviction and sentence imposed by the Sessions Court. The Apex Court considered the question as to whether the dying declaration was a reliable piece of evidence.

18. After taking into consideration the provision of Section 32(1) of the Evidence Act and the decision in Khushal Rao's case, the Apex Court holds in para 13 of Kishore's case that “a perusal of the answers clearly indicates and inspires us to believe that she was conscious and had given cogent, coherent and direct answers to the questions put by the Magistrate from which it could easily be inferred that she was in a mentally fit condition at that time to give the statement.” The Court further holds that “the declaration reflects the true state of affairs at the time of occurrence and her statement is a truthful version and is reliable one.” The Court holds in para 14 that “the tenor of the reasoning by the High Court was solely directed to criticize the Magistrate PW 1 which is uncalled for in the circumstances. Therefore the High Court was not right in doubting Exhibit P8, dying declaration recorded by Judicial Magistrate.” The Court takes into consideration one important factor that no one was present with the declarant at the time of recording the dying declaration to tutor him to give any false statement or implicate anyone falsely. In para 15, the Court holds that “there was no necessity to read once over the statement to the deceased.” '

19. In the decision of this Court in the case of Shivaji Tukaram Patdukhe, cited supra, the Sessions Court recorded the conviction for an offence punishable under Section 302 of the Indian Penal Code relying upon the dying declaration recorded by the Special Executive Magistrate. After going through the said decision, we find that the Division Bench found inconsistency in the evidence of the two eyewitnesses, apart from the fact that the evidence was found to be suffering from falsehood. The oral dying declaration was also not accepted and the written dying declaration was discarded. It is for the first time that this Court has taken a view that the dying declaration cannot be relied upon, as the statement was never read over to the victim and there is no endorsement to that effect. It holds that when the declaration was not read over and the victim had not admitted the contents thereof to be correct, the dying declaration cannot be made a foundation for sustaining the conviction.

20. In the decision of the Full Bench of this Court in the case of Ramesh s/o Gyanoba Kamble v. The State of Maharashtra, reported in 2011 ALL MR (Cri) 3536 (F.B.), one of the questions considered was whether it is necessary for the Magistrate, who recorded the dying declaration, to depose before the Trial Court about the name and act of the accused which resulted into the murder, in the words spoken up by the dying man. While considering this question, the Court holds in paras 18.11, 18.12, 18.13, 18.15 and 19.2 as under : 

“18.11 … Section 32(1) does not provide that a recorder of the dying declaration should repeat the contents of such “statement” of the deceased. Even in case of “verbal statement”, the witness who heard it made, requires to repeat its contents/gist in order to bring it on record, being a relevant fact in issue, and though it is hearsay, repetition thereof is made an exception to the hearsay rule.” 

“18.12 If it is held to be essential requirement of law that statement/dying declaration in writing needs to be repeated/reproduced in the words spoken by the deceased as to the cause of his death, then there would be no difference between “oral dying declaration” and “written dying declaration” and in that eventuality it would not be necessary to reduce the dying declaration in writing. Such anomaly would frustrate the purport of statute. A Magistrate who records the statement is not supposed to be acquainted with the facts and circumstances of the case. He records dying declaration at the request of Police.

Sometimes, Doctor records the cause of death as stated by the victim in the medical papers, and in some cases, Police officer records it. They are all independent witnesses, having no concern with the alleged incident, or with the accused/victim. They are not supposed to be acquainted with the facts and circumstances of the case. That is the reason why statements of such witnesses are never recorded under Section 161 of the Cr.P.C. by any Police officer in the course of investigation.” 

“18.13 … Therefore, even if the Magistrate does not repeat the words spoken by the deceased or the contents of his statement, as to the cause of his death, in our opinion, that would not cause any prejudice to the accused. ...” 

“18.15 … That being so, in our opinion, expecting the Magistrate, after referring to the statement recorded by him, to repeat and/or reproduce contents thereof, would be too technical and would create violence to logic. In criminal trials, while dealing with such evidence Courts have to be rational and realistic and need not take dogmatic and hyper technical approach. The Courts cannot ignore or turn its mind/attention away from the truth of the cause, in disregard to its duty to prevent miscarriage of justice.” 

