JAISHREE ANANT KHANDEKAR versus STATE OF MAHARASHTRA

Citation: [2009] 4 S.C.R. 992 · Decided: 23-03-2009 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Dismissed

Judgment (excerpt)

[2009) 4 S.C.R. 992 
A 
JAISHREE ANANT KHANDEKAR 
v 
STATE OF MAHARASHTRA 
Criminal Appeal No. 1094 of 2006 
B 
MARCH 23, 2009 
[5.8. SINHA AND ASOK KUMAR GANGULY, JJ.] 
Evidence: Dying declaration - Admissibility of -
~ 
Conviction under s.302 /PC based on dying declarations -
~ 
Justification of - On facts, held: There were no infirmities in 
c the dying declarations - Facts in all the declarations matched 
in essential particulars - Evidence in declaration was 
corroborated - There was a/so endorsement that it was read 
over and explained to the declarant - Even doctor opined that 
she was conscious enough to make the declaration -
D Conviction based on dying declarations was justified - Maxim 
*-
- "nemo moriturus paesumitur mentire - Penal Code, 1860 -
s.302. 
The question which arose for consideration in the 
E 
instant appeal was whether the courts below were justified 
in convicting the appellant under s.302 IPC on the basis 
of dying declaration of the victim. 
Dismissing the appeal, the Court 
t- -
HELD: 1. The law relating to dying declaration is an 
F exception to the hearsay rule. Admissibility of dying 
declaration is based on the doctrine of necessity, apart 
from an implicit faith in the intrinsic truthfulness of human 
character at the dying moments of one's life. In many 
cases, victim is the only eye witness to a crime on him/ 
G her and in such situation exclusion of the dying 
,...,.~ 
declaration, on hearsay principle, would tend to defeat 
ends of justice. American Law on dying declaration also 
proceeds on the twin postulates of certainty of death 
leading to an intrinsic faith in truthfulness of human 
H 
992 
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JAISHREE ANANT KHANDEKAR V. 
993 
STATE OF MAHARASHTRA 
character and the necessity principle. On certainty of 
death, the same strict test of English Law is applied in 
American Jurisprudence. The core concept is that the ex-
pectation of death must be absolute and not susceptible 
to doubts and there should be no chance of operation of 
worldly motives. [Paras 33, 34] (1003-E-H; 1004-A] 
R. v. Woodcock (1789) 1 Lea. 502 and Nembhard v. The 
Queen 1982 (1) The ·All England Law Reports 183 (Privy 
Council) - referred to . 
Wigmore on Evidence, page 233-234 -:- referred to. 
2.1. Under Indian Law, the declaration is relevant 
even if it is made by a person, who may or may not be 
under expectation of death, at the time of declaration. 
However, the declaration must relate to any of the 
circumstances of the transaction which resulted in his 
death. Going by the wider test and considering the facts 
of case, the dying declarations on which High Court 
placed reliance were admissible. The dying declarations 
in this case can be relied upon, on the maxim of "nemo 
moriturus paesumitur mentire - which means "a man will 
not meet his Maker with a lie in his mouth." [Paras 35, 37 ,44, 
45] (1004-B-C; 1004-F-G; 1007-A-B] 
Sanjay v. State of Maharashtra (2007) 9 SCC 148 - held 
inapplicable. 
Mohan Lal and Ors v. State of Haryana (2007) 9 SCC 
151.,- distinguished. 
Ravikumar alias Kutti Ravi v. State of Tamil Nadu (2006) 
9 sec 240 - relied on. 
Manibe'n wlo Danabhai Tulshibai Maheria v. State of 
Gujarat (2007) 10 SCC 362 - referred to. 
Sham Shankar Kankaria v. State of Maharashtra (2006) 
13 sec 165 - relied on. 
A 
B 
c 
D 
E 
F 
G 
H 
994 
SUPREME COURT REPORTS 
(2009] 4 S.C.R. 
A 
2.2. If there are serious infirmities in the dying 
I 
declaration, namely, discrepancy as to the place of 
occurrence, as to the burn marks and also discrepancy 
as to how the deceased was brought to the hospital, 
conviction on the basis of such a dying declaration is not 
B sustainable. In the instant case, there are no such discre-
pancies. Facts in all the five dying declarations matched 
in their essential particulars. In some of the dying declara-
tions given by the victim, the required rule of caution was 
+ 
followed and the statement given in the dying declaration 
c was fairly consistent. The victim was physically in a 
position to give the declaration. Doctors also opined that 
the declarant was conscious enough to make the 
declaration. There was also endorsement that the same 
was read over and explained to the declarant. Besides, 
D the evidence of PW-4 in substantial part corroborates the 
-of, -
facts stated in the dying declaration. Therefore, the 
statement in dying declaration is not uncorroborated. 
[Paras 22, 46, 47, 55, 56) [1000-A-B; 1007-A-E; 1011-B-D] 
Shaikh Ba

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