KALAWATI W/O DEVAJI DHOTE versus STATE OF MAHARASHTRA

Citation: [2009] 3 S.C.R. 187 · Decided: 11-02-2009 · Supreme Court of India · Bench: ARIJIT PASAYAT, A.K. GANGULY · Disposal: Dismissed

Judgment (excerpt)

[2009] 3 S.C.R. 187 
_, 
KALAWATI W/O DEVAJI DHOTE 
A 
v. 
STATE OF MAHARASHTRA 
(Criminal Appeal No. 267 of 2009) 
FEBRUARY 11, 2009 
B 
[DR. ARIJIT PASAYAT AND ASOK KUMAR 
GANGUL Y, JJ.] 
• 
Penal Code, 1860: 
c 
-
S.302 - Murder - Trial Court convicting accused on the 
basis of evidence ofa child witness and the dying declaration 
- Affirmed by High Court - On appeal, Held: In view of the 
credible and cogent evidence of the child witness and the 
dying declaration, no merit in the appeal. 
D 
"" 
The appellant was convicted by the Trial Court for 
offence under s.302 IPC, relying on the evidence of a child 
witness and the dying declaration. The conviction was 
affirmed by the High Court. Hence the appeal. 
E 
Dismissing the appeal, the Court 
' 
HELD: 1.1 Though a dying declaration is entitled to 
~ 
great weight, it is worthwhile to note that the accused has 
no power of cross-examination. Such a power is 
F 
essential for eliciting the truth as an obligation of oath 
could be. This is the reason the Court also insists that 
the dying declaration should be of such nature as to 
inspire full confidence of the Court in its correctness. The 
Court has to be on guard that the statement of the G 
deceased was not as a result of either tutoring or 
j 
prompting or a product of imagination. The Court must 
\ 
be further satisfied that the deceased was in a fit state of 
mind after a clear opportunity to observe and identify the 
187 
H 
188 
SUPREME COURT REPORTS 
(2009] 3 S.C.R. 
A assailant. Once the Court is satisfied that the declaration 
was true and voluntary, undoubtedly, it can base its 
conviction without any further corroboration. It cannot be 
laid down as an absolute rule of law that the dying 
declaration cannot form the sole basis of conviction 
B unless it is corroborated. The rule requiring corroboration 
is merely a rule of prudence. [Para 6] [194-C] 
1.2. The principles governing dying declaration, are: 
(i) 
There is neither rule of law nor of prudence 
C 
that dying declaration cannot be acted upon 
without corroboration. 
(ii) 
If the Court is satisfied that the dying 
declaration is true and voluntary it can base 
0 
conviction on it, without corroboration. 
E 
F 
G 
(iii) 
The Court has to scrutinize the dying 
declaration carefully and must ensure that the 
declaration is not the result of tutoring, 
prompting or imagination. The deceased had 
an opportunity to observe and identify the 
assailants and was in a fit state to make the 
declaration. 
(iv) Where the dying declaration is suspicious, it 
should not be 
acted 
upon 
without 
corroborative evidence. 
(v) 
Where the deceased was unconscious and 
could never make any dying declaration, the 
evidence with regard to it is to be rejected. 
(vi) 
A dying declaration which suffers from 
infirmity cannot form the basis of conviction. 
(vii) Merely because a dying declaration does 
H 
contain the details as to the occurrence, it is 
) 
I ' 
KALAWATI W/O DEVAJI DHOTE v. STATE OF 
189 
MAHARASHTRA 
not to be rejected. 
A 
(viii) Equally, merely because it is a brief statement, 
it is not to be discarded. On the contrary, the 
shortness of the statement itself guarantees 
truth. 
B 
~ 
(ix) Normally 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 eye-witness 
said that the deceased was in a fit and c 
t 
conscious state to make the dying declaration, 
the medical opinion cannot prevail. 
' 
(x) 
Where the prosecution version differs from the 
version as given in the dying declaration, the 
D 
said declaration cannot be acted upon. 
(xi) 
Where there is more than one statement in the 
nature of dying declaration, one first in point 
of time must be preferred. Of course, if the 
E 
plurality of dying declarations could be held to 
be trustworthy and reliable, it has to be 
\ . 
accepted. [Para 6] [194-G; 196-A] 
• 
Smt. Paniben v. State of Gujarat AIR 1992 SC 1817; 
Munnu Raja & Anr. v. The State of Madhya Pradesh (1976) 
F 
2 SCR 764; State of Uttar Pradesh v. Ram Sagar Yadav and 
Ors. AIR 1985 SC 416; Ramavati Devi v. State of Bihar AIR 
1983 SC 164; K. Ramachandra Reddy and Anr. v. The 
Public Prosecutor AIR 1976 SC 1994; Rasheed Beg v. State 
of Madhya Pradesh 1974 (4) SCC 264; Kaka Singh v. State 
G 
l 
of M.P. AIR 1982 SC 1021; Ram Manora th and Ors. v. State 
' 
of U.P. 1981 (2) SCC 654; State of Maharashtra v. 
Krishnamurlh1 Laxm

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