“19.2 … Whether to accept the dying declaration as a truthful evidence, and to convict the accused on the basis thereof is a matter of appreciation of evidence and the Court, where prosecution is relying solely on the dying declaration, has to be on guard that the statement of the deceased was not as a result of tutoring, prompting, vindictive or a product of imagination, apart from the satisfaction of the Court that the deceased was in a fit state of mind and that he had clear opportunity observe and identify the accused.” 

21. We have also seen the another decision in Abdul Riyaz Abdul Bashir's case, cited supra, delivered by the Division Bench of this Court, which followed the aforestated law laid down in the case of Shivaji Tukaram Patdukhe. This Court set aside the conviction recorded by the Sessions Court based upon the dying declaration recorded by the Executive Magistrate. The conviction was exclusively based upon the dying declaration. In para 8 of the said decision, the Court has noted that Column No.8 pertains to the fact that the statement as recorded was read over to the deponent and proved to be correct as per the say of the deponent and it was left blank. The Court has held that the said column cannot be treated as an empty formality, since the deponent is not available for crossexamination, and this is a material infirmity in the dying declaration, which cannot inspire confidence of the Court, in the absence of any endorsement to that effect.

22. In the aforesaid decision of this Court, the reliance is placed upon the decision of the Apex Court in Shaikh Bakshu's case, cited supra. In Shaikh Bakshu's case, the conviction was recorded under Sections 302 and 498A read with Section 34 of the Indian Penal Code. The High Court confirmed the view based upon the dying declaration, which it found to be credible and cogent. The Apex Court set aside the decision of the High Court. The Court considered the two dying declarations, one was recorded by the Naib Tahsildar and the other was recorded by the Police Officer. The first dying declaration was recorded between 6 and 6.10 p.m., and the another dying declaration was recorded between 7.15 and 7.30 p.m.

23. In para 10 of the decision in Shaikh Bakshu's case, the Apex Court found that the police officer, who said to have recorded the statement at 6 p.m., stated that he received the intimation regarding occurrence of the incident at 6.30 p.m. Hence, recording of dying declaration prior to it became unbelievable or impossible. In respect of the second dying declaration, the Apex Court expressed that it has not been explained as to what was the necessity of a second dying declaration, if there was already a dying declaration in existence recorded by the police officer. The Apex Court accepted the finding recorded by the Court below that the condition of the deceased was very poor, as was stated by the Medical Officer, and it was deteriorating since 6.10 p.m. The Court also noted that the mother of the deceased supported the defence version. It is in this background the Court considers that there was no mention in the dying declaration that it was read over and explained to the deceased and the Trial Court and the High Court have presumed that it was read over and explained, which view was clearly unacceptable.

24. In the judgment of reference, the Division Bench in Ganpat Lad's case has expressed its disagreement with the view taken by the Division Bench the cases of Shivaji Tukaram Patdukhe and Abdul Riyaz Abdul Bashir. It holds that the dying declaration before it is trustworthy and is required to be fully relied upon to record conviction. It, however, notes that the dying declaration does not contain any endorsement that the same was read over and explained to the deceased and that the deceased admitted it to be correct. It holds that in view of the aforestated two decisions, it would not be possible to accept the dying declaration. In respect of the decision in Shaikh Bakshu's case, it holds that the Apex Court recorded several reasons to hold the dying declaration doubtful and it was neither the ratio nor an obiter of the decision that it was mandatory or the requirement of law or essential requirement for a dying declaration to contain an endorsement that the contents thereof were read over and explained to the deceased, who found it to be true and correct.

25. In the subsequent decision of the Apex Court in the case of Kanti Lal, cited supra, the conviction recorded by the Trial Court and confirmed by the High Court was for the offences punishable under Sections 304B and 498A of the Indian Penal Code. The Apex Court maintained the order of conviction and dismissed the appeal. A written dying declaration made by the deceased to the Naib Tahsildar set up in defence, was held to be unreliable by the Trial Court as well as by the High Court and, therefore, it was a plea raised before the Apex Court that accepting the dying declaration, the accused persons should have been acquitted.

