Important Points
1. If the court has even a slight doubt about the mental soundness of the author of the dying declaration it would be unsafe to base a conviction on such a statement, albeit its inadmissibility under Section 32 of the Evidence Act.
2. If the court has not put any question to the witness with reference to his statement recorded under Section 161 of the Criminal Procedure Code, it is impermissible for the court to use that statement later even for drawing any adverse impression regarding the evidence of that witness.
3. A dying declaration is not a deposition in court. It is neither made on oath nor in the presence of an accused. Its credence cannot be tested by cross-examination. Those inherent weaknesses attached to a dying declaration would not justify any initial presumption to be drawn that the dying declaration contains only the truth.

Headnote:(i) Indian Penal Code, 1860-Section 302/34 - Conviction on basis of dying declaration-Appeal against-Two dying declarations, one recorded by Magistrate and another recorded by Sub-Inspector of police-One declaration stated that husband caught her by hair in kitchen while she was preparing coffee and mother-in-law poured kerosene over her and husband set her ablaze - Another declaration came with version husband and mother-in-law poured kerosene while she was sweeping and set her ablaze-Neighbours and parents of deceased deposed that deceased told them that her clothes caught fire while cooking milk-Defence that cousins of accused tutored deceased at hospital-Material divergence between two dying declarations pertaining to occasion for launching murderous attack-Accused entitled to benefit of doubt -Conviction set aside.
       (ii) Indian Evidence Act, 1872-Section 32 - Dying declaration-Test for veracity of-No initial presumption that dying declaration contains only truth-Material divergence between two dying declarations pertaining to occasion for launching murderous attack-Doubt about mental soundness of author of dying declaration-Conviction cannot be rendered based on such dying declaration.
       Held : There can be a presumption that testimony of a competent witness given on oath is true, as the opposite party can use the weapon of cross-examination, inter alia, for rebutting the presumption. But a dying declaration is not a deposition in court. It is neither made on oath nor in the presence of an accused. Its credence cannot be tested by cross-examination. Those inherent weaknesses attached to a dying declaration would not justify any initial presumption to be drawn that the dying declaration contains only the truth. (Para 3)
       If the court has even a slight doubt about the mental soundness of the author of the dying declaration it would be unsafe to base a conviction on such a statement, albeit its inadmissibility under Section 32 of the Evidence Act. (Para 19)
       In the instant case material divergence between two dying declarations pertaining to the occasion for launching the murderous attack on the deceased did not create any impression in the minds of the learned Judges of the High Court. The High Court sidelined such a noticeable discrepancy looming large between the two different statement made by the same person. When the sphere of scrutiny of dying declaration is a restricted area, the court cannot afford to sideline such a material divergence relating to the very occasion of the crime. Either the context spoken to in one was wrong or that in the other was wrong. Both could be reconciled with each other only with much strain as it relates to the opportunity for the culprit to commit the offence. Adopting such a strain to the detriment of the accused in a criminal case is not a feasible course. One important facet of the case is that all the neighbours who gave evidence have said in one accord that two persons (Narayana Reddy and Anki Reddy-her cousins in the first degree) were brainwashing her at the hospital. The defence had persisted with the said line during cross-examination of the witnesses right from beginning. Her own parents have submitted that those two cousins had scores to settle with the appellant on account a property dispute and that those two were found in confabulation with Lakshmi Devi at the hospital. (Paras 13 & 14)
       The more important circumstance which warrants soft-pedalling of the dying declarations in Ext. P-11 and Ext. P-14 is the testimony of Lakshmi Devi’s parents (P.W. 7 Bali Reddy and P.W. 8 Thiru Palamma). Both of them deposed in the trial Court that their daughter told them at the first instance itself, when they saw her in charred flakes of her skin, that she caught fire while cooking milk. Public Prosecutor did not think it necessary to disown their evidence, and hence no attempt was made to put leading questions to those witnesses. Yet another circumstance which is capable of dissuading us from giving any credence to the version of the deceased is that her father (P.W. 7) and mother (P.W. 8) have said that Lakshmi Devi was not mentally sound. A criminal court cannot ignore the said evidence of the parents of the deceased. As the dying declaration is tested thus on the touchstones available in evidence and permitted by law, it does not stand scrutiny. It will be unsafe to convict any person on the strength of such a fragile and rickety dying declaration. (Paras 15, 19 & 20)
       (iii) Criminal Procedure Code, 1973-Sections 161 and 162-User of statement recorded u/s 161 -Interdiction u/s 162-Scope of.
       Held : Section 162 of the Code of Criminal Procedure interdicts the use of any statement recorded under Section 161 of the Code except for the limited purpose of contradicting the witness examined in the trial to whom such statement is attributed. It must now be remembered that the said procedure can be followed only when a witness is in the box. Barring the above two modes, a statement recorded under Section 161 of the Code can only remain fastened up at all stages of the trial in respect of that offence. In other words, if the court has not put any question to the witness with reference to his statement recorded under Section 161 of the Criminal Procedure Code, it is impermissible for the court to use that statement later even for drawing any adverse impression regarding the evidence of that witness. What is interdicted by the Parliament in direct terms cannot be obviated in any indirect manner. (Paras 16 & 17)
       (iv) Precedent - Extention of benefit of appeal to non-appealing co-accused - Judicious precedent set up by Supreme Court. (Para 23)

