IMPORTANT POINT
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.

JUDGMENT

R.K. Deshpande, J.—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 t