26. In Kanti Lal's case, the Court appreciated the evidence on record. The Court considered that the Naib Tahsildar examined as DW 2, stated that the dying declaration bears the thumb mark of the deceased and he signed it. He deposed that at the time of recording the statement, the mother of the deceased, PW 6, was present in the hospital, but she refused to append her signature or thumb impression upon the document. The Court considers the evidence of PW 11 Dr. Wasudeo, who proved the medical report of the deceased, but did not whisper a word in regard to recording of dying declaration by DW 2 and admitted that he could not remember whether accused No.3 was present in the hospital at the time of recording the dying declaration. He categorically stated that the dying declaration was not recorded by DW 2, but the said document was prepared by his Reader. Relying upon the evidence of PW 6, the mother of the deceased, the Court holds that the alleged dying declaration was not recorded by DW 2 in the room of the hospital where the deceased was lying. It is in this background one of the factors considered was that the dying declaration did not bear the endorsement that it was read over and explained to the deceased.

27. Relying upon the two decisions of the Division Benches of this Court in the cases of Shivaji Tukaram Patdukhe and Abdul Riyaz Abdul Bashir, and the two decisions of the Apex Court in the cases of Shaikh Bakshu and Kanti Lal, the another Division Bench of this Court in the case of Vilas @ Bandu Punjabrao Misal holds in para 25 as under : 

“25. … We find that the approach adopted by the learned Judges of the Division Bench is totally unacceptable. The earlier Division Benches in the cases of Shivaji Tukaram Patdukhe and Abdul Riyaz Abdul Bashir, [2012 ALL MR (Cri) 2188] (supra) have in unequivocal terms held that unless the dying declaration is read over, explained and maker thereof admits the contents to be true, the same cannot be made a foundation for conviction. It is further to be noted that the view of the Division Bench in the case of Shivaji Tukaram Patdukhe was prior to the pronouncement of the judgment of the Apex Court in the case of Shaikh Bakshu whereas the view of the Division Bench in the case of Abdul Riyaz Abdul Bashir was after taking into consideration the law laid down by the Apex Court in the case of Shaikh Bakshu. However, the Division Bench in the case of Ganpat Bakaramji Lad (supra) has taken a view which is totally contrary to the view taken by the aforesaid two Division Benches. ...” 

In para 27, it holds as under : 

“27. Though we have serious doubt as to whether a reference was necessary, inasmuch as even an obiter dicta of the Supreme Court binds this Court, since the coordinate Bench of this Court has already referred the matter to the Hon'ble the Chief Justice for constitution of the larger Bench, we refrain from observing anything on that. Insofar as the present appeal is concerned, we find that the view that holds the field is that of the Division Benches of this Court in the case of Shivaji Tukaram Patdukhe and Abdul Riyaz Abdul Bashir and that view is that unless the dying declaration is read over and explained and the maker thereof admits the contents to be as per the version, such a dying declaration cannot be made a foundation for conviction. The present appeal, therefore, deserves to be allowed.” 

28. We now proceed to deal with the matter. Section 32(1) of the Indian Evidence Act, 1872 deals with the cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant. The same is, therefore, reproduced below : 

“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.” 

29. The aforesaid provision makes the oral as well as written dying declaration admissible in evidence. Hence, it is not the question of admissibility of it, which is involved. In respect of the dying declaration, the general principles to be kept in mind are ( i) that it is not a weaker kind of evidence and it stands on the same footing as other evidence, and (ii) that there is no absolute rule of law that it cannot form the sole basis of conviction, unless corroborated by other independent evidence. The first step required to be taken in every case, is to consider the threefold questions as under : 

(a) Whether a declarant had an opportunity to observe and identify the assailant or the accused?, 

(b) Whether a declarant was in a conscious and fit condition at the time of recording the statement?, and 

(c) Whether the Court is so convinced of the truthfulness and voluntary nature of the statement of the declarant that it inspires confidence to such an extent that it can be the sole basis of conviction? 

30. While considering the aforesaid three questions, the Court has to keep in mind the rules of caution laid down by the Apex Court in the cases of Khushal Rao and Laxman, to rest the conviction solely on the dying declaration. The rules of caution so laid down are summarized as under : 

(a) The provision has been made by the Legislature, advisedly as a matter of sheer necessity by way of an exception to the general rule that hearsay is no evidence.

(b) The statement made by the declarant is not on oath and is not subject to crossexamination to test its veracity.