Judgment

Thomas, J.-On the fact situation of a case such as this, a judicial mind would tend to wobble between two equally plausible hypotheses - was it suicide, or was it homicide? If the dying declaration projected by the prosecution gets credence the alternative hypothesis of suicide can be eliminated justifiably. For that purpose a scrutiny of the dying declaration with meticulous circumspection is called for. It must be sieved through the judicial cullendar and if it passes through gauzes it can be made the basis of a conviction, otherwise not.

2. The traditional assumption that a dying person would not stoop to speak falsehood is now sought to be played down by the counsel for the appellant on the premise that it is a pedantic notion as the said assumption is fraught with the danger of insulating even a vengeful statement made by a dying person. Learned counsel submitted that at any rate the dying declaration projected by the prosecution in this case would not stand the test of credibility.

3. There can be a presumption that testimony of a competent witness given on oath is true, as the opposite party can use the weapon of cross-examination, inter alia, for rebutting the presumption. But a dying declaration is not a deposition in court. It is neither made on oath nor in the presence of an accused. Its credence cannot be tested by cross-examination. Those inherent weaknesses attached to a dying declaration would not justify any initial presumption to be drawn that the dying declaration contains only the truth.

4. In Tapinder Singh v. State of Punjab1 this Court, by following an earlier decision in Kushal Rao v. State of Bombay2 has reminded the courts that a dying declaration should be subjected to very close scrutiny. Following observations were also made, by this Court:

“The dying declaration is a statement 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 and it becomes relevant under Section 32(1) of the Indian Evidence Act in a case in which the cause of that person’s death comes into question. It is true that a dying declaration is not a deposition in court and it is neither made on oath nor in the presence of the accused. It is, therefore, not tested by cross-examination on behalf of the accused. But a dying declaration is admitted in evidence by way of an exception to the general rule against the admissibility of hearsay evidence, on the principle of necessity. The weak points of a dying declaration just mentioned merely serve to put the court on its guard while testing its reliability, imposing on it an obligation to closely scrutinise all the relevant attendant circumstances.”

5. Appellant in this case (Dandu Lakshmi Reddy) and his mother Narayanamma (who is now reported to be aged above 70) were convicted under Section 302 read with Section 34 of the Indian Penal Code only on the strength of dying declarations given by Lakshmi Devi (the deceased) on 7th October, 1997. Both the accused were sentenced to imprisonment for life. They together approached the High Court of Andhra Pradesh challenging the conviction and sentence but in vain. Appellant’s mother Narayanamma, in her old age, preferred to surrender to her fate by languishing in jail without approaching this Court, but her son-the appellant-did not lose heart and he filed this appeal by special leave.

6. Lakshmi Devi, the deceased, was given in marriage to the appellant about 8 years before her death. But they had no children. Prosecution case is the following:

The husband and mother-in-law of the deceased were ill-disposed to her as she was unable to give birth to a child. She was subjected to harassment and threats. They used to scare her by saying that one day she would be put in a well or a canal and thereafter the appellant would be free to remarry. On the morning of the ill-fated day (7.10.1974) appellant caught hold of her hair from behind, her mother-in-law doused kerosene on he

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1999 Supreme(SC) 869

Cases Referred (2)