LexUTTAM versus THE STATE OF MAHARASHTRA
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A B C D E F G H 863 [2022] 5 S.C.R. 863 863 UTTAM v. THE STATE OF MAHARASHTRA (Criminal Appeal No. 485 of 2012) JUNE 02, 2022 [B. R. GAVAI AND HIMA KOHLI, JJ.] Evidence Act, 1872 – Multiple dying declarations – Admissibility, evidentiary value of – Penal Code, 1860 – s.302 – Appellant convicted u/s.302 for having murdered his wife by pouring kerosene on her and setting her on fire, by relying on two dying declarations of the deceased recorded in writing by PW-9 (Special Executive Magistrate) and PW-14 (IO) and the other two being oral and communicated by the deceased to PW-2 (her father) and PW- 12 (mediator who had arranged the marriage of the parties) – Appeal filed by appellant, dismissed by High Court discarding the written dying declarations but giving credence to the testimony of PW-2 & PW-12 – On appeal, held: In cases where the Court finds that there exist more than one dying declarations, each one of them must be examined with care and caution and only after satisfying itself as to which of the dying declarations appears to be free from suspicious circumstances and has been made voluntarily, should it be accepted – However, if a dying declaration suffers from some infirmity, it cannot be the sole basis for convicting the accused – In the present case, once the High Court discarded the two written dying declarations of the deceased due to several glaring lacunae in the procedure adopted by PW-9 & PW-14 in recording the said statement, then the appellant could not have been indicted on the oral testimony of PW-2 and PW-12, both of whom were interested witnesses and whose evidence runs contrary to the versions of the deceased recorded by PW-9 and PW-14 – Prosecution failed to discharge the obligation of leading trustworthy corroborative evidence to back-up the testimonies of PW-2 and PW-12 – Impugned judgment set aside – Appellant granted benefit of doubt, acquitted. Evidence Act, 1872 – ss.32, 60 – Dying declaration – s.32, an exception to general rule contained in s.60 – Held: s.32 is an exception to the general rule contained in s.60 that ‘hearsay A B C D E F G H 864 SUPREME COURT REPORTS [2022] 5 S.C.R. evidence is inadmissible’ and only when such an evidence is direct and is validated through cross-examination, is it considered to be trustworthy. Evidence Act, 1872 – Dying declaration recorded by the Magistrate – Credibility of – Discussed. Allowing the appeal, the Court HELD: 1.1 Dying declaration is the last statement that is made by a person as to the cause of his imminent death or the circumstances that had resulted in that situation, at a stage when the declarant is conscious of the fact that there are virtually nil chances of his survival. On an assumption that at such a critical stage, a person would be expected to speak the truth, courts have attached great value to the veracity of such a statement. Section 32 of the Indian Evidence Act, 1872 states that when a statement is made by a person as to the cause of death, or as to any of the circumstances which resulted in his death, in cases in which the cause of that person’s death comes into question, such a statement, oral or in writing made by the deceased victim to the witness, is a relevant fact and is admissible in evidence. It is noteworthy that the said provision is an exception to the general rule contained in Section 60 of the Evidence Act that ‘hearsay evidence is inadmissible’ and only when such an evidence is direct and is validated through cross-examination, is it considered to be trustworthy. In cases involving multiple dying declarations made by the deceased, the question that arises for consideration is as to which of the said dying declarations ought to be believed by the Court and what would be the guiding factors for arriving at a just and lawful conclusion. The problem becomes all the more knotty when the dying declarations made by the deceased are found to be contradictory. Faced with such a situation, the Court would be expected to carefully scrutinize the evidence to find out as to which of the dying declarations can be corroborated by other material evidence produced by the prosecution. Of equal significance is the condition of the deceased at the relevant point in time, the medical evidence brought on record that would indicate the physical and mental fitness of the deceased, the scope of the close relatives/family members having influenced/tutored the deceased and all the other attendant circumstances that would A B C D E F G
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