(c) The declaration is not the product of tutoring, prompting, imagination or vindicative.

(d) In case of any doubt or suspicion, it should not be acted upon without corroborative evidence.

(e) Each case must be decided on its own facts keeping in view the circumstances in which the dying declaration is made.

31. It is the strong belief that a man will not meet his maker with a lie or falsehood in his mouth. It is only and only a “truth” which sits upon the lips of a dying man. This is what is meant and expressed by a famous maxim “Nemo moriturus praesumitur mentire”, which is also known as “Latern Mortem”. This is the sanctity attached to the dying declaration in the cases of Khushal Rao and Laxman, decided by the Apex Court, to which already a reference is made. If recording of the dying declaration is by an independent person, who is neither a relative nor a friend nor interested in deposing against the accused, there should be no hesitation in accepting his version on the aspects that ( a) the declarant had an opportunity to observe and identify the assailant, (b) the declarant was in a conscious and fit condition at the time of recording of statement, and (c) the declaration so recorded is truthful and voluntary in nature, unless such version is shaken in the crossexamination. In such a case, the veracity of the statements contained in the dying declaration becomes acceptable even in the absence of it being on oath and the declarant is not available for crossexamination. The absence of an endorsement in the dying declaration – (a) by a doctor regarding the fitness of mind of the declarant, or (b) that the statement was read over and explained to the declarant, who found it to be correct, cannot be the reason for holding that the dying declaration is unacceptable, if the Court is otherwise satisfied that such a dying declaration inspires confidence.

32. There is always a presumption of innocence in favour of the accused till his guilt is proved beyond reasonable doubt. This is expressed in the maxim “Praesumptiones juris sed non de jure”. The Court has, therefore, to see that the statement of the declarant is recorded at the earliest opportunity to rule out the possibility of something being put in the mouth of the declarant by way of tutoring or prompting and that the statements of the declarant are not the result of leading questions put to him or imagination. The Court has to see that the statements are consistent with the natural course of events and the other facts and circumstances brought on record. In case of any doubt, the Court has to go to the corroborative circumstances and evidence, if brought on record, to find out that they are consistent only with the hypothesis to the guilt of the accused.

33. It is not possible to lay down the nature, kind, quality and quantity of the evidence which would be required to record the subjective satisfaction based upon the objective assessment about – (a) an opportunity to the declarant to observe and identify the assailant, (b) the fitness of the mental condition, and (c) the truthfulness or the voluntary nature of the statement to inspire the confidence of the Court. The rejection of the dying declaration cannot be on the solitary instance of absence of endorsement of reading over and explaining the declaration and the declarant confirming it to be true. It will always depend upon the facts and circumstances of each case. We are clearly of the view that it will be a cumulative effect of the facts and circumstances of the case, which will determine such issues. The presence or absence of a particular fact or circumstance or a situation in a given case may become significant, whereas it may become insignificant in another case. The mode and manner of appreciation of evidence differs from case to case, though the principles of appreciation of evidence may be the same. The perception of the matter in each case and the manner of the appreciation of evidence differs from person to person. Hence, there cannot be a straitjacket formula or hard and fast rule which can be laid down.

34. We should not be construed to have laid down a law that under no circumstances the Court can look into such requirement of the dying declaration bearing an endorsement in writing. There can be numerous instances where such requirement may or may not be of significance. We dare to state few. We may consider the first example. After recording the material statements of the declarant in writing, the declarant goes in coma or collapses and becomes unfit to further recording of the statements. In such a situation, can it be said – (a) that the statements recorded lose their sanctity, and (b) that for absence of an opportunity to read over and explain the same to him to accept it as true and correct or otherwise, the same cannot be relied upon. If the answer is yes, then, in our view, it would be contrary to the sanctity attached to such statements, as has been held in the decisions of the Apex Court in the cases of Khushal Rao and Laxman. We are of the view that the absence of opportunity of reading over the statement to accept it as true or otherwise by the declarant, in such a situation, shall become insignificant to convince the Court that the statement so recorded are not truthful or voluntary.

35. We consider the aforesaid example from different point of view. If the evidence brought on record shows that after recording material part of the dying declaration in favour of the accused, put up in defence, the declarant goes in coma or collapses or becomes unfit to record further statement and the dying declaration contains an endorsement that it was read over and explained to the declarant who found it to be true and correct. In such a situation, the question arises as to the acceptability of such dying declaration. In our view, the presence of such endorsement becomes significant and will create a doubt about its acceptability.

36. One more example considered by the Full Bench of this Court in the case of Ramesh Gyanoba Kamble, cited supra, can be highlighted in this regard. It is held in the said decision that if the statement/dying declaration in writing needs to be repeated/reproduced in the words spoken by the deceased as to the cause of his death, then there would be no difference between the oral dying declaration and the written dying declaration, and in that eventuality, it would be necessary to reduce the dying declaration into writing. Such anomaly would frustrate the purpose of the Statute. In our view, therefore, it is not possible to apply different yardsticks to judge – (a) the state of mind of the declarant, and (b) the truthfulness and voluntary nature of the statement made by the declarant in the oral dying declaration and the written dying declaration.

37. Normally, a dying declaration is to be recorded in the language of the declarant. However, there is no prohibition to record such declaration in the language other than the language of the declarant and there cannot be a rejection of it on this count. If an independent witness records such declaration, the requirement of reading over and explaining it in vernacular to the declarant by another person and the declarant accepting it to be true and correct may assume great significance for its acceptability. In such a situation, the Court may be justified in looking for such endorsement in a written dying declaration.

38. Neither the provision of Section 32(1) of the Evidence Act nor any decision of the Apex Court prescribe any particular format in which a dying declaration is to be recorded. It can be oral as well as written. In case of oral dying declaration, the question of existence or insistence upon reading over and explaining the declaration to the deceased does not arise. If that be so, how can such insistence be in respect of written dying declaration? It is not the requirement of any statute or of the decision of the Apex Court that a written dying declaration must contain a column to be duly filled in that the statements of the declarant are read over and explained to him and that he found it to be true and correct. We are, therefore, unable to hold such requirement as mandatory and that in the absence of it, the dying declaration would become unreliable or unsustainable. We, therefore, subscribe to such a view taken in the referring judgment in the case of Ganpat Lad.

39. In the decisions of the Apex Court in the cases of Shaikh Bakshu and Kanti Lal, it is not the ratio laid down nor an obiter that if there is no endorsement in the written dying declaration to the effect that the contents of it were read over and explained to the declarant and that he found it to be true and correct, the declaration becomes unacceptable, untrustworthy or unsustainable.

We reproduce below, the relevant portion in para 13 of the decision in Shaikh Bakshu's case : 

“13. … The trial court, however, held the dying declaration to be credible because the Medical Officer was present when the dying declaration was recorded. There was no mention in the dying declaration that it was read over and explained to the deceased. The trial court and the High Court concluded that even though it is not so stated, it has to be presumed that it was read over and explained. The view is clearly unacceptable.” 

We also reproduce para 36 in Kanti Lal's case as under : 

“36. The abovestated facts and circumstances would prove that the alleged dying declaration, on which much reliance has been placed by the defence cannot be said to be an admissible and reliable document. The fact that the alleged dying declaration (Ext. D4) did not bear endorsement of DW 2 to the effect that it was read over and explained to the deceased, also created a doubt on its credibility and truthfulness.” 

In our view, the decision in the aforesaid paragraphs is one purely on the facts and circumstances of those cases and it is not on the question of law as to such requirement being mandatory and noncompliance of it, should make the declaration unacceptable. The decision on facts, howsoever similar, does not constitute a ratio or even an obiter.

40. For taking the aforesaid view, we derive strength from the decision of the Apex Court in case of The Regional Manager and another v. Pawan Kumar Dubey, reported in AIR 1976 SC 1766, wherein it is held in para 7 as under : 

“7. … Even where there appears to be some conflict, it would, we think, vanish when the ratio decidendi of each case is correctly understood. It is the rule deducible from the application of law to the facts and circumstances of a case which constitutes its ratio decidendi and not some conclusion based upon facts which may appear to be similar. One additional or different fact can make a world of difference between conclusions in two cases even when the same principles are applied in each case to similar facts.” 

In view of the aforesaid law laid down, in our view, the observations in the cases of Shaikh Bakshu and Kantilal, are based on the facts and would not, therefore, constitute a precedent or a ratio decidenti or even an obiter dicta to hold that bearing such an endorsement in the dying declaration is must. In our view, it would be unjust to reject the dying declaration only on such hyper technical view, which hardly of any help in the matter of criminal trials.

41. Shri P.R. Agrawal, the learned counsel for the appellant, invited our attention to para 20.5 in the decision of the Full Bench of this Court in the case of Ramesh Gyanoba Kamble, which is reproduced below : 

“20.5. If the dying declaration is recorded by a person/Magistrate/Executive Magistrate is the duty of the prosecution to specifically bring on record that the deceased had heard the statement so recorded and he/she admitted to be correct and true and puts his/her thumb impression in approval thereof. This is not mere formality but an essential part while recording a dying declaration, because the person who cannot be examined afterwards must, at least that time, should confirm correctness of the statement. (Manohar Dadarao Landage Vs. State of Maharashtra, 2000 (2) Mh.L.J. 3).” 

What we find from the aforesaid para is that it is mere reproduction of what is stated in the decision of the Division Bench of this Court in Manohar Dadarao Landage's case, referred to therein. It is not the ratio of the decision of the Full Bench. We also do not find after going through the entire decision of the Full Bench that it has confirmed the aforestated view of the decision of the Division Bench of this Court. The aforesaid observations are not to the effect that a written dying declaration must contain an endorsement that it was read over and explained to the declarant, who found it to be correct or that the absence of itm the dying declaration becomes unacceptable or unreliable.

42. In the decision of the Apex Court in the case of Paparambaka Rosamma, the Apex Court took the view that in the absence of a certificate by a doctor about the state of mind of the declarant existing at the time of recording the statement, it would be very risky to rely upon the subjective satisfaction of the Magistrate, who deposed that the injured was in a fit state of mind at the time of making the declaration. In Laxman's case, this view has been characterized by the Apex Court as the most hyper technical view and it is held that the statement of the Magistrate in such a situation shall prevail over the medical evidence. Even in the case of Kishore, decided by the Apex Court, it was held that in the facts and circumstances of the said case, there was no necessity to read once over the statement to the deceased.

43. In the decision of the Apex Court in the case of State of H.P. v. Lekh Raj, reported in (2000) 1 SCC 247, it is observed that the legal trial is conducted to ascertain the guilt or innocence of the accused. In arriving at the truth, the Courts are required to adopt rational approach and judge the evidence by its intrinsic worth and the animus of the witnesses. The hyper technicalities or figment of imagination should not be allowed to divest the Court of its responsibility of sifting and weighing the evidence to arrive at the conclusion regarding the existence or otherwise of a particular circumstances keeping in view the peculiar facts of each case, the social position of the victim and the accused, the larger interests of the society particularly the law and order problem and degrading values of life inherent in the prevalent system. The Courts are not obliged to make efforts either to give latitude to the prosecution or loosely construe the law in favour of the accused. The traditional dogmatic hyper technical approach has to be replaced by rational, realistic and genuine approach for administering justice in a criminal trial.

44. We are conscious of the fact that the different Division Benches of this Court have consistently followed the view taken by the Division Benches in the cases of Shivaji Tukaram Patdukhe, Abdul Riyaz Abdul Bashir, Raju Rambhau Patile, including the decision of the Division Bench in the case of Vilas @ Bandu Punjabrao Misal, and such judgments are also placed before us. In view of the aforesaid pronouncement by us, we are constrained to hold that these decisions and all such other decisions contrary to the view which we have been taken, do not lay down a correct position of law. We, therefore, having due regard, overrule the same and affirm the view taken by the Division Bench of this Court in the referral judgment in the case of Ganpat Lad's case, cited supra, which takes the view that it is neither the ratio nor an obiter in the decision of the Apex Court in Shaikh Bakshu's case, or for that matter even in Kanti Lal's case, that the dying declaration must contain an endorsement that it was read over and explained to the declarant, who found it to be true and correct.

45. In view of above, we answer the question referred to us as under : A dying declaration cannot be rejected merely because the same is not read over to the declarant and the declarant admitting the same to have been correctly recorded. We hold and clarify that this can be one of the factors, if it assumes significance in the facts and circumstances of any case.

46. The reference stands answered